Mindiola v. Mindiola ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
NICOLE CRYSTAL MINDIOLA, Petitioner/Appellee,
v.
AARON JACOB MINDIOLA, Respondent/Appellant.
No. 1 CA-CV 21-0271 FC
FILED 12-30-2021
Appeal from the Superior Court in Maricopa County
No. FC2018-055324
The Honorable Dawn M. Bergin, Judge (retired)
AFFIRMED
COUNSEL
Nicole Crystal Mindiola, Tonopah
Petitioner/Appellee
Aaron J. Mindiola, Hillsboro, Oregon
Respondent/Appellant
MINDIOLA v. MINDIOLA
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.
M c M U R D I E, Judge:
¶1 Aaron Mindiola (“Father”) appeals from the superior court’s
dissolution decree (“Decree”). He raises several issues about the Decree,
including the court’s jurisdiction over parenting issues. Nicole Mindiola
(“Mother”) did not file an answering brief.1 We reject the arguments raised
and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2002, Mother and Father were married in California, where
they had two children, Shauna and Lars.2 The family lived in Washington
from 2014 through 2017. In January 2018, Mother moved to Oregon with
the children to earn a college degree. Around that time, Father ended his
active-duty position with the Navy and moved to Phoenix, where he
worked at ASM America. In Phoenix, he lived with a female roommate,
explaining to Mother that her presence would reduce expenses. This
roommate was, or became, Father’s girlfriend.
¶3 Mother struggled in college while parenting both children, so
Mother and Father agreed to relocate Lars to Father’s parent’s home in
California. Eventually, Mother concluded that she could not complete her
degree and moved to Phoenix to be with Father. Shauna was sent to stay
with Father’s parents while Mother and Father settled. Mother found work
at a warehouse. Soon after, the parties purchased a property in Phoenix,
and Lars came to live with them while Shauna continued to live with her
1 Mother’s failure to file an answering brief with this court may be
treated as a confession of error. See In re Marriage of Diezsi, 201 Ariz. 524,
525, ¶ 2 (App. 2002). But we decline to do so here because the children’s
best interests are involved. See Reid v. Reid, 222 Ariz. 204, 209, ¶ 18 (App.
2009).
2 To protect the children’s identities, we refer to them by pseudonyms.
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paternal grandparents. Father then rented a separate Phoenix property for
his girlfriend without Mother’s knowledge.
¶4 After Mother returned to Arizona, Father provided her with
little financial support. Father gave Mother money at his discretion and
interrogated her about her spending. Father also harangued Mother to seek
other employment. Yet she could not monitor Father’s spending because he
stopped making deposits into accounts she could access. Finally, needing
money, Mother accepted a job with longer hours as a bus driver in Tonopah
and relocated with Lars to her sister’s home there.
¶5 Mother told Father that she wanted Shauna to leave Father’s
parents and live with her. Father told Shauna that she did not have to live
with Mother. Mother drove to California to bring Shauna to Arizona but
returned without her after a physical altercation. Mother reportedly pulled
Shauna’s hair and tried to drag her out of her grandparents’ house. Shauna
later expressed reluctance at visiting Mother in Arizona.
¶6 The parties disputed who should use the community vehicles:
a Jeep, motorcycle, and SUV. Nor could they decide whether they should
sell or rent their Washington house to pay community debt.
¶7 In December 2018, Mother petitioned for dissolution, seeking
sole or joint legal decision-making and parenting time, spousal
maintenance, child support, and community assets. The dissolution dispute
spanned several filings and hearings.
¶8 In March 2019, the court ordered Father to retrieve Shauna to
Arizona within three calendar days of the end of her school year and
awarded Mother weekly parenting time. Shauna had not been in Arizona
before this order. Three months later, Mother met Father to exchange
Shauna. But as Mother drove home, Shauna began arguing about stopping
for fast food. The argument escalated until Mother took Shauna’s phone.
Shauna responded by taking Mother’s phone from a dock on the
dashboard. Mother had to pull onto the road’s shoulder to avoid risking a
collision. Shauna called the police, and Mother allowed Father to take
Shauna. Father’s girlfriend sent Shauna a hands-clapping emoji when
Father was called to pick up Shauna.
