Peter D. v. Geetika C. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
PETER D., Petitioner/Appellee,
v.
GEETIKA C., Respondent/Appellant.
No. 1 CA-CV 18-0678 FC
FILED 9-24-2019
Appeal from the Superior Court in Maricopa County
No. FC 2017-006872
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL
Alongi Law Firm PLLC, Phoenix
By Thomas P. Alongi
Counsel for Respondent/Appellant
Law Offices of Dennis G. Bassi PLLC, Mesa
By Dennis G. Bassi
Counsel for Petitioner/Appellee
PETER D. v. GEETIKA C.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kent E. Cattani and Chief Judge Peter B. Swann joined.
B R O W N, Judge:
¶1 Geetika C. (“Mother”) appeals from the superior court’s
decree dissolving her marriage to Peter D. (“Father”).1 She asks us to vacate
the court’s decision on legal decision-making and parenting time and
remand for a supplemental evidentiary hearing. For the following reasons,
we affirm.
BACKGROUND
¶2 Mother and Father married in 2013 in Georgia. Soon after,
Mother gave birth to a child. In 2014, Mother left Georgia with the child to
live with her parents in Phoenix, ostensibly so she could take classes
necessary to enlist in a medical residency program.
¶3 Father initially made periodic visits to Phoenix, during which
Mother allowed him to see the child so long as someone else was present.
Desiring to be with the child more, Father later moved to Phoenix as well.
He lived in a separate residence, however, and Mother would allow him
only one-hour nighttime visits with the child. Eventually, in June 2017,
Mother obtained an order of protection against Father, prohibiting him
from contacting either her or the child. The order was based on several
allegations of Father’s violence against either Mother, the child, or both.
Police responded to some of these incidents, but other than interviewing
Father, the record does not indicate any follow-up investigation was
conducted and no charges were filed.
¶4 Soon thereafter, Father filed a petition for dissolution and
requested temporary orders for parenting time. The superior court issued
an interim order (1) granting Father one hour of weekly supervised
1 To safeguard the identity of the minor child, we amend the caption
as shown above. The amended caption shall be used on all future
documents filed in this matter.
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parenting time, (2) designating a Court Appointed Advisor (“CAA”), and
(3) setting an evidentiary hearing on the petition for temporary orders.
¶5 In Mother’s prehearing statement, she alleged that Father had
issues with alcohol that led him to abuse both her and the child. She also
recounted instances of Father being overly physical with the child and
forcing the child to speak ill of Mother’s parents. For these reasons, Mother
sought sole legal decision-making but indicated she would accept
continuing the parenting time schedule established by the interim order.
Father, seeking joint legal decision-making and equal parenting time,
denied Mother’s allegations. After an evidentiary hearing, the superior
court issued a temporary order setting a parenting time schedule whereby
Father would begin with limited and supervised parenting time before
gradually expanding to unsupervised visits.
¶6 Soon after Father’s unsupervised visits began, he became the
subject of several reports made to police or the Department of Child
Services (“DCS”). In October 2017, Mother took the child to the hospital,
where the child disclosed that Father had “poked him in his bottom.” The
hospital notified police and DCS, but authorities closed their investigation
as unsubstantiated when the child made no similar disclosure in the
forensic interview.
¶7 Mother returned to the hospital with the child in December,
stating the child had a “red and inflamed rectal area” and had again
reported Father was poking him. The hospital notified DCS, but after an
examination showed neither of these symptoms, and an interview with the
child revealed no evidence of abuse, DCS closed out this incident as
unsubstantiated.
¶8 At school the following month, the child reported to a teacher
that Father hit him. The child later reported to the school that Father threw
him into a traffic-filled street and poked his rear end. The school reported
this information to DCS, but the report was deemed unsubstantiated. DCS
received a similar report from the child’s school in May that was still
pending as of trial.
¶9 Finally, in June 2018, a police officer conducted a welfare
check at Father’s residence after receiving a report that he was seen leaving
a sports bar prior to picking up the child. Father denied drinking any
alcohol at the bar and suspected Mother of following him.
¶10 At trial, the superior court heard testimony from the CAA,
Father, Mother, and the child’s paternal grandfather. At the end of
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Mother’s allotted time, the court denied her counsel’s request “to bifurcate
the proceeding” and conduct a supplemental hearing on another day to
allow introduction of additional exhibits but allowed counsel to make a
brief offer of proof. Counsel explained that the exhibits were recordings
and transcripts of Father admitting, at least in part, Mother’s allegations
about domestic violence and child abuse. Counsel argued the exhibits
provided “some corroboration . . . that what [Mother was] telling [the
court] today was true.” At the end of trial, Mother’s counsel also requested
the opportunity to explain what “three witnesses who would have testified
with additional time” would have said. The court denied the request,
stating: “The hearing’s concluded. We are way over time. I was very
generous with you all, both, on time.”
