Backus v. Ellison ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SCOTT ANTHONY BACKUS, Petitioner/Appellant,
v.
ANGELA (CACY) ELLISON, Respondent/Appellee.
No. CV 14-0703 FC
FILED 9-10-2015
Appeal from the Superior Court in Yavapai County
No. V1300DO201380058
The Honorable Mark M. Moore, Judge
The Honorable Jeffrey G. Paupore, Judge
AFFIRMED
COUNSEL
Scott Backus, Camp Verde
Petitioner/Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Donn Kessler and Judge Jon W. Thompson joined.
BACKUS v. ELLISON
Decision of the Court
T H U M M A, Judge:
¶1 Scott Anthony Backus (Father) appeals from the superior
court’s order awarding Angela (Cacy) Ellison (Mother) sole legal decision-
making authority over their three year old child (Daughter) and denying
Father’s requests for parenting time, visitation while incarcerated and to be
added to Daughter’s birth certificate. Because Father has shown no
reversible error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2013, Father filed a pro se petition seeking, as
applicable here, joint legal decision-making authority, parenting time,
visitation while incarcerated, child support, an order of paternity and to be
added to Daughter’s birth certificate. In her response, Mother stated
paternity had not been established and, citing domestic violence, sought
sole legal decision-making authority and asked that Father be given no
parenting time, adding it would cause Daughter “extreme emotional
distress” for Father “to have parenting time, while he is incarcerated.”
Based on DNA testing, Father was later “declared to be the biological or
legal father” of Daughter. After substantial motion practice, the two-hour
trial on the competing claims occurred in July 2014. Upon receiving
testimony and other evidence and hearing argument, the court awarded
Mother sole legal decision-making authority and denied any relief
requested by Father. The superior court then denied Father’s subsequent
motion to reconsider after receiving Mother’s response. This court has
jurisdiction over Father’s timely appeal pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
sections 12-2101(A)(1) and -120.21(A)(1) (2015).1
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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BACKUS v. ELLISON
Decision of the Court
DISCUSSION
¶3 Although Mother failed to file an answering brief on appeal,
because the best interests of Daughter are at issue, this court does not treat
that failure as a confession of error. See Hoffman v. Hoffman, 4 Ariz. App. 83,
85, 417 P.2d 717, 719 (1966). Father’s brief fails to comply with this court’s
rules and provides minimal record citations, meaning he is deemed to have
waived arguments that otherwise could have been properly presented. See
Ariz. R. Civ. App. P. 13(a); Delmastro & Eells v. Taco Bell Corp, 228 Ariz. 134,
137 n.2 ¶ 7, 263 P.3d 683, 686 n.2 (App. 2011). Similarly, although Father’s
brief attempts to impeach Mother’s credibility, the superior court (not this
court) properly addresses such issues. See Gutierrez v. Gutierrez, 193 Ariz.
343, 347 ¶ 13, 972 P.2d 676, 680 (App. 1998). Moreover, Father has not
provided any transcripts on appeal, meaning this court presumes the trial
transcript supports the superior court’s rulings. See Kohler v. Kohler, 211
Ariz. 106, 108 n.1 ¶ 8, 118 P.3d 621, 623 n.1 (App. 2005). Finally, Father does
not challenge on appeal the denial of his requests for paternal grandparent
visitation or to change Daughter’s last name. With these substantial caveats,
this court turns to the issues Father raises on appeal.
I. Father Has Not Shown The Superior Court Erred In Its Procedural
And Evidentiary Determinations.
¶4 Father, who was in custody at the time of trial, argues that the
superior court erred in starting trial 11 minutes before he was transported
to court. During those 11 minutes, the minute entry reflects that Mother’s
counsel waived his opening statement, the court swore in the witnesses,
admonished and excluded two witnesses from the courtroom pursuant to
Arizona Rule of Evidence (Rule) 615 and began hearing Mother’s
testimony. Because Father has not provided the trial transcript, the record
does not show the reason for starting before Father arrived and does not
show that Mother provided any material testimony when Father was not
present. Moreover, the record does not show that Father was prevented
from cross-examining Mother or that he was otherwise prejudiced by this
11-minute absence. Accordingly, Father has not shown the superior court
committed reversible error or denied due process or equal protection rights
in starting trial when it did.
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BACKUS v. ELLISON
Decision of the Court
¶5 Father asserts various other errors in the trial proceedings,
including that the superior court improperly precluded him from making
an opening statement after Mother’s counsel waived his opening, erred in
excluding evidence, improperly restricted his ability to cross-examine
Mother, gave no consideration to his impeachment of Mother, purportedly
denied him the opportunity to testify and improperly limited the duration
of his closing argument.2 Although Father asserts that a “review [of] the
trial court transcripts” will support his allegations, Father has failed to
provide those transcripts and this court presumes the transcripts support
the superior court’s rulings. See Kohler, 211 Ariz. at 108 n.1 ¶ 8, 118 P.3d at
623 n.1. Moreover, Father has shown no right to make an opening
statement, does not demonstrate legal error in excluding evidence and has
not shown the superior court could not properly impose limitations on
closing arguments. See Ariz. R. Evid. 611(a). Although the record shows
Father did not testify, it does not show that he was denied the opportunity
to do so. On this record, Father has shown no reversible error on these
points.
¶6 Father claims he had intended to call the two witnesses that
were sworn and then excluded from the courtroom pursuant to Rule 615
before he arrived in court. On appeal, Father argues he did not learn of their
presence until two days after trial and that, as a result, he was prejudiced
because he did not know he could have called them as witnesses. There is
no suggestion that Father raised the issue with the superior court after
learning of the presence of the witnesses two days after trial. Even absent
such waiver, the record does not show Father ever attempted to call the
witnesses, commented on their absence or otherwise raised the issue at trial.
