Atkison v. Shafer ( 2022 )

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THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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:
DIANE CAROL ATKISON, Petitioner/Appellant,
v.
ROBERT ANTHONY SHAFER, Respondent/Appellee.
No. 1 CA-CV 22-0004 FC
FILED 12-29-2022
Appeal from the Superior Court in Maricopa County
No. FC2019-007092
The Honorable Mark H. Brain, Judge
AFFIRMED IN PART/REMANDED
COUNSEL
Gillespie, Shields, Goldfarb & Taylor, Phoenix
By Mark A. Shields (argued), David L. Goldfarb
Counsel for Petitioner/Appellant
Curry, Pearson & Wooten, PLC, Phoenix
By Daniel S. Riley1
Counsel for Respondent/Appellee
1 This court thanks Mr. Riley for his pro bono service.
ATKISON v. SHAFER
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Diane Carol Atkison (“Grandmother”) appeals from the
superior court’s denial of her petition for in loco parentis legal
decision-making and her motion to amend. We find no reversible error and
affirm the court’s parenting determination. We remand for the court to
determine the child support award during the interim period.
FACTS AND PROCEDURAL BACKGROUND
¶2 Liam2 is Grandmother’s maternal grandson, and his father is
Robert Anthony Shafer (“Father”). Liam’s mother (“Mother”) and Father
had a turbulent and volatile relationship. In 2016, Father petitioned for legal
decision-making and parenting time. Grandmother intervened in Father’s
case (Maricopa County cause number FC 2016-008657), petitioning for in
loco parentis rights. The court appointed a best-interests attorney for the
child. The best-interests attorney began a dependency action against
Mother and Father. Eventually, the dependency petition, Father’s legal
decision-making petition, and Grandmother’s in loco parentis petition were
dismissed without the entry of a parenting order.
¶3 Father relocated to California. Father took Liam to California
for a short period, but Liam returned and remained with Mother in
Arizona. In August 2019, Mother was hospitalized following a cardiac
arrest. She died two weeks later.
¶4 Before Mother’s death, Grandmother again petitioned for in
loco parentis decision-making under A.R.S. § 25-409, alleging that Father had
a significant history of domestic violence and drug abuse. She asked the
court to grant her legal decision-making and parenting time for Liam and
order Father to undergo drug testing. She also moved for temporary orders.
2 We use a pseudonym to protect the child’s identity.
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¶5 In September 2019, after an evidentiary hearing, the court
issued temporary orders that designated Grandmother as the sole legal
decision-maker with physical custody of Liam but allowed Father
supervised parenting time. The court also ordered Father to submit to
random drug testing at least eight to ten times per month. The court warned
Father that each failure to participate might be considered a failed test, and
he should disclose any prescriptions that could lead to a positive test result.
Finally, the court appointed a behavioral health professional to conduct a
comprehensive family evaluation.
¶6 In April 2021, the parties proceeded to trial. They presented
evidence that Father completed nearly 30 drug tests during the previous 19
months, four of which were positive. The first positive result occurred in
September 2019, when Father tested positive for amphetamines,
benzodiazepines, cannabinoids, and fentanyl. He began an inpatient
treatment program just over a month later.
¶7 Yet Father tested positive for cocaine, fentanyl, and
methadone in March 2020. He testified that this was the only hair follicle
test conducted by taking a sample from his leg instead of his chest or
armpit, which may have had a longer detection window because he
sometimes trimmed his body hair but never his legs. He also presented a
letter from an addiction psychologist stating that different body areas may
yield different results. Father completed three negative urinalysis tests and
a negative hair follicle test two weeks following the positive hair follicle
test.
¶8 In May and July 2020, Father tested positive for
amphetamines. As for these tests, he testified that he had a prescription
amphetamine medication that he had since stopped taking. Father added
that after completing the inpatient treatment program, he saw a physician
for monthly urine tests and a prescription opioid antagonist. He maintained
that he had been clean and sober.
¶9 Grandmother presented evidence of Father’s domestic
violence. In November 2017, Father was arrested for assaulting Mother. He
was released but ordered to have no contact with Mother. But a week later,
police responded to a call from Mother’s neighbor, who could hear Mother
and Father fighting inside Mother’s apartment. The responding officer
concluded the argument was only verbal but arrested Father for violating
the no-contact order.
