Opinion
No. 2 CA-CV 2018-0085-FC
01-18-2019
HECTOR MANUEL DE LA ROSA, Petitioner/Appellee, v. LOVE MORALES AYALA, Respondent/Appellant.
Hector M. De La Rosa, Tucson In Propria Persona Love Morales Ayala, Tucson In Propria Persona
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NOT FOR PUBLICATION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 Pima County
No. SP20150237 and DV20180115
The Honorable Scott H. Rash, Judge
AFFIRMED
Hector M. De La Rosa, Tucson
In Propria Persona Love Morales Ayala, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Love Ayala appeals the trial court's order denying her petition to modify parenting time and affirming a January 2016 parenting time order. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In January 2016, Hector De La Rosa and Love Ayala entered into an agreement regarding parenting time and decision-making over their two minor children. The trial court approved the plan, granting Ayala sole legal decision-making and De La Rosa parenting time every other weekend.
¶3 In November 2017, Ayala filed two petitions, simultaneously, for modification of parenting time and a proposed parenting plan. In one petition, she listed "[t]he effects on children[']s mental health [and] wellbeing" and "criminal charges on non-custodial parent" as the "substantial and continuing change" in circumstances warranting modification and requested sole legal decision-making, notwithstanding that this had already been ordered. In the other petition, Ayala requested a modification to the parenting time schedule, claiming De La Rosa had not provided a "stable or positive environment" for the children because of drug paraphernalia charges, failure to have a valid driver license, "criminal driving charges since established order," failure to provide medication for one of the children, and failure to pay child support, all things she believed caused the children "anxiety" and "negatively affect[ed] their behavior." The proposed parenting plan requested that the children remain with Ayala at all times with parenting time for De La Rosa at her discretion.
¶4 At a January 8, 2018 hearing on Ayala's petitions, the trial court ordered that De La Rosa forfeit his parenting time unless he had a valid driver license or permitted another person with a valid driver license to transport the children, ordered Child Advocacy Services to interview the children, and continued the hearing until February 21, 2018. On January 19, 2018, Ayala obtained a temporary order of protection against De La Rosa. Three days later, she filed a motion for a post-decree temporary order without notice for modification of parenting time pursuant to Rule 48, Ariz. R. Fam. Law P., citing the recent order of protection based on a claimed threat by De La Rosa, and alleging he had a history of domestic violence and drug abuse. Ayala's Rule 48 motion was denied, and the court deferred any further action to the February hearing.
¶5 At the February 21 hearing, the trial court dismissed the January order of protection, finding no basis for it. The court also denied Ayala's petition for modification of parenting time and affirmed the January 2016 parenting plan. In March 2018, Ayala filed another Rule 48 motion, claiming the children had witnessed domestic violence in De La Rosa's home and that he and his significant other were "currently under investigation" by the Department of Child Safety "for [d]omestic [v]iolence, [d]rug abuse[,] and neglect." That motion too was denied. Ayala now appeals the February order. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
Although Ayala refers to her March Rule 48 motion in her opening brief, she has not appealed the order denying it, and we accordingly do not address that ruling. See Ariz. R. Civ. App. P. 8(c) (requiring a notice of appeal to designate the judgment appealed from); Lee v. Lee, 133 Ariz. 118, 124 (App. 1982) (court of appeals acquires no jurisdiction to review matters not contained in notice of appeal).
Discussion
¶6 Ayala contends the trial court erred by refusing to modify De La Rosa's parenting time. As she correctly notes, a trial court may do so only if it first finds there has been a change in circumstance materially affecting the children's welfare. Christopher K. v. Markaa S., 233 Ariz. 297, ¶ 15 (App. 2013). And the party seeking a change in parenting time has the burden of proof. Hendricks v. Mortensen, 153 Ariz. 241, 243-44 (App. 1987); Bailey v. Bailey, 3 Ariz. App. 138, 141 (1966). The trial court has broad discretion to determine if a change of circumstances exists, Hendricks, 153 Ariz. at 243, and we will not reverse its determination absent an abuse of discretion, Nold v. Nold, 232 Ariz. 270, ¶ 11 (App. 2013).
