Cordero v. Hazlitt ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
PAULA CORDERO, Petitioner/Appellee,
v.
JOSEPH HAZLITT, Respondent/Appellant.
No. 1 CA-CV 20-0376 FC
Appeal from the Superior Court in Yavapai County
No. V1300DO201480085
The Honorable Joseph Goldstein, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Schlegel Law Office, P.L.L.C., Cottonwood
By Paul Schlegel
Counsel for Petitioner/Appellee
Joseph Hazlitt, Mayer
Respondent/Appellant
CORDERO v. HAZLITT
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
W I N T H R O P, Judge:
¶1 Joseph Hazlitt (“Father”) appeals the superior court’s
judgment and orders issued between April and July 2020 on cross-petitions
to modify (1) legal decision-making and parenting time, and (2) child
support. Father argues the court abused its discretion in ordering that
Paula Cordero (“Mother”) retain sole legal decision-making for the parties’
two minor children, not increasing his parenting time, and awarding
attorneys’ fees to Mother. He further argues the court did not fairly
consider the evidence and suggests a bias existed in favor of Mother. For
the following reasons, we affirm the court’s rulings except for the award of
attorneys’ fees, which we vacate.
FACTS AND PROCEDURAL HISTORY1
¶2 In February 2013, Father and Mother married in Tempe.
Father worked part-time as a substitute teacher, and Mother was generally
unemployed. The parties’ home was “overflowing with possessions and
trash” that “resulted in a bug infestation,” and the kitchen had “rotting food
on the counters and earthworms growing in the filth.” 2 In July 2013, a
female child was born to the parties.
¶3 Mother was diagnosed with multiple sclerosis while in high
school, but she had remained symptom-free for approximately eighteen
years. In November 2013, she became ill with viral encephalitis, which
triggered her multiple sclerosis, and she was hospitalized for eighteen days.
While in the hospital, Mother learned she was pregnant with the parties’
second child. Upon her release from the hospital in December 2013, Mother
1 We view the facts and reasonable inferences therefrom in the light
most favorable to sustaining the superior court’s rulings. Day v. Day, 20
Ariz. App. 472, 473 (1973).
2 Mother blamed Father for these deplorable living conditions.
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was taken by her parents (“the maternal grandparents”) to their home in
Cottonwood, where she and the parties’ first child began living.
¶4 In January 2014, Mother obtained an order of protection
against Father, claiming he had assaulted and “strangled” her on multiple
occasions and had also “smothered our babies [sic] mouth + nose to cut off
her breathing.”3 Shortly thereafter, in February 2014, Mother petitioned for
dissolution of the parties’ marriage in Yavapai County Superior Court.
¶5 Mother and the maternal grandparents then sought to
prevent or at least severely limit Father’s interaction with the parties’ child
(later children) based on the allegations in the order of protection. Father
denied the allegations and argued Mother was using the order of protection
as a “tool” to gain leverage in the divorce proceedings. In May 2014, the
superior court issued temporary orders on stipulation of the parties
amending the order of protection to allow Father one two-hour visit per
week with the child to be supervised by the maternal grandfather. In July
2014, the parties’ second child, a boy, was born.
¶6 Before trial, legal decision-making and parenting time were a
constant source of contention between the parties. Mother continued to rely
on her previous allegations against Father, claimed Father “has mental
health issues which prevent him from co-parenting with Mother,” and
requested that Father submit to a psychological evaluation. Father argued
Mother was unable to care for the children due to her increasing physical
limitations caused by the multiple sclerosis, and that although the maternal
grandparents were assuming much of the children’s care, they also had
increasing physical limitations, including that the maternal grandmother
was “disabled and constantly on pain medication.”