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¶10 Grandmother presented text messages from April 2018
between Mother and Mother’s brother, in which Mother stated Father
struck her in the head and knocked her out eight times. Grandmother
alleged that Father assaulted Mother again in May 2018, leading police to
arrest both Mother and Father for domestic violence.
¶11 Grandmother presented photos of Mother’s injuries,
including when Father allegedly broke Mother’s hand in July 2018.
Grandmother offered text messages between Mother and Father, in which
Mother accused Father of tackling and belittling her in front of Liam, to
which Father replied, “Everything you do and say in front [of] him is
perfectly ok but when [I] do [it it’s] the end [of] the world.” Grandmother
testified that this was Father’s admission “to doing it in front of [Liam].”
¶12 The superior court denied Grandmother’s in loco parentis
petition. The court began its analysis by stating that a grandparent may be
awarded third-party rights if it finds that all the requirements of A.R.S.
§ 25-409(A) are met. The court acknowledged the presumption that it is in
a child’s best interests to remain with the natural parent. The court
determined that the only disputed element under the statute was whether
it would be significantly detrimental to the child to remain in Father’s care.
¶13 Before proceeding to the best-interests analysis, the court
rejected Grandmother’s arguments under the domestic violence provisions
of A.R.S. § 25-403.03. The court “simply disagree[d]” with Grandmother
that domestic violence was relevant to the case. The court recognized that
A.R.S. § 25-403.03(B) requires courts to “consider evidence of domestic
violence as being contrary to the best interests of the child” and continued:
Of course it is. But the goal is to keep the child from being
exposed to domestic violence, not to penalize a parent who
once engaged in it but cannot anymore. Accordingly, the
Court concludes that father’s history of domestic violence
with mother (which was sometime[s] mutual) is not pertinent
to the current dispute.
¶14 The court then analyzed the best-interests factors under
A.R.S. § 25-403. The court found that Liam had good relationships with
Grandmother, Father, and his extended family. It further found that Liam
had adjusted well to living with Grandmother in Phoenix. The court added
that Liam, who was five years old at the time, was too young for his wishes
to be considered. And the court found that Liam and Grandmother were in
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good mental and physical health, as was Father, except for Father’s prior
drug abuse history.
¶15 The court then addressed Father’s drug use, finding that
Father had “undoubtedly” abused various drugs. The court acknowledged
that Father tested positive in March 2020 but noted that he submitted
several negative drug tests since January 2020. The court also recognized
Grandmother’s criticism of Father’s compliance with the original
drug-testing order and her concern that Father could have used fentanyl
without detection. But “[h]aving studied the matter, the Court conclude[d]
that father ha[d] made a good faith effort at complying with the Court’s
intended drug testing regimen[].”
¶16 The court also found “that the testing Father completed was
reasonably calculated to ensur[e] that he was not using illicit substances.”
Finally, the court found credible Liam’s paternal grandfather’s testimony
that Father’s behavior and demeanor had recently improved and were
“inconsistent with continued drug use.”
¶17 In conclusion, the court found “that it would not be
significantly detrimental to [Liam] to be placed in the care of his father” and
denied Grandmother’s petition.
¶18 Grandmother moved to amend the judgment, asking the
court to grant her visitation and order Father to continue drug testing. She
asserted that Father had agreed to both parenting requests in his pretrial
statement. The court denied the motion.
¶19 First, the court found that the visitation issue was not tried by
consent. The court explained that, although Father stated pretrial that
Grandmother should have visitation rights, Father also noted that
Grandmother did not request visitation, even as an alternative theory.
Second, the court declined to order Father to continue drug testing because
the court lacked the authority to impose such a requirement after denying
a third-party petition under A.R.S. § 25-409.
¶20 Grandmother appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(1) and (2).
DISCUSSION
¶21 We review an award of legal decision-making and parenting
time for an abuse of discretion. Olesen v. Daniel, 251 Ariz. 25, 29, ¶ 14 (App.
