Rodriguez v. Rodriguez ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
GENEA RODRIGUEZ, Petitioner/Appellee,
v.
ANDRE RODRIGUEZ, Respondent/Appellant.
No. 1 CA-CV 21-0522 FC
FILED 5-5-2022
Appeal from the Superior Court in Maricopa County
No. FC2020-003022
The Honorable Suzanne Marie Nicholls, Judge
AFFIRMED
APPEARANCE
Andre Rodriguez, Buckeye
Respondent/Appellant
MEMORANDUM DECISION
Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.
RODRIGUEZ v. RODRIGUEZ
Decision of the Court
G A S S, Vice Chief Judge:
¶1 Father argues the superior court erred when it awarded
mother sole legal decision-making authority, awarded mother most of the
parenting time, limited father to supervised parenting time, and calculated
child support. Because the superior court did not abuse its discretion and
reasonable evidence supports its findings, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and mother have a four-year-old child. In mother’s
petition to divorce father, mother urged the superior court to order
supervised parenting time for father because of his “domestic violence
patterns.” Mother also sought sole legal decision-making authority. Father
sought joint legal decision-making authority and equal parenting time.
¶3 Before the hearing, mother obtained two orders of protection
against father. Father moved to continue the hearing to gather evidence
against mother regarding two alleged physical confrontations between
them. The superior court denied father’s motion. After arriving late for the
hearing, father orally moved for a continuance, which the superior court
denied.
¶4 The superior court later issued the decree of dissolution,
which found father committed significant domestic violence against
mother. Police reports “demonstrat[ed] [f]ather had frequently violated”
the orders of protection. Based on its significant domestic violence and best-
interests findings, the superior court awarded father two, four-hour
supervised parenting-time blocks per week and granted mother’s request
for sole legal decision-making authority. The superior court order also
required father to be solely responsible for the cost of supervision.
¶5 Regarding child support, the superior court found father had
gross income of $5,000 per month and awarded mother $680 per month in
child support. Father timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1
and 12-2101.A.1.
ANALYSIS
¶6 As an initial matter, we exercise our discretion and determine
mother’s failure to file an answering brief on appeal was not an implied
confession of error, especially given the superior court “correctly applied
the law.” See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994) (A party’s
2
RODRIGUEZ v. RODRIGUEZ
Decision of the Court
failure to file a brief may be treated as an implied confession of error, but
“this doctrine is discretionary,” and this court is “reluctant to reverse based
on an implied confession of error” when the superior court “has correctly
applied the law.”).
¶7 This court reviews the superior court’s legal decision-making
and parenting-time orders for an abuse of discretion. DeLuna v. Petitto, 247
Ariz. 420, 423, ¶ 9 (App. 2019). This court reviews the sufficiency of
evidence de novo. See State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).
I. Sole Legal Decision-Making and Domestic Violence Finding
¶8 Father argues sufficient evidence did not support the superior
court’s finding of significant domestic violence or a significant history of
domestic violence, saying nothing in the record shows father “undoubtedly
committed” violent acts against mother or her family.
¶9 This court’s “duty on review does not include re-weighing
conflicting evidence or redetermining the preponderance of the evidence.”
Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). This court will affirm the
superior court’s judgment if substantial evidence supports it. Id.¶10 Under A.R.S. § 25-403.03.A, when one parent has engaged in
significant domestic violence or has a significant history of domestic
violence, the superior court shall not award joint legal decision-making
authority. When subsection A does not apply but one parent has committed
an act of domestic violence against another parent, § 25-403.03.D creates “a
rebuttable presumption that an award of sole or joint legal decision-making
to the [offending] parent . . . is contrary to the child’s best interests.”
Subsection D’s rebuttable presumption does not apply if both parents have
committed an act of domestic violence. “Before awarding sole or joint legal
decision-making authority to the offending parent, the [superior] court
must make specific findings on the record” regarding whether sufficient
evidence rebuts the presumption and also must consider the § 25-403.03.E
factors. DeLuna, 247 Ariz. at 423, ¶ 12.
¶11 In cases involving domestic-violence allegations, the superior
court must first determine if a parent committed domestic violence. See
A.R.S. § 25-403.03.C. Here, mother offered evidence and testimony
regarding father’s acts. For his part, father never challenged mother’s
claims. Instead, father tried to establish mother committed acts of violence
against him and his girlfriend. The superior court found mother’s evidence
and testimony established father committed acts of domestic violence
against her. The police reports and mother’s testimony are sufficient
3
RODRIGUEZ v. RODRIGUEZ
Decision of the Court
evidence to support that decision. The superior court did not find father’s
claims against mother credible. And the superior court found father and his
girlfriend attacked mother in one of the incidents father introduced as an
example of mother’s domestic violence against him.
¶12 The superior court next considered whether the evidence
established “the existence of significant domestic violence pursuant to
section 13-3601” or “by a preponderance of the evidence that there has been
a significant history of domestic violence.” A.R.S. § 25-403.03.A. A
subsection A finding under one or both precludes an award of joint legal
decision-making authority. Id. Here, the superior court found father
committed significant domestic violence or had a significant history of
domestic violence and awarded sole legal decision-making authority to
mother. The superior court did so after considering the following factors:
“(1) the seriousness of the particular incident of domestic violence, (2) the
frequency or pervasiveness of the domestic violence, and (3) the passage of
time and its impact.” See DeLuna, 247 Ariz. at 424, ¶ 15 n.6. The superior
court, for example, found credible mother’s testimony about father’s
repeated death threats against her and the evidence supported its finding.