¶7 In September 2014, the superior court assigned a court-
appointed advisor (“CAA”) to interview the parties, investigate the parties’
homes,4 and make recommendations regarding legal decision-making and
3 Mother had not previously documented any alleged abuse,
disclosed any incidents to friends or family members, or filed a report with
the police. As to her allegation regarding the child, Mother explained it was
based on an incident in which Father placed a blanket over part of the
child’s face, and the “[m]aternal grandfather had to uncover the child’s face
so [s]he could breathe properly.”
4 Although the CAA visited Father’s residence, she did not perform a
home visit on Mother’s (the maternal grandparents’) residence.
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parenting time. During her interview, Mother, who was by that time
confined to a wheelchair, struggled to communicate and relied on the
maternal grandfather to speak about the case. Both Mother and the
maternal grandfather acknowledged Mother could not care for herself,
much less her children, without assistance. In her March 2015 report, the
CAA concluded, “Mother has physical and cognitive impairments that
limit her ability to care for the children.” As to Father, the CAA concluded
she had not been “provided with sufficient information to believe Father is
a danger to the children,” although she noted Father’s admitted history of
anxiety, poor cleaning habits, and apparent proclivity toward hoarding.
Based on Mother’s allegations, the overriding concern for the children’s
welfare, and her conclusion that “Father may have untreated mental illness
that impacts his ability to adequately care for the children and provide them
with a safe environment,” the CAA recommended Father submit to a
psychiatric evaluation and his parenting time remain supervised until he
could be “assessed by a professional.”
¶8 In May 2015, Father moved for expedited temporary orders
seeking increased legal decision-making authority and parenting time.
Father argued that although the order of protection had expired in January
2015, Mother and the maternal grandparents refused to allow him access to
the children.
¶9 In July 2015, the court held a hearing on Father’s motion for
temporary orders. By this time, Father had submitted to a psychological
evaluation, and the evaluation report was admitted into evidence at the
hearing. The court increased Father’s parenting time to three to five hours
per week and ordered that the parties share joint legal decision-making,
with Mother having the final authority.
¶10 In December 2015, the court appointed a new CAA and
assessed all costs of the CAA to Father.5 The second CAA reviewed
numerous reports and records and interviewed both parties, Father’s adult
child from a previous marriage, the maternal grandfather, and a former
parenting-time supervisor.
¶11 In January 2016, the CAA filed a report, noting Father’s house
was very cold and dirty, smelled musty and moldy, and the floor “was
clearly not something a small child should be permitted to crawl or sit on.”
5 The first CAA had been appointed after the case was briefly
transferred to the Maricopa County Superior Court. The case was
transferred back to the Yavapai County Superior Court in March 2015.
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The only heat in the home was a single electric unit in one room, “and it
appeared that there were few functional light fixtures in the house.”
Additionally, there were numerous child safety issues, including things
piled up in the home “that looked unsafe to have around small children
because they were sharp or small and could be easily swallowed.” The
overall condition of the property’s yard, which had many vehicles and
other types of machinery on it, “presented conditions that were very unsafe
for small children” and “gave the property a trashy appearance.” An
attached letter from a supervised visitation “monitor” also indicated
concerns with Father’s poor safety habits and decision making, “physical
roughness with the children,” and provision of “unusual play[ ]toys such
as a small metal pronged garden tool and a hardball.” Mother, who had
been taking speech and physical therapy, was by the time of her interview
fully able to speak and walk a few feet with assistance. She described Father
as “very controlling” and physically, verbally, and emotionally abusive.
The CAA set forth numerous recommendations, including that (1) the court
deny any request by Father for unsupervised parenting time, (2) Mother
have sole legal decision-making authority over the children, (3) Father
receive two two-hour periods of supervised parenting time per week and
pay all costs of supervision, (4) Father complete a parenting skills class, and
(5) Father receive individual counseling to address “what may be
long[-]standing psychological issues.”