2021). A court abuses its discretion if it commits an error of law when
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reaching a discretionary decision or if the record does not support its
decision. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). We accept the
court’s factual findings unless clearly erroneous but review legal
conclusions de novo. Id.¶22 Grandmother raises several arguments for reversal, and we
will address each in turn. But we must first address the court’s application
of the statutory requirements for third-party petitions, an issue not raised
by either party. The court’s analysis began with a statement that third-party
rights may be awarded upon a showing of the four elements under A.R.S.
§ 25-409(A). But A.R.S. § 25-409(A) provides that “[t]he court shall
summarily deny a petition unless it finds that the petitioner’s initial pleading
establishes” the four elements. A.R.S. § 25-409(A) (emphasis added). As a
result, the statute sets forth a pleading standard. See Chapman v. Hopkins,
243 Ariz. 236, 240, ¶ 16 (App. 2017). Only after determining that the petition
establishes each requirement will the court reach the merits. Id. at ¶ 17.
¶23 The merits standard is instead outlined in A.R.S. § 25-409(B),
which provides that there “is a rebuttable presumption that awarding legal
decision-making to a legal parent serves the child’s best interests.” And the
presumption may be rebutted only “by clear and convincing evidence that
awarding legal decision-making to a legal parent is not consistent with the
child’s best interests.” A.R.S. § 25-409(B). When making this determination,
the court should consider the best-interests factors enumerated in A.R.S.
§ 25-403(A). Chapman, 243 Ariz. at 241, ¶ 18. “Legal parent” means a
biological or adoptive parent whose parental rights have not been
terminated. A.R.S. § 25-401(4). And the parties do not dispute that Father is
Liam’s legal parent.
¶24 Here, the court’s order appears to use A.R.S. § 25-409(A) as
the framework for analyzing the merits, which was improper. But the court
did not commit reversible error in this regard because, substantively, the
court considered the best-interests factors under A.R.S. § 25-403(A) when
reaching its conclusion. See Ariz. R. Fam. Law P. 86 (“At every stage of the
proceeding, the court must disregard all errors and defects that do not affect
any party’s substantial rights.”); Wisniewski v. Dolecka, 251 Ariz. 240, 242,
¶ 7 (App. 2021).
A. The Superior Court Made Sufficient Findings Under A.R.S.
§ 25-403 Regarding the Ultimate Facts in Dispute.
¶25 Grandmother first argues that the court failed to make
specific best-interests findings on the record. As mentioned, the court must
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evaluate the child’s best interests when ruling on a third-party petition
under A.R.S. § 25-409. See Chapman, 243 Ariz. at 241, ¶ 18; Downs v. Scheffler,
206 Ariz. 496, 500, ¶¶ 12–14 (App. 2003). In doing so, the court must
consider the best-interests factors enumerated in A.R.S. § 25-403(A).
Chapman, 243 Ariz. at 241, ¶ 18. And when considering the best-interests
factors, “the court shall make specific findings on the record.” A.R.S.
§ 25-403(B). Grandmother asserts that the court’s order lacks the requisite
findings.
¶26 The primary purpose for requiring a court to make express
findings of fact and conclusions of law is to allow the appellate court to
determine exactly what issues were decided and whether the lower court
correctly applied the law. Francine C. v. Dep’t of Child Safety, 249 Ariz. 289,
295–96, ¶ 13 (App. 2020); Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236,
240, ¶ 24. Findings also serve other important purposes, “including
prompt[ing] judges to consider issues more carefully because they are
required to state not only the end result of their inquiry, but the process by
which they reached it.” Logan B. v. Dep’t of Child Safety, 244 Ariz. 532, 538,
¶ 18 (App. 2018) (alteration in original) (quotation marks omitted) (quoting
Miller v. Bd. of Supervisors, 175 Ariz. 296, 299 (1993)). To survive a challenge
to the adequacy of the superior court’s findings, “[i]t must be clear [from
the findings] how the court actually did arrive at its conclusions.” Kelsey v.
Kelsey, 186 Ariz. 49, 51 (App. 1996) (alteration in original) (quoting Elliott v.
Elliott, 165 Ariz. 128, 135 (App. 1990)).
¶27 A court does not have to detail each fact that supports its
ruling, Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 451–52, ¶ 19 (App.