¶11 After considering the statutory factors, see A.R.S. §§ 25-403(A)
and -403.01, the superior court issued findings as to each factor and
determined it was appropriate to award joint legal decision-making and
equal parenting time. Mother unsuccessfully sought post-trial relief and
her timely appeal followed.
DISCUSSION
¶12 We review orders modifying parenting time and legal
decision-making authority for an abuse of discretion. Cruz v. Garcia, 240
Ariz. 233, 236, ¶ 9 (App. 2016). A court abuses its discretion when it
“commits an error of law that underlies its exercise of discretion.” Birnstihl
v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018). We accept factual findings
that are not clearly erroneous, but we “draw our own legal conclusions
from facts found or implied in the judgment.” Nash v. Nash, 232 Ariz. 473,
476, ¶ 5 (App. 2013).
A. Due Process
¶13 Mother argues the superior court denied her due process by
refusing to hold a supplemental hearing after the trial. She contends the
additional time was necessary to ensure she had a meaningful opportunity
to be heard because she would have presented evidence making clear that
the presumptions codified in A.R.S. §§ 25-403.03 and -403.04 barred Father
from exercising legal decision-making.2 Father asserts the court afforded
2 Mother also suggests the lack of time violated her substantive due
process rights, citing Stanley v. Illinois, 405 U.S. 645 (1972) and Santosky v.
Kramer, 455 U.S. 745 (1982). Substantive due process refers to whether a
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Mother due process at every opportunity, Mother “squandered her time to
such an extent that the trial was over,” and she waived her ability to request
additional time by failing to do so 30 days before trial.
¶14 We review de novo whether the superior court afforded a
party due process of law. Jeff D. v. Dep’t of Child Safety, 239 Ariz. 205, 207,
¶ 6 (App. 2016). Whenever a proceeding implicates a parent’s fundamental
liberty interest in raising his or her child, due process requires that the court
afford the parent fundamentally fair procedures. Cruz, 240 Ariz. at 236,
¶ 11; Jeff D., 239 Ariz. at 207, ¶ 7. At its core, due process guarantees “the
opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Due process is also
“flexible,” so its procedural protections vary depending on the interests at
stake. Id. at 334.
¶15 Mother’s due process argument relies primarily on Volk v.
Brame, where we held that “when the resolution of an issue . . . requires an
assessment of credibility, the court must afford the parties an opportunity
to present sworn oral testimony, and may not rely solely on avowals of
counsel.” 235 Ariz. 462, 464, ¶ 1. In Volk, the superior court held a 15-
minute hearing to determine a self-employed father’s monthly income for
purposes of calculating his child support obligations. Id. at 464–65, 470,
¶¶ 3–4, 25. Instead of allowing the parties an opportunity to explain their
differing income calculations, the court spent the hearing collecting
documentary exhibits “and indicated that it would assess the parties’
credibility based solely on the disputed documents.” Id. at 465–66, ¶¶ 6, 9–
11. When the court rendered its decision, it simply adopted mother’s
calculation “to the penny.” Id. at 466, ¶ 13.
¶16 Because credibility was central to the issue before the superior
court, we concluded that its exclusive reliance on a “paper view” of the case
“categorically violate[d] due process.” Id. at 466–67, ¶ 14. The fundamental
flaw in the court’s approach was its resolution of contested facts absent two
critical checks of our adversarial system: sworn in-person testimony
subjected to cross-examination. Id. at 467–69, ¶¶ 15–18, 23–24. We further
governmental act may legitimately interfere with a cognizable liberty
interest, and procedural due process involves whether permissible
interference is accomplished fairly. See Samiuddin v. Nothwehr, 243 Ariz.
204, 209, ¶ 13 (2017). We therefore construe Mother’s suggestion as
attempting to bolster her procedural due process claim that the court did
not provide adequate procedures, given the importance of the liberty
interest implicated.