¶12 Later that month, the superior court held a trial on the petition
for dissolution. After taking the matter under advisement, the court issued
its order terminating the parties’ marriage on March 30, 2016. The court
found that although “Mother has multiple sclerosis and other health
issues[, s]he is able to provide care for the children with the help of the
grandparents. Her medical conditions do not interfere with her ability to
interact or interrelate with the children in any meaningful way.” As to
Father, the court found he had “exhibited behaviors that suggest he may
have mental health issues for which he should consider addressing. The
court advisors’ reports, which the court incorporates by reference, set forth
these concerns . . . .” The court also found that “Father’s future relationship
with the children depends upon his commitment to improving his
parenting skills and addressing issues in his life, as discussed in greater
detail in the court advisors’ reports.” The court awarded Mother sole legal
decision-making authority over the children and ordered that Father
receive three to four hours per week of supervised parenting time. The
court also ordered that Father pay for the parenting supervisor and pay
$175.00 per month in child support.
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Decision of the Court
¶13 In May 2017, Mother twice petitioned for an order of
protection, alleging Father was a danger to the children, but each time the
petition was denied. That same month, Father petitioned to modify legal
decision-making and parenting time. Father argued both the psychological
evaluation and counseling he had briefly attended indicated he had “no
mental illness,” he had completed “over thirty hours of parenting classes,”
and his home was clean and appropriate for children. He further alleged
he had missed visits and was having difficulty finding supervisors for
visitation because Mother and the maternal grandparents had “caus[ed]
supervisors to quit due to harass[ment].”
¶14 After a hearing on the petition, the superior court took the
matter under advisement before denying the petition in November 2017.
Although the court found “Mother or persons acting on behalf of Mother
have restricted Father’s parenting time beyond the ordered parenting
plan,” and that Father had nonetheless “diligently worked at trying to
maintain contact,” the court also found as follows:
The court does not find that the reasons for supervised
parenting time have subsided to a point where it is no longer
necessary, but that some changes should be implemented to
see that parenting time is more regular. Father’s future
relationship with the children will depend on him addressing
his own actions (as discussed in the decree and the 2016 court
advisor’s report), as well as Mother and [the] maternal
grandparents changing their attitude and actions towards
Father.
The court admonished Mother and/or the maternal grandparents for
numerous unwarranted and negative actions toward Father—including
contacting the Cottonwood Police Department to restrict further or prevent
Father’s visitation, referring and teaching the children to refer to Father by
derogatory names, and harassing and berating a fact witness at a
supervised visit—finding them “not acceptable.” Additionally, the court
ordered that Mother “enroll the children in counseling for the purpose of
reunification therapy for the children and Father,” with uncovered costs to
be apportioned sixty percent to Father and forty percent to Mother.
¶15 In May 2018, Father again petitioned to modify legal decision-
making and parenting time, alleging the maternal grandparents were “in
reality raising my children” and continued to “use every opportunity to
slander and malign me.” Father also petitioned to enforce his parenting
time.
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Decision of the Court
¶16 After a two-day trial, the superior court issued an under
advisement ruling in March 2019. The court made detailed findings
regarding the children’s best interests pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 25-403(A) and -403.01(B). In part, the court noted,
“Father accepts no responsibility for the fact that he has supervised
parenting time other than his belief that he made a poor choice in the [May
2014 supervised parenting] agreement. That belief is unfortunate and a
large part of the reason why it has taken nearly five years to get to this
point.” The court also recognized the continued animosity between the
parties, Mother’s failure to notify Father regarding the children’s medical
issues, inappropriate emails from Father to Mother, and the fact that the
children were “acting out” toward Father, including insulting him, saying
inappropriate things, and the younger child hitting and spitting at Father.
The court noted, “It is more likely than not that these acts are a result of the
children’s home environment than from Father’s few hours a week of
supervised parenting time.” The court denied Father’s request for joint
legal decision-making and to enforce parenting time but modified Father’s
parenting time to unsupervised parenting time five hours per week. The
court also ordered that Mother, Father, and the children continue with
reunification therapy and counseling and that “[s]ince the children are now
acting out towards Father and responding to cues from Mother’s household
that influence the children’s view of Father, the children are now in need of
their own counseling.” The court ordered that the costs of such counseling
not covered by insurance be paid sixty percent by Father and forty percent
by Mother.
