Opinion
No. 1 CA-CV 15-0660 FC
12-13-2016
In re the Marriage of AMANDA DAWSON, Petitioner/Appellee, v. RODNEY BLAKE DAWSON, Respondent/Appellant.
COUNSEL Dickinson Wright PLLC, Phoenix By Marlene A. Pontrelli Counsel for Respondent/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2014-001940
The Honorable William L. Brotherton, Judge
VACATED AND REMANDED
COUNSEL Dickinson Wright PLLC, Phoenix
By Marlene A. Pontrelli
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Justice Rebecca White Berch delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. BERCH, Justice:
The Honorable Rebecca White Berch, Retired Justice of the Arizona Supreme Court, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Rodney Blake Dawson ("Father") appeals from the trial court's post-dissolution order modifying his parenting time. He argues that the court erred in prohibiting both parents from consuming alcohol during parenting time and within the eight hours before it, and in imposing attorney's fees against him. For the following reasons, we vacate the order and remand for the trial court to make specific findings.
BACKGROUND
¶2 Father and Amanda Dawson ("Mother") divorced in June 2014 and share joint legal decision-making and equal parenting time of their three daughters: G.D. (born 2000), C.D. (born 2002), and S.D. (born 2007).
¶3 Around mid-day on January 2, 2015, Father drank one beer while watching a football game and, a few hours later, took a double dose of his prescription anti-anxiety medication because he had forgotten to take the previous day's dose. Mother dropped the children off approximately one hour later for Father's scheduled parenting time. While the children were showing Father some Christmas gifts and other items they bought on vacation, he accidentally broke one belonging to G.D. She became upset with Father, they argued, and he eventually sent her to her room.
¶4 Almost immediately, G.D. began texting Mother stating: "[d]ad was being an idiot and . . . he broke one [of my vacation purchases]." "I'm just angry." Approximately two hours later, G.D. texted Mother again saying: "[h]e's really drunk mom"; . . . "call some kind of authority." Mother called the police. Officers performed a welfare check and spoke with Father, but no incident report or charges were filed. That night, at the children's request, Mother took them home with her and returned them to Father the next morning for the remainder of his parenting time.
¶5 Mother then filed a motion to prohibit Father from consuming alcohol within 24 hours of his parenting time and to place him on a random alcohol and drug testing program. During subsequent interviews by conciliation services, G.D. and S.D. said they never felt uncomfortable around either parent because of alcohol or drugs. However, C.D. acknowledged feeling uncomfortable during the January 2015 incident.
¶6 After hearing testimony from Mother and Father at the evidentiary hearing and reviewing the interviews performed by conciliation services, the trial judge entered an order prohibiting both parties from consuming alcohol during parenting time or within the eight hours before it. The judge noted that on January 2, 2015, Father "was intoxicated to some degree" from an "improper use of medication with alcohol," and the judge was "not convinced that it won't happen again." Concluding that Father's position was unreasonable, the court awarded Mother attorney's fees.
¶7 Father's motion for a new trial or amended judgment was denied without comment, and he timely appealed.
Mother failed to file an Answering Brief in this appeal. We therefore deem the appeal submitted for decision based on Father's Opening Brief and the trial record. See ARCAP 15(a)(2).
DISCUSSION
I. Best Interests of Children.
¶8 Father argues that in drafting the order prohibiting consumption of alcohol, the trial judge erred by failing to make specific findings of fact regarding the children's best interests as required by Arizona Revised Statutes ("A.R.S.") section 25-403. We agree.
¶9 We review parenting time determinations for an abuse of discretion. Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11, 219 P.3d 258, 261 (App. 2009) (quoting Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003)). A court abuses its discretion if the record lacks competent evidence supporting the trial court's decision, Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999), or the trial court made "an error of law in the process of exercising its discretion," Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2, 118 P.3d 621, 622 (App. 2005).