We note that while Ayala is not represented by counsel, "a party who conducts a case without an attorney is entitled to no more consideration from the court than a party represented by counsel, and is held to the same standards expected of a lawyer." Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, ¶ 16 (App. 2000). Accordingly, although we have attempted "to discern and address [her] arguments, . . . we consider waived those arguments not supported by adequate explanation, citations to the record, or authority." In re Aubuchon, 233 Ariz. 62, ¶ 6 (2013). We therefore do not consider Ayala's claims that she is "[a]ppealing the Contested Order of Protection" entered by the trial court and that De La Rosa "avoided the [court's] question" of when his probation ended, nor her repeated complaint that the court "ordered that the Summary of the Child Interviews from the Family Center of the Conciliation Court shall be sealed."
¶7 To the extent we understand it, Ayala's primary claim appears to be that the trial court did not adequately consider her evidence at the hearing. Specifically, she contends the court "was not aware of any of the documentation and exhibits that he was provided" and did not review the documents. In support, she points to the court asking her the basis of her motion to modify parenting time and asking her to provide the exhibits she had pre-marked before the hearing. The court, however, then reviewed the exhibits, specifically identifying some of them, and stating, "That's what the Court's reviewing[,] just so you know," referring to Ayala's declaration of facts. Contrary to Ayala's assertion, the record amply reflects that the court reviewed her marked exhibits.
¶8 Ayala also claims the court "did not acknowledge" that her son "was not receiving the medication prescribed by his psychiatrist" while under De La Rosa's care. At the hearing, Ayala stated that when her children spent time with their father, her son did not take his medication, which "should be a responsibility, something [De La Rosa] should keep track of." But the record shows the court considered this statement, along with Ayala's various other complaints, remarking that the "bottom line is you [and De La Rosa] have different parenting styles." And although the court did not expressly find that Ayala failed to carry her burden of showing a change in circumstances materially affecting the children's welfare, see Hendricks, 153 Ariz. at 243 (party seeking modification has burden of proof), it stated that it could not modify De La Rosa's parenting time "[j]ust because you have different parenting styles."
¶9 Ayala also contends the trial court did not consider her allegations of domestic violence or De La Rosa's drug paraphernalia charges. Here, too, Ayala failed to show that the allegations constituted a change of circumstance materially affecting the children's welfare. See id. At the hearing, Ayala conceded there had been no acts of domestic violence since the January 2016 order was entered and further stated she was more concerned with the drug charges. Although Ayala presented evidence that De La Rosa pled guilty to possessing drug paraphernalia in December 2016, he testified that he no longer used marijuana or other illicit substances. It was for the trial court to determine the credibility of such testimony, Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13 (App. 1998), and the court further found that "the children have no safety concerns at either household, and that both children are comfortable with the current arrangement." Thus, the court acted within its broad discretion in finding that the then-fourteen-month-old paraphernalia charge did not amount to a change in circumstance that materially affected the children. Hendricks, 153 Ariz. at 243. Accordingly, Ayala has not shown the court abused its discretion in denying her petition for modification of parenting time and affirming the January 2016 order as modified.
Without explanation or argument, Ayala cites A.R.S. §§ 25-403.03 and 403.04, which create rebuttable presumptions against sole or joint legal decision-making for a parent recently convicted of a drug offense and a parent who is the perpetrator of significant domestic violence or who has a significant history of domestic violence. To the extent she implies the trial court erred by failing to apply these presumptions, she has waived any such claim for failure to develop an argument. In re Aubuchon, 233 Ariz. 62, ¶ 6. And in any event, the presumptions apply only to legal decision-making, see A.R.S. §§ 25-403.03, -403.04, which Ayala alone has for both children.
The trial court did modify the January 2016 parenting plan to the extent of ordering that certain named individuals and relatives "shall be allowed to transport the parties' minor children for the purpose of exchanges as long as they maintain valid driver licenses," and that De La Rosa would "be allowed to transport the minor children once he has a valid driver license."
Disposition
¶10 The trial court's order is affirmed.