Walliser v. May
| Decision Date | 03 April 2012 |
| Docket Number | 1 CA-CV 11-0039,1 CA-CV 11-0433 |
| Parties | In re the Matter of: DEBORAH LYNN WALLISER, Petitioner/Appellant, v. ALLEN RAYMOND MAY, Respondent/Appellee. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in La Paz County
The Honorable Michael J. Burke
AFFIRMED
Deborah Lynn Walliser
Aptos, California
Law office of John C. Churchill
By John C. Churchill
Julie A. LaBenz
Attorneys for Respondent/Appellee
Parker
¶1 Deborah Lynn Walliser (Mother) appeals from the order awarding sole legal custody of the parties' minor child to Allen Raymond May (Father) and the denial of her post-judgment motionfor relief from judgment and motion for temporary order modifying child custody. For the following reasons, we affirm.
¶2 In a 2008 consent decree, the parties agreed to share joint legal custody and give Mother primary physical custody of their minor child. The parties co-parented without incident until July 2010. On July 13, 2010, the parties had a disagreement over child care that escalated to a physical confrontation. Following the July 13 incident, Mother obtained an order of protection after an ex parte hearing. The court entered a temporary emergency custody order stating that Father could not exercise parenting time pending a hearing on September 17, 2010. Mother moved to California two days later and registered this order in a California court.
¶3 Father filed a motion for relief from the temporary order/motion for temporary order modifying custody and parenting time, both without notice, and asked the court to accelerate the September 17th hearing. He served this motion on Mother by mail to her Parker address. The court set the hearing for August 25, 2010 pursuant to Rule 48(B), Arizona Rules of Family Law Procedure. A copy of the order setting this hearing date was mailed to Mother's Arizona address.
¶4 Mother was not present at the hearing on temporary orders on August 25, 2010.1 The court vacated the temporary emergency custody order and ordered Mother to return the child to Arizona within ten days. Father was permitted to exercise his parenting time as set forth in the decree and awarded his attorneys' fees.2
¶5 In September 2010, both parents filed petitions for custody of the child: Father in Arizona and Mother in California. The Arizona and California judges conferred and determined that Arizona had home state jurisdiction pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).
¶6 At the November 2, 2010 hearing, the court interviewed the child in chambers. After the hearing, the court awarded Father sole legal custody and primary physical custody of the child. Mother was allowed to exercise "reasonable" parenting time in Arizona. Mother appealed from this order awarding custody to Father.
¶7 There were subsequent motions and orders regarding Mother's exercise of parenting time. Mother also filed a motion for new judge, which was denied.
¶8 Mother then filed a motion for relief from the custody order and a motion for temporary order modifying custody. After a one-day hearing, the court denied Mother's motions. Mother filed a timely notice of appeal from the denial of her request for relief from the custody orders and the denial of her petition for temporary custody modification. These two appeals were consolidated.
¶9 We have jurisdiction over all orders except the denial of Mother's motion for temporary custody. See Arizona Revised Statutes (A.R.S.) section 12-2101 (Supp. 2011). We have a duty to examine our own jurisdiction. See Riendeau v. Wal-Mart Stores, Inc., 223 Ariz. 540, 541, ¶ 4, 225 P.3d 597, 598 (App. 2010). A temporary custody order is not appealable pursuant to A.R.S. § 12-2101. See DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 337, 890 P.2d 628, 632 (App. 1995). Because the denial of a temporary order is not appealable under § 12-2101, we lack jurisdiction to consider it.
¶10 Mother argues that the court erred in awarding sole legal custody to Father because the evidence established that there was "significant" domestic violence. Father argues Mother waived this argument by failing to object below. Mother asked the trial court to apply the domestic violence presumption. Therefore, we find no waiver.