¶10 When making or modifying a parenting time determination, the trial court must consider all of the best interests factors relating to the child's physical and emotional well-being enumerated in A.R.S. § 25-403(A). If the case is contested, as this one was, 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." See A.R.S. § 25-403(B); Hurd, 223 Ariz. at 51, ¶ 11, 219 P.3d at 261. It is well established that it is an abuse of discretion for the trial court to fail to make requisite best interests findings pursuant to A.R.S. § 25-403. See Owen, 206 Ariz. at 421-22, ¶ 12, 79 P.3d at 670-71 (holding that court abused its discretion by modifying custody without making findings on the record); Hurd, 223 Ariz. at 51, ¶ 11, 219 P.3d at 261 (same).
¶11 Here, during the evidentiary hearing, the trial judge observed that the situation seemed to be "scary for the children" and he mentioned the "best interests of the children" more than once. Thus, the judge seems to have been aware of both the existence of the best interests factors and the need to consider best interests. Nevertheless, he did not articulate the specific factors considered or explain his reasoning in finding a blanket prohibition of alcohol necessary to serve the children's best interests. The subsequent minute entry order states only that the judge "considered the evidence and testimony presented at the hearing, the pleadings filed with the Court, the interviews conducted by the Court, and the applicable law." Such best interests findings are inadequate given the isolated nature of the January 2 incident and the absence of any evidence of an ongoing problem with alcohol. The omission of statutorily mandated findings requires us to remand this matter for appropriate findings and analysis regarding parenting time, in compliance with A.R.S. § 25-403(B).
Because we remand for further consideration, we do not address Father's additional assertions that the trial court (a) abused its discretion because there was insufficient evidence showing parents' consumption of alcohol was not in the children's best interests; (b) erred in not providing less restrictive alternatives or a durational limit; and (c) violated the Equal Protection Clause by basing its order, in part, upon Father's religious beliefs. --------
II. Attorney's Fees.
¶12 Father contends that the trial court erred in awarding Mother attorney's fees of $3,000 on the grounds that Father's position was unreasonable. Specifically, Father argues that the court mistakenly presumed that his argument for contesting the prohibition on alcohol was that he would not be able to drink to excess. Instead, he asserts that his position was based on the "principle" that he has a right to have a drink in his own home as long as the children are not in danger and he is not drunk.
¶13 A court may order a party to pay the other party's reasonable costs and expenses incurred in defending a parenting time proceeding "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." A.R.S. § 25-324(A). We review an award of attorney's fees for an abuse of discretion. In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 26, 5 P.3d 911, 917 (App. 2000).
¶14 Here, the judge appears not to have questioned Father's premise about drinking in one's home and clearly understood that Father had not imbibed to excess as a result of having drunk one beer on the occasion in question. Rather, he found that Father was intoxicated by the mixture of alcohol and prescription medication—medication for which Father maintains a current prescription. The judge did not address Father's right to drink during non-parenting times.
¶15 In awarding attorney's fees to Mother, the judge concluded that Father's insistence on the "principle" of his right to drink in his own home caused fees to soar, and that the $10,000 spent by the parties pursuing the alcohol issue would have been better spent for the children's college funds, for example. Because we have remanded this case for more specific findings regarding the need for restrictions on Father's alcohol consumption, we vacate the trial court's fee award. We further note that Father did prevail on at least two aspects of the case in the trial court: the judge reduced the time before parenting time in which alcohol could not be consumed from the requested 24 hours to eight hours, and he denied the requested drug and alcohol testing. As with the best interests analysis, any fee award on remand should be explained with specific findings regarding the reasonableness of the parties' positions, the best interests of the children, and the relative income of the parties.
¶16 Father also requests attorney's fees on appeal. In the exercise of our discretion, we deny Father's request.
CONCLUSION
¶17 For the foregoing reasons, we vacate the trial court's order and remand to the trial court for entry of findings of fact and conclusions of law to support its orders. We leave to the trial judge's discretion whether additional evidence must be taken to comply with this direction.