Atkinson v. McIndoo ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
In re the Matter of:
ASHLEY ATKINSON, Petitioner/Appellee,
v.
NADINE MCINDOO, Respondent/Appellant.
No. 1 CA-CV 14-0124
FILED 1-8-2015
Appeal from the Superior Court in Maricopa County
No. FC2013-000759, FC2013-001652
(Consolidated)
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL
Ashley Atkinson, Goodyear
Petitioner/Appellee
Nadine McIndoo, Lauderhill, FL
Respondent/Appellant
ATKINSON v. MCINDOO
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
J O N E S, Judge:
¶1 In this child custody matter, Nadine McIndoo (Mother)
appeals an order in which the trial court exercised jurisdiction pursuant to
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
codified at Arizona Revised Statutes (A.R.S.) sections 25-1001 to -1067,1 and
modified a New York child custody order awarding sole legal decision-
making authority to Ashley Atkinson (Father). For the following reasons,
we affirm.
FACTUAL BACKGROUND2
¶2 Mother and Father are the biological parents of a child born
in New York in 1998 (Child). In 1999, a New York court awarded Mother
physical and legal custody of Child and granted Father unsupervised
parenting time. Mother and Child moved to Florida in 2003, where they
resided until the December 2012 incident giving rise to this litigation.
¶3 On December 20, 2012, Mother suffered a mental health crisis
and was involuntarily hospitalized. Florida authorities took temporary
custody of Child and then released him to Father. Subsequently, Father and
Child returned to Father’s home in Arizona, where Father sought and was
1 Absent material revisions after the relevant dates, we cite the current
version of the statutes and rules.
2 Mother filed an opening brief with attachments on April 4, 2014, and
an identical opening brief without attachments on May 19, 2014; neither
contains appropriate citations to the record, and only a few of the
attachments are in the record on appeal. On appeal, we consider only those
items that are in the record. See In re Property Located at 6757 S. Burcham
Ave., 204 Ariz. 401, 405, ¶ 11, 64 P.3d 843, 847 (App. 2003) (citing Ashton-
Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996)).
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awarded temporary emergency custody by the Arizona court. After both
New York and Florida declined to exercise jurisdiction, the Arizona
superior court modified the New York custody order. The superior court
awarded sole legal decision-making authority to Father, and granted
Mother supervised parenting time until she satisfied several conditions, at
which time Mother could exercise unsupervised parenting time.
¶4 Mother timely appealed the trial court’s order. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
I. Jurisdiction
¶5 Mother argues the Arizona court erred in exercising
temporary emergency jurisdiction, and in concluding Arizona was Child’s
“home state.” We review the superior court’s exercise of jurisdiction de
novo. See State ex rel. Dep’t of Econ. Sec. v. Tazioli, 226 Ariz. 293, 294, ¶ 7, 246
P.3d 944, 945 (App. 2011) (citing Guerra v. Bejarano, 212 Ariz. 442, 443, ¶ 6,
133 P.3d 752, 753 (App. 2006)). To determine whether the Arizona court
properly exercised jurisdiction pursuant to the UCCJEA, we are required to
examine the procedural history of this case.
¶6 After Father returned to Arizona with Child in December
2012, he filed a petition to modify child custody and parenting time in
Arizona on January 8, 2013.3 Father simultaneously filed a motion for
temporary custody. Mother’s response to Father’s first petition admitted
proper venue in Arizona, confirmed the existing New York custody order,
and asked she be declared the primary residential parent with sole legal
decision-making authority. On the same day, Mother filed her own petition
to enforce the New York custody order in a separate action in the Arizona
court; the two cases were later consolidated.
3 Although titled a “petition to establish,” Father’s petition asked the
superior court to modify the 1999 New York custody order, and we treat it,
as did the superior court, as a petition for modification. See Ariz. R. Civ. P.
8(e)(1) (“No technical forms of pleading or motions are required.”);
Rodriguez v. Williams, 104 Ariz. 280, 283, 451 P.2d 609, 612 (1969) (looking
“to substance rather than to form” in determining intended effect of
pleading).
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¶7 At a January 30, 2013 hearing, the Arizona court found it
appropriate to take emergency jurisdiction for sixty days, and awarded
Father temporary sole legal decision-making authority during that period.
The superior court heard from both parties, as well as a court-appointed
advisor who had interviewed Child earlier that day. It specifically noted
that this order would provide Father sufficient time to seek modification of
the current custody order in either New York or Florida.
