Taliaferro v. Taliaferro

• Decision Date: 19 November 1996
• Docket Number: CA-CV,No. 1,1
• Citation: 188 Ariz. 333,935 P.2d 911
• Parties: , 230 Ariz. Adv. Rep. 38 In re the Marriage of: Clinton Charles TALIAFERRO, Petitioner-Appellant, and Robert A. Hirschfeld, Real Party in Interest, Non-Party Appellant, v. Johanna Antonia TALIAFERRO, Respondent-Appellee. 93-0547.
• Court: Arizona Court of Appeals

Page 911

935 P.2d 911

188 Ariz. 333, 230 Ariz. Adv. Rep. 38

In re the Marriage of: Clinton Charles TALIAFERRO, Petitioner-Appellant and

Robert A. Hirschfeld, Real Party in Interest, Non-Party Appellant, v. Johanna Antonia TALIAFERRO, Respondent-Appellee.

No. 1 CA-CV 93-0547.

Court of Appeals of Arizona Division 1, Department A.

Nov. 19, 1996.

Review Denied April 29, 1997.

[188 Ariz. 334] Robert A. Hirschfeld, Attorney ¹, Phoenix, for Petitioner-Appellant and In Propria Persona.

Martin D. LaPrade, Phoenix, for Respondent-Appellee.

Phoenix Arizona Civil Liberties Union by Walter Cheifetz, Phoenix, Amicus Curiae.

NOYES, Judge.

Clinton Taliaferro ("Father") appeals from a decree of dissolution of marriage. His attorney, Robert A. Hirschfeld, appeals from a $20,000 sanction. In a previous opinion, we vacated both the decree and the sanction on grounds that the trial court had erroneously denied Father's notice of change of judge. Taliaferro v. Taliaferro, 184 Ariz. 613, 911 P.2d 619 (App.1995). The supreme court then vacated our decision on grounds that "rulings by noticed judges on the propriety of the notice are reviewable only by way of special action relief." Taliaferro v. Taliaferro, 186 Ariz. 221, 222, 921 P.2d 21, 22 (1996). The case was remanded to this Court for "consideration of all other issues properly raised on appeal." Id. at 224, 921 P.2d at 24. Having considered those issues, we now affirm the decree but vacate the $20,000 sanction on grounds that it was excessive and, therefore, an abuse of discretion. We remand for imposition of a just and appropriate sanction on Hirschfeld for the cited violation.

We have jurisdiction of the appeal pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 12-2101(A) (1994).

CUSTODY and VISITATION

The parties were married in August 1987 and their son was born in May 1988. The marriage was dissolved in August 1993, following years of hostilities and a six-day trial in which each party tried to prove that the other was emotionally unstable, an abusive spouse and an unfit parent. Father was 51 years old and disabled, Mother was 29 years old and employed, and Child was 5 years old and emotionally damaged by the behavior of his parents.

Father argues on appeal that the trial court abused its discretion in awarding custody to Mother and supervised visitation to Father. The trial court's findings and conclusions on the custody issue are supported by the record and are as follows:

9) Joint Custody is not in the minor child's best interest for the following reasons:

a) The total lack of the parents' ability to cooperate in the decision-making process concerning the child;

b) The acts of domestic violence committed by the Petitioner [Father] in the presence of [Child and step-child].

c) The ongoing "war" between the parties; and

d) Neither of the parties is likely to allow the child frequent and continuing contact with the other parent.

10) The Petitioner is not fit to have sole custody of the minor child for the following reasons:

a) The Petitioner is an alcoholic with severe emotional problems.

3) In November of 1992 the Petitioner believing he was having a heart attack, drove to the hospital with the minor child in the automobile. At the hospital a blood alcohol test was performed. The reading was .258.

5) The [May 1993] suicide attempt was because Petitioner believed he was going to lose custody of his child; and

6) The Petitioner has been verbally abusive to his son and his step-son.

12. [Mother] is a fit and proper person to have the care, custody and control of [Child].

13. The Court is not unmindful of the fact that both parents have wrongfully caused the minor child to suffer emotional trauma, and that both parents are in need of hostility reduction counseling.

14. In Exhibit 2, the records of Thunderbird Samaritan Hospital, the following statement is noted: "... he [Father] is denying any suicidal thoughts to me, however, he has been on the telephone [with his attorney] and his sitter in the room reported that the patient stated that he needed a gun and was crying and was agitated...." [Report of Psychiatric Consultation, dated May 25, 1993.]

