Swansen v. Ball ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
LISA SWANSEN, Petitioner/Appellee,
v.
JOEL BALL, Respondent/Appellant.
No. 1 CA-CV 21-0075 FC
FILED 11-30-2021
Appeal from the Superior Court in Maricopa County
No. FC 2015-054409
The Honorable Dawn M. Bergin, Judge (Retired)
AFFIRMED
APPEARANCES
Joel Ball, Scottsdale
Respondent/Appellant
Thomas A. Morton PLLC, Phoenix
By Thomas A. Morton
Counsel for Petitioner/Appellee
SWANSEN v. BALL
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.
B R O W N, Judge:
¶1 Joel Ball (“Father”) appeals the family court’s rulings
modifying legal decision-making, parenting time, and child support.
Because Ball failed to provide a trial transcript, and the remainder of the
record supports the court’s decisions, we affirm.
BACKGROUND
¶2 Father and Lisa Swansen (“Mother”) divorced in 2017. They
have one minor child (“C.B.”), born in 2004, and two older children. The
dissolution decree, entered in February 2017, provided for joint legal
decision-making and equal parenting time, with no child support
obligations.
¶3 In September 2019, Mother petitioned to modify legal
decision-making, parenting time, and child support. Mother alleged that
since the dissolution decree was entered, Father’s substance abuse had
become more serious, and he was frequently “unable to supervise the
children.” She further asserted that due to Father’s poor behavior,
including substance abuse, the Department of Child Safety had initiated a
dependency case as to one of the older children, who was a minor at the
time. When the juvenile court determined that dismissal of the dependency
was appropriate, the court returned jurisdiction to the family court but
exercised temporary jurisdiction to enter temporary orders relating to legal
decision-making and parenting time for the older child.
¶4 After a trial on Mother’s petition to modify, the family court
awarded Mother sole legal decision-making authority, with Father’s
parenting time to be determined at C.B.’s discretion.1 The court also
1 Because Father failed to develop any meaningful argument
challenging the scope of the parenting time order, he has waived and
abandoned any issue on appeal as to whether the superior court erred in
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SWANSEN v. BALL
Decision of the Court
ordered Father to pay child support in the amount of $802 per month. The
court found that Mother presented sufficient evidence of Father’s substance
abuse to trigger the rebuttable presumption against joint legal decision-
making under A.R.S. § 25-403.04. The court then concluded that Father
failed to rebut the presumption because he had never acknowledged
abusing alcohol or sought treatment. The court also reasoned that “the
hostility between the parties has reached a point where joint legal decision-
making is no longer possible.” It also expressed concern over Father’s
“particularly aggressive” communications with Mother, and items he
posted on social media, which gave the court “great pause in allowing him
any legal decision-making authority” over the child.
¶5 Father filed several post-trial motions, asserting in part that
the family court erred by taking judicial notice of a report by the Foster Care
Review Board (“FCRB”) indicating Father had not participated in services
or submitted drug screens for over a year. The court acknowledged it erred
by taking judicial notice of the report without allowing Father an
opportunity to be heard. The court then explained that it heard
“overwhelming evidence of Father’s consistent and long-term alcohol
abuse and credible evidence that he has used cocaine on more than one
occasion.” The court therefore reasoned that even if it erred in finding
Father abused substances within the last 12 months, “it would have made
no difference to its determination that it was in the child’s best interest to
award Mother sole legal decision-making authority.” The court amended
its modification order by striking the reference to the FCRB report. It then
dismissed as moot Father’s motion to be heard and rejected all other
arguments Father made in his motion for a new trial and motion for
reconsideration. Father filed an “amendment to appeal,” and we have
jurisdiction over Father’s appeal under A.R.S. § 12-2101(A)(1).2
giving the child authority to decide what parenting time he receives. See
MacMillan v. Schwartz, 226 Ariz. 584, 591, ¶ 33 (App. 2011).
2 In his amendment, Father did not specify which rulings he was
appealing, which means the notice technically failed to comply with
ARCAP 8(c)(3). However, because Mother was not misled or prejudiced by
the lack of detail in Father’s amendment, we have jurisdiction over the post-
trial motions. See Hill v. City of Phoenix, 193 Ariz. 570, 572–73, ¶ 10 (1999)
(explaining a defective notice of appeal does not deprive this court of
jurisdiction and is generally sufficient if it is not misleading or prejudicial
to the appellee).
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SWANSEN v. BALL
Decision of the Court
DISCUSSION
¶6 We review the family court’s rulings on legal decision-
making, parenting time, and child support for an abuse of discretion.
Engstrom v. McCarthy, 243 Ariz. 469, ¶ 4 (App. 2018). An abuse of discretion
occurs when the court commits an error of law in drawing a discretionary
conclusion or where no competent evidence supports the court’s decision.
Id. We view the record in the light most favorable to sustaining the court’s
rulings, which we will affirm “if there is any reasonable supporting
evidence.” Garlan v. Garlan, 249 Ariz. 278, 280–81, ¶ 4 (App. 2020).
