Wootton v. Blair ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JESSICA WOOTTON, Petitioner/Appellee,
v.
CHRISTOPHER MICHAEL BLAIR, Respondent/Appellant.
No. 1 CA-CV 15-0453 FC
FILED 4-21-2016
Appeal from the Superior Court in Maricopa County
FC2009-000863
The Honorable Susan M. Brnovich, Judge
AFFIRMED
COUNSEL
C. Michael Blair, Scottsdale
Respondent/Appellant
The Cavanagh Law Firm, P.A., Phoenix
By Christina S. Hamilton
Counsel for Petitioner/Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.
WOOTTON v. BLAIR
Decision of the Court
T H U M M A, Judge:
¶1 Christopher Michael Blair (Father) appeals the superior
court’s denial of his motion to modify parenting time and child support and
the denial of his request for attorneys’ fees. Father argues the court abused
its discretion by denying the modifications, claiming he completed all
requirements contained in prior parenting time and child support orders.
Because Father has shown no error, the denials are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Jessica Wootton (Mother) married in 2003, and
later had two children. The two divorced in 2009. In the divorce decree, the
court granted Mother sole legal decision making authority, granted Father
parenting time on alternating weeks and ordered Father to pay child
support.1 In March 2011, after losing his job and being jailed for violating a
protection order against Mother, Father petitioned to modify child support.
After a hearing, the court increased Father’s child support from $494 per
month to $704 per month. Father appealed and this court affirmed. See
Wootton v. Blair, 1 CA-CV 11-0825, 2014 WL 298830 (Ariz. App. Jan. 28, 2014)
(mem. dec.).
¶3 In June 2012, on Mother’s motion and after a hearing, the
court revoked Father’s parenting time but ordered that he have supervised
therapeutic visitation with the children. The court found that Father needed
mental health treatment and that unsupervised parenting time would
“endanger seriously the children’s physical, mental, moral or emotional
health.” The court ordered Father to submit to a psychiatric evaluation and
submit a copy of the evaluation with the court.
¶4 In March 2014, on Father’s request and after a hearing, the
court denied his request for unsupervised parenting time. The court
adopted all of the findings from the June 2012 order, including that
unsupervised visits would endanger the children. The court further found
that Father had satisfied the order to submit to a psychiatric evaluation, but
that he had not sought any treatment or counseling. The court ordered that
Father:
1The file contains nearly 600 post-decree docket entries. Given this volume,
the facts and procedural history are limited to those relevant to this specific
appeal.
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WOOTTON v. BLAIR
Decision of the Court
Shall not be entitled to a hearing regarding
parenting time unless and until the following
are completed by Father:
1. Six months of continuous, weekly or bi-
weekly supervised visits and
2. Six months of individual therapy with a
PhD level psychologist with experience
in [b]ehavior modification. The therapy
goals should include, but is not limited
to:
a. Exploring the cause of Father’s self-
defeating conduct;
b. Modifying maladaptive behaviors;
c. Learning positive and effective
coping strategies;
d. Improving self-awareness; and
e. Acquiring a set of skills that would
allow him to parent in a healthy and
positive manner.
¶5 In October 2014, Father petitioned to modify parenting time
and child support, claiming he had completed the therapy required by the
March 2014 order and should be allowed to “resume a regular relationship
with his children.” Mother opposed the requests and, at a March 2015
evidentiary hearing, Father and Mother each testified in support of their
respective positions. Mother also called forensic psychologist Dr. Erin
Nelson, who had previously examined Father, to testify regarding her
opinion of Father’s condition and parental fitness.
¶6 In a May 2015 order, the court found Father had “done the
minimum requirements ordered in June, 2014 that entitled him to request a
hearing. However, he has not made any significant changes.” The court
found “Father is still engaging in the same behaviors that have caused
concern since 2012” and has “not shown that he can engage in safe
behaviors with the children if he is unsupervised.” Accordingly, the court
denied Father’s request to modify parenting time.