Because of the Petitioner's habits of driving in an intoxicated condition with the minor child in the automobile and the potential for violence, it would be in the minor child's best interest that the Petitioner be granted supervised visitation....

Father argues on appeal that the trial court should have awarded joint custody as recommended by Pat Ferguson, who studied this family and found neither parent fit for sole custody. Ferguson has a Master's degree in Sociology, Marriage and Family Life, was a custody supervisor and assistant director of Conciliation Court for twelve years, and has been in private practice for six years. She did recommend joint custody, but only to "balance the power" and only because she believed that whichever parent received sole custody would deprive the other of any contact with the child. Ferguson's written report, in part, is as follows:

SYNOPSIS

... During the course of this evaluation Mr. and Mrs. Taliaferro have continued to wage war. Both claim to have been physically assaulted by the other. Mail has been stolen, property damaged, threats made, allegations of child physical and sexual abuse have been made, phone messages intercepted and deliberate programming of [Child] was done by both parents.

....

Since [Child] has been in the custody of Johanna, Clint has not received visitation with [Child] except for one visitation held at my office....

Both parents take good physical care of [Child], but seemingly they haven't a clue as to what is needed for [his] emotional and psychological well-being.

....

Both Johanna and Clint see themselves as victims and take little responsibility for their own actions in continuing the battle. Hopefully, the damage done to [Child] is not irreparable.

RECOMMENDATIONS

I do not consider either parent capable of being the sole custodial parent, therefore, I am recommending joint custody in the hope that this will balance the power struggle between the parents.

....

The parents should receive hostility reduction counseling. If the battle continues, the parent causing the first problem should lose custody and have the most minimum visitation possible.

In her testimony, Ferguson referred to the

deplorable behavior that occurred the entire year that I saw these people. [Child] was increasingly under stress.... I see this couple as being locked in a very heavy power struggle to have control. And unfortunately the only thing they have to use against one another is their child ... and I think the power struggle has taken priority over what is in the best interests of the child.... This child is going to be in therapy until he's 35 if we can't get the fighting stopped.

....

You know, they are both good parents in their own way and the child loves both of them. That's not the problem. The problem is their continued infighting. It doesn't make any difference to me who raises the child. This is a neat little boy that I would like to have a future.

Ferguson also found that, although each parent was accusing the other of threats, "I do not think that either one of these parents presents a danger physically to [Child] at all." When the trial court asked Ferguson for a sole custody recommendation, she stated: "I think if you could safeguard by your order that visitation to the other parent never be interrupted or changed or withheld, probably Johanna is more rational than Clint is."

The trial court acted within its discretion in declining to order "balance of power" joint custody and in deciding to award sole custody to Mother with supervised visitation to Father.

FINANCIAL ORDERS

Father argues that he should have been awarded spousal maintenance and that the trial court erroneously attributed to him income from his mother, who had paid $24,000 on the parties' house, made all mortgage payments ($800 per month), bought much of the furniture, and paid over $40,000 for Father's attorney's fees in this case. The court also found that, although Father received disability benefits of $425 per month, "he is capable of gainful employment." The court attributed gross monthly income of $1,425 to Father and $1,215 to Mother. Neither party was awarded spousal maintenance. Father was ordered to pay child support of $383 per month.

Father had problems from a 1967 plane crash and a 1985 industrial accident. He had three back surgeries in the early 1980's, has a "foot drop," and has been on Social Security disability since 1988 because he cannot stand or sit for long. Father also has a college degree. On August 3, Father testified that "I have never not tried to find employment," and he blamed his inability to find a job on "unspoken age bias." Although Father testified on August 5 that he did not feel capable of being employed, the record supports the trial court's finding that Father was employable. Father had prior experience in accounting and computer programming and a fairly solid work history since 1965. We sustain the child support award, not on grounds that Father's 80-year-old mother was going to support him, but on grounds that the record supports the conclusion that Father was capable of producing gross income of $1,425 per month. For these same reasons, we affirm the spousal maintenance decision.

If, despite Father's best efforts, the trial court's 1993 opinion of Father's employability has been disproved by time and circumstance, Father's remedy is to seek modification of his support obligation. The Decree orders that "every twenty-four (24) months the parties shall exchange financial information such as tax returns, financial affidavits and earnings statements."

Father claims entitlement to compensation because Mother dropped him from her health insurance. Because Father receives Medicare benefits when necessary, the trial...