Hernandez v. Fabian ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
OVIDIO WILMER HERNANDEZ, Petitioner/Appellant,
v.
MARIA TANYA CAROLINA SALAZAR FABIAN, Respondent/Appellee.
No. 1 CA-CV 18-0377 FC
FILED 7-23-2019
Appeal from the Superior Court in Maricopa County
No. FC2015-091409
The Honorable Justin Beresky, Judge
AFFIRMED
COUNSEL
Ovidio Wilmer Hernandez, Chandler
Petitioner/Appellant
Alongi Law Firm PLLC, Phoenix
By Thomas P. Alongi
Counsel for Respondent/Appellee
HERNANDEZ v. FABIAN
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.
C A T T A N I, Judge:
¶1 Ovidio Wilmer Hernandez (“Father”) appeals from the
decree of dissolution ending his marriage to Maria Tanya Carolina Salazar
Fabian (“Mother”). For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Mother were married for more than 17 years and
have two minor children together. In March 2015, both parties separately
petitioned for dissolution of their marriage. The cases were consolidated
and went to trial after over two years of contentious litigation.
¶3 In September 2017, the court held trial on legal decision-
making authority and parenting time. The court issued an order (the
“Parenting Order”) awarding joint legal decision-making authority,
designating Mother the primary residential parent, and giving Father
parenting time every Tuesday afternoon through Wednesday morning and
every other weekend. In January 2018, the superior court held a second day
of trial to address financial issues. The court then entered a decree
expressly incorporating the Parenting Order and, as relevant here,
awarding Mother spousal maintenance of $2,000 per month for three years
and attorney’s fees and costs of $50,000.
¶4 After entry of the decree, Father moved for reconsideration
and new trial. The superior court denied his motion, and Father appealed.
We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 12-
2101(A)(1), (5).
DISCUSSION
¶5 Father challenges three aspects of the decree: parenting time,
spousal maintenance, and attorney’s fees.
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Decision of the Court
I. Parenting Time.
¶6 Father argues the superior court erred by failing to award
equal parenting time. We review the court’s ruling for an abuse of
discretion. See In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 2002).
We will affirm if competent evidence in the record supports the court’s
decision. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999).
¶7 Under A.R.S. § 25-403.02(B), the superior court must adopt a
parenting plan that is consistent with the children’s best interests and
maximizes the parents’ respective parenting time. The court must consider
the 11 factors enumerated in § 25-403(A) in deciding what parenting plan is
in the best interests of the children and, under § 25-403(B), must make
findings on the record regarding “all relevant factors and the reasons for
which the decision is in the best interests of the child.” A.R.S. § 25-403(A),
(B); see also Downs v. Scheffler, 206 Ariz. 496, 499, ¶¶ 7–8 (App. 2003).
¶8 Father argues the superior court abused its discretion by
failing “to provide a factual basis for restricting Father’s parenting time.”
He relies on this court’s holding in Nold v. Nold, 232 Ariz. 270 (App. 2013),
which vacated a custody order because it lacked “any discussion of the
statutory factors.” Id. at 273, ¶ 12. Unlike the circumstances in Nold,
however, the Parenting Order here specifically addressed each of the § 25-
403 factors.
¶9 The superior court’s best-interests findings are supported by
the record. Father testified that equal parenting time was in the children’s
best interests. But Mother testified that she should be the primary
residential parent, in part, because Father had not followed medical
professionals’ recommendations for the children. Dr. Daniel Christiano, the
court-appointed evaluator, prepared a report recommending equal
parenting time (the “Report”). Mother’s expert, Dr. Philip Stahl, reviewed
and critiqued the Report. He described the Report’s findings as “extremely
superficial” and criticized Dr. Christiano’s failure to assess the allegations
of verbal, emotional, and physical abuse by Father. Dr. Stahl also expressed
concern that Dr. Christiano had not followed up with the children about
why they had said they were afraid of making Father angry. Dr. Martha
Grout, the family’s physician, testified that the parties’ son felt he had to
protect his younger sister from Father’s anger. And the “safe haven”
counselor assigned to meet with the children provided a letter to the court
expressing concern regarding Father’s interactions with the children.
Together, this evidence suggests the children are more comfortable
interacting with and relating to Mother and are better adjusted to her home.
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¶10 Recognizing that the superior court is in a better position to
gauge witness credibility, our role on appeal is not to reweigh conflicting
evidence. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). Here, the
superior court observed the demeanor of Father, Mother, Dr. Christiano,
Dr. Stahl, and Dr. Grout as they testified regarding the children’s best
interests, and that evidence, although conflicting, provided ample basis for
the court’s conclusion.
¶11 Citing Barron v. Barron, No. 1 CA-CV 17-0413 FC, 2018 WL
3722815 (Ariz. App. Jul. 31, 2018), vacated in part on other grounds, 246 Ariz.
449, 452, ¶ 21 (2019), Father argues that the Parenting Order unduly
restricted his parenting time without adequate basis. In Barron, this court
reversed a parenting time order granting the father only one overnight a
week plus alternating weekends. Id. at *1, 5, ¶¶ 5, 23. But in that case the
mother testified that she had no complaints about the father’s parenting of
their children, so there was no dispute that “each parent [could] provide a
safe, loving and appropriate home for the children.” Id. at *3, ¶ 11. Here,
in contrast, the evidence outlined above supports the court’s conclusion
that the children’s best interests were served by unequal parenting time.