¶17 In July 2019, Father again petitioned the court to modify legal
decision-making and parenting time, arguing the maternal grandparents
were alienating him from the children and interfering with visitation
because they had “made up lies of false [sexual] abuse” that had led to
intervention by law enforcement authorities and the Arizona Department
of Child Safety (“DCS”). Mother filed a response and cross-petition to
modify child support. The court held separate trials on the petitions.
¶18 The court took the matters under advisement. Before the
court issued its ruling, Father moved to submit “new” evidence of a DCS
investigation and report finding “unsubstantiated” claims that he had
physically and sexually abused and neglected the children since they began
unsupervised parenting time and that DCS had closed the case after its
investigation, indicating it believed a “false report” had been filed. Mother
argued the DCS report did not constitute newly discovered material
evidence because Father could have discovered and produced it at trial
with reasonable diligence and the report simply contained DCS’
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“investigation which concluded that the allegations against [Father] were
unsubstantiated—an acknowledgement that was made at the trial.”
¶19 The court issued a ruling in April 2020, denying Father’s
petition and increasing monthly child support to $414.00. The court
adopted its previous March 2019 findings made under A.R.S. §§ 25-403(A)
and -403.01(B) after concluding those findings were still applicable. The
court also awarded attorneys’ fees and costs to Mother after finding no
substantial disparity between the parties’ finances and that “Father’s
petition was not grounded in fact or based in law.” See A.R.S. § 25-324(B)(2).
¶20 After issuing its under advisement ruling, the court denied
Father’s motion to submit new evidence, noting that “in its ruling, the court
did not find that child abuse occurred,” and therefore, Father could not
show the evidence would change the court’s findings. In June 2020, the
court issued an order and judgment awarding attorneys’ fees of $8,520.00
and costs of $301.71, for a total award of $8,821.71 to Mother.
¶21 We have jurisdiction over Father’s timely appeal. See A.R.S.
§ 12-2101(A)(2).
ANALYSIS
I. Standard of Review and Applicable Law
¶22 We will affirm if substantial evidence supports the court’s
decision, Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009), and will not
substitute our opinion for that of the superior court unless there has been a
clear abuse of discretion, Deatherage v. Deatherage, 140 Ariz. 317, 319 (App.
1984). Further, we will not set aside findings of fact unless they are clearly
erroneous. Ariz. R. Fam. Law P. 82(a)(5). We defer to the superior court’s
credibility determinations, and to the extent the court based its rulings on
the weight it gave conflicting evidence, we defer to the court’s judgment.
Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13 (App. 1998); Ariz. R. Fam.
Law P. 82(a)(5).
II. Father’s Opening Brief
¶23 Mother argues Father’s opening brief “is illegible, difficult to
comprehend and includes references to documents that were not admitted
into evidence at Trial.” Further, without providing specificity, she argues
some of the arguments raised in Father’s opening brief appear to be beyond
the scope of his notice of appeal, and she maintains Father’s “Statement of
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Facts” is incorrect, contains hearsay statements not supported by the
record, and lacks appropriate references.
¶24 We agree that Father’s opening brief does not comply with
the Arizona Rules of Civil Appellate Procedure. His brief fails to cite to the
record correctly and contains factual assertions for which there is no
apparent record support.6 An appellant’s brief must contain a statement of
facts with appropriate references to the record. ARCAP 13(a)(5). If not, this
court may disregard it. See Flood Control Dist. of Maricopa Cnty. v. Conlin,
148 Ariz. 66, 68 (App. 1985). Also, bald assertions without proper citation
are generally insufficient to preserve issues for review. See Joel Erik
Thompson, Ltd. v. Holder, 192 Ariz. 348, 351, ¶ 20 (App. 1998); AMERCO v.