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held that a court may adhere to advance time limits unless, during the
hearing, “it becomes apparent that the court lacks sufficient time to receive
adequate testimony, then the court must allow reasonable additional time
or continue the hearing to permit it to perform its essential tasks.” Id. at
468, ¶ 21. We clarified, however, that trial courts need not “indulge
inefficient use of time” and resolving requests for additional time is
“normally committed to the[ir] discretion.” Id. at 469, ¶ 22.
¶17 Like Volk, the critical issue in this case—whether the
allegations against Father had merit—depended heavily on the superior
court’s credibility assessment. But unlike that case, the superior court
afforded Mother the process she was due because she had ample time to
gather, prepare, and present evidence related to the allegations that Father
overconsumed alcohol and abused both her and the child, and she was able
to cross-examine Father when he denied those allegations.
¶18 The superior court allotted each side 75 minutes of trial time
to use as it saw fit. Although Mother used most of her allotted time cross-
examining Father’s witnesses, virtually all of her sworn testimony was
devoted to providing a history of the physical and verbal abuse she claimed
Father inflicted on her and the child. But in her nearly 20-minute long
testimony, Mother did not seek to admit the audio recordings until she was
already out of time. Although these recordings are not part of our record,
Mother’s prehearing list of witnesses and exhibits indicates the recordings
identified in her offer of proof (exhibits 97, 101, and 103) predate the hearing
on temporary orders. Mother thus had two opportunities to introduce
these recordings and failed to do so.
¶19 Mother also had the opportunity to challenge, through cross-
examination, any insinuation made by both the CAA and Father that her
allegations lacked credibility. Mother engaged in three exchanges with the
CAA designed to rebut the insinuation that she had been “looking for ways
to prevent [F]ather from seeing [his child]” or that there was no “evidence
suggesting that there might be something to what [M]other was saying.”
During one such exchange, as well as in her second report, the CAA briefly
described the contents of the audio recordings. Thus, the superior court
was at least generally aware of their contents. Likewise, the CAA’s first
report includes a description of her interview with two of the witnesses that
Mother would have called to testify with the additional time.
¶20 As for Mother’s cross-examination of Father, she asked him
about alcohol consumption, including whether he had an alcohol-induced
liver disorder and multiple prior DUI incidents. Mother also spent a
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significant amount of time questioning how Father came to his conclusion
that Mother was coaching the child, or was fabricating claims that she had
abused herself, in order to prevent Father from seeing the child. Finally,
Mother focused on her allegation that she had been abused by Father,
relying on a letter suggesting that he had instigated a physical confrontation
with her. On this record, Mother had ample opportunities to offer the audio
recordings at trial within her allotted time limit.
¶21 Although Mother asserts that additional evidence would
have bolstered her case, ultimately it was her and Father’s credibility that
were at issue. And we have no doubt that the court—sitting through this
entire proceeding (including the hearing on temporary orders) and
observing the parties’ in-court testimony—had what it needed to determine
whether Mother’s allegations were credible. See Hurd v. Hurd, 223 Ariz. 48,
52, ¶ 16 (App. 2009) (“We must give due regard to the . . . court’s
opportunity to judge the credibility of the witnesses.”). Unlike Volk,
Mother’s due-process rights were fully respected here, and the court did
not abuse its discretion by denying her request for a supplemental hearing.
See Volk, 235 Ariz. at 469, ¶ 22.
B. Statutory Presumptions
¶22 Mother also contends that even without a supplemental
hearing, A.R.S. §§ 25-403.03 and -403.04 should have applied to either
prevent Father from exercising joint legal decision-making or at least
required him to overcome a rebuttable presumption to do so. Father
counters that these statutes did not apply because Mother’s allegations
“have all gone unsubstantiated.”
¶23 When considering the child’s best interests, the superior court
“must consider all relevant factors, including those enumerated in A.R.S.
§ 25-403(A).” Christopher K. v. Markaa S., 233 Ariz. 297, 301, ¶ 18 (App. 2013).
A court abuses its discretion when it fails to make findings required by the
statute. Hurd, 223 Ariz. at 51, ¶ 11. But when it makes the required findings,
we affirm the court’s ruling if supported by substantial evidence. Id. at 52,
¶ 16.
1. Domestic Violence
¶24 The superior court must always consider “[w]hether there has
been domestic violence or child abuse pursuant to § 25-403.03.” A.R.S.
§ 25-403(A)(8). When the court finds “the existence of significant domestic
violence pursuant to § 13-3601 or . . . a significant history of domestic
violence,” it cannot award joint legal decision-making. A.R.S.
