Bennie v. Johnson ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
TIMOTHY JOHN BENNIE, II, Petitioner/Appellant,
v.
ASHLYN BRIANNE JOHNSON, Respondent/Appellee.
No. 1 CA-CV 22-0026 FC
FILED 8-2-2022
Appeal from the Superior Court in Maricopa County
No. FC 2015-053306
The Honorable Melissa Iyer Julian, Judge
AFFIRMED
APPEARANCES
Timothy John Bennie, II, Phoenix
Petitioner/Appellant
Law Offices of Vescio & Seifert PC, Glendale
By Theresa L. Seifert
Counsel for Respondent/Appellee
BENNIE v. JOHNSON
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.
C A M P B E L L, Judge:
¶1 Timothy Bennie II (Father) appeals from orders modifying
legal decision-making, parenting time, and child support. He contends that
the modification was contrary to his son’s best interests, that he did not
receive a fair hearing, and that the family court made evidentiary errors.
Finding these arguments without merit, we affirm.
BACKGROUND1
¶2 Father and Ashlyn Johnson (Mother) are the unwed parents
of Christopher, born in 2014.2 In 2016, Mother and Father stipulated to an
order giving them joint legal decision-making authority and equal
parenting time. The following year, Father was arrested after shooting a
handgun at another vehicle during a car chase. After pleading guilty to
unlawfully discharging a firearm (a class 6 felony), Father was placed on
probation for three years’. In late 2018, Father was incarcerated for two
months after being arrested for violating his probation and possessing
fentanyl.
¶3 Citing Father’s drug use and incarceration, Mother petitioned
the court for modification. Father admitted having a substance abuse
problem,3 but he claimed to have addressed the problem by completing
anger management courses and participating in drug treatment, including
random drug testing, for several months. Although the family court
expressed concerns about Father’s potential for relapse, it found those
concerns would be “minimized” by his continued commitment to drug
1 We view the facts in the light most favorable to affirming the family
court’s rulings. Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015)
2 We use a pseudonym to protect the minor’s identity.
3 Father had also tested positive for marijuana in 2015.
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treatment and testing. The court ordered Father to submit to drug testing
and conditioned his parenting time on his compliance with the testing
regime, but otherwise declined to modify the 2016 orders. Between August
2019 and January 2021, Father failed to appear for drug testing.
¶4 In February 2021, the police arrested Father after another
violent incident that was the catalyst of the current proceedings. The
incident occurred around 2 a.m., during Father’s parenting time, outside a
house owned by Father’s mother (Grandmother). Grandmother discovered
Father and his fiancée (Fiancée) using Percocet and fentanyl in a car parked
on the property. At the time, Christopher was sleeping alone inside a one-
room cottage behind the main house. When Grandmother confronted
Father, he “got mad,” and despite being a prohibited possessor, “grabbed
[Fiancée’s] loaded firearm, racked the slide[,] chambering a round[,] and
pointed it at [Grandmother’s] head,” threatening to “blow her head off” if
she called the police.
¶5 Undeterred, Grandmother called the police. The arresting
officers found the gun in the cottage, under a night-stand, beside the bed
where six-year-old Christopher lay sleeping. Before being driven away,
Father asked the arresting officers if he could say goodbye to Christopher
so, in the wee hours of the morning, Christopher was brought outside to
see Father leaving in a police car.
¶6 Later that morning, a second skirmish occurred outside
Grandmother’s house—this time involving Mother and Grandmother.
Mother arrived to collect Christopher—finding Grandmother taking out
trash bags Grandmother described as full of “nothing but drugs” from the
cottage. An argument ensued, culminating in a clash between Mother’s foot
and Grandmother’s groin. Grandmother claimed Mother kicked her;
Mother claimed Grandmother “charged” her. Police returned to the scene,
and Mother was later charged with misdemeanor assault.
¶7 After Father’s arrest, Mother again petitioned to modify legal
decision-making, parenting time, and child support. The court appointed
an advisor to investigate the circumstances. The advisor interviewed
Mother, Father, and Christopher, as well as Grandmother, Fiancée, and
Mother’s partner. She reviewed reports from the Phoenix Police
Department and the Department of Child Services.
¶8 In November 2021, the court held a hearing on Mother’s
petition, taking testimony from Mother, Father, and the advisor, and
admitting the advisor’s report into evidence. By the date of the hearing,
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Father had been incarcerated for about four months and had pled guilty to
two domestic violence offenses—disorderly conduct (a class 6
undesignated felony) and illegally possessing a firearm by a prohibited
possessor (a class 4 felony)—but had not yet been sentenced.4
¶9 After the hearing, the family court found that Father’s
continued drug abuse and violent behavior was a significant change in
circumstances justifying modification, that Father’s conduct had negatively
affected Christopher, and that an award of substantial parenting time to
Father would endanger the child. The court also found father had engaged
in domestic violence against Grandmother. Based on these findings, the
court awarded Mother sole legal decision-making authority, designated
Mother the primary residential parent, and ordered Father to pay Mother
child support. The court awarded Father two hours of weekly,
therapeutically-supervised parenting time. Father timely appealed.
DISCUSSION
¶10 Father challenges the family court’s modification of legal
decision-making, parenting time, and child support, raising several
procedural and evidentiary issues. We review orders modifying legal
decision-making, parenting time, and child support for an abuse of
discretion. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019) (legal
decision-making and parenting time); Candia v. Soza, 251 Ariz. 321, 324, ¶ 7
(App. 2021) (child support). Under this standard, we will not reweigh the
evidence or second-guess the court’s credibility determinations. Mary Lou
C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We must
accept the family court’s findings of fact unless they are clearly erroneous,
considering only whether the evidence reasonably supports them. Id. We
review the court’s legal conclusions, matters of statutory interpretation, and
alleged constitutional violations de novo. DeLuna, 247 Ariz. at 423, ¶ 9; Lisa
K. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 173, 177, ¶ 9 (App. 2012).