¶13 Father, nevertheless, argues mother’s testimony does not
support her claims regarding the domestic violence he committed because
she lied. We, however, do not reweigh the evidence, including the superior
court’s credibility determinations. See Clark v. Kreamer, 243 Ariz. 272, 276, ¶
14 (App. 2017); Hurd, 223 Ariz. at 52, ¶ 16.
¶14 Father appears to focus his approach on avoiding the
rebuttable presumption under A.R.S. § 25-403.03.D. Unlike subsection A’s
absolute prohibition, subsection D establishes a rebuttable presumption
and says the rebuttable presumption does not apply if both parents
committed acts of domestic violence. But when faced with a subsection A
prohibition, father’s arguments about mother’s alleged domestic violence
are irrelevant.
¶15 Father also contends the superior court erred when it denied
his motion to continue to allow law enforcement to prosecute mother for
assaulting him because such evidence would establish mother lied about
not committing violence against him. At best, the alleged evidence is
speculative and does not refute father’s history of domestic violence.
¶16 Based on the above, the superior court acted well within its
authority to award mother sole legal decision-making authority.
4
RODRIGUEZ v. RODRIGUEZ
Decision of the Court
II. Parenting Time
¶17 Father argues the superior court erred in awarding less than
equal parenting time and requiring his parenting time to be supervised.
Again, father argues mother lied about not committing domestic violence
against him. As explained above, the superior court did not find mother
committed domestic violence against father after considering his testimony.
See supra at ¶ 11. And we will not reweigh that evidence. See Clark, 243 Ariz.
at 276, ¶ 14.
¶18 Moreover, when the superior court finds a parent committed
domestic violence, it must place restrictions on that parent’s parenting time
“that best protect the child and the other parent from further harm.” A.R.S.
§ 25-403.03.F. Here, the superior court acted as required under subsection F
when it ordered the supervision of father’s parenting time by an agency
after determining unsupervised parenting time would endanger the child.
Cf. DeLuna, 247 Ariz. at 425, ¶¶ 18–19 (superior court erred under
subsection F by not making findings showing whether a parent who has
committed domestic violence has shown parenting time will not endanger
the child or significantly impair the child’s development). Additionally, the
superior court acted within its discretion to order less than equal parenting
time. See § 25-403.01.D (a parent who is not granted equal parenting time is
entitled to reasonable parenting time “unless the court finds, after a
hearing, that parenting time would endanger the child’s physical, mental,
moral or emotional health”); § 25-403.03.F.9 (allowing the superior court to
“[i]mpose any other condition” it determines is necessary to protect the
child).
¶19 Accordingly, the superior court did not err by placing
conditions on father’s parenting time.
III. Child Support
¶20 Father argues the superior court erred in finding he had a
monthly gross income of $5,000 because the evidence it considered does not
accurately reflect his actual monthly income.
¶21 This court reviews a child support award for an abuse of
discretion and accepts the superior court’s “factual findings unless clearly
erroneous.” Sherman v. Sherman, 241 Ariz. 110, 112–113, ¶ 9 (App. 2016).
This court reviews de novo the superior court’s interpretation of the 2018
child support guidelines in A.R.S. § 25-320 appendix (2018 guidelines). Id.
at 113, ¶ 9.
5
RODRIGUEZ v. RODRIGUEZ
Decision of the Court
¶22 Father contends the exhibits showing his earnings from his
air-conditioning and dog-breeding businesses do not support a finding he
has a monthly gross income of $5,000, in part, because they are from 2019
and were outdated by the time the superior court heard this case in 2021.
But father did not present any evidence to the contrary, including his more
recent income statements. Instead, father relied on his 2019 income
statement to argue his monthly gross income was less than $5,000. And
§ 5.A of the 2018 guidelines—the applicable guidelines at the time this
matter was before the superior court—enables the court to look at annual
earnings for individuals, like father, who have fluctuating incomes. Further,
§ 5.A of the 2018 guidelines permits the superior court to look at historical
income when determining gross income if that income was “earned from a
regular schedule and is anticipated to continue in the future.”
¶23 Father also argues his gross income from his air-conditioning
business shows he earns less than $5,000 in monthly gross income after
factoring in the losses for the company as they appear in the exhibit
showing his profits and losses for the period of January 2019 through
December 2019. But § 5.C of the 2018 guidelines (self-employment) allows
the superior court to reject certain expenses if it finds they are
“inappropriate for determining gross income for purposes of child
support.” Here, based on the record, the superior court had the discretion
to and could use such authority to conclude father’s monthly gross income
was $5,000, especially after rejecting certain portions of father’s expenses.
And, as a matter of course, this court does not reweigh the evidence. See
Clark, 243 Ariz. at 276, ¶ 14.
¶24 Accordingly, the superior court did not err in determining
father’s child support obligation.
CONCLUSION
¶25 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6