2007), but its findings must include the “ultimate facts,” Ruben M., 230 Ariz.
at 241, ¶ 25. “[U]ltimate facts are at least the essential and determinative
facts on which the conclusion was reached. They are the controlling facts,
without which the court cannot correctly apply the law in resolving the
disputed issues in the case.” Logan B., 244 Ariz. at 537, ¶ 15 (alteration in
original) (quotation marks omitted) (quoting Miller, 175 Ariz. at 300); Ruben
M., 230 Ariz. at 241, ¶ 25 (“Findings must include ‘all of the “ultimate”
facts—that is, those necessary to resolve the disputed issues.’” (quoting
Elliott, 165 Ariz. at 132)). We review the sufficiency of findings of fact de
novo as a mixed question of fact and law. Francine C., 249 Ariz. at 296, ¶ 14.
¶28 The superior court’s order contains the required findings. The
court began by stating, “As to best interests, the factors of A.R.S. § 25-403
are instructive, and the Court will discuss the evidence surrounding the
applicable factors.” The court then made findings about the relationship
and interactions between Liam and the parties, Liam’s adjustment to life at
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home and in school, whether Liam was of suitable age to have his wishes
considered, and the physical and mental health of the parties. The court also
discussed Father’s history of domestic violence and drug abuse. Although
the analysis takes on an unenumerated narrative form, it tracks A.R.S.
§ 25-403 and addresses the relevant factors under the statute. See also Downs,
206 Ariz. at 500, ¶¶ 12–14 (Not all factors apply to third-party petitions.).
And Grandmother identifies no rule or law that governs how courts must
format a best-interests finding. We thus conclude that the court made the
required findings.
B. The Superior Court Did Not Commit Reversible Error in its
Domestic Violence Findings.
¶29 Grandmother argues that the superior court erred by failing
to apply the presumption outlined in A.R.S. § 25-403.03(D) and finding that
Father’s history of domestic violence is “not pertinent” to the dispute.
¶30 Arizona Revised Statutes Section 25-403.03(D) creates a
rebuttable presumption against domestic violence perpetrators:
If the court determines that a parent who is seeking sole or
joint legal decision-making has committed an 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 of
domestic violence is contrary to the child’s best interests. This
presumption does not apply if both parents have committed
an act of domestic violence.
A.R.S. § 25-403.03(D). Grandmother argues the court erred by failing to
apply this presumption against Father because Father “was seeking and
was granted legal decision-making in this case” and has committed
multiple acts of domestic violence against Mother.
¶31 Grandmother’s argument fails, and the presumption does not
apply for two reasons. First, Grandmother misstates the case’s procedural
posture because Father was not “seeking” legal decision-making. Instead,
Grandmother sought legal decision-making as a third-party petitioner
under A.R.S. § 25-409. The burden was on her to show “by clear and
convincing evidence that awarding legal decision-making to [Father was]
not consistent with the child’s best interests.” A.R.S. § 25-409(B).
Grandmother cites Olesen v. Daniel, 251 Ariz. 25 (App. 2021) to show that
this presumption applies in third-party cases. Grandmother is mistaken.
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¶32 In Olesen, the parents divorced, and the mother was awarded
sole legal decision-making. Olesen, 251 Ariz. at 27, ¶¶ 2, 4. Thus, when the
father later petitioned to modify the parenting plan, and the grandparents
intervened, the father was still “a parent who [was] seeking sole or joint
legal decision-making” under A.R.S. § 25-403.03(D). See Olesen, 251 Ariz. at
27–29, ¶¶ 6, 13. Here, no parent was seeking legal decision-making. As a
result, the presumption under A.R.S. § 25-403.03(D) did not apply.
¶33 Second, Grandmother ignores the court’s finding that Mother
also committed an act of domestic violence. The presumption under A.R.S.
§ 25-403.03(D) does not apply “if both parents have committed an act of
domestic violence.” Here, the court found that “father’s history of domestic
violence with mother . . . was sometime[s] mutual.” Although
Grandmother contends that Father is the only parent with a history of
domestic violence, the court’s finding is supported by the testimony that
police arrested both Mother and Father for domestic violence in May 2018.