Shoen, 184 Ariz. 150, 154 n.4 (App. 1995); Prairie State Bank v. I.R.S., 155 Ariz.
219, 221 n.1A (App. 1987). Nonetheless, although Father’s opening brief is
grossly deficient, Mother’s answering brief is not much better, as it does
little to correct or clarify Father’s errors or provide facts sufficient to put the
appeal and Father’s arguments in context. See ARCAP 13(b)(1). Also, a
party’s argument must contain citations to relevant legal authorities,
supporting reasons for each contention, and appropriate references to
portions of the record on which the party relies. See ARCAP 13(a)(7)(A)-
(B), (b)(1). Here, both sides’ citation to legal authorities is woefully
deficient. The failure to comply with ARCAP 13 can constitute a waiver of
the arguments made. See Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App.
2009). Nonetheless, we decline to reject summarily Father’s appeal on this
basis. See Clemens v. Clark, 101 Ariz. 413, 414 (1966); Lederman v. Phelps Dodge
Corp., 19 Ariz. App. 107, 108 (1973).
III. Legal Decision-Making and Parenting Time
¶25 Father argues the superior court erred in ordering that
Mother retain legal decision-making authority and in declining to increase
his parenting time. On this record, we disagree.
¶26 We review for an abuse of discretion the superior court’s legal
decision-making and parenting time orders. Engstrom v. McCarthy, 243
Ariz. 469, 471, ¶ 4 (App. 2018); Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013). In deciding legal decision-making and parenting time, courts must
6 Also, Father has failed to provide transcripts of the trials on the
petition to modify legal decision-making and parenting time and the cross-
petition to modify child support. As the appellant, Father had the
obligation to timely provide this court with trial transcripts necessary to the
resolution of this appeal. See ARCAP 11(c).
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consider the children’s best interests. A.R.S. § 25-403; see also Hays v. Gama,
205 Ariz. 99, 102, ¶ 18 (2003) (stating that “the child’s best interest is
paramount”). The best interest of the children is for the superior court alone
to decide. Nold, 232 Ariz. at 273, ¶ 14 (citing DePasquale v. Superior Court
(Thrasher), 181 Ariz. 333, 336 (App. 1995)).
¶27 Father argues he has completed many of the tasks set before
him, including a psychological evaluation, parenting classes, and
counseling. Although this may be true, Father fails to realize the import or
goal of these tasks, which is to make him better able to care for the children
safely and to demonstrate what he has learned to the court so that it may
make decisions that consider the children’s welfare and are in the children’s
best interests. Although the record indicates Father is willing and able to
take direction from parental supervisors, it is not clear to what extent he is
learning better parenting skills. And as much as concerns exist about
Mother’s ongoing physical and mental limitations and the children’s
psychological well-being given the documented abhorrent behaviors
consistently exhibited by Mother or the maternal grandparents, legitimate
concerns also exist about Father’s ability to parent the children safely.
¶28 Further, as Father recognizes, he may have failed to submit at
least some of his “certificates and counseling notes” for admission into
evidence. And without that documentary evidence and transcripts of the
proceedings, we assume any missing portions of the record support the
superior court’s findings and conclusions. See Baker v. Baker, 183 Ariz. 70,
73 (App. 1995). We also assume the court considered all relevant
information in the record. See Aguirre v. Robert Forrest, P.A., 186 Ariz. 393,
397 (App. 1996). Additionally, without the transcripts, we cannot
determine whether the court has improperly precluded or failed to consider
the evidence. Given the conclusory arguments Father presents on appeal,
and the lack of transcripts, we find no abuse of the court’s discretion in
ordering that Mother retain legal decision-making authority and declining
to increase Father’s parenting time. See Baker, 183 Ariz. at 73; Romero v. Sw.
Ambulance & Rural/Metro Corp., 211 Ariz. 200, 203, ¶ 4 (App. 2005) (holding
unsupported arguments without the relevant transcripts are insufficient for
this court to meaningfully review the trial court’s rulings or overcome the
presumption that those rulings are supported by the record); see also Gen.
