Arballo v. Orona-Hardee ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ROSALYNDA ARBALLO, Petitioner/Appellee,
v.
SAMUEL JORDAN ORONA-HARDEE, Respondent/Appellant.
No. 1 CA-CV 14-0304
FILED 2-10-2015
Appeal from the Superior Court in Maricopa County
No. FC2008-007471, FC2008-008007 (Consolidated)
The Honorable Jay R. Adleman, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Samuel Jordan Orona-Hardee, Kingman
Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Michael J. Brown joined.
T H U M M A, Judge:
¶1 Samuel Jordan Orona-Hardee (Father) appeals from an
unsigned March 19, 2014 minute entry denying his petition to modify
ARBALLO v. ORONA-HARDEE
Decision of the Court
parenting time. Treating Father’s putative appeal as a special action, this
court accepts special action jurisdiction but denies relief.
FACTS AND PROCEDURAL HISTORY
¶2 Rosalynda Arballo (Mother) and Father are unmarried and
have one minor child in common. In January 2009, the superior court issued
temporary child custody orders expressing serious concerns about Father’s
mental health and stating it did “not believe that the child is safe with
[Father] until a further evaluation can be conducted.” Accordingly, the
court awarded sole legal custody of the child to Mother. Citing concerns
about Father’s history of domestic violence and his unwillingness to follow
court orders, the same order directed that Father would not be allowed any
visitation, including supervised visitation, until further court order.
¶3 After a June 2009 trial to establish parenting time, the superior
court evaluated the child’s best interests and awarded Mother sole legal
custody of the child. The court reaffirmed its order that Father have no
parenting time until he participated in a psychological evaluation and
random drug testing.1 The court noted that “Father’s behavior throughout
the course of this case has been completely unreasonable” and “has been
one of harassment and ongoing criminal activity.”
¶4 Father then made multiple filings, including seeking
visitation and sibling visitation, modification of child support and
reconsideration of various rulings. Father eventually appealed to this court
from judgments entered in 2011 and, after the appeals were consolidated,
the superior court’s orders were affirmed in part and Father’s appeal was
dismissed in part. See Arballo v. Orona-Hardee, Nos. 1 CA-CV 11-0741, -CV
12-0415, 2012 WL 5333673, at *2 ¶ 8, *3 ¶13 (Ariz. App. Oct. 30, 2012).
¶5 In February 2013, Father filed a petition to modify parenting
time. The superior court held an August 2013 evidentiary hearing, during
which both Mother and Father addressed the court. The court ordered that
a Court Appointed Advisor (CAA) be appointed to investigate and make
recommendations about parenting time. After various additional filings,
the court held another evidentiary hearing on March 19, 2014, during which
the CAA addressed the court and both Mother and Father testified. In an
1 Father’s appeal from the January 2009 temporary orders was dismissed
when Father did not file an opening brief and he did not appeal from the
June 2009 order regarding parenting time. See Arballo v. Orona-Hardee, No.
1 CA-CV 09-0253 (Ariz. App. Aug. 6, 2009).
2
ARBALLO v. ORONA-HARDEE
Decision of the Court
unsigned minute entry filed the day of the hearing, the court (1) made
findings of fact; (2) denied Father’s petition for parenting time and (3)
affirmed the January 2009 parenting time order and subsequent orders that
reaffirmed the January 2009 parenting time order. On April 7, 2014, Father
filed a notice of appeal from the unsigned minute entry. On April 21, 2014,
the superior court signed the findings of fact and conclusions of law
submitted by Mother’s counsel. Father filed no additional or supplemental
notice of appeal.
