Gabris v. Gabris ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Matter of:
GREGORY GABRIS, Petitioner/Appellee,
v.
COURTNEY GABRIS, Respondent/Appellant.
No. 1 CA-CV 19-0117 FC
FILED 12-3-2019
Appeal from the Superior Court in Maricopa County
No. FC 2018-090538
The Honorable Joan M. Sinclair, Judge
AFFIRMED
APPEARANCES
Courtney Gabris, Tucson
Respondent/Appellant
Gregory Gabris, Mesa
Petitioner/Appellee
GABRIS v. GABRIS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.
C A M P B E L L, Judge:
¶1 Courtney Gabris (“Mother”) appeals from the superior
court’s entry of a decree of dissolution of marriage from Gregory Gabris
(“Father”), arguing that the superior court erred in allocating parenting
time and in awarding joint legal decision-making authority. She also claims
that venue was improper, and she should have been appointed an attorney.
The superior court has broad discretion in reaching determinations in a
family law matter. See, e.g., Burkhardt v. Burkhardt, 109 Ariz. 419, 420 (1973).
Because the court did not abuse its discretion, venue was proper, and there
is no right to appointed counsel in most civil cases, we affirm.
BACKGROUND
¶2 Father and Mother were married in March of 2013. The parties
have one child in common. The couple separated the following year. Father
returned to the Phoenix area, while Mother and the child remained in
Tucson. For approximately the first five years of his life, the child primarily
resided in Tucson with Mother and his two half siblings.
¶3 Early in February 2018, Mother was involved in a domestic-
violence altercation with her then boyfriend resulting in an extended
hospitalization. The child was initially placed with the maternal uncle, but
the Department of Child Safety placed the child with Father four days later.
The child continued to reside with Father in Mesa even after Mother was
released from the hospital.
¶4 On February 26, 2018, Father filed a petition for dissolution of
marriage and emergency petition in Maricopa County for legal decision
making and parenting time. The superior court issued an order granting
Father temporary sole legal decision-making authority and parenting time
and suspending Mother’s parenting time. Two days later, Mother filed a
petition for dissolution in Pima County. She subsequently filed a motion
for temporary orders as well. The Pima County superior court issued a
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Decision of the Court
competing temporary order placing the child with Mother and suspending
Father’s parenting time.
¶5 Mother filed a motion to dismiss the Maricopa County action
or move the case to Pima County. The superior court denied her motion
and consolidated the cases in Maricopa County because Father’s petition
was filed first. Having serious concerns about the fitness of both parties. the
court, pursuant to the Arizona Rules of Family Law Procedure, (“Rule”)
10.1, appointed an advisor who prepared a confidential report and later
testified at the dissolution proceeding. Mother attempted a second time to
have venue transferred to Pima County, which the court again denied.
¶6 The court held a trial where it heard arguments, took
testimony, and reviewed exhibits, after which it issued a decree of
dissolution of marriage. After making the relevant findings under
A.R.S. § 25-403(A), the court found that it was in the best interests of the
child to award joint legal decision-making authority, with presumptive
decision-making authority granted to Father. The court further made
Father the primary residential parent and allocated every other weekend
for Mother’s parenting time. The parents were to split parenting time
during holidays and summer vacation evenly. Mother timely appealed.
DISCUSSION
¶7 Mother argues the superior court erred in its parenting-time
allocation and grant of joint legal decision-making authority because (1) she
is a fit parent, whereas Father is unfit and lacks credibility; (2) venue was
improper in Maricopa County; and (3) she would have been able to make
her case more effectively had she been provided an attorney
¶8 ARCAP 13(a)(7) requires opening briefs to have an argument
section that contains contentions concerning each issue presented for
review, supporting reasons for each contention, citations to legal
authorities, appropriate references to the portions of the record on which
the appellant relies, and the applicable standard of appellate review.
“Failure to [comply with ARCAP 13(a)(7)1] can constitute abandonment
and waiver . . . .” Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009).
Mother’s opening brief fails to comply with ARCAP 13(a)(7) because she
fails to support her arguments with citations to legal authorities, references
to the record, or to identify the applicable standard of review. Disregarding
1 While Ritchie references ARCAP 13(a)(6), ARCAP 13 has since been
amended. The pertinent requirements are now found in ARCAP 13(a)(7).
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Mother’s failure to comply with the rules, we examine each argument and
find no error.