Elec. Cap. Corp. v. Osterkamp, 172 Ariz. 191, 193 (App. 1992) (stating a
judgment is presumed correct, and the appellant bears the burden to show
otherwise).
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IV. The Court’s Award of Attorneys’ Fees to Mother
¶29 Father also argues the superior court erred in awarding
attorneys’ fees to Mother.
¶30 We review for an abuse of discretion an award of attorneys’
fees under A.R.S. § 25-324. Rinegar v. Rinegar, 231 Ariz. 85, 90, ¶ 22 (App.
2012).
¶31 In awarding attorneys’ fees to Mother, the court found that no
substantial disparity existed between the parties’ finances7 and that
“Father’s petition was not grounded in fact or based on law.” The court’s
conclusion, however, is refuted by the record.
¶32 The record makes clear that Father’s July 2019 petition to
modify legal decision-making and parenting time was filed in response to
him continuing to lose parenting time and his concerns over the children’s
well-being as a result of sexual abuse allegations made against him by the
maternal grandparents after he began unsupervised parenting time with
the children. Even assuming arguendo the court did not abuse its discretion
in denying Father’s motion to submit “new” evidence of the DCS
investigation and report finding those claims unsubstantiated, the record
indicates that, in her response to Father’s motion, Mother acknowledged at
trial that the DCS investigation concluded the allegations against Father
were unsubstantiated. Given such an acknowledgment, the court abused
its discretion in concluding Father’s petition was not grounded in fact or
based on law, even without a transcript of the proceedings or the admission
of Father’s “newly discovered” evidence. Accordingly, we vacate the
court’s award of attorneys’ fees to Mother.
V. Father’s Allegations of an Unfair Trial and Bias
¶33 Father also argues the superior court did not fairly consider
the evidence presented at trial and suggests the court was biased against
him. The superior court has discretion over the control and management
of the trial. See Hales v. Pittman, 118 Ariz. 305, 313 (1978). “We will not
interfere in matters within the [] court’s discretion unless we are persuaded
that the exercise of such discretion resulted in a miscarriage of justice or
deprived one of the litigants of a fair trial.” Christy A. v. Ariz. Dep’t of Econ.
7 The record indicates the maternal grandparents have funded and
apparently driven much of the litigation in support of Mother and against
Father. The court would not have abused its discretion in considering that
funding as part of Mother’s financial resources under A.R.S. § 25-324(A).
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Sec., 217 Ariz. 299, 308, ¶ 31 (App. 2007) (citation omitted). In this case,
Father’s arguments amount to a request that we reweigh the evidence,
something we will not do. See Hurd, 223 Ariz. at 52, ¶ 16. On this record,
we find no evidence that the court denied Father a fair trial.
¶34 As for any suggestion the superior court was biased against
Father, we begin our analysis with the presumption that the superior court
judge is free of prejudice and bias. State v. Ramsey, 211 Ariz. 529, 541, ¶ 38
(App. 2005). To overcome this presumption, Father must prove the court
harbored “a hostile feeling or spirit of ill-will, or undue friendship or
favoritism.” State v. Cropper, 205 Ariz. 181, 185, ¶ 22 (citation omitted),
supplemented by 206 Ariz. 153 (2003). To prove this, Father must “set forth a
specific basis for the claim of partiality and prove by a preponderance of
the evidence that the judge is biased or prejudiced.” State v. Medina, 193
Ariz. 504, 510, ¶ 11 (1999). Here, Father has not rebutted the presumption
of judicial impartiality, and after reviewing the record presented, we
conclude the court impartially considered the parties’ positions.
VI. Costs on Appeal
¶35 We award taxable costs on appeal to Father upon compliance
with Rule 21, ARCAP.
CONCLUSION
¶36 We affirm the superior court’s post-decree orders, except for
the award of attorneys’ fees to Mother, which we vacate.
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