Opinion
No. 1 CA-CV 18-0070 FC
01-24-2019
In re the Matter of: BRANDI KATHLEEN DAY, Petitioner/Appellant, v. JAMES DONALD HARTSFIELD, Respondent/Appellee.
COUNSEL Gillespie Shields Durrant & Goldfarb, Mesa By Mark A. Shields Counsel for Petitioner/Appellant Law Offices of Dennis G. Bassi, PLLC, Mesa Counsel for Respondent/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. FC2013-096339
The Honorable Laura M. Reckart, Judge
AFFIRMED IN PART; VACATED IN PART; AND REMANDED
COUNSEL
Gillespie Shields Durrant & Goldfarb, Mesa
By Mark A. Shields
Counsel for Petitioner/Appellant
Law Offices of Dennis G. Bassi, PLLC, Mesa
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kenton D. Jones and Judge David D. Weinzweig joined.
SWANN, Judge:
¶1 Appellant challenges the superior court's entry of temporary orders regarding legal decision-making authority and parenting time and its conversion of those temporary orders into permanent orders. For reasons that follow, we affirm the temporary orders, but vacate the permanent orders and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 Brandi Kathleen Day ("Mother") and James Donald Hartsfield ("Father") are the parents of a child born in 2010. In December 2013, Mother filed a complaint for paternity, child custody, visitation, and child support, requesting, among other things, that the superior court grant her sole legal decision-making authority and order Father to pay a reasonable amount in child support. Mother alleged that "[Father] is a chronic user of marijuana," and also requested that he "not have unsupervised access to the child until he tests clean of THC." In his response, Father did not contest his paternity or a requirement to pay child support, but did oppose Mother's requests for sole legal decision-making authority and supervised parenting time.
¶3 The court set the matter for trial in September 2014, but Father failed to appear. The court entered temporary orders granting Mother sole legal decision-making authority and requiring Father's parenting time to be supervised. At a review hearing in November 2014, the court ordered Father to report to TASC for a hair follicle drug test. At the next hearing, the court noted that Father returned positive drug test results, and ordered him to continue regular drug testing and to abstain from consuming alcohol until further ordered.
¶4 Over the next year, the court held several review hearings regarding the September 2014 temporary orders and Father's substance use, and ultimately rescinded the screening order. The court then set trial on Mother's 2013 complaint for May 2017.
¶5 Six weeks before trial, Mother was arrested for forgery and drug-related charges, and, upon Father's motion, the court ordered her to appear for a hair follicle drug test. On the day of trial, Father filed a "petition" and an "emergency petition," both requesting temporary orders regarding legal decision-making, parenting time, and child support. The petitions were based on the premise that Mother's substance abuse issues interfered with her ability to parent the child. The parties discussed Father's petitions at the beginning of the trial, but ultimately agreed to proceed only upon Mother's Complaint.
¶6 The court entered permanent orders—supported by best interests findings on the record—awarding the parents joint legal decision-making authority with neither parent having final authority, designating Mother as the child's primary residential parent, and granting Father unsupervised parenting time every other weekend. The court further ordered Mother to undergo random drug testing.
¶7 In July 2017, the court held a hearing on Father's petitions for temporary orders, which he had filed the day of the May 2017 trial. Without making findings on the record, the court issued temporary orders awarding Father sole legal decision-making authority, designating him as the primary residential parent, and ordering Mother to have limited supervised parenting time ("July 2017 Temporary Orders").
¶8 Less than one month later, Father filed a motion asserting that Mother had failed to appear for multiple drug tests, and sought to suspend Mother's parenting time until she completed a drug rehabilitation program and exhibited twelve consecutive clean drug tests. In his reply, Father also requested permanent orders awarding him sole legal decision-making authority, primary custody, and child support, citing Mother's failure to provide twenty-seven drug test samples between July 12 and October 24, 2017.
¶9 In December 2017, without holding a hearing, the superior court granted Father's request and converted its July 2017 Temporary Orders into a final permanent order. The court also granted Father's motion to suspend Mother's parenting time until she successfully completed twelve consecutive clean drug tests.
¶10 Mother appeals.
DISCUSSION
¶11 As a preliminary matter, Father did not file an appellate brief. Although we could treat Father's failure to file an answering brief as a confession of error, we choose to address the merits of Mother's appeal because a child's best interests are involved. See ARCAP 15(a)(2); see also In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002).
¶12 Mother challenges elements of both the July 2017 Temporary Orders and the December 2017 permanent orders. Regarding the July 2017 Temporary Orders, Mother contends that the court erred by not making findings on the record under A.R.S. §§ 25-403 or -411(J), considering evidence that was presented before the May 2017 permanent order, and issuing the July 2017 Temporary Orders without Father having filed an underlying petition and motion. Regarding the December 2017 permanent orders, Mother contends that the court erred by issuing the orders sua sponte and failing to hold a hearing or make findings on the record.
