Hull v. Wesley ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
In re the Matter of:
SCOTT HULL, Petitioner/Appellant,
v.
DARCY WESLEY, Respondent/Appellee.
No. 1 CA-CV 15-0640 FC
FILED 5-19-2016
Appeal from the Superior Court in Maricopa County
No. FC2014-093174
The Honorable Theodore Campagnolo, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Davis Miles McGuire Gardner, Tempe
By Douglas C. Gardner, Karl T. Scholes
Counsel for Petitioner/Appellant
Atchley & Delgado LLP, Mesa
By Michael G. Delgado
Co-Counsel for Respondent/Appellee
The Law Office of Kyle T. Green, PLLC, Mesa
By Kyle Green
Co-Counsel for Respondent/Appellee
HULL v. WESLEY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judges Randall M. Howe and Andrew W. Gould joined.
J O H N S E N, Judge:
¶1 Scott Brian Hull ("Father") appeals from an order awarding
joint legal decision-making authority to him and Darcy Wesley ("Mother"),
appointing Mother's parents to supervise her parenting time, and ordering
Mother to pay him no child support. For the reasons stated below, we
affirm the order in part and vacate and remand in part.
FACTS AND PROCEDURAL BACKGROUND
¶2 The parties are the unwed parents of a child born in 2014.
Initially, the parties stipulated to joint legal decision-making, and because
they lived together, they agreed to share physical custody and not pay child
support. Before her pregnancy, Mother suffered serious back injuries and
was prescribed various pain medications, which she continued to take
during pregnancy. As a result, the child was born addicted to the pain
medications and experienced withdrawal and other complications after
birth.
¶3 Shortly after the child was born, at the urging of the medical
staff and social services, Father successfully petitioned for emergency sole
legal decision-making and supervised parenting time for Mother to occur
at his house. Father simultaneously sought to modify the stipulated legal
decision-making, parenting time, and child support orders. After a hearing
on Father's emergency petition, the court affirmed the temporary orders,
ordered Mother to submit to weekly random drug tests, and "ordered that
Mother shall immediately avail herself to counseling and rehabilitation
treatment."
¶4 One year passed before the court held an evidentiary hearing
on Father's petition to modify legal decision-making, parenting time and
child support. Following the hearing, the court ordered the parties to share
joint legal decision-making authority and set forth a detailed parenting time
plan, conditioned on Mother's participation in substance-abuse classes and
psychological counseling. At first, Mother's limited parenting time was to
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Decision of the Court
be supervised by her parents. Mother's parenting time would become
unsupervised and gradually increase in amount starting January 1, 2016, if
she continued substance-abuse classes and counseling. After applying the
self-support reserve test in the Child Support Guidelines, see Arizona
Revised Statutes ("A.R.S.") section 25-320 app. § 15 (2016) ("Guidelines"), the
court did not order Mother to pay any child support.1
¶5 Father filed a timely notice of appeal; we have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1) (2016).
DISCUSSION
A. Legal Decision-Making and Parenting Time.
¶6 Father contends that, presented with evidence that Mother
abused drugs, the superior court failed to properly apply the presumption
against joint legal decision-making set forth in A.R.S. § 25-403.04 (2016). He
further argues the evidence does not support the award of joint legal
decision-making. We review the court's legal decision-making and
parenting time rulings for an abuse of discretion. In re Marriage of Diezsi,
201 Ariz. 524, 525, ¶ 3 (App. 2002).
¶7 Section 25-403.04(A) creates a rebuttable presumption that it
is contrary to a child's best interests to award sole or joint legal decision-
making authority to a parent who has abused drugs or alcohol within 12
months before filing of the petition or request for legal decision-making or
parenting time. In determining whether the presumption has been
rebutted, the court "shall consider, at a minimum," whether the parent has
been convicted of a drug offense within the past five years, the "[r]esults of
random drug testing for a six month period that indicate that the person is
not using" illegal drugs and the results of alcohol or drug screening. See
A.R.S. § 25-403.04(B). Father contends the evidence and the court's findings
do not support the conclusion that Mother rebutted the presumption.
¶8 The court found Mother had a substance-abuse problem and
was possibly addicted to her prescription pain medications and other non-
prescription drugs. The evidence supports the court's finding that random
drug tests conducted between the child's birth and the time of trial showed
the presence of alcohol, opiates, amphetamines and other prescription
drugs. There also was evidence that Mother stole prescription drugs from
family members, refilled one prescription twice, presented a "highly
1 Absent material revision after the relevant date, we cite the current
version of a statute unless otherwise stated.