A. Legal Decision-Making, Parenting Time, and Child
Support
¶7 Father argues the family court abused its discretion in
applying A.R.S. § 25-403.04, which establishes a rebuttable presumption
against joint legal decision-making that may also arise if the court
determines a parent abused drugs or alcohol within 12 months before the
petition for legal decision-making or parenting time is filed. Father
contends the court erred by finding he abused drugs and alcohol, given that
he has not been convicted of any substance abuse related crimes in the last
five years, the court relied on events that occurred outside the one-year
statutory time frame, and he has had many negative drug tests. A criminal
conviction, however, is not a prerequisite to a finding of substance abuse.
Although the court noted events outside the statutory time frame, it also
relied on an event within the 12-month time frame where Father appeared
to be under the influence of drugs. Additionally, nothing in the record
supports Father’s contention that he has had many negative drug tests.
¶8 Father asserts the court violated his rights under the
Confrontation Clause by “convict[ing]” him of several crimes without
allowing him the opportunity to confront his accusers. This argument is
without merit because this is not a criminal proceeding, and the family
court could not have convicted Father of any crime. Thus, the
Confrontation Clause has no application here.
¶9 According to Father, the court erred in not applying the child
support guidelines to this case and ordering him to pay child support.
Given that Father failed to file an updated affidavit of financial information,
the court did not abuse its discretion in relying on the most recent evidence
of his financial circumstances in the record when it relied on the child
support guidelines to calculate Father’s obligation.
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SWANSEN v. BALL
Decision of the Court
¶10 Father contends the court abused its discretion in taking
judicial notice of the FCRB report without providing him an opportunity to
be heard. But the court struck that reference from its order, noting that the
record contained more than sufficient evidence to support its findings
without the report. Thus, Father’s argument regarding the FCRB report is
also meritless.
¶11 Father also argues his due process rights were violated
because the court had insufficient evidence to terminate his parental rights.
However, the record confirms that Father’s parental rights were not
terminated. Instead, the court ruled on Mother’s petition to change legal
decision-making, parenting time, and child support. Father does not
dispute that he was given notice of the relief Mother was seeking, or that he
had the opportunity to be heard at trial. Thus, no due process violation
occurred, and Father’s complaint regarding the same is without any basis
in fact or law.
¶12 Father asserts that the court erred in its determination of the
child’s best interests because it failed to consider the child’s wishes to live
with him, and the court failed to consider findings made by the best interest
attorney (“BIA”). In weighing best interests, a court considers “all factors
that are relevant to the child’s physical and emotional well-being . . . ,”
including the child’s wishes as to legal decision-making and parenting time.
A.R.S. § 25-403(A). What the child desires is merely one factor of many the
court must consider. Concerning the BIA, she was appointed in October
2016, and discharged from her duties in December 2016. Father does not
explain how any previous opinion or finding from the BIA would be
relevant here.
¶13 More generally, Father argues that no evidence supported the
court’s findings and conclusions, and he suggests he objected to Mother’s
exhibits because they were not timely disclosed to him before trial. We
cannot consider these arguments, however, because Father failed to
provide us with a trial transcript, which was his obligation. See ARCAP
11(c)(1)(B) (“If the appellant will contend on appeal that a judgment,
finding or conclusion, is unsupported by the evidence or is contrary to the
evidence, the appellant must include in the record transcripts of all
proceedings containing evidence relevant to that judgment, finding or
conclusion.”). Without a transcript, we presume the evidentiary record
supports the court’s decision. See Kline v. Kline, 221 Ariz. 564, 572, ¶ 33
(App. 2009).
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SWANSEN v. BALL
Decision of the Court
B. Motion for New Trial
¶14 Father contends the family court ignored his motion for a new
trial and the evidence he submitted. The record shows otherwise. In
January 2021, the court noted it was about to rule on Father’s motion for
new trial when Father filed a notice of appeal. Father then filed an amended
motion. The court then dismissed Father’s amended motion for new trial
because it lacked jurisdiction due to the pending appeal. After this court
entered a stay permitting the family court to consider Father’s motions, the
court denied Father’s motion for new trial, specifically rejecting each of
Father’s arguments, except for reliance on the FCRB report, which the court
corrected.
C. Attorneys’ Fees and Costs
¶15 Mother requests her attorneys’ fees on appeal under A.R.S.
§ 25-324, which authorizes a fee award after consideration of the parties’
financial resources and the reasonableness of positions taken during the
litigation. Given that Father has raised several issues on appeal that lack
any merit, in our discretion we award attorneys’ fees to Mother in the
amount of $3,000 to account for the additional fees she incurred in
addressing Father’s meritless claims. As the prevailing party, Mother is
also entitled to taxable costs subject to compliance with ARCAP 21.
CONCLUSION
¶16 We affirm the family court’s order granting Mother’s petition
to modify. We deny as moot Mother’s motion for sanctions and motion to
strike Husband’s reply brief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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