¶9 Given her deteriorating relationship with Shauna, Mother
moved the court to appoint a therapeutic interventionist and an advisor to
assess Shauna’s safety and ensure that Father complied with court orders
to allow Mother parenting time. Father, citing costs, responded to both
motions arguing that these appointments were unnecessary. During this
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time, Father’s girlfriend was arrested for DUI when she collided with two
vehicles while driving one of the community vehicles. The court appointed
both experts.
¶10 In February 2020, the therapeutic interventionist met with
Mother and Shauna, and Mother acknowledged past parenting mistakes.
As a result, Shauna and Mother began to mend their relationship. But
Father did not respond to the therapeutic interventionist’s multiple
attempts to schedule his sessions.
¶11 Father dragged his feet in other respects. For example, he
disobeyed court orders by failing to pay child support and spousal
maintenance. He also did not disclose his updated financial information,
passwords to financial accounts such as the mortgage account for the house
in Washington, and VA records about his receipt of income since the
action’s inception.
¶12 Eventually, Father absconded with Shauna to Oregon and
posted details about the case on social media. The court ordered Father to
return Shauna to Arizona by July 2020. Father refused, and the court issued
temporary orders awarding Mother sole legal decision-making and
designating her the primary residential parent of both children. The court
held Father in contempt and awarded Mother attorney’s fees.
¶13 The court scheduled the dissolution trial for February 2021.
But Father alerted the court that he would not appear. Father neither
appeared at the trial nor returned Shauna to Arizona, but the court heard
testimony from Mother. After making best-interest findings, the court
awarded Mother sole legal decision-making and allowed Father four hours
of supervised parenting time per week. The court also awarded Mother
child support and spousal maintenance and ordered Father to pay for
missed payments. After dividing assets, calculating equalization payments,
and awarding Mother her attorney’s fees, the court determined that Father
owed Mother around $72,000. Father appealed, and we have jurisdiction
under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶14 Father makes several arguments about the court’s
jurisdictional and best-interest findings, as well as its orders on child
support, parenting time, spousal maintenance, equalization payments, and
attorney’s fees. To begin, Father seeks leniency as a pro se litigant if he
confuses legal theories or fails to cite proper legal authority. We cannot
afford Father this leniency. Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017)
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(“We hold unrepresented litigants in Arizona to the same standards as
attorneys.”).
¶15 Generally, we review the superior court’s decisions in a
dissolution decree for an abuse of discretion. E.g., Nold v. Nold, 232 Ariz.
270, 273, ¶ 11 (App. 2013) (parenting issues); Birnstihl v. Birnstihl, 243 Ariz.
588, 590, ¶ 8 (App. 2018) (child support); Hefner v. Hefner, 248 Ariz. 54, 57,
¶ 6 (App. 2019) (property). A court abuses its discretion when it commits
legal error or when the record lacks competent evidence to support the
court’s decision. Woyton v. Ward, 247 Ariz. 529, 531, ¶ 5 (App. 2019). We
review legal error de novo and affirm findings supported by substantial
evidence. Id.A. The Superior Court Had Jurisdiction to Issue Legal
Decision-Making and Parenting Time Orders Concerning Shauna.
¶16 Father asserts that the superior court lacked subject-matter
jurisdiction over Shauna and that Arizona was ill-suited to adjudicate the
divorce. Thus, Father claims that an Arizona court cannot exercise
jurisdiction under A.R.S. § 25-1031(A).
¶17 The court determined that it had jurisdiction over the children
under A.R.S. § 25-1031(A) because Arizona was the children’s “home state.”
A home state, as applicably defined here, is the “state in which a child lived
with a parent or a person acting as a parent for at least six consecutive
months immediately before the commencement of a child custody
proceeding.” A.R.S. § 25-1002(7)(a). Arizona is Lars’s home state. That said,
Shauna does not have a home state because she did not reside in a state
with a parent or a person acting as a parent for six consecutive months
before Mother filed for dissolution.
