In re Marriage of Evans
| Decision Date | 31 March 2021 |
| Docket Number | No. 2 CA-CV 2020-0090-FC,2 CA-CV 2020-0090-FC |
| Parties | IN RE THE MARRIAGE OF JUSTIN EVANS, Petitioner/Appellant, and KAYLA JOYCE EVANS, Respondent/Appellee. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Cochise County
The Honorable Timothy B. Dickerson, Judge
AFFIRMED
Justin Evans, Hereford
Pahl & Associates, Tucson
By Danette R. Pahl
Counsel for Respondent/Appellee
MEMORANDUM DECISIONVice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Espinosa and Judge Eckerstrom concurred.
¶1 Justin Evans appeals from the trial court's decree of dissolution of marriage designating Kayla Evans as the primary residential parent of the parties' minor son, ultimately asking us to grant him "[p]hysical custody of his son . . . and/or . . . a new trial with a new judge outside of Cochise County." For the reasons stated below, we affirm.
¶2 We view the facts in the light most favorable to affirming the trial court's ruling. See In re Marriage of Downing, 228 Ariz. 298, ¶ 2 (App. 2011). Justin and Kayla were married in 2016, and have one child together, E., born in October 2017. In November 2018, Kayla moved to Kansas, taking E. with her. Justin subsequently filed for dissolution in Arizona. The court issued temporary orders providing Justin with monthly parenting time centered around Kayla's monthly trips to Arizona for duties related to her service in the Army Reserves. In April 2020, following a two-day bench trial, the court entered a decree of dissolution in which it made findings pursuant to A.R.S. §§ 25-403, 25-403.01, and 25-403.03, designating Kayla as E.'s primary residential parent. Justin appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
¶3 Justin first argues the trial court "did not properly consider or weigh all of the admitted evidence," "abused [its] discretion depriving [him] of a fair trial," and "err[ed] in the rejection of evidence." Specifically, Justin contends the court erred by: (1) considering evidence of his alcohol use and ignoring evidence that Kayla also used alcohol; (2) improperly weighing and ignoring evidence related to a domestic violence incident at a campsite in 2018; (3) admitting and improperly weighing evidence of a phone call between Justin and his former wife; (4) declining to admit evidence he had not committed child abuse in "over disciplining" W., his son from a previous marriage, using his discipline of W. "unfairly against [him]" in determining custody of E., including misquoting the Bible andholding his religious beliefs about discipline against him;1 and (5) failing to enforce its visitation orders, ignoring evidence related to an order of protection issued in Kansas, improperly weighing a recorded phone call between Justin and Kayla in which "Kayla was lying to him about having moved to Kansas and having a house in Sierra Vista," and ignoring "Justin's testimony and lack of proof that [he] was harassing Kayla."
¶4 An opening brief in this court must contain an argument with "[a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies." Ariz. R. Civ. App. P. 13(a)(7)(A). "We generally decline to address issues that are not argued adequately [and] with appropriate citation to supporting authority." In re J.U., 241 Ariz. 156, ¶ 18 (App. 2016).
¶5 Justin has failed to comply with the rules of appellate procedure to such an extent that he has waived these arguments on appeal.2 See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) ().3 He doesnot develop any discernable legal argument, nor does he cite to any "relevant supporting authority" to establish the trial court erred in these instances. Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007); see Ariz. R. Civ. App. P. 13(a)(7)(A). Indeed, Justin appears to rely on Rule 83, Ariz. R. Fam. Law P., a procedural rule which provides that the trial court "may on its own or on motion alter or amend all or some of its rulings" if it "did not properly consider or weigh all of the admitted evidence" or if it "err[ed] in the admission or rejection of evidence." This rule lends no support to his arguments on appeal. In any event, Justin primarily asks us to reweigh the evidence, which we will not do. See Hurd v. Hurd, 223 Ariz. 48, ¶ 16 (App. 2009). Moreover, we presume the court considered all admitted evidence. See Fuentes v. Fuentes, 209 Ariz. 51, ¶ 18 (App. 2004).
