Jackman v. McCann ( 2017 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
    CHRISTIAN GREGORY JACKMAN, Petitioner/Appellee,
    v.
    TERESA MARIE MCCANN, Respondent/Appellant.
    No. 1 CA-CV 16-0263 FC
    FILED 9-14-2017
    Appeal from the Superior Court in Maricopa County
    No. FC2014-096241
    The Honorable Peter A. Thompson, Judge
    APPEAL DISMISSED IN PART, AFFIRMED IN PART
    COUNSEL
    Berkshire Law Office PLLC, Phoenix
    By Keith Berkshire, Maxwell Mahoney
    Counsel for Petitioner/Appellee
    Teresa Marie McCann, Gilbert
    Respondent/Appellant
    JACKMAN v. MCCANN
    Decision of the Court
    MEMORANDUM DECISION
    Acting Presiding Judge Peter B. Swann delivered the decision of the court,
    in which Judge Michael J. Brown and Judge Maria Elena Cruz joined.
    S W A N N, Judge:
    ¶1            This is an appeal from a dissolution decree’s orders regarding
    legal decision-making, parenting time, property allocation, and attorney’s
    fees. We hold that the legal decision-making and parenting-time orders
    have been rendered moot by the juvenile court’s determination that the
    children are dependent as to the appellant. We therefore dismiss that
    portion of the appeal. We affirm as to the property-allocation and
    attorney’s fee orders because we find no abuse of discretion.
    FACTS AND PROCEDURAL HISTORY
    ¶2             Teresa Marie Jackman (“Mother”) and Christian Gregory
    Jackman (“Father”) married in 2000. In October 2014, Father left the marital
    home with the parties’ three minor children. He obtained an order of
    protection, which included the children, based on allegations that Mother
    abused the children. The parties later agreed that Mother would have
    supervised parenting time three times a week, and the court appointed a
    best-interests attorney for the children.
    ¶3            Between December 2014 and February 2015, Mother had nine
    supervised visits. In May 2015, the court ordered Father to make the
    children available for telephonic contact once a week. Mother thereafter
    had some telephonic visits with the children, but the interactions ceased
    around August 2016 because Father claimed that the children did not want
    to participate.
    ¶4            Under a stipulated order entered in mid-2015, Mother was to
    submit to alcohol testing for ninety days, and Father was to undergo two
    drug tests, ninety days apart. Father tested positive for codeine in May
    2015, and he tested positive for codeine and hydrocodone in a second,
    untimely test in December 2015. Mother provided several diluted urine
    samples but by October 2015 eventually satisfied her alcohol-testing
    regimen.
    2
    JACKMAN v. MCCANN
    Decision of the Court
    ¶5           After a trial, the superior court found that Mother had
    physically and emotionally abused the children, and that she was in denial
    regarding her alcohol abuse. The court concluded that Father should have
    sole legal decision-making authority. The court further concluded that
    awarding substantial parenting time to Mother would endanger the
    children’s physical or emotional health. The court therefore ordered a
    parenting-time plan that gradually increased Mother’s time with the
    children and was conditioned on the family participating in an intensive
    therapeutic reunification program, individual counseling for the parents,
    and Mother testing negative on a full-spectrum drug test for eighteen
    months.
    ¶6            The court divided the marital property, including the marital
    residence, between Mother and Father. The court awarded Mother $6,000
    in attorney’s fees under A.R.S. § 25-324(A). The court denied Mother’s
    motion to amend the judgment or grant a new trial.
    DISCUSSION
    ¶7            Mother challenges the dissolution decree’s orders regarding
    legal decision-making, parenting time, property allocation, and attorney’s
    fees. We address each issue in turn.
    I.     MOTHER’S APPEAL IS MOOT AS TO THE LEGAL DECISION-
    MAKING AND PARENTING-TIME ORDERS.
    ¶8             After the close of briefing in this appeal, Mother notified this
    court of In the Matter of M.J., J.J., N.J., Maricopa County Superior Court Case
    No. JD530683, a pending dependency action against her and Father as to
    the children. We take judicial notice of the juvenile court’s March 14, 2017
    orders finding the children dependent as to Mother, placing the children in
    the physical custody of the Department of Child Safety, and prohibiting
    Mother from visiting the children until therapeutically recommended.
    Those orders supersede the legal decision-making and parenting-time
    orders. See A.R.S. § 8-202(F); Michael M. v. Ariz. Dep’t of Econ. Sec., 
    217 Ariz. 230
    , 234, ¶ 15 (App. 2007). Our review of the legal decision-making and
    parenting-time orders therefore could provide no practical relief to Mother.
    ¶9            We will dismiss an appeal as moot when our action will have
    no effect on the parties, unless the issue on appeal is one of great public
    importance or is capable of repetition, yet evades review. Cardoso v. Soldo,
    