¶12 Moreover, in Barron the superior court “legally erred by
applying a presumption against equal parenting time.” Id. at *2, ¶ 10
(emphasis added). Here, the Parenting Order acknowledged the
legislature’s goal of providing children “substantial, frequent, meaningful
and continuing parenting time with both parents,” see A.R.S. § 25-103(B)(1),
and although the superior court did not award Father equal parenting time,
it did provide him with substantial and frequent parenting time.
¶13 Accordingly, although the superior court did not explain its
reasons for the Parenting Order, record evidence supports the court’s
decision, and we therefore affirm.
II. Spousal Maintenance.
¶14 Father also challenges the superior court’s award of spousal
maintenance to Mother. Specifically, he argues the court abused its
discretion by failing to address the factors in A.R.S. § 25-319. We review
the award for an abuse of discretion and will affirm if there is reasonable
supporting evidence. See Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14
(App. 1998). In doing so, we acknowledge that the superior court “is in the
best position to properly tailor an award of spousal maintenance.” In re
Marriage of Hinkston, 133 Ariz. 592, 593 (App. 1982).
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Decision of the Court
¶15 As relevant here, the superior court is authorized to award
spousal maintenance if one spouse “[l]acks sufficient property, including
property apportioned to the spouse, to provide for that spouse’s reasonable
needs.” A.R.S. § 25-319(A)(1); see also Elliott v. Elliott, 165 Ariz. 128, 136
(App. 1990) (explaining that the superior court may award spousal
maintenance if any one of the § 25-319(A) factors is present). After
determining a spouse is eligible under § 25-319(A), the court must then
consider the factors set forth in § 25-319(B) to determine the amount and
duration of the award.
¶16 Father argues that the superior court awarded spousal
maintenance “without detailing the facts to support the decision.” But even
though § 25-319 does not require written findings, the court made such
findings here. See Elliott, 165 Ariz. at 135 n.1 (noting that § 25-319 only
requires the court to consider the factors, not make specific findings). And
because Father did not request findings of fact under Arizona Rule of
Family Law Procedure 82, we may infer any additional findings necessary
to sustain the superior court’s judgment. Id. at 135.
¶17 First, the superior court determined that Mother was eligible
for spousal maintenance because she lacks sufficient property, including
property apportioned to her by the decree, to provide for her reasonable
needs. See A.R.S. § 25-319(A)(1). Then, the court’s ruling addressed each of
the 13 factors in § 25-319(B), making findings regarding 11 factors and
concluding that no evidence was presented regarding the remaining two
factors. As the findings reflect, the record contains substantial evidence to
support Mother’s spousal maintenance award.
¶18 Father works as a business consultant earning approximately
$125,000 per year. Mother is unemployed with no income. The decree
awarded the parties equitable shares of the community property and debt.
During the marriage, Mother stayed home to care for the children. She
testified that although she holds a bachelor’s degree in computer science,
her skills are outdated. At the time of trial, Mother was enrolled in a
community college class as a precursor to applying for admission in a
master’s degree program. Thus, the three-year spousal maintenance award
will permit Mother time to update her skills and enter the work force. See
Van Dyke v. Steinle, 183 Ariz. 268, 275 (App. 1995) (recognizing that one of
the purposes of spousal maintenance is to allow training or education to
enable the spouse to become financially independent).
¶19 Father claims the superior court failed to address resources
Mother received after the dissolution proceedings commenced but before
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HERNANDEZ v. FABIAN
Decision of the Court
the court issued its decree. He argues that Mother “took over $115,000.00
of the liquid assets in the marital community at the onset of the litigation.”
The court did, however, address these assets by deducting a commensurate
amount from Mother’s share of the community property. Father also points
out that Mother received interim maintenance of $900 per month in
addition to having her household expenses paid. Father does not provide
evidence, however, of how this past interim support would allow Mother
to support herself as she re-trains to enter the work force.
¶20 Because substantial evidence in the record supports the
spousal maintenance award, we affirm.
III. Attorney’s Fees.
¶21 Finally, Father challenges the superior court’s $50,000 award
of attorney’s fees and costs to Mother. We review the award for an abuse
of discretion. See In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8 (App.
2008).
¶22 The superior court awarded Mother attorneys’ fees under
A.R.S. § 25-324(A), which authorizes the court to make a fee award after
considering the parties’ financial resources and the reasonableness of their
positions. Here, the court based its award on the “substantial disparity of
financial resources between the parties.” Even though the decree awarded
the parties equitable shares of the community property and debt, the court’s
finding is supported by the record, which reflects that Father makes
approximately $125,000 per year while Mother has no income.
¶23 Finding no abuse of discretion, we affirm the attorney’s fee
award.
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HERNANDEZ v. FABIAN
Decision of the Court
CONCLUSION
¶24 For the foregoing reasons, we affirm the decree. Mother
requests attorney’s fees and costs on appeal under A.R.S. § 25-324. Having
considered the relevant factors and because Father’s income is significantly
higher, we award Mother her reasonable fees and costs on appeal upon
compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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