¶18 Shauna lived with her grandparents in California from July
10, 2018, and was living there when Mother petitioned for dissolution on
December 14, 2018. And her grandparents did not function as persons
acting as parents under A.R.S. § 25-1002(7)(a) because they had not claimed
legal custody under Arizona law or been awarded legal custody by a court.
See A.R.S. § 25-1002(13)(b). Indeed, before Father reneged, the grandparents
housed Shauna temporarily as an informal arrangement between the
parties.
¶19 Even so, the court had jurisdiction to adjudicate Shauna’s
custody under A.R.S. § 25-1031(A)(2). Subsection (A)(2) gives a court
jurisdiction when no other state has jurisdiction, the child and parents have
a significant connection to the state beyond a mere physical presence, and
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substantial evidence exists in this state of a significant connection about the
“child’s care, protection, training and personal relationships.” When
Mother filed for dissolution in December 2018, she had lived in Arizona
with Lars since July 2018, and Father had lived in Arizona since January
2018. Both parents had jobs in Arizona. The parties owned a home and kept
three vehicles in Arizona.
¶20 Although Shauna had not physically resided in Arizona until
the dissolution filing, the parents agreed that the children’s time in
California would be temporary until the parents settled in Arizona. Thus,
both Shauna and the parties have significant connections in Arizona other
than mere physical presence, and substantial evidence in Arizona supports
Shauna’s care, protection, training, and personal relationships here. See In
re M.S., 176 A.3d 1124, 1132, 1134, ¶¶ 15, 21 (Vt. 2017) (Vermont had
substantial-connection jurisdiction over a child who had not been to
Vermont where the child’s parents and brother lived). We thus affirm the
court’s finding that it had jurisdiction to determine Shauna’s legal
decision-making and parenting time.3
B. The Court Did Not Err by Awarding Mother Sole Legal
Decision-Making or Granting Father Four Hours of Parenting
Time.
¶21 Father disputes several findings and legal conclusions
relating to decision-making and parenting time. In reviewing the superior
court’s findings, we view the evidence in the light most favorable to support
the court’s disposition. Johnson v. Johnson, 131 Ariz. 38, 44 (1981). Because
Father failed to participate in the dissolution trial, the evidence presented
to the court is uncontroverted.
¶22 Father challenges the court’s consideration of the children’s
past relationships with the parents as a part of its best-interests analysis
under A.R.S. § 25-403(A). He claims that the record does not support the
court’s finding that Mother was historically the primary caretaker. But
Father told the court-appointed advisor that he often traveled for work and
3 We decline to address Father’s assertion that the parents were not
domiciled in Arizona for 90 days before the Decree because he did not
support it with an argument and because both parties remained in Arizona
for more than 90 days with no apparent plan to move before Father fled to
Washington. Shauna’s attempt to emancipate in Oregon has no legal effect
on the home-state issue.
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training and was gone for much of the time. He also explained that while
Mother expected to be a stay-at-home parent, he had encouraged her to seek
additional schooling despite her reluctance to seek a “routine job.” And
Father admitted that Mother lived with Shauna without Father from
January to July 2018 and that Mother recently lived with Lars since October
2018. And for the year before Mother’s petition, all of Lars’s and most of
Shauna’s time away from Mother was spent with their paternal
grandparents, not Father. Thus, substantial evidence supports the court’s
finding that Mother has historically been the primary caretaker.
¶23 Father also argues that the court erred by concluding that he
may have a mental illness. In the Decree, the court found, “In light of
Father’s erratic and irrational behaviors, the Court is concerned that he may
be suffering from mental health problems.”
¶24 The court lacked access to Father’s mental health records. But
it noted in its parenting analysis that Father had repeatedly refused to
disclose mental health records, financial information, and other evidence
and had absconded with Shauna without revealing his location to Mother
or the court. The court’s analysis correctly weighed these behaviors and the
potential mental-health condition that they may show. The court did not
err.