    230 Ariz. 614
    , 617, ¶ 5 (App. 2012). The legal decision-making and
    parenting-time orders in this case, while significant to the parties, does not
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    JACKMAN v. MCCANN
    Decision of the Court
    have broad public impact and is based on the specific facts. We therefore
    conclude that Mother’s appeal from those orders is moot.
    II.    THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION WITH
    RESPECT TO PROPERTY ALLOCATION.
    ¶10           Mother contends that the superior court erred by failing to
    order reimbursement for half of approximately $9,000 she spent to maintain
    the marital residence after service of the petition for dissolution. Those
    expenses were not mortgage payments affecting the equity in the house;
    rather, Mother paid ordinary upkeep, HOA fees, and taxes. Father
    maintained the insurance on the marital residence and paid Mother
    temporary spousal maintenance during the litigation. Father also incurred
    expenses to maintain his own residence.
    ¶11           The court ordered the marital residence sold, all outstanding
    encumbrances paid,1 and any remaining proceeds equally shared. The
    court has broad discretion in apportioning community assets in a
    dissolution, and we will not disturb that allocation absent an abuse of
    discretion. Boncoskey v. Boncoskey, 
    216 Ariz. 448
    , 451, ¶ 13 (App. 2007). In
    view of the foregoing facts, we discern no abuse of discretion here.
    III.   THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION WITH
    RESPECT TO THE ATTORNEY’S FEES AWARD.
    ¶12           The superior court, finding under A.R.S. § 25-324(A) that
    there was a substantial disparity of financial resources favoring Father but
    that neither party acted unreasonably in the litigation, awarded Mother
    approximately 10% of the attorney’s fees and costs she requested. Mother
    contends that she was entitled to a greater award because the evidence does
    not support the court’s finding that Father acted reasonably. Mother also
    contends that she was entitled to her attorney’s fees under A.R.S.
    § 25-408(J), which provides that “[t]he court shall assess attorney fees and
    costs against either parent if the court finds that the parent has
    unreasonably denied, restricted, or interfered with court-ordered parenting
    time.”
    1      Mother contends that the superior court failed to consider a debt
    owed to her father related to the marital residence. But Father
    acknowledges that the decree ordered all outstanding encumbrances paid
    before the equity is divided. Accordingly, the debt owed to Mother’s father
    is a non-issue.
    4
    JACKMAN v. MCCANN
    Decision of the Court
    ¶13            Mother contends that Father acted unreasonably by, among
    other things, refusing to encourage the children to participate in the court-
    ordered supervised parenting time and telephonic access, failing to timely
    comply with the drug-testing order, failing to fully comply with the
    counseling orders, and failing to comply with orders to compel financial
    discovery. Where there are disputed facts or inferences to be drawn from
    those facts, and credibility determinations to be made, we will not reweigh
    the evidence or substitute our opinions for the superior court’s findings. See
    Gutierrez v. Gutierrez, 
    193 Ariz. 343
    , 348, ¶ 13 (App. 1998). The superior
    court found that many of Father’s behaviors were not in the children’s best
    interests. But the court did not specifically find that Father’s conduct was
    unreasonable. In fact, the court found that “Father has acted as a gatekeeper
    to protect the children [from] emotional and physical abuse,” and that the
    role was “partially validated by the facts of this case.” The court also found
    that the delays in counseling were caused, in part, by circumstances beyond
    Father’s control. The record supports the superior court’s findings. We
    discern no abuse of discretion in the attorney’s fees award.
    CONCLUSION
    ¶14          We dismiss the appeal from the legal decision-making and
    parenting-time orders as moot. In all other respects, we affirm the decree.
    ¶15          We deny Father’s request for an award of attorney’s fees and
    costs on appeal under A.R.S. § 25-324. Though we conclude that Mother’s
    appeal lacks merit, we do not find it frivolous or abusive.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CV 16-0263-FC

Filed Date: 9/14/2017

Precedential Status: Non-Precedential

Modified Date: 9/14/2017