¶7 For child support, the court attributed to Father his
documented income of $15 per hour. The court also found that there had
been no change in Mother’s financial circumstances since 2011; specifically,
that Mother lives in investment homes owned by a trust, receives some
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WOOTTON v. BLAIR
Decision of the Court
money from the trust and does not have paid employment. Accordingly,
the court continued to attribute to Mother monthly income of $2,191, the
same amount it attributed to her in 2011. Applying the child support
guidelines, the court ordered that Father’s child support obligation be
increased to $770 per month, given that Mother was parenting the children
more each month because of the reduction of Father’s parenting time. The
court denied both parties’ requests for attorneys’ fees.
¶8 Father timely appealed the court’s order. This court has
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1)
(2016).2
DISCUSSION
I. Deficient Opening Brief.
¶9 Father, who is self-represented on appeal, appears to argue
the court erred by (1) denying his request to modify parenting time and
allow Father unsupervised visitation, (2) failing to properly determine
Mother’s income and (3) denying Father’s request for attorneys’ fees.
Father’s opening brief, however, does not comply with the requirements of
the applicable rules.
¶10 An appellate brief must contain “[a] statement of facts
relevant to the issues presented for review, with appropriate references to
the record” and “reference shall be made to the record or page of the
certified transcript where such evidence appears.” Ariz. R. Civ. App. P.
13(a)(4). This court will disregard statements of fact that lack appropriate
citation to the record and for which the court cannot find support in the
record. Flood Control Dist. of Maricopa Cnty. v. Conlin, 148 Ariz. 66, 68 (App.
1985). The brief must also cite relevant authority, statutes and the relevant
parts of the record, ARCAP 13(a)(6), and the failure to do so can result in
the waiver of the issue on appeal, see Joel Erik Thompson, Ltd. v. Holder, 192
Ariz. 348, 351 ¶ 20 (App. 1998). Father’s opening brief does not provide
citations to the record and authority. Nevertheless, given that the best
interests of children are involved, the court will exercise its discretion to
address Father’s appeal on the merits. Cf. Hays v. Gama, 205 Ariz. 99, 102 ¶
18 (2003).
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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WOOTTON v. BLAIR
Decision of the Court
II. Father Has Not Shown The Court Erred By Denying His Petition
To Modify Parenting Time.
¶11 “The court may modify an order granting or denying
parenting time rights whenever modification would serve the best interest
of the child, but the court shall not restrict a parent’s parenting time rights
unless it finds that the parenting time would endanger seriously the child’s
physical, mental, moral or emotional health.” A.R.S. § 25-411(J). “To change
a previous [parenting time] order, the court must determine whether there
has been a material change in circumstances affecting the welfare of the
child.” Owen v. Blackhawk, 206 Ariz. 418, 422 ¶16 (App. 2003) (citation
omitted). This court reviews the court’s decision for an abuse of discretion.
Id. at 420 ¶ 7.
¶12 Father argues the record does not support the court’s findings
that he did not address the therapy goals required by the court or change
his behavior. Although Father claims to have “met many, if not all
behavioral goals,” he provides no record citation for support. Moreover,
Father did not provide this court with a transcript of the superior court
proceeding, meaning this court assumes that transcript supports the
superior court’s findings and conclusions. See Baker v. Baker, 183 Ariz. 70, 73
(App. 1995).
¶13 Father’s argument is really a request to reweigh the evidence
considered by the superior court, something this court will not do. See In re
Estate of Pouser, 193 Ariz. 574, 579 (1999). Moreover, the portion of the record
available to this court does not show that the superior court abused its
discretion. Father submitted reports supporting his argument that he is a
caring, affectionate parent and that he was “engaged in the
psychotherapeutic process, is addressing the issues stated in the [2012]
Advisement [ruling], and is making progress.” The court, however, did not
order supervised visits because of a lack of affection, nor did it accuse
Father of refusing to attend treatment. Supervised visits were originally
required because the court found Father’s psychological problems
endangered the children. And, here, the court denied Father’s request
because it found that Father has not yet successfully resolved those issues.