¶8 When Father learned that his New York petition to modify
would not be resolved before the temporary order expired on April 1, 2013,
he requested an extension. The superior court granted his request and
extended the temporary order for ninety days. On April 2, 2013, Mother
filed two pleadings: one repeated her request to enforce the New York
custody order, and the second, alternatively, sought temporary legal
decision-making authority.
¶9 The Arizona court held a hearing in April 2013, at which the
New York judge appeared telephonically and stated on the record that New
York would decline to exercise jurisdiction over Father’s petition to modify
legal custody. The trial court then affirmed its extension of Father’s
temporary custody and denied Mother’s request for temporary legal
decision-making authority.
¶10 The next month, Mother filed a third petition to enforce the
New York custody order in the Arizona court. This petition included as an
exhibit an “order to pick up minor child,” issued ex parte the day prior by
a Florida court, which stated that Florida had original jurisdiction, had
jurisdiction to enforce the New York order, was Child’s home state, and set
an evidentiary hearing on June 3, 2013. In response, Father filed another
petition to modify the New York order in the Arizona court.
¶11 At a hearing in May 2013, Mother informed the Arizona court
that she had filed a petition in Florida seeking to enforce the New York
order and that the Florida court would contact Arizona regarding its
exercise of temporary emergency jurisdiction. The Arizona court denied
Mother’s request to dismiss temporary emergency jurisdiction, stating it
would not do so until it conferred with the Florida court pursuant to the
UCCJEA.
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Decision of the Court
¶12 The Florida court postponed its hearing on the matter until
August 9, 2013; consequently, the Arizona court extended its temporary
custody order until the Florida court made a decision whether to exercise
jurisdiction. When the Florida court subsequently declined jurisdiction,
Father filed an amended petition in Arizona, seeking to modify the New
York order, alleging Arizona was now Child’s home state because Child
had resided in Arizona for the past eight months. The Arizona court found
it had jurisdiction pursuant to the UCCJEA because both New York and
Florida had, by then, declined jurisdiction.
A. Temporary Emergency Jurisdiction
¶13 Mother argues the Arizona court erred in assuming
temporary emergency jurisdiction. To the contrary, we find the court
complied with the UCCJEA in assuming temporary emergency jurisdiction
over the custody issues.
¶14 The purpose of the UCCJEA is to resolve conflicts regarding
jurisdiction in interstate custody disputes. Melgar v. Campo, 215 Ariz. 605,
607, ¶ 10, 161 P.3d 1269, 1271 (App. 2007) (citing Welch-Doden v. Roberts, 202
Ariz. 201, 208, ¶ 29, 42 P.3d 1166, 1173 (App. 2002)). Generally, the UCCJEA
requires a court to recognize and enforce a prior custody order from
another state court. See A.R.S. § 25-1053(A). Pursuant to the UCCJEA, a
court that issues an original custody order retains exclusive, continuing
jurisdiction until that court “determines that the child’s connection with the
state is too attenuated or that the child and parents no longer reside in the
state.” Melgar, 215 Ariz. at 607, ¶ 11, 161 P.3d at 1271 (emphasis in original)
(citations omitted); see also A.R.S. § 25-1032(A). Thus, to modify an original
custody order, a party must return to the issuing court and seek
modification or ask that court to decline jurisdiction. Melgar, 215 Ariz. at
607, ¶ 11, 161 P.3d at 1271; see also A.R.S. § 25-1033.
¶15 Section 25-1034 provides an exception to the rule of exclusive,
continuing jurisdiction in emergency situations. An Arizona court may
exercise temporary emergency jurisdiction if the child is in Arizona and
“has been abandoned or it is necessary in an emergency to protect the child
because the child . . . is subjected to or threatened with mistreatment or
abuse.” A.R.S. § 25-1034(A). Where there is a previous custody order that
is entitled to be enforced, the temporary order must specify the period of
time it will remain in effect to allow the party to obtain an order from the
previous court with exclusive, continuing jurisdiction. A.R.S. § 25-1034(C).
Here, the superior court found an emergency existed which would allow it
to exercise temporary emergency jurisdiction.
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¶16 The Arizona court abuses its discretion in making a factual
determination where the record is “devoid of competent evidence to
support the decision.” Platt v. Platt, 17 Ariz. App. 458, 459, 498 P.2d 532,
533 (1972) (citing Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668
(1963)). Here, the December 20, 2012 Florida incident report and testimony
of the court employee who interviewed Child establish that Mother
experienced a mental breakdown causing her to hold Child on the ground
and pour a bottle of ammonia on him “to keep the demons out of him.”