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§ 25-403.03(A); see also Christopher K., 233 Ariz. at 300–01, ¶ 17 (explaining
that domestic violence under § 13-3601 includes criminal assault, unlawful
imprisonment, or child abuse, which “may include the infliction of physical
injury or emotional damage”). If the court finds that one parent committed
even one “act of domestic violence against the other parent, there is a
rebuttable presumption that an award of sole or joint legal decision-making
to the parent who committed the act . . . is contrary to the child’s best
interests.” A.R.S. § 25-403.03(D).
¶25 Mother first faults the superior court for applying the wrong
legal standard, arguing its finding ignores that the rebuttable presumption
against joint legal decision-making requires only one act of domestic
violence, not “significant domestic violence” that bars legal decision-
making altogether. But Mother overlooks the fact that the court
incorporated by reference its earlier findings regarding her domestic
violence allegations. The court stated that it “believe[d] that Father would
get frustrated, angry, and demanding, but [found] no credible evidence to
support allegations of physical or verbal abuse against the child or physical
violence [against] Mother.” As such, we reject Mother’s argument that the
court applied the wrong standard.
¶26 Mother next “disagrees with the [superior] court’s assessment
anyway,” asserting there was a significant history of domestic violence. But
Mother’s argument is merely a request to reweigh the evidence, which is
not our function. Hurd, 223 Ariz. at 52, ¶ 16. Regardless, reasonable
evidence supports the court’s finding that no significant history of domestic
violence exists between Mother and Father. Despite Mother’s contention
that Father admitted to an act of domestic violence in an October 2016 letter
to Mother, later in the same letter Father states that no physical
confrontation occurred. As discussed above, Father denied the allegations
of abuse against him—none of which were substantiated by investigation
or medical evidence—and the only evidence presented on this issue was
conflicting witness testimony. Given that the court observed the witnesses
provide their testimony, we will not disturb its credibility determination.
Id. The court appropriately carried out its duty to consider domestic
violence issues as contemplated by A.R.S. § 25-403.03.
2. Substance Abuse
¶27 Whenever “relevant to the child’s physical and emotional
well-being,” the superior court must consider whether a parent has abused
drugs or alcohol. A.R.S. §§ 25-403(A), -403.04(A). As pertinent here, “[i]f
the court determines that a parent has abused drugs or alcohol . . . there is
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a rebuttable presumption that sole or joint legal decision-making by that
parent is not in the child’s best interests.” A.R.S. § 25-403.04(A).
¶28 Mother again asserts the superior court applied the wrong
standard when it found that no facts “support[ed] Mother’s claim that
Father is impaired during [h]is parenting time or that his alcohol
consumption ha[d] ever presented a risk of harm to the child.” We decline
to construe the court’s finding to mean that it did not consider evidence
related to Father’s alcohol consumption generally. Instead, the court’s
finding must be read in light of the preceding sentence, which states “[t]he
Court considers Mother’s allegation that Father abuses alcohol and the
evidence presented on this issue.” Thus, the court did not misapply the law
and it properly exercised its broad discretion in weighing the evidence.
Aside from a hospital record indicating Father had a “fatty liver” condition
and an admitted-to 2001 DUI conviction, no evidence bore on this issue
aside from the conflicting testimony of the parties. The court found Father’s
account that he did not abuse alcohol, which was supported by the CAA’s
report, more credible, and we will not disturb that determination on
appeal.3
C. Attorneys’ Fees and Costs
¶29 Both parties request attorneys’ fees under A.R.S. §§ 25-324(A)
and 25-415(A)(2). To the extent the record includes proof of the parties’
financial resources, it suggests Father has greater resources than Mother.
Concerning the parties’ positions on appeal, Mother has arguably taken
some positions that are not well-supported by the record or the law. In our
discretion, we decline to award fees to either party under A.R.S.
§ 25-324(A). We also decline to award fees under A.R.S. § 25-415(A)(2),
which authorizes a court to award attorneys’ fees based on a party’s
misconduct. Because Father is the successful party on appeal, he may
recover his taxable costs upon compliance with ARCAP 21.
3 Mother makes much of an alleged 2011 arrest for DUI in Georgia.
Because the record of this arrest was not presented to the superior court, we
do not consider it. We recognize, however, that the CAA’s second report
mentions Mother providing her with a document listing his arrest, meaning
that at least some evidence of this arrest was before the court, which could
give it the weight it was due.
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CONCLUSION
¶30 Based on the foregoing, we affirm the superior court’s decree
of dissolution.
AMY M. WOOD • Clerk of the Court
FILED: AA
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