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Decision of the Court
suspicious story" regarding kidney pain at an emergency room and drank
alcohol while taking prescription pain medication despite direct warnings
from medical professionals not to do so. The court also considered Mother's
prior arrests for driving under the influence, and found that although she
was not convicted of driving under the influence, it was concerned that she
admitted drinking while driving and after taking prescription pain
medication.2
¶9 Father contends Mother did not rebut the presumption
against joint legal decision-making because she did not show that she tested
clean for a six-month period and, in fact, she continues to have positive
drug screens. Section 25-403.04(B), however, requires only that the court
"consider" evidence of the drug test and screening results. The statute does
not require that test results dictate the court's decision. Mother has been
prescribed pain medications to manage an undisputed history of chronic
back pain; therefore, positive results for these narcotics would not be
unexpected. Father argues the drug tests revealed that Mother was
drinking alcohol, but the court also heard evidence that Mother attended
substance abuse counseling and Alcoholics Anonymous sessions after the
court ordered her to "avail herself to counseling and rehabilitation
treatment" in July 2014. The court properly considered these facts in
addition to the drug test results when determining whether Mother
rebutted the presumption against joint legal decision-making.
¶10 Finally, the court conditioned Mother's parenting time on her
continued participation in substance abuse classes and counseling. The
court also imposed supervised parenting time initially and the record does
not indicate any subsequent problems with Mother's compliance with the
schedule the court ordered. Father also retained final decision-making
2 Father argues the court erred by finding that he testified Mother
completed a 45-day stay in a rehabilitation center. The court found, "Father
testified that he and the paternal grandfather took Mother to a
rehabilitation center because she was having drug withdrawal symptoms,
where she stayed for approximately 45 days." Although this finding
misstates Father's testimony, it is based on facts in the record: Mother did
attend a 45-day rehabilitation program in 2010 and Father did take Mother
to a three-day detox program at Community Bridges in July 2014. Thus, the
mistake does not warrant reversal.
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authority for all major issues if the parties were unable to reach an
agreement after a good-faith effort.3
¶11 The court cited A.R.S. § 25-403.04 in its order, and its findings
and conclusions demonstrate the court gave careful consideration to the
evidence of Mother's drug and alcohol use, and that it carefully weighed
that evidence against evidence Father offered in support of his request for
sole legal decision-making. The statutes give the superior court discretion
to determine the degree of protection warranted in a particular case, and
absent an abuse of that discretion, we will not substitute our judgment on
appeal. The restrictions the court placed on Mother's parenting time and
Father's final decision-making authority satisfy the statutory requirement
that the court's orders must appropriately protect the child. See A.R.S. § 25-
403.04(A)(2). We find no abuse of discretion and affirm the order for joint
legal decision-making.
¶12 Father also argues the court abused its discretion in allowing
Mother's parents to supervise her parenting time. Pursuant to the superior
court's order, Mother's parenting time became unsupervised as of January
1, 2016. Nothing in the record indicates Father sought continued
supervised parenting time beyond that date. Therefore, this issue is now
moot.
B. Child Support.
¶13 The court concluded Mother should not pay child support at
this time because she had a negative income after applying the self-support
reserve test. See Guidelines § 15. We review child support awards for an
abuse of discretion. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21 (App. 2009).
3 In denying Father's request for sole legal decision-making authority,
the court also noted that Father knew of Mother's substance abuse problem
when he agreed to joint legal decision-making and did not seek sole legal
decision-making until after he was told he could not take the child home
from the hospital unless he did so. The record supports these findings.
Father contends the court could not take his conduct into account in
determining whether Mother overcame the presumption against joint legal
decision-making. Section 25-403.04(B) does not restrict the evidence a court
may consider in deciding whether the presumption has been rebutted.
Thus, the court did not abuse its discretion in considering Father's actions
along with the evidence concerning Mother.
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Decision of the Court
¶14 Father argues the superior court abused its discretion in
finding Mother's monthly income was $823. He argues this finding is
contrary to the evidence and the statutory presumption that a parent is
capable of working full-time at minimum wage. See A.R.S. § 25-320(N)
(2016). At oral argument, Mother conceded the court's child support order
is incorrect. Accordingly, we vacate and remand the ruling concerning
child support.
¶15 Father also contends the court erred by failing to give him
credit for the health insurance and day-care costs he incurs for the child.
On remand, the superior court should consider whether evidence of
Father's insurance and day-care costs affect a proper recalculation of child
support.4
C. Attorney's Fees on Appeal.
¶16 Both parties request an award of attorney's fees and costs on
appeal pursuant to A.R.S. § 25-324 (2016). In the exercise of our discretion,
we deny the requests for an award of fees to either party. As the successful
party, Mother is entitled to an award of costs on appeal upon compliance
with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. § 12-342
(2016).
4 We note the superior court used the 2015 Guidelines, which apply to
actions filed after June 30, 2015. See Guidelines § 15 (2015). However,
because this action was filed on July 18, 2014, the 2011 Guidelines apply.
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CONCLUSION
¶17 We affirm the superior court's order granting joint legal
decision-making parenting time but vacate and remand its order
concerning Father's request for child support.
:ama
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