¶25 Father challenges the court’s A.R.S. § 25-403.01(B) findings
that Father’s conduct was egregious and joint legal decision-making was
not logistically possible. But the parties’ attempts at joint legal
decision-making had failed, mainly because Father repeatedly interfered
with Mother’s attempts to mend her relationship with Shauna. Moreover,
Father’s relocation and evasion made joint legal decision-making
impossible to enforce under the current plan. See Canty v. Canty, 178 Ariz.
443, 449 (App. 1994) (joint custody arrangement became logistically
impossible when mother and daughter relocated out of state).4
4 We decline to address Father’s argument that the court’s decisions
to designate Mother as the primary residential parent and to allow him only
four hours of supervised parenting time is “contrary to precedent.” Father
does not articulate an argument to support his position, and his cited
authorities provide no support. See ARCAP 13(a)(7)(A) (brief must contain
“supporting reasons for each contention . . . with citations of legal
authorities and appropriate references to the portions of the record”).
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¶26 Father argues that the superior court did not have the
authority to require the parties to use OurFamilyWizard software. But
limiting and monitoring parental communications to specific media falls
under the court’s power to establish a parenting plan. See A.R.S.
§ 25-403.02(C)(7) (The court’s parenting plan must include “[a] procedure
for communicating . . . about the child, including methods and
frequency.”). The court did not err by selecting the software.
C. The Court Did Not Abuse Its Discretion by Equitably Dividing the
Community Property.
¶27 The court must divide the community property equitably,
though not necessarily in kind. A.R.S. § 25-318(A). We review the court’s
characterization of property de novo and its apportionment for an abuse of
discretion. Davies v. Beres, 224 Ariz. 560, 562, ¶ 6 (App. 2010). Father
disputes many aspects of the court’s allocation, and we address each
argument in turn.
¶28 Father asserts that the court neglected to include his
education expenses in the equalization-payment calculations. But Father
agreed to assume his student loans and the costs toward his pilot license as
his separate debt at the alternate dispute resolution conference. Father
made no effort to challenge the allocation later and cannot now on appeal.
See Trantor v. Fredrikson, 179 Ariz. 299, 300–01 (1994).
¶29 Father disputes the court’s equalization about the SUV and
motorcycle. Father alleges that Mother provided significantly higher Blue
Book values for the vehicles at the trial than their worth. But the
uncontested evidence before the superior court included Mother’s
estimated Blue Book values. But Father’s opportunity to challenge the
evidence was at the trial, which he voluntarily failed to attend. Likewise,
we decline Father’s request for remand to redetermine the community debt
and its proper allocation as well as reimbursements, waste, and attorney’s
fees, and Mother’s 401(k).5
¶30 Father asserts that the court breached federal law by granting
Mother one-half of the community interest in Father’s Navy Pension Plan.
5 This court was not presented with the entire record, but because
Father failed to provide transcripts from evidentiary hearings, we presume
they support the order. Cullison v. City of Peoria, 120 Ariz. 165, 168, n.2
(1978).
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A community acquires a right in unvested pension benefits upon
performance under the employee-spouse’s contract. Van Loan v. Van Loan,
116 Ariz. 272, 274 (1977). Further, while a court may award retirement pay
under 10 U.S.C. § 1408(c), that amount is constrained by federal law.
¶31 In the Decree, the court held:
The community has an interest in the following retirement
plans:
1) Father’s Military (Navy) Pension
2) Father’s ASM America Inc. 401(k) Plan
3) Father’s Thrift Savings Plan
4) Father’s Edward Jones Traditional IRA.
IT IS ORDERED that Mother is entitled to one half of the
community interest in each of the above accounts.
The Court then appointed a special master to provide qualified domestic
relation orders (“QDRO”) to distribute the accounts. Yet the record includes
no QDRO for the accounts. As a result, we cannot determine whether the
military pension was correctly apportioned. Thus, the record shows no
abuse of discretion.
D. The Court Did Not Err in Determining Child Support.
¶32 Father argues the court failed to adhere to the child support
guidelines by declining to use Mother’s potential income as estimated by
her vocational evaluation, failing to require Mother to adequately prove
that she was seeking jobs with greater pay, and including Father’s second
job in determining child-support calculations.