Mother did not dispute the incident occurred, arguing instead Child was
not at risk because she “tried to make arrangements” for Child in the event
of hospitalization and had obtained medical assistance following the
incident. The superior court, therefore, did not err in concluding, based
upon the record before it, that Child was subjected to mistreatment or
abuse.
¶17 Mother argues Florida was Child’s “home state,” at the time
Father filed the original petition. However, the Arizona court did not act
inappropriately in exercising temporary emergency jurisdiction simply
because another court could also have done so. See J.D.S. v. Franks, 182 Ariz.
81, 90, 94, 893 P.2d 732, 741, 745 (1995) (approving exercise of foreign court’s
emergency jurisdiction where court “could have found that there was an
emergency because of the poor condition of the baby’s health” even where
an Arizona court also had jurisdiction). Child was located in Arizona at the
time of the petition, and the requisite emergency existed pursuant to A.R.S.
§ 25-1034(A). The court was authorized to assume temporary emergency
jurisdiction, and did so for a period of sixty days. The order complied with
A.R.S. § 25-1034(C), and we find no error in its form.
B. Continuation of Temporary Custody Order
¶18 Mother next argues the Arizona court abused its discretion in
extending the temporary custody order and “unfairly extending the
proceedings so that the result would allow the child to remain in Arizona
for the 6 months that would make Arizona the domicile state of the child.”
We review the trial court's decision to grant a continuance for an abuse of
discretion, and any related findings of fact for clear error. See Yavapai Cnty.
Juv. Action No. J–9365, 157 Ariz. 497, 499, 759 P.2d 643, 645 (App. 1988)
(“Motions to continue are addressed to the sound discretion of the trial
court and its decision will not be reversed absent a clear abuse of
discretion.”). Generally, an abuse of discretion occurs where the decision
is “manifestly unreasonable, exercised on untenable grounds or for
untenable reasons.” Williams v. Williams, 166 Ariz. 260, 265, 801 P.2d 495,
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500 (App. 1990) (citing Quigley v. City Court of Tucson, 132 Ariz. 35, 37, 643
P.2d 738, 740 (1982), and Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40,
658 P.2d 835, 840 (App. 1982)).
¶19 The Arizona court initially entered a sixty-day emergency
temporary custody order, reasoning the period would be sufficient for
Father to seek modification of the custody order in either the New York or
Florida court. Father filed a petition for modification in New York less than
thirty days later, and requested the temporary custody order be extended
upon being advised it would take three to six weeks for the New York court
to process the petition and set a hearing. The Arizona court extended the
temporary custody order an additional ninety days to account for this
additional time. Mother requested the court reconsider the order, which it
declined following a hearing where it was revealed that Mother was
continuing to place Child in the position of needing to care for her and
asking Child to provide her information regarding Father’s activities.
¶20 After the New York court declined jurisdiction, Mother
petitioned the Florida court for enforcement of the New York orders. The
Florida court set a hearing to determine its jurisdiction nine days after the
emergency temporary custody order was set to expire. The Arizona court
thereafter extended the order a second time, upon Father’s motion and
without timely objection from Mother, for fifteen days, or until the Florida
court exercised jurisdiction, whichever was earlier.
¶21 There is no suggestion in the record that Father or the Arizona
court acted intentionally to deprive another court of jurisdiction. Although
Father testified he did not file for custody in Florida because he was,
perhaps mistakenly, advised by child protective services workers in Florida
and the clerk in New York that he should file in the state of his residence,
the Arizona court continually expressed its belief that Florida would
ultimately take jurisdiction over the matter. Each continuance was granted
in consideration of a hearing set in another state’s court that would
ultimately determine that state’s jurisdiction over the matter. It was not
unreasonable to narrowly correlate the Arizona court’s timelines with the
related hearing schedules of the out-of-state courts, especially in this
UCCJEA matter where the exercise of the Arizona court’s jurisdiction might
hinge on another court’s decision, and there was no abuse of discretion in
doing so.
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C. Jurisdiction To Modify New York Custody Order
¶22 Mother also contends the Arizona court violated A.R.S. §§ 25-
402, -1031, -1032, and -1033 by ultimately accepting jurisdiction to modify
the New York custody order. In its modification order, the superior court
found:
[T]he parties and the Child have resided in Arizona
continuously for at least six months preceding the filing of the
Petition to Establish Legal Decision Making (Custody) and
Parenting Time, filed on January 8, 2013 (the “Petition”). This
Court, therefore, has jurisdiction as Arizona is the “home
state” of the Child. See A.R.S. § 25-1031. Further, this Court
has jurisdiction pursuant to A.R.S. § 25-402 and continuing
jurisdiction pursuant to A.R.S. § 25-1032.