¶6 Justin asserts both Kayla and her attorney committed misconduct in this case. His primary allegations against Kayla appear to be that she purposely kept E. from him, "misled the court [by] saying she was transferring Reserve units from Arizona to Kansas," and provided false testimony during trial. Additionally, Justin alleges that Kayla's attorney committed misconduct, including that she "advised Kayla to keep [E.] from Justin by using semantics in the judge's order and mis-quoting the judge during the trial," used Justin's attorney's personal domestic violence case "to detour the deputies from Kayla" when Justin reported custodial interference, and falsely stated in the final decree that judgment was entered in favor of Kayla "due to [Justin] over disciplining the minor child." He also argues Kayla and her attorney "made up that [he] had a gun . . . [and was] sitting in his truck threatening suicide to persuade the court" in Kayla's favor. And, he appears to contend a conflict of interest was created when his previous attorney withdrew during the case and went to work for the law firm representing Kayla in the dissolution proceeding.
¶7 Again, Justin fails to develop legal arguments as to why he is entitled to the relief he seeks and cites only Rule 83, which describes the procedure by which a trial court may alter or amend a judgment, and Rule 85, Ariz. R. Fam. Law P., which describes the procedure and circumstances under which a trial court may relieve a party from a judgment. Justin did not file a motion pursuant to either of these rules below, and they do not support his arguments on appeal. Based on his failure to comply with Rule 13(a)(7)(A), we consider these arguments waived. See In re J.U., 241 Ariz. 156, ¶ 18; Ritchie, 221 Ariz. 288, ¶ 62.
¶8 Justin further argues he was deprived of a fair trial based on "misrepresentation" by his own attorney. Specifically, he asserts his attorney's arrest for domestic violence in March 2019 resulted in media attention that negatively affected his case. Further, he contends, his attorney was "often distracted and emotional and missed crucial steps," including petitioning for a "physiological evaluation for Kayla amid the [d]omestic [v]iolence and emotional trauma she encountered" and a "custody evaluation of [E.] to help the court better establish [his] best interest[s]." He also alleges his attorney "left out pertinent questions for expert witnesses" and failed to make Justin's requested changes to the dissolution decree. However, because Justin again fails to make legal arguments "with appropriate citation to supporting authority," In re J.U., 241 Ariz. 156, ¶ 18, his arguments are waived for failure to comply with Rule 13(a)(7)(A).
A.R.S. § 25-403 Factors
¶9 Next, Justin challenges the trial court's findings as to several factors under § 25-403(A), ultimately contending it is in E.'s best interest "to be with his father and brother in Arizona."4 We will not overturn the court's decision regarding parenting time absent a clear abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, ¶ 3 (App. 2002). "An abuse of discretion occurs when the court commits an error of law in reaching a discretionary decision," DeLuna v. Petitto, 247 Ariz. 420, ¶ 9 (App. 2019), or when "the record, viewed in the light most favorable to upholding the trial court's decision, is 'devoid of competent evidence to support' the decision," Little v. Little, 193 Ariz. 518, ¶ 5 (1999) (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)). As noted, we do not reweigh the evidence on appeal. See Hurd, 223 Ariz. 48, ¶ 16. Because the trial court is in the best position to determine issues related to child custody, see Black v. Black, 114 Ariz. 282, 284 (1977), we defer to its assessment of witness credibility and the weight given to conflicting evidence, see Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13(App. 1998). We also uphold its factual findings unless they are clearly erroneous. See Ariz. R. Fam. Law P. 82(a)(5).
¶10 Section 25-403(A) provides that the trial court shall determine parenting time "in accordance with the best interests of the child." The statute enumerates eleven factors for the court to consider, including: the parents' past, present, and future relationship with the child; whether the child is adjusting to home and school; the "mental and physical health of all individuals involved"; the likelihood the parent will "allow the child frequent, meaningful and continuing contact with the other parent"; whether a parent "intentionally misled the court" to cause delay, increase the cost of litigation, or persuade the court to rule in their favor; and whether there have been acts of domestic violence or child abuse. Id. In a contested case, the court must make "specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child." § 25-403(B)....
To continue reading
Request your trial