¶14 In short, there is no evidence in the record before this court to
show that Father has resolved his behavioral issues in a manner that
constitutes a substantial change of circumstances. Accordingly, the superior
court did not abuse its discretion in finding that unsupervised parenting
time may be harmful to the children and that modifying parenting time is
not in the children’s best interests.
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Decision of the Court
III. Father Has Not Shown The Superior Court Erred By Modifying
Child Support.
¶15 “[S]upport may be modified or terminated only on a showing
of changed circumstances that are substantial and continuing.” A.R.S. § 25-
327(A). “The decision to modify an award of child support rests within the
sound discretion of the trial court and, absent an abuse of discretion, will
not be disturbed on appeal.” Little v. Little, 193 Ariz. 518, 520 ¶ 5 (1999)
(citing cases). “An abuse of discretion exists when the record, viewed in the
light most favorable to upholding the trial court’s decision, is ‘devoid of
competent evidence to support’ the decision.” Id. (citation omitted).
¶16 The superior court found there was no change in Mother’s
circumstances since originally setting child support in 2011. Father does not
argue there has been a substantial change in Mother’s circumstances, but
argues the superior court erred by not imputing any income to Mother for
living “rent/mortgage free,” and for otherwise miscalculating her income.
Again, this argument is a request to reweigh the evidence, something this
court will not do. See Pouser, 193 Ariz. at 579.
¶17 Because Father does not even allege a change of Mother’s
circumstances, modifying her imputed income would have been an error.
See A.R.S. § 25-327. Additionally, Father raised these issues in the prior
appeal on a similar record, and this court resolved them against him.
Because there has been no change in circumstances that would allow
reconsideration of Mother’s income, that decision remains the law of the
case on these issues. See Copper Hills Enters., Ltd. v. Ariz. Dep’t of Rev., 214
Ariz. 386, 390-391 ¶ 15 (App. 2007) (“Under the law of the case doctrine, an
appellate court’s decision is controlling in both the lower courts and in
subsequent appeals in the same case, so long as the facts and law remain
substantially the same.”). The court did, however, find that Father’s
parenting time had been reduced since the initial child support order.
Given this change in circumstances, the court did not abuse its discretion
by increasing Father’s child support obligation.
IV. The Superior Court Did Not Abuse Its Discretion By Denying
Father’s Request For Attorneys’ Fees.
¶18 “The court from time to time, after considering the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings, may order a party to pay a
reasonable amount to the other party for [attorneys’ fees].” A.R.S. § 25-
324(A). The superior court “has the discretion to deny a fee request even
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Decision of the Court
after considering both statutory factors.” Myrick v. Maloney, 235 Ariz. 491,
494 ¶ 9 (App. 2014).
¶19 As applied, the superior court found “that Father’s positions
have been unreasonable, specifically asking for the Court to attribute $8,000
per month in income to Mother and his positions on parenting time.” The
court also found that Mother had greater financial resources. As a result,
the court denied both parties’ requests for an award of attorneys’ fees.
¶20 Father argues he was entitled to fees for the 2015 evidentiary
hearing because Mother’s position was unreasonable and the superior court
erred in addressing his petition. As noted above, the court did not err in
addressing his petition. In addition, Father does not expound on which of
Mother’s positions is unreasonable or provide any reference to the record
to support the assertion. Because the record shows the court properly
considered the relevant factors in addressing fees, Father has not shown the
court abused its discretion in denying Father’s request for fees.
V. Attorneys’ Fees On Appeal.
¶21 Both parties have requested an award of attorneys’ fees on
appeal. Father was not represented by counsel on appeal and, accordingly,
is not eligible for an award of attorneys’ fees. In its discretion, the court
declines Mother’s request for attorneys’ fees on appeal. Mother is, however,
awarded taxable costs on appeal upon her compliance with ARCAP 21.
CONCLUSION
¶22 The superior court’s judgment is affirmed.
:ama
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