¶33 When determining spousal maintenance, the court
considered Mother’s $15-per-hour wage at the warehouse, her prior work
history of similar earnings, her recent college education, and her
contributions to Father’s education.
¶34 The vocational expert concluded that Mother could expect to
earn between $29,000 and $35,000 in the greater Phoenix area as a
behavioral support specialist without more certification or education. But
this prediction assumed full-time work. Given Mother’s recent degree, her
eventual transfer to a different labor market appears likely, but her
near-term success is unclear. And any assumptions over full-time work are
questionable given her responsibilities for parenting both children. Thus,
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we defer to the court’s reasonable inference that her income will not change.
Lawrence v. Valley Nat’l Bank, 12 Ariz. App. 51, 57 (1970) (We defer to the
superior court in matters of factual dispute and resolve inferences in favor
of the appellee.).
¶35 Father also argues the court erred by including his part-time
salary from the Navy reserves in its child-support calculations.
¶36 The child support guidelines provide that “[g]enerally, the
court should not attribute income greater than what would have been
earned from full-time employment.” A.R.S. § 25-320(5)(A). But the
guidelines allow courts to “consider income actually earned that is greater
than would have been earned by full-time employment if that income was
historically earned from a regular schedule and is anticipated to continue
into the future.” Id.; see, e.g., Fiori v. Lanini-Fiori, No. 1 CA-CV 18-0121 FC,
2019 WL 438795, at *4, ¶ 21 (Ariz. App. Feb. 5, 2019) (earnings from the
second job held for over three years with consistent income for past five
months); In re Marriage of Ballard v. Ballard, No. 1 CA-CV 15-0449 FC, 2016
WL 797012, at *2, ¶ 12 (Ariz. App. Mar. 1, 2016) (earnings from the second
job of four years which constituted roughly eight percent of Father’s
income). The Navy reserve schedule appears regular, as Father
acknowledged that he had received around $400 per month since December
2017. He has continued to receive this income for years, and indeed,
acknowledges this position as a “second job” on appeal. The court did not
err by including Father’s Navy Reserve payments as gross income.
E. The Court Afforded Father Procedural Due Process.
¶37 Due process requires that the parties have “an opportunity to
be heard at a meaningful time and in a meaningful manner.” Volk v. Brame,
235 Ariz. 462, 468, ¶ 20 (App. 2014) (quotation omitted). Father did not use
his opportunity to participate at the trial but points to his “Notice of
Non-appearance” to show that he had good cause not to appear. Father
argued that the court was partial to Mother in the notice, rendering his
attendance pointless. But a fatalistic attitude toward a hearing’s outcome
does not constitute a “good cause” for not participating. C.f. Richas v. Super.
Ct., 133 Ariz. 512, 514 (1982) (A party who failed to appear could not trigger
Arizona Rule of Civil Procedure 55(c)’s good-cause requirement to set aside
a default judgment because the party could not show “mistake, surprise,
inadvertence or excusable neglect.”). The court afforded Father procedural
due process.
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F. The Court Did Not Abuse Its Discretion by Awarding Mother
Attorney’s Fees.
¶38 Father argues that he cannot afford to pay Mother’s attorney’s
fees. But the court found that Father had superior financial resources under
A.R.S. § 25-324. Although the amount in attorney’s fees, $56,000, is
substantial, the court noted that much of Mother’s attorney’s work in
accruing these fees was necessary only because of Father’s conduct. We
decline to find the court abused its discretion.
G. The Court Acted within Its Judicial Capacity.
¶39 Father argues, without support, that the judicial officer acted
beyond her capacity as a judge in her decisions about child support, spousal
maintenance, trust account funds, and equalization payments. We disagree.
Such allocations are within a family court’s authority. A.R.S. §§ 25-318, -319,
-320.
ATTORNEY’S FEES
¶40 Father requested attorney’s fees and costs on appeal. We
decline to award fees or costs. A.R.S. §§ 12-341, -341.1.
CONCLUSION
¶41 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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