¶23 It is undisputed that Father brought Child to Arizona in late
December 2012, and the Arizona court was incorrect in stating Mother and
Child had resided in Arizona for at least six months preceding Father’s
January 2013 petition. However, this misstatement is not fatal to the
exercise of jurisdiction.
¶24 Because there was an existing New York custody order, the
Arizona court was required to determine its jurisdiction, pursuant to A.R.S.
§ 25-1033. The UCCJEA permits modification of another state’s custody
order where Arizona is the child’s home state or the home state has declined
jurisdiction pursuant to A.R.S. § 25-1031(A)(1) and (2), and:
1. The court of the other state determines that it no longer
has exclusive, continuing jurisdiction . . . or that a court of this
state would be a more convenient forum . . . [; or]
2. A court of this state or a court of the other state
determines that the child, the child’s parents and any person
acting as a parent do not presently reside in the other state.
A.R.S. § 25-1033(A)(1)-(2).
¶25 Neither of the parties nor Child lived in New York, thereby
satisfying the second prong of A.R.S. § 25-1031. Therefore, we must
determine whether Arizona was Child’s home state, or if not, whether
Child’s home state declined jurisdiction under A.R.S. § 25-1031(A)(1) or (2),
which would allow the Arizona court to move forward with the
modification.
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¶26 For purposes of the UCCJEA, the “home state” is the “state in
which a child lived with a parent . . . for at least six consecutive months
immediately before the commencement of a child custody proceeding,
including any period during which that person is temporarily absent from
that state.” A.R.S. § 25-1002(7)(a); see also Welch-Doden, 202 Ariz. at 208-09,
¶ 33, 42 P.3d at 1173-74 (“[T]he applicable time period to determine ‘home
state’ [for purposes of A.R.S. § 25-1031(A)(1)] is within six months before
the commencement of the child custody proceeding.”) (internal quotations
omitted). Again, it is undisputed that Child lived in Florida for more than
six consecutive months immediately preceding Father’s petition.4
Therefore, Florida was Child’s home state.
¶27 However, the Florida court declined to exercise jurisdiction
over this matter, finding Child was not located in Florida, the Arizona court
had properly assumed emergency temporary jurisdiction “in substantial
conformity with the UCCJEA,” and Arizona should be treated as Child’s
“home state.”5 These statements support the Arizona court’s exercise of
jurisdiction.
4 Father’s January 2013 petition constituted the “commencement of
the child custody proceedings.” See A.R.S. § 25-1002(4)-(5). Florida was
also the home state at the time Father filed the petition to modify legal
decision-making on May 28, 2013 because Child had not continuously
resided in Arizona for six months at any time before Father filed this
petition. Regardless of which of Father’s two petitions constituted the
“commencement” of child custody proceedings, Child had not lived in
Arizona for six consecutive months before either petition was filed.
Mother’s petitions to enforce the New York order did not constitute a “child
custody proceeding” pursuant to A.R.S. § 25-1002(4)(b) and are, therefore,
irrelevant to determining the child’s home state.
5 We note the Florida court’s order available for our review, which
was provided to the superior court by Father, is somewhat illegible,
rendering the reasons for declining jurisdiction difficult to discern. As the
appellant, Mother “is responsible for making certain the record on appeal
contains all transcripts or other documents necessary for [this Court] to
consider the issues raised on appeal.” Baker v. Baker, 183 Ariz. 70, 73, 900
P.2d 764, 767 (App. 1995); see also ARCAP 11(b) (explaining duty of
appellant to order certified transcripts). In the absence of an adequate
record, we assume the illegible portions of the Florida order would support
the Arizona court’s ruling. See Renner v. Kehl, 150 Ariz. 94, 97 n.1, 722 P.2d
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¶28 Because both Child’s home state and the issuing state
declined jurisdiction, the Arizona court was entitled under A.R.S. § 25-1033
to modify the New York order. It did not err in doing so.
D. Communication With Court Issuing Prior Child Custody
Order
¶29 Mother also argues the Arizona court erred because it did not
“immediately communicate directly with the Court in which a child
custody determination ha[d] been made” in order to resolve the question
of jurisdiction, and by instead “leaving it up to the parties to the Arizona
proceeding to do the same.”