DISCUSSION2
I. Jurisdiction Over Father’s Purported Appeal.
¶6 Father cites Arizona Revised Statutes (A.R.S.) section 12-
2101(A)(1) (2015)3 as granting this court jurisdiction over his appeal. This
court has an independent duty to determine whether it has jurisdiction over
an appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d
1007, 1008 (App. 1997). Generally, this court’s jurisdiction is limited to
appeals from final, signed judgments. See Ghadimi v. Soraya, 230 Ariz. 621,
622 ¶ 10, 285 P.3d 969, 970 (App. 2012). Father has cited no authority for the
proposition that this court has appellate jurisdiction over an unsigned
minute entry. Although Father has failed to show appellate jurisdiction, this
court can review the superior court’s decision by exercising special action
jurisdiction. See Danielson v. Evans, 201 Ariz. 401, 411 ¶ 35, 36 P.3d 749, 759
(App. 2001) (after finding appellate jurisdiction lacking, court sua sponte
accepted special action jurisdiction). Particularly because the best interests
of a child are at stake, this court treats Father’s purported appeal as a
petition for special action and accepts jurisdiction. See A.R.S. § 12-
120.21(A)(4); Ariz. Dep’t of Econ. Sec. v. Powers, 184 Ariz. 235, 236, 908 P.2d
49, 50 (App. 1995).
II. The Superior Court Made Specific Findings Of Fact And
Conclusions Of Law.
¶7 Father made a timely request that the superior court make
specific findings of fact and conclusions of law pursuant to Rule 82(A) of
2Although no answering brief was filed on appeal, this court does not treat
that omission as an admission of error by Mother given that the best
interests of the child are implicated.
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
3
ARBALLO v. ORONA-HARDEE
Decision of the Court
the Arizona Rules of Family Law Procedure and, on appeal, claims the
superior court failed to do so. To comply with the findings and conclusions
requirement, “[i]t must be clear” from the record how the court “arrive[d]
at its conclusions.” Elliot v. Elliot, 165 Ariz. 128, 135, 796 P.2d 930, 937 (App.
1990) (citation omitted).
¶8 Contrary to Father’s argument, the superior court made
sufficient findings of fact in its March 19, 2014 minute entry and it is clear
from those findings how the court arrived at its conclusions of law. For
example, the court found that the child “had no contact with her father [or
any paternal relatives] since November 2008” and “does not know her
father or his relatives.” Furthermore, the court found that “Mother [was] a
victim of at least 4 felony domestic violence cases against Father” and that
“Father is currently incarcerated . . . for three (3) domestic violence felony
convictions in which Mother was the listed victim.” The court went on to
note that “Father has failed to follow prior orders to provide the Court and
the parties with a complete psychological evaluation assessing any danger
that he poses to the minor child” and “failed to comply with prior orders
regarding drug testing.” These statements, and the others made by the
court, constitute sufficient specific findings of fact and are supported by the
record.
III. The Superior Court Did Not Err In Denying Father’s Petition To
Modify Parenting Time.
¶9 Father claims the superior court erred in denying his petition
to modify parenting time. The superior court has broad discretion over such
a decision because the “judge is in the most favorable position to determine
what is best for the children,” Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d
818, 823 (1970), and this court reviews such a decision for an abuse of
discretion, see In re Marriage of Diezsi, 201 Ariz. 524, 525 ¶3, 38 P.3d 1189,
1191 (App. 2002); Armer, 105 Ariz. at 289, 463 P.2d at 823. “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, 975 P.2d 108,
110 (1999) (citation omitted).
¶10 Father cites A.R.S. § 25-403 and -403.01(D), along with the
United States Constitution, to support his claim that the superior court
erred in denying his petition to modify parenting time. Father’s petition,
however, does not allege a change in circumstances, which is a prerequisite
to any change in parenting time. See Pridjeon v. Superior Court, 134 Ariz. 177,
179, 655 P.2d 1, 3 (1982) (“In considering a motion for change of custody,
4
ARBALLO v. ORONA-HARDEE
Decision of the Court
the court must initially determine whether a change of circumstances has
occurred since the last custody order.”).
