Rivera v. Drake ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
NICHOLAS RIVERA, Petitioner/Appellee,
v.
SUMMER LEORA DRAKE, Respondent/Appellant.
No. 1 CA-CV 15-0313 FC
FILED 4-12-2016
Appeal from the Superior Court in Maricopa County
No. FC2014-071143
The Honorable Kathleen H. Mead, Judge
AFFIRMED
APPEARANCES
Nicholas Rivera, Avondale
Petitioner/Appellee
The Cordrey Law Firm PLC, Phoenix
By Michael E. Cordrey
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined.
RIVERA v. DRAKE
Decision of the Court
G E M M I L L, Judge:
¶1 Summer Proctor (“Mother”), fka Summer Drake, appeals the
trial court’s ruling awarding Nicholas Rivera (“Father”) joint legal decision-
making authority and equal parenting time for their daughter (“Z.R.”) and
denying Mother child support and attorney fees.1 For the following
reasons, we affirm.
PROCEDURAL HISTORY
¶2 Father filed a petition to establish legal decision making,
custody, parenting time, and child support in June 2014. The trial court
held an evidentiary hearing in February 2015, and issued a ruling in favor
of Father shortly thereafter. Mother filed a motion for new trial that the
trial court denied. She timely appeals, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and -
2101(A)(1).
ANALYSIS
¶3 Mother presents four arguments. First, she claims that the
trial court abused its discretion by awarding Father joint legal decision-
making and equal parenting time. Next, Mother contends the trial court’s
analysis and ruling regarding child support and arrearages was an abuse
of discretion in light of the testimony and evidence. Third, Mother argues
that the trial court erred in cutting off certain lines of questioning during
the evidentiary hearing. Finally, Mother contends the trial court should
have awarded her attorney fees and costs.
I. Legal Decision-Making (Custody) and Parenting Time
¶4 We review the trial court’s ruling for an abuse of discretion
and view the evidence in the light most favorable to sustaining its findings.
Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015). “Our duty on review
does not include re-weighing conflicting evidence,” and we will uphold the
trial court’s ruling if substantial evidence supports it. Hurd v. Hurd, 223
Ariz. 48, 52, ¶ 16 (App. 2009).
1 Father did not file an answering brief on appeal. Although his failure to
file an answering brief could be considered a confession of error, we choose
in our discretion to resolve this appeal on its merits. See Nydam v. Crawford,
181 Ariz. 101, 101 (App. 1994).
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RIVERA v. DRAKE
Decision of the Court
¶5 Mother argues primarily that the trial court’s best interest
findings under A.R.S. § 25-403 were not supported by the evidence and the
court’s “rushed move to fifty-fifty parenting time” was in conflict with the
Parenting Conference Report (“PCR”). A court may take PCR
recommendations under consideration, but it is not bound by them. See
DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 336 (App. 1995) (the
court must not “delegate a judicial decision to an expert witness” and must
“exercise independent judgment.”). And the trial court’s order shows the
court did follow some of the PCR’s recommendations, as it ordered a
gradual increase in parenting time as well as parenting classes for Mother
and Father.
¶6 Mother’s other evidentiary arguments generally involve one
of several issues: an incident that allegedly occurred between Z.R. and
Father’s fiancée’s son; the email and messaging exchanges between Mother,
Mother’s counsel, Father, and Father’s fiancée; Father’s medical marijuana
use and past arrests for marijuana possession; and two past instances of
domestic violence between Father and Mother.
¶7 The trial court took into consideration “the evidence, the
demeanor of the witnesses; . . . the exhibits, including the Parenting
Conference Report, as well as the case history, and . . . the parties’
arguments.” (Emphasis added). Although Mother points to perceived
inconsistencies and contradictions within almost every facet of the ruling,
a comprehensive review of the record — including all transcripts and
exhibits — reveals that the trial court’s reasoning was supported by
substantial evidence in each instance. It is within the purview of the trial
court to weigh the credibility of each witness and exhibit, and we will not
supplant its discretion with our own. See Hurd, 223 Ariz. at 52, ¶ 16.
Accordingly, the trial court did not abuse its discretion.
II. Child Support and Arrearages
¶8 We review for an abuse of discretion a trial court’s decision
on whether to award or modify child support. In re Marriage of Robinson and
Thiel, 201 Ariz. 328, 331, ¶ 5 (App. 2001). “An abuse of discretion exists
when the record, viewed in the light most favorable to upholding the trial
court’s decision, is devoid of competent evidence to support the decision.”
Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (quoting Fought v. Fought, 94
Ariz. 187, 188 (1963)) (internal quotes omitted).