¶30 Section 25-1034(D) provides that, where an Arizona court has
been asked to exercise temporary emergency jurisdiction, and a prior
proceeding or determination exists in another state, the court “shall
immediately communicate with the other court.” A.R.S. § 25-1034(D). The
purpose of communication between the courts is to “resolve the emergency,
protect the safety of the parties and the child and determine a period for the
duration of the temporary order.” Id.
¶31 The record does not indicate that the Arizona court initiated
communication with either the New York or Florida court. However, based
upon the timely communication that occurred between the various courts
involved, we find no prejudice in any delay. See Gutierrez v. Gutierrez, 20
Ariz. App. 388, 389, 513 P.2d 677, 678 (1973) (noting failure to comply with
a rule is not reversible error absent showing of prejudice) (citing Rexing v.
Rexing, 11 Ariz. App. 285, 287, 464 P.2d 356, 358 (1970)). Prejudicial error is
that which “substantially affects the rights and obligations of appellant[s]
as to result in a miscarriage of justice,” id. (citing Kyne v. Eustice, 215 Cal.
App. 2d 627, 635 (1963)), and that prejudice must “appear from the record.”
Dykeman v. Ashton, 8 Ariz. App. 327, 329-30, 446 P.2d 26, 28-29 (1968)
(finding no prejudice where nothing in record indicated correction of error
complained of would have affected defendant’s ability to prepare for trial).
262, 265 n.1 (1986) (“Without a record we must presume that the trial court
properly exercised its discretion and that there was substantial evidence in
the complete record to support the findings of the trial court.”) (citing
Auman v. Auman, 134 Ariz. 40, 42-43, 653 P.2d 688, 690-91 (1982), and Visco
v. Universal Refuse Removal Co., 11 Ariz. App. 73, 75-76, 462 P.2d 90, 92-93
(1969)).
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¶32 Father filed a request with the New York court within thirty
days of the Arizona court’s exercise of temporary emergency jurisdiction.
The matter was resolved through an “inter-court” conference involving the
New York and Arizona courts in April 2014, at which time the New York
court advised the Arizona court it would decline jurisdiction. Quickly
thereafter, Mother filed a request with the Florida court, which declined
jurisdiction in August 2014. The approximately ninety-day time frames for
resolution of the jurisdictional issues is not atypical of a state court system.
Whether the courts could have resolved the matter more quickly through
direct communication is mere speculation, unsupported by evidence in the
record. While it may have been the better practice for the Arizona court to
initiate discussions regarding the matters enumerated in the statute, on
these facts, we find no prejudicial error in its failure to do so.
II. Modification Order
¶33 Although not specifically disputing the Arizona court’s order
granting Father sole legal decision-making and primary physical custody,
Mother argues the court erred in relying on information in the court-
appointed advisor’s report and Father’s testimony which she alleged to be
false.
¶34 “[W]e will not disturb the [superior] court’s custody or
parenting time orders on appeal absent an abuse of discretion.” Nold v.
Nold, 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013). A court
abuses its discretion if the record lacks competent evidence to support the
superior court’s decision, Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108,
110 (1999), or the court made “an error of law in the process of exercising
its discretion.” Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2, 118 P.3d 621, 622
(App. 2005). We defer to the superior court’s opportunity to judge the
witnesses’ credibility and resolve conflicts in the evidence, see Standage v.
Standage, 147 Ariz. 473, 479-80, 711 P.2d 612, 618-19 (App. 1985) (citing Pima
Cnty. Juv. Action No. S-139, 27 Ariz. App. 424, 427, 555 P.2d 892, 895 (1976)),
and uphold factual findings unless they are clearly erroneous, “even if
substantial conflicting evidence exists.” John C. Lincoln Hosp. & Health Corp.
v. Maricopa Cnty., 208 Ariz. 532, 537, ¶ 10, 96 P.3d 530, 535 (App. 2004)
(citing Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10, 63 P.3d 282,
285 (2003), and Kocher v. Ariz. Dep't of Revenue, 206 Ariz. 480, 482, ¶ 9, 80
P.3d 287, 289 (App. 2003)).
¶35 In its thirteen-page order, the Arizona court detailed specific
findings regarding the best interest factors set forth in A.R.S. § 25-403.01
and expressed continued concern regarding Mother’s mental health as it
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affected her ability to parent and caused her to exhibit bizarre behavior,
including pouring ammonia on Child’s legs to “burn the demons,” the
filing of false police reports between the two days of trial, and subsequent
irrational communications with Father. The court further found “there is
inadequate information that Mother has controlled her mental health issues
and would be able to safely parent the Child.” These findings form the
basis of the court’s grant of sole legal decision-making authority and
primary physical custody to Father.