I. Legal Decision Making and Parenting Time
¶9 We uphold a superior court’s legal decision making and
parenting time determinations absent an abuse of discretion. Nold v. Nold,
232 Ariz. 270, 273, ¶ 11 (App. 2013). An abuse of discretion exists if the
record lacks any competent evidence to support the court’s decision. Little
v. Little, 193 Ariz. 518, 520, ¶ 5 (1999). We do not substitute our judgment
for that of the superior court in balancing competing interests, determining
disputed questions of fact or credibility, or pursuing recognized judicial
policy. Hilgeman v. Am. Mortg. Sec., Inc., 196 Ariz. 215, 218, ¶ 7 (App. 2000).
We will affirm the court’s decree if any reasonable evidence supports
it. Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984).
¶10 The superior court must determine legal decision making and
parenting time in accordance with the best interests of the child. A.R.S. § 25-
403(A); see §§ 403.01(B), 403.02(B). In determining the children’s best
interests, the court shall consider all relevant factors listed in § 25-403(A).
“In a contested legal decision making or parenting time case, the court shall
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.” A.R.S. §
25-403(B).
¶11 Here, the superior court made specific findings and
conclusions of law based on the parties’ arguments, testimony, and exhibits
presented at trial. After applying the statutory factors set forth in A.R.S.
§ 25–403(A), the court determined that awarding joint legal decision-
making authority and designating Father the primary residential parent
was in the child’s best interests. Mother’s argument on appeal is merely a
request for this court to reweigh the evidence, which is not our
function. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009); Armer v. Armer,
105 Ariz. 284, 289 (1970) (the superior court has broad discretion to
determine parenting time because it is in the best position to determine the
parenting measures that are in a child’s best interests). We find no abuse of
the superior court’s discretion and affirm these rulings.
II. Venue
¶12 Mother next argues that venue was improper in Maricopa
County and that the case should have been transferred to Pima County.
“Unlike some jurisdictions, an order granting or denying a change
of venue is not an appealable order in the State of Arizona.” Goff v. Super.
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Courts In & For Pima & Maricopa Ctys., 2 Ariz.App. 344, 347 (1965); see A.R.S.
§ 12–2101. “Because an appeal cannot adequately cure an erroneous venue
ruling, such orders are appropriately reviewable by special action.”
Yarbrough v. Montoya-Paez, 214 Ariz. 1, 2 (App. 2006) (internal citation
omitted). “[W]hen a venue ruling hinges on findings of fact, we will not
disturb a trial court’s order granting or denying a change of venue unless
the court clearly has abused its discretion.” Yarbrough, 214 Ariz. at 4.
¶13 “Actions for dissolution of marriage or legal separation shall
be brought in the county in which a petitioner is residing at the time the
action is filed.” A.R.S. § 12-401(13). If the court consolidates two or more
cases, the first-filed case number controls, and the clerk must file all further
filing under that number only, Rule 5(b).
¶14 Venue was proper in Maricopa County because Father
resided there when he filed the petition for dissolution, and his petition was
first in time.2 Moreover, Arizona does not permit an appeal from the denial
of a change of venue motion, and Mother did not seek special action review
when her motions were denied. We do not disturb the superior court’s
venue rulings on appeal. Zuckernick v. Roylston, 140 Ariz. 605, 605 (App.
1984) (“[A]ppellate courts will not generally interfere with a venue
ruling . . . .”).
III. Attorney
¶15 Finally, Mother contends that she would have been able to
make her case more effectively had she been provided an attorney. Arizona
does not recognize a right to appointed counsel in most civil cases. State ex
rel. Corbin v. Hovatter, 144 Ariz. 430, 431 (App. 1985) (due process does not
require appointment of counsel for indigent civil party); Encinas v.
Mangum, 203 Ariz. 357, ¶ 10 (App. 2002) (in civil cases, due process is
satisfied if a litigant is given the opportunity to either hire an attorney or
represent themselves). Mother was free to hire counsel. However, there is
no right to appointed counsel in a dissolution proceeding.
2 Mother cites ARFLP 23.1 in support of her challenge to venue. This
rule only applies in the event venue is improper and is inapplicable because
Maricopa County was a proper venue
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Decision of the Court
CONCLUSION
¶16 The superior court properly exercised its discretion in
allocating parenting time and awarding joint legal decision making. Venue
in Maricopa County was proper, and Mother was not entitled to appointed
counsel. We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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