¶11 The trial court shall not order joint child custody if it finds "significant domestic violence" or "a significant history of domestic violence." A.R.S. § 25-403.03(A) (Supp. 2011). This statute does not apply to joint custody orders. Moreover, the presumption is rebuttable, A.R.S. § 25-403.03(D), and does not apply if both parents have committed an act of domestic violence. Id. "We will not disturb a trial court's decision on child custody absent a clear abuse of discretion." In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1190 (App. 2002) (citation omitted).
¶12 The court found no major problems between the parties until July 13, 2010. Regarding the incident on July 13, the court found that the parties argued, and Father attempted to take the child with him. Mother threw a bottle at Father, and Father pushed Mother and the child into the pool. Mother suffered a fractured arm from falling into the pool. There is no transcript of this hearing in the record on appeal.4 The exhibits include the police report of this incident, which contains conflicting accounts of the incident.
¶13 There are also copies of 2004 and 2007 orders of protection. In 2004 Mother alleged that Father threatened to kill her after finding out she was looking into crisis shelters. In 2007, Mother alleged a series of escalating threats, one incident where Father shoved Mother and an attack on an unnamed victim in an unrelated incident. However, after a hearing on the 2007 order of protection, the court allowed Father to continue parenting time with the child upon successful drug testing.
¶14 All of this information was presented to the trial court. We will not set aside a trial court's findings of fact unless they are clearly erroneous, McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6, 49 P.3d 300, 302 (App. 2002), because the trialcourt "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). "We will not set aside findings of fact unless clearly erroneous, and we give due regard to the opportunity of the trial court to judge the credibility of witnesses." In re Marriage of Berger, 140 Araiz. 156, 161, 680 P.2d 1217, 1222 (App. 1983); Ariz. R. Fam. Law. P. 82(A). We presume, in the absence of a transcript of the hearing, that the testimony supports the trial court's findings of fact. Biddulph v. Biddulph, 147 Ariz. 571, 574, 711 P.2d 1244, 1247 (App. 1985); see also Rule 11(b), ARCAP (). Based on the record on appeal, we cannot say that the trial court's findings were unsupported by the evidence. Thus, we find no abuse of discretion in finding the presumption in § 25-403.03(B) did not apply. See Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) ().5
¶15 Mother also argues that the court failed to properly apply A.R.S. § 25-403(A)(6) (Supp. 2011). This section and § 25-403.03(I) state that a parent's relocation or denial of parenting time shall not be held against that parent if such act is to protect the child from witnessing or being a victim of domestic violence or in response to an act of domestic violence by the other parent. Mother argues that her actions were based upon her good faith belief that she was protecting the child from witnessing or becoming a victim of domestic violence.
¶16 The trial court, however, found that Mother's relocation and denial of contact was not the result of domestic violence. The court noted the parties' mutually aggressive and irrational conduct on July 13th. The trial court likewise pointed out that the child was removed from Mother's order of protection after the court heard both parties' versions of the July 13th incident. The child was also not subject to the 2007 order of protection. Given the lack of a transcript, we mustpresume the evidence supports these findings. See Biddulph, 147 Ariz. at 574, 711 P.2d at 1247.
¶17 Mother argues that the trial court failed to consider and properly apply the best interests standard in reaching its custody decision. Mother contends this warrants a new trial pursuant to Rule 83(a)(1), Ariz. R. Fam. L.P.6 We review the custody decision under an abuse of discretion standard. See Diezsi, 201 Ariz. at 525, ¶ 3, 38 P.3d at 1190. We do not reweigh the evidence, but affirm if there is sufficient evidence to support the trial court's ruling. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009).
¶18 The trial court considered each factor listed in A.R.S. §§ 25-403(A) and -403.03. The court specifically stated its reasons for finding the custody order was in the child's best interests. Mother cites nothing that indicates the court applied an incorrect standard in this case. Accordingly, we reject this claim.
¶19 Mother also argues the trial court failed to consider several relevant facts in making its decision. She argues thatFather has a criminal record. However, there was no evidence of any...
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