Again, the presumption under A.R.S. § 25-403.03(D) does not apply.
¶34 Grandmother also argues that the court erred by concluding
that domestic violence was “not pertinent” to the case, especially because
the court found Father engaged in domestic violence but “cannot
anymore.”
¶35 When analyzing the child’s best interests, the court should
consider “[w]hether there has been domestic violence or child abuse
pursuant to § 25-403.03.” A.R.S. § 25-403(A)(8). In doing so, the court must
give domestic violence substantial consideration:
The court shall consider evidence of domestic violence as
being contrary to the best interests of the child. The court shall
consider the safety and well-being of the child and of the
victim of the act of domestic violence to be of primary
importance. The court shall consider a perpetrator’s history of
causing or threatening to cause physical harm to another
person.
A.R.S. § 25-403.03(B); see Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 16
(App. 2013). Given the statute’s mandate, it would be error to ignore
Father’s uncontroverted domestic violence history. That said, the court here
did not summarily disregard the evidence. Instead, it acknowledged that
domestic violence generally conflicts with the child’s best interests but
concluded that “the goal is to keep the child from being exposed to
domestic violence, not to penalize a parent who once engaged in it but
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cannot anymore.” Thus, despite the court’s language that Father’s domestic
violence was “not pertinent,” it is clear from the order that the court
considered Father’s prior acts of domestic violence as required by A.R.S.
§§ 25-403(A)(8) and 25-403.03(B).
¶36 That said, we agree with Grandmother that there is no
support for the court’s conclusion that Father “cannot” commit acts of
domestic violence anymore. Still, the record shows Father committed
domestic violence acts only against Mother, and the last incident occurred
in 2018.3 Mother has since died, and Father now lives with his girlfriend
and her daughter. Grandmother did not present evidence that Father has
engaged in domestic violence against either of them. And the only evidence
that any domestic violence occurred in front of Liam is an ambiguous text
from Father to Mother and Grandmother’s testimony that Father admitted
in the text “to doing it in front of [Liam].” As a result, there is record
evidence to support findings that Liam has not been exposed to domestic
violence, and Father’s abstinence from domestic violence since 2018 is likely
to continue.
¶37 Of course, we may not infer findings from the court’s ultimate
decision. DeLuna, 247 Ariz. at 424, ¶ 16. And when a court’s order lacks
findings, the order must be reversed. See, e.g., In re Marriage of Diezsi, 201
Ariz. 524, 526, ¶ 5, (App. 2002); Downs, 206 Ariz. at 501, ¶ 19; Christopher K.,
233 Ariz. at 301, ¶ 19; DeLuna, 247 Ariz. at 424–25, ¶¶ 16–19. But the court’s
order here does not lack findings. The court’s order weighed the child’s lack
of exposure to domestic violence and the death of Father’s only victim.
Thus, the court’s findings are sufficient for us “to determine that the court
considered the child’s best interests.” See Diezsi, 201 Ariz. at 526, ¶ 5; see also
O’Hair v. O’Hair, 109 Ariz. 236, 240 (1973) (The appellate inquiry is
“whether the trial court had before it evidence which might reasonably
support its action viewed in the light most favorable to sustaining the
findings.”). Thus, although the order was inartful at times about Father’s
domestic violence, we find no reversible error in the court’s conclusion. See
Ariz. R. Fam. Law P. 86.
3 At oral argument, Grandmother’s counsel contended the last
incident of domestic violence occurred in August 2019 and cited Exhibit 50.
But when trial counsel offered Exhibit 50 into evidence, the superior court
deferred admission until after it had reviewed the exhibit. The court never
admitted Exhibit 50, and it is not in the record on appeal.
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C. The Superior Court Did Not Abuse Its Discretion by Concluding
that Father Rebutted the Substance Abuse Presumption Under A.R.S.
§ 25-403.04.
¶38 Grandmother also argues that the court erred by concluding
that Father rebutted the presumption under A.R.S. § 25-403.04. Section
25-403.04(A) creates a rebuttable presumption that it is not in the child’s
best interests to award legal decision-making to a parent who has abused
drugs within a year of the petition’s filing. To determine whether the parent
has rebutted that presumption, the court must consider the lack of drug
offenses, the results of random drug tests over six months, and the results
of drug screenings. A.R.S. § 25-403.04(B). It is uncontested that Father
abused drugs until as recently as late 2019, and thus the presumption
applies against him.