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RIVERA v. DRAKE
Decision of the Court
¶9 Mother alleges the trial court abused its discretion in refusing
to award her child support and arrearages. Regarding child support,
Mother contends the evidence showed a substantial difference between
Father’s income ($2,250 per month) and Mother’s income ($200 per month)
that merits child support. There was evidence, however, that Mother —
after Father filed his initial petition — voluntarily left her job that paid
substantially more than her current reported income. Cf. Patterson v.
Patterson, 102 Ariz. 410, 415 (1967) (voluntary diminution of income does
not lessen obligation to children); see also Little, 193 Ariz. at 522, ¶ 13 (a
voluntary decision to leave employment is less reasonable when the parent
is capable of finding a suitable job).
¶10 Concerning arrearages, Mother contends there was
undisputed evidence that Father exercised equal parenting time only
during the 18 months prior to initiating these proceedings in June 2014, and
she seeks child support for the period of time more than 18 months before
these proceedings began. Section 25-320(C), A.R.S., gives the trial court
power to award child support retroactively but that power is discretionary,
not mandatory. Here, the trial court specifically found “no evidence was
presented as to any earlier parenting time schedule” and it could not
“determine whether either parent owes the other child support
retroactively.”
¶11 Most of Mother’s substantive “evidence” on this point
consisted of Mother’s volunteered assertions during her attorney’s closing
argument, after the close of evidence. Mother was no longer on the stand
as a witness. It was entirely appropriate, therefore, for the trial court to
disregard Mother’s assertions.2 Furthermore, the record contains
substantial evidence that Father would have exercised more parenting time
during the pendency of this action if not for the conditions imposed by
Mother.
¶12 The record contains competent evidence to support the trial
court’s ultimate determination that Father did not owe child support or
arrearages. We therefore conclude the trial court did not abuse its
discretion in denying Mother’s requested payments.
2 Even if Mother’s volunteered statements could be considered as
testimony, Father did not have an opportunity to cross-examine her on
these particular statements. See Goldberg v. Kelly, 397 U.S. 254, 269 (1970)
(emphasizing that “due process requires an opportunity to confront and
cross-examine adverse witnesses”).
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RIVERA v. DRAKE
Decision of the Court
III. Witness Examination
¶13 We review a trial court’s evidentiary rulings for an abuse of
discretion and will affirm exclusion of evidence unless there is a clear abuse
or legal error plus prejudice. John C. Lincoln Hosp. and Health Corp. v.
Maricopa County, 208 Ariz. 532, 543, ¶ 33 (App. 2004).
¶14 Mother contends the trial court abused its discretion in
cutting off examination of Mother, Father, and Father’s fiancée involving
the alleged incident between Z.R. and Father’s fiancée’s young child,
Father’s use of medical marijuana, the existence of inappropriate materials
on Father’s laptop that Z.R. may have had access to, and Father’s
purposeful omissions to the trial court when opposing drug testing.
¶15 Our review of the transcript reveals no abuse of discretion by
the trial court in any of these instances. The court has wide discretion in
determining relevance and managing the trial, and we find no abuse of
discretion in the limitations imposed here. See State v. Navarro, 132 Ariz.
340, 342 (App. 1982) (“The trial court in limiting cross-examination is thus
entitled to rely upon what the record before it reveals to be the relevancy of
the cross-examination attempted.”); see also Ariz. R. Evid. 611.
IV. Attorney Fees
¶16 We review for an abuse of discretion a trial court’s decision
regarding attorney fees. See Mangan v. Mangan, 227 Ariz. 346, 352, ¶ 26
(App. 2011). Mother argues the trial court erred in refusing to award her
attorney fees. She bases her contention on the trial court’s findings that
there was no substantial disparity of financial resources and neither parent
acted unreasonably in the litigation.
¶17 Arizona law gives a trial court power to award attorney fees
based on financial disparity and reasonableness of the positions taken in
litigation. A.R.S. § 25-324. That power is discretionary, however, and the
record supports the trial court’s decision not to award fees to either party.
¶18 Mother believes the evidence shows a great financial
disparity between the parties, and further alleges Father acted
unreasonably in his “voluminous” communication with Mother’s attorney
that incurred higher fees. We do not agree. The record shows ordinary
discourse between two concerned parties determining parenting time and
stipulations. Father’s communications are no more “voluminous” and
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Decision of the Court
unnecessary than Mother’s, and the fact that Father choose not to retain an
attorney and incur legal fees should not be held against him.
¶19 Regarding the question of financial disparity, the trial court
did not abuse its discretion for the same reasons we concluded it did not err
concerning child support. See supra ¶¶ 9-12. We therefore conclude that
the trial court did not abuse its discretion in its refusal to award attorney
fees.
CONCLUSION
¶20 For the forgoing reasons, we affirm the ruling of the trial court
and, in our discretion, deny Mother’s request for attorney fees on appeal.
:ama
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