¶36 They are also supported by the record. Mother admitted she
had been involuntarily committed for mental health treatment during each
December from 2009 through 2012. Although Mother testified she was
taking medication and participating in psychological counseling, she did
not present any supporting evidence.6 It was within the superior court’s
discretion to accept evidence that these efforts were not successful in
managing Mother’s behaviors. Specifically, the record reflects that, in the
weeks between the days evidence was taken, Mother filed a false police
report against Father, screamed at the officers for not substantiating her
report, and relayed messages to Father from her dead husband.
¶37 The record further supports the superior court’s finding that
Mother had not taken any personal responsibility for events which
occurred during the four preceding Decembers. Mother stated she was
drugged on the first occasion by a jealous co-worker, and was discovered
covered in blood opening someone else’s mail. She testified she was
committed on the second occasion after arguing with her preacher about
his “incorrect preaching,” and on the third, when she got lost and ran out
of gas. Mother denied any mental health issues on these occasions, arguing
instead that “every time . . . the police show up and talk to [her] . . . they
run [her] Social [Security number],” see she was committed the previous
year for mental health issues, and commit her again based solely upon this
history.
¶38 Regarding the most recent occasion, Mother admits to
pouring ammonia on Child after he fell on the ground, thinking “he got
6 Contrary to Mother’s assertion, it is the party, not the superior court
judge, who is responsible for calling and questioning witnesses. See State v.
Coey, 82 Ariz. 133, 138, 309 P.2d 260, 263 (1957) (“It is primarily the
responsibility of the parties and not the court to insure that witnesses are
present at the time of trial.”). Mother rested on her own testimony, and her
failure to secure the presence of doctors or therapists to support her position
does not constitute error.
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stung or something bit him in the grass.” She then started praying “to
rebuke you know all negative energy, negative things.” She denied the
incident occurred as a result of a mental health issue, testifying: “This
incident didn’t happen because I was losing my mind to go to the store to
get ammonia. I went to the store to get ammonia to clean my house. . . . If
[Child] had not thrown himself on the floor when he called somebody and
they told him to stall on me, this whole entire incident would not have
happened.” The trial court was free to reject the otherwise unsupported
and self-serving testimony of Mother as an interested party. See Graham v.
Vegetable Oil Prods. Co., 1 Ariz. App. 237, 241, 401 P.2d 242, 246 (1965)
(citations omitted). In this case, the court’s apparent choice to reject
Mother’s explanations was not error.
¶39 Moreover, although Mother stated in November 2013 that she
had been incident-free since Child left her care, this time period did not
include December. Given the prior history of incidences, each occurring
mid-December for at least the previous four years, the Arizona court did
not act arbitrarily in adopting the court-appointed advisor’s
recommendation that a psychological evaluation and additional period of
observation was appropriate to satisfy “concerns of [whether] or not
Mother is mentally stable to parent [Child] consistently.”
¶40 Mother also presents numerous arguments in her briefs
attacking the credibility of Father, the court-appointed advisor, the superior
court, and various other individuals. However, she does not contend the
arguments she now makes, nor the evidence she asserts supports them,
were unavailable to her at the time of trial. Because she did not introduce
the purported evidence or testimony, or make the arguments in her closing
during trial, they are waived. Maher v. Urman, 211 Ariz. 543, 548, ¶ 13, 124
P.2d 770, 775 (App. 2005) (noting argument not raised in lower court is
waived on appeal) (citing Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260,
265, ¶ 15, 99 P.3d 1030, 1035 (App. 2004)).
¶41 On this record, we find no error in the superior court’s factual
findings and conclude it did not abuse its discretion in granting sole legal
decision-making to Father, with limited and increasing parenting time to
Mother upon compliance with the terms set forth in its order, and in finding
the arrangement was in Child’s best interest.
CONCLUSION
¶42 We affirm the Arizona court’s order regarding legal decision-
making and parenting time. Both parties request an award of attorneys’
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fees and costs on appeal, as well as travel and other expenses. Neither
party is represented by counsel, and in our discretion, we decline this
request. However, as the prevailing party, Father is entitled to
reimbursement of his taxable costs upon compliance with ARCAP 21(a).
See A.R.S. § 12-341.
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