I. WE LACK JURISDICTION TO CONSIDER THE TEMPORARY ORDERS RESTRICTING MOTHER'S PARENTING TIME.
¶13 Temporary orders are not appealable. Gutierrez v. Fox, 242 Ariz. 259, 264, ¶ 12 (App. 2017). The proper challenge to a temporary order is by special action, and Mother failed to bring a special action regarding the supervision requirement on her parenting time. See DePasquale v. Thrasher, 181 Ariz. 333, 336-37 (App. 1995). While we may, in our discretion, accept special action jurisdiction sua sponte, we decline to do so here. See Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35 (App. 2001).
¶14 Even if we had jurisdiction to consider the issues, Mother's arguments would fail. To begin with, the court was not required to make findings to support the July 2017 Temporary Orders. Gutierrez, 242 Ariz. at 268, ¶ 35 ("[S]uperior courts are not required to make findings addressing the A.R.S. § 25-403 factors when entering temporary orders regarding legal decision-making and parenting time.") (emphasis added). Mother's argument that the court erred by not making findings on the record under § 25-411(J) is similarly unavailing. When modifying a parenting time order, the "court shall not restrict a parent's parenting time rights unless it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional health." A.R.S. § 25-411(J). Under this statute, the court is not required to make findings on the record to support a supervision order, though the evidence on record must support the order. Hart v. Hart, 220 Ariz. 183, 187-88, ¶¶ 16-18 (App. 2009); see Taliaferro v.
Taliaferro, 188 Ariz. 333, 335-36 (App. 1996) (affirming supervision order where there was evidence that father had abused mother in child's presence, had verbally abused child, and had driven while intoxicated with child in vehicle).
¶15 Mother also argues the superior court improperly entered the July 2017 Temporary Orders based upon pretrial motions and evidence, and that it abused its discretion by modifying a permanent order without Father having filed both a petition and a motion for modification under ARFLP 47(A). There is no evidence that Mother raised these issues below, despite ample opportunity to do so. Generally, "an appellate court will not consider issues not raised in the trial court." Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987). We therefore decline to consider arguments that Mother raises for the first time on appeal.
¶16 We affirm the superior court's entry of the July 2017 Temporary Orders.
II. THE SUPERIOR COURT IMPROPERLY CONVERTED THE TEMPORARY ORDERS INTO PERMANENT ORDERS.
¶17 Mother next argues the superior court erred by sua sponte converting its July 2017 Temporary Orders into a permanent order without holding a hearing or making best interests findings on the record.
¶18 We review the superior court's legal decision-making and parenting time rulings for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003). A court abuses its discretion when it commits an error of law in making a discretionary decision, reaches a conclusion without considering evidence, or makes a finding lacking substantial evidentiary support. Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007) (citation omitted).
¶19 While we disagree with Mother's characterization of the court's order as "sua sponte," we agree that the court abused its discretion by converting the July 2017 Temporary Orders regarding legal decision-making authority and parenting time into permanent orders. Under A.R.S. § 25-403(B), the superior 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." By not including any findings in its final order, the court did not comply with § 25-403(B).
¶20 Additionally, by not holding a hearing on the potential conversion into permanent orders, the superior court did not give the
parties an opportunity to be heard in a meaningful manner on the issue of legal decision-making. See Cruz v. Garcia, 240 Ariz. 233, 237, ¶ 16 (App. 2016); see Murray v. Murray, 239 Ariz. 174, ¶ 18 (App. 2016) (holding that due process requires that, when there are disputed issues of fact as to a child's best interests, "the court must allow the parties to present evidence before it makes its finding"); see A.R.S. § 25-403.01(D) (providing that a parent is entitled to parenting time "unless the court finds, after a hearing, that parenting time would endanger the [child]") (emphasis added).
¶21 Accordingly, the superior court abused its discretion in converting the July 2017 Temporary Orders into permanent orders without conducting an evidentiary hearing or making specific best interests findings on the record.
ATTORNEY'S FEES
¶22 Mother requests her reasonable attorney's fees but fails to provide a basis for the award as required under ARCAP 21(a)(2). As such, we decline to grant Mother's request. But because Mother is the successful party, we award her costs on appeal upon her compliance with ARCAP 21.
CONCLUSION
¶23 For the foregoing reasons, we affirm the superior court's July 2017 Temporary Orders, and we vacate the December 15, 2017 permanent orders. We reinstate the July 2017 Temporary Orders and remand for further proceedings consistent with this decision.