¶39 In September 2019, the court ordered Father to submit to
random drug testing at least eight to ten times per month. The parties
proceeded to trial in April 2021. Father should have taken around 150 to
190 random drug tests before the trial under the order. But at the trial, he
submitted evidence of fewer than 30 completed drug tests, four of which
were positive. Only one test appears to have been random. Father skirted
the court’s drug testing order. But the court found that Father “made a good
faith effort at complying with the Court’s intended drug testing regimen[]”
and “that the testing Father completed was reasonably calculated to
ensur[e] that he was not using illicit substances.” The court ultimately
found that Father had rebutted the presumption against him.
¶40 Grandmother argues that the court abused its discretion by
“dismissing” Father’s drug use and failure to comply with the court’s order.
But she cites no authority supporting the claim that Father’s failure to
comply with the court’s drug-testing order precluded him from rebutting
the statutory presumption. The question on appeal is not whether Father
strictly adhered to the court’s drug-testing order but whether there is
support in the record for the court’s conclusion that Father rebutted the
presumption. See DeLuna, 247 Ariz. at 423, ¶ 9.
¶41 We find that there is sufficient record support. Although
Father only tested twice in 2019, the court gave weight to the more recent
“string of drug tests . . . commencing in January 2020 which [were]
negative” with some exceptions. And as for the exceptions, Father provided
a plausible explanation for each of the three positive tests since January 2020
that the court could have found credible. Likewise, the court accepted
testimony that Father’s behavior and demeanor had improved and were
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“inconsistent with continued drug use.” So the court did not abuse its
discretion by concluding that Father rebutted the presumption under A.R.S.
§ 25-403.04.
D. The Superior Court Did Not Abuse Its Discretion by Denying
Grandmother’s Petition.
¶42 Grandmother argues that the court abused its discretion by
denying her petition because it erred in its analysis of the domestic-violence
and drug-abuse presumptions. As discussed, the court did not err by
declining to apply the domestic-violence presumption or finding that
Father had rebutted the drug-abuse presumption. But Grandmother urges
us to hold under A.R.S. § 25-409(B) that “[a]s a matter of law, it was clearly
contrary to the child’s best interests to be placed in the physical custody of
a domestic abuser and a drug addict.”
¶43 Section 25-409(B) creates a rebuttable presumption that it is in
the child’s best interests to remain in the care of a legal parent. And it
explicitly burdens the third-party petitioner to rebut that presumption with
clear and convincing evidence. A.R.S. § 25-409(B). Having established that
the court did not err under A.R.S. §§ 25-403.03 and -403.04, the burden fell
on Grandmother to show by clear and convincing evidence that the
best-interests factors under A.R.S. § 25-403(A) weighed against placing
Liam in Father’s care. A.R.S. § 25-409(B).
¶44 The superior court held that Grandmother failed to meet her
burden. We cannot hold that Grandmother met her burden simply because
there is evidence of Father’s past drug abuse and domestic violence. A
parent’s health and history of domestic violence are two factors the court
should consider when analyzing the child’s best interests. A.R.S.
§ 25-403(A). As stated, the court did not abuse its discretion by generally
finding that the best-interests factors favored placing Liam in Father’s care.
We thus conclude that Grandmother failed to meet her burden under A.R.S.
§ 25-409(B), and we affirm the court’s denial of her petition.
E. The Superior Court Did Not Err by Declining to Order Continued
Drug Testing or Visitation.
¶45 After the court denied her petition, Grandmother moved to
amend the judgment. See Ariz. R. Fam. Law P. 83. She asked the court to
order Father to continue drug testing and grant Grandmother visitation.
The court denied the motion, finding that the court lacked the authority to
order continued drug testing and that the parties had not litigated the
visitation issue.