¶11 Even if such a change had been alleged and shown, any relief
requested in a change in parenting time must be consistent with the child’s
best interests. See Black v. Black, 114 Ariz. 282, 283, 560 P.2d 800, 801 (1977);
A.R.S. § 25-403(A) (best interest factors). As noted above, the superior
court’s findings (including that the child had no relationship with Father or
his family and that Father was in prison for domestic violence offenses
where Mother was the victim) clearly show that the court considered the
best interests of the child in denying Father’s petition. See A.R.S. § 25-
403(A). In addition, the court reaffirmed prior findings that Father “failed
to follow” previous orders (1) “to provide the Court and the parties with a
complete psychological evaluation assessing any danger that he poses to
the minor child” and (2) “regarding drug testing.” See A.R.S. § 25-403(A)(5).
The court also noted that “[t]he child is doing very well now in the care of
the Mother.” See A.R.S. § 25-403(A)(3). These findings support the superior
court’s denial of Father’s petition.4
¶12 Although Father argues that A.R.S. § 25-403.01(D) supports
his appeal because it specifies that a parent shall have reasonable parenting
time, the statute goes on to state that “unless the court finds, after a hearing,
that parenting time would endanger the child’s physical, mental, moral or
emotional health.” A.R.S. § 25-403.01(D) (emphasis added.) The superior
court’s signed findings of fact and conclusions of law reaffirmed the
consideration of relevant provisions by stating that “it has considered ARS
§ 25-403, § 25-403.01, § 25-403.02, and ARS § 25-403.03 and for all of the
above reasons, any parenting time between Father and Child would
endanger the physical, mental, moral, or emotional health of the child.
Parenting time is not warranted during Father’s present incarceration.”
Given this explicit finding, A.R.S. § 25-403.01(D) supports the court’s denial
of Father’s petition.
¶13 The superior court considered the relevant factors and did not
err in denying Father’s petition to modify parenting time. On this record,
Father’s disagreement with the court’s analysis of statutory factors and
conclusion does not establish an abuse of discretion. See Hurd v. Hurd, 223
4“If the court finds that a parent has committed an act of domestic violence,
that parent has the burden of proving to the court’s satisfaction that
parenting time will not endanger the child or significantly impair the child’s
emotional development.” A.R.S. § 25-403.03(F). The record shows that
Father did not meet this burden.
5
ARBALLO v. ORONA-HARDEE
Decision of the Court
Ariz. 48, 52 ¶ 16, 219 P.3d 258, 262 (App. 2009); see also Jesus M. v. Ariz. Dep’t
of Econ. Sec., 203 Ariz. 278, 280 ¶ 4, 53 P.3d 203, 205 (App. 2002) (noting trier
of fact is in best position to weigh evidence).
IV. The Superior Court Did Not Err In Considering Mother’s
Response.
¶14 Father claims the superior court erred by considering what he
claims was an untimely response by Mother that “was not provided to or
served upon Father.” Mother’s response states that a copy was mailed to
Father at the address Father had on file with the court. At some point,
Father changed addresses but did not update his address with the court
until after the change and long after Mother filed her response. See Ariz. R.
Fam. L.P. 23. To the extent that Father did not receive this filing because he
failed to notify the court of his change in address, Father has not shown
how the court erred in considering Mother’s response.
¶15 The record also suggests that Father received Mother’s
response and, contrary to his argument on appeal, Father provided no
evidence of prejudice by the timing of when he received the response.
Indeed, the factual findings made in the March 19, 2014 minute entry are
based on the evidentiary record, not just Mother’s response. And Father
participated in, and had an opportunity to dispute, the response at the
March 19, 2014 hearing. Finally, Father has not shown how Arizona Rule of
Family Law Procedure 35 required the superior court to grant the relief
Father requested, particularly given that the best interests of the child are
involved. Father has not shown that the superior court erred in considering
Mother’s response.
CONCLUSION
¶16 This court accepts special action jurisdiction but denies relief.
:ama
6