Moreover, Father has not shown the court denied him the right to call
witnesses or otherwise erred in not affirmatively informing him that the
witnesses had been sworn and then excluded from the courtroom. Nor has
he shown that Mother’s counsel misled the court regarding the witnesses.
2 To the extent Father alleges on appeal that he filed a petition with the
superior court as Daughter’s “‘next friend,’” the record does not support
that allegation.
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BACKUS v. ELLISON
Decision of the Court
¶7 Father also argues the superior court erred in excluding
excerpts from more than 2,000 pages of records from Child Protective
Services, now known as Department of Child Safety, involving Mother that
he also intended to use for impeachment and to address Daughter’s best
interests. Father has not shown he was prevented from asking Mother
about the information in the records, even if the records were not received
in evidence. Moreover, without the trial transcript, Father has failed to
show that the court abused its discretion in excluding the records, see Ariz.
R. Fam. L. P. 2(B), or improperly addressed the best interests inquiry
contrary to Hays v. Gama, 205 Ariz. 99, 67 P.3d 695 (2003).
¶8 Father next claims the superior court erred
“administrative[ly]” by rescheduling the trial several times and, apparently
as a result, a cell phone containing text messages Father wanted to submit
at trial ran out of airtime. Father, however, has not shown the court abused
its discretion in scheduling trial and has not shown that he erroneously was
prohibited from offering evidence at trial. Nor has Father provided the text
messages, shown that the court abused its discretion in denying his motion
to compel Mother to disclose the same text messages or factually
demonstrated that Mother’s counsel stole the “data card” from his phone
or otherwise acted improperly at trial.
¶9 Father also claims he was administratively prejudiced by the
case being reassigned to a different judge shortly before trial. Father is
correct that the case was reassigned to a different judge a few months before
trial pursuant to an Administrative Order regarding division assignments.
The judge who presided over the trial, however, considered all of the
evidence received and then issued its ruling. Father has shown no error,
factually or legally, resulting from this reassignment. On this record, Father
provides no factual support for his claim that the reassignment was error
because he represented himself. Finally, Father has not shown that the
judge who presided over trial improperly failed to acknowledge rulings by
the prior judge assigned to the case. See Zimmerman v. Shakman, 204 Ariz.
231, 236 ¶ 15, 62 P.3d 976, 981 (App. 2003) (law of the case doctrine does not
prevent different judge from reconsidering prior judge’s non-final rulings).
¶10 Father argues the judge who presided over trial was biased
by improperly focusing on Father’s incarcerated status (to the detriment of
the best interests considerations) and treating him unfairly. Father,
however, has made no factual showing supporting these arguments. Father
also has not shown the court erred in holding him to the same standard as
a licensed attorney. See In re Marriage of Williams, 219 Ariz. 546, 549 ¶ 13, 200
P.3d 1043, 1046 (App. 2008). Nor has Father shown that the court
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BACKUS v. ELLISON
Decision of the Court
improperly failed to recognize that Father was incarcerated, that Mother
was represented by counsel and fundamental liberty interests and the best
interests of a child were at issue. Finally, on this record, Father has not
shown the court acted as Mother’s attorney or that the trial was not long
enough, particularly given his concession that he agreed to a two hour trial.
II. Father Has Not Shown The Superior Court Erred On The Merits.
¶11 Father argues the court erred in denying his request to place
his name on Daughter’s birth certificate after paternity had been
established. By statute, that decision is resolved administratively. See A.R.S.
§ 36-334(C)(3) (“[T]he father’s name shall be stated on a birth certificate . . .
[i]f the state registrar receives an administrative order or a court order
establishing paternity.”). Accordingly, Father has failed to show error on
this point.
¶12 Father also argues the superior court erred in awarding
Mother sole legal decision-making authority. Although the court expressly
addressed the factors set forth in A.R.S. § 25-403, Father claims several of
those findings were unsupported by, or against the weight of, the evidence.
Again, without the trial transcript, this court presumes the superior court’s
findings were properly supported. See Kohler, 211 Ariz. at 108 n.1 ¶ 8, 118
P.3d at 623 n.1. Moreover, Father has not otherwise shown the court erred
in its findings. See Gutierrez, 193 Ariz. at 347 ¶ 13, 972 P.2d at 680 (noting
superior court, not appellate court, properly weighs evidence and assesses
witness credibility).3
¶13 Finally, Father argues the superior court erred in denying his
request for parenting time. The court noted “that no practical means for
parenting time with Father exist[] at this time” given his incarceration, and
that it was not “reasonable to subject a child of [Daughter]’s age to visitation
at the jail facilities in Yavapai County.” The court also found parenting time
“not to be in [Daughter]’s best interest.” Father argues the court’s findings
are unsupported and that the court erred in denying him visitation based
on his incarceration alone. On this record, Father has not shown that the
superior court misapplied the law. Factually, Father has not shown that the
court’s parenting time and visitation rulings are unsupported by the record.
Moreover, Father has not shown that testimony, as Father characterizes in
3 To the extent Father argues the superior court erred in finding he deprived
himself of access to Daughter, the court’s orders do not contain such a
finding and, in fact, the court expressly struck language in a proposed order
along those lines.
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BACKUS v. ELLISON
Decision of the Court
his brief, from Mother about Father “choking her and threatening to
terminat[e the] child’s life” was insufficient to support the court’s rulings.
Nor does this record support Father’s argument that the court erred in
denying visitation because the jail would be a proper facility for visits with
Daughter or that effective alternatives exist to face-to-face visitation.
CONCLUSION
¶14 Because Father has shown no error, the order is affirmed.
:ama
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