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¶46 Grandmother argues that the court erred by concluding it
lacked the authority to order continued drug testing. She claims that the
source arises out of Arizona Rule of Family Law Procedure 95, which
provides that “[i]n a case involving legal decision-making or parenting
time, the court may order substance abuse screening and random testing of
a party” if that party has abused drugs. Father counters that Rule 95 applies
when there is “a case involving legal decision-making or parenting time,”
and any authority derived from Rule 95 terminated upon the denial of
Grandmother’s petition.
¶47 We agree with Father that once the court denied
Grandmother’s petition, there was no longer “a case involving legal
decision-making or parenting time.” Moreover, Rule 95 is a “procedural
rule and cannot enlarge the court’s authority beyond that granted by
statute.” Paul E. v. Courtney F., 246 Ariz. 388, 398, ¶ 40 (2019). Grandmother
fails to identify an applicable statute allowing the court to order continued
drug testing after it denied her petition. The court thus did not err by
declining to order ongoing drug testing.
¶48 Grandmother also argues that the court erred by denying her
visitation. Grandmother requested “in loco parentis custody” in her petition.
She did not request visitation. Her argument is based partly on Father’s
pretrial statement, in which he stated he was “agreeable” to a visitation
schedule recommended by the behavioral health professional. But Father
also noted that Grandmother did not ask for visitation, “even as an
alternative theory.” The pretrial statement also contains a section for
stipulations or agreements of the parties, under which Father stated,
“None.”
¶49 Grandmother also relies on Father’s trial testimony that the
parties had “already agreed” to the visitation schedule set up by the
behavioral health professional. Father gave the testimony in response to a
question about how he could assure the court that he would not cut off
Grandmother from Liam should the court order that Liam stay in Father’s
care. Father did not agree to court-ordered visitation.
¶50 Although it appears the parties have discussed and perhaps
even agreed to visitation outside the scope of the litigation, we ultimately
agree with the superior court that the visitation issue was not litigated. The
court, therefore, did not abuse its discretion by declining to award
visitation.
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F. The Superior Court Erred by Declining to Determine Child
Support for the Interim Period.
¶51 Finally, Grandmother argues the court erred by failing to
determine child support when it issued the temporary orders placing Liam
in her care.
¶52 In her pretrial statement, Grandmother asked the court to
enter a judgment for child support when Liam was in her care during the
litigation. The court’s order denying Grandmother’s petition did not
address the interim child-support claim. This was error.
¶53 Under A.R.S. § 25-403.09, the court must determine the child
support amount when entering “any parenting time order” under the legal
decision-making and parenting time statutes. The statutory mandate
includes a temporary order such as the court issued here. See A.R.S.
§ 25-404. So the court should have determined child support when issuing
the interim orders.
¶54 Section XII(C) of the guidelines states:
If a child lives with a third-party caregiver under a court
order, an administrative placement by a state agency, or other
color of authority, the third-party caregiver is entitled to
receive child support payments from each parent on the
child’s behalf. When calculating the amount of child support
to be awarded to a third-party caregiver, the third-party
caregiver’s expenses are considered under Section III.B.3
through III.B.6 above, but not the third-party caregiver’s
income.
A.R.S. § 25-320.
¶55 At the hearing, the court had Father’s income information and
the other information necessary to determine his child support obligation
to Grandmother for taking care of Liam during the interim period. If the
court intended to deviate from the guidelines to enter a zero-child-support
award, it must state the reasons on the record. See A.R.S. § 25-320(D);
Milinovich v. Womack, 236 Ariz. 612, 618, ¶ 20 (App. 2015). The court could
not ignore the child-support request. Contrary to Father’s argument,
Grandmother has not waived her child-support argument by failing to raise
it in her post-judgment motion. See Francine C., 249 Ariz. 289, 297, ¶¶ 18–19
(A party cannot waive mandatory findings imposed by statute.).
14
ATKISON v. SHAFER
Decision of the Court
¶56 We remand the case for the court to address Grandmother’s
interim child-support claim.
ATTORNEY’S FEES
¶57 Grandmother requests attorney’s fees under A.R.S. § 25-324.
Per our discretion, we decline to award fees. As the prevailing party, Father
is awarded his costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶58 We affirm the parenting portion of the judgment. We remand
for the court to enter the appropriate child-support award.
AMY M. WOOD • Clerk of the Court
FILED: JT
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