4 We take judicial notice of the records of the Superior Court. Vera v.
Rogers, 246 Ariz. 30, 32, ¶ 6 n.1 (App. 2018). After the family court’s final
decision, but before Father filed his notice of appeal, Father was placed on
three years of probation.
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I. Modification of Legal Decision-Making and Parenting Time5
A. Best Interests Findings
¶11 Father first challenges the family court’s findings regarding
what was in Christopher’s best interests, including those related to Father’s
domestic violence and substance abuse. Orders modifying legal decision-
making and parenting time must be “in accordance with the best interests
of the child[,] . . . consider[ing] all factors that are relevant to the child’s
physical and emotional well-being.” A.R.S. § 25-403(A); see Backstrand, 250
Ariz. at 343, ¶ 14. The court must consider at least the 11 factors listed in
A.R.S. § 25-403(A) and, if decision-making is at issue, the four factors listed
in A.R.S. § 25-403.01. As relevant here, the court must also consider whether
the parents have engaged in domestic violence or substance abuse. See
A.R.S. §§ 25-403.03, -403.04. In contested cases, the court must make record
findings about “all relevant factors” and “the reasons for which the decision
is in the best interests of the child.” A.R.S. § 25-403(B). Here, the court made
record findings on all factors listed in A.R.S. §§ 25-403(A) and -403.01, and
it made findings about Father committing domestic violence against
Grandmother and his “admitted history of substance abuse.”
¶12 Father argues the family court erred by concluding he had
engaged in domestic violence against Grandmother without finding that
each factor listed in A.R.S. § 25-403.03(C) had been proven. See A.R.S. § 25-
403.03(C) (listing types of evidence the court may consider “[t]o determine
if a person has committed an act of domestic violence”). But the factors
provided in A.R.S. § 25-403.03(C) are not elements required for a finding of
domestic violence. They are merely “relevant factors” the court “[must]
consider” in making the determination. See A.R.S. § 25-403.03(C)(2), (7)
(requiring the court to consider “[p]olice reports” and “[w]itness
5 Father also argues that Mother’s petition did not set forth detailed
facts supporting modification as required by A.R.S. § 25-411(L) and that the
court’s findings did not justify a finding of a substantial and continuing
change in circumstances. See Backstrand v. Backstrand, 250 Ariz. 339, 343,
¶ 14 (App. 2020) (explaining that, before considering whether modification
is in child’s best interests, court must first determine whether “there has
been a change of circumstances materially affecting the welfare of the child”
(quotation omitted)). Father is judicially estopped from raising these
arguments because he took a contrary position in the family court by also
requesting modification. See In re Marriage of Thorn, 235 Ariz. 216, 222, ¶ 27
(App. 2014).
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testimony”). The court considered the factors relevant in this case, namely
Father’s testimony and the court-appointed advisor’s report, which
described witness statements and the police report documenting the
domestic violence. Thus, the court complied with A.R.S. § 25-403.03(C).
¶13 Father also appears to fault the family court for failing to
specify what evidence supported particular findings. Our cases, however,
find error when courts fail to make findings altogether, not when they fail
to support them with citations to the record. See Nold v. Nold, 232 Ariz. 270,
274, ¶ 15 (App. 2013) (collecting cases). Father cites no legal authority, and
we can find none, supporting a requirement that the court must identify
what evidence supports each finding in its decision.
¶14 Finally, Father argues the family court erred by failing to find
clear and convincing evidence that his drug abuse criminal activity, and
domestic violence was ongoing by under- or overestimating the
significance of various facts and by overlooking contrary evidence. There is
no heightened standard of proof for best-interests findings, however, and
the weight to assign evidence is the sole province of the family court. Hurd
v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009) (“Our duty on review does not
include re-weighing conflicting evidence or redetermining the
preponderance of the evidence.”). The evidence might reasonably support
other findings, but we must consider only whether the evidence reasonably
supports the family court’s findings. See Gutierrez v. Gutierrez, 193 Ariz. 343,
346, ¶ 5 (App. 1998). The evidence supports the court’s findings here, so the
court did not abuse its discretion.
B. Legal Decision-Making
¶15 Father next argues the family court erred by failing to find
that joint legal decision-making would endanger Christopher. But the court
is not required to make an endangerment finding to award sole decision-
making. “[T]he court may order sole legal decision-making or joint legal
decision-making,” after “determining the level of decision-making that is
in the child’s best interests.” See A.R.S. § 25-403.01(A), (B). Furthermore,
because of Father’s recent drug abuse, there was a presumption that joint
decision-making would be contrary to Christopher’s best interests. See
A.R.S. § 25-403.04(A) (establishing a rebuttable presumption that joint legal
decision-making by the parent who has abused drugs within 12 months of
filing the petition for modification is not in the child’s best interests). Father
had the burden of rebutting this presumption, see A.R.S.
§ 25-403.04(B), but he offered no documentary evidence of his sobriety, and
he told the court-appointed advisor that he was concerned about relapsing
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if he went to prison. Thus, the court did not abuse its discretion by awarding
Mother sole legal decision-making authority.
C. Parenting Time
¶16 Father next contends the family court erred by limiting and
restricting his parenting time. First, citing A.R.S. §§ 25-403.01(D) and
-411(J),6 Father argues the court failed to make factual findings showing
that maintaining his parenting time would seriously endanger Christopher.
See A.R.S. §§ 25-403.01(D) (requiring award of “reasonable parenting time”
to a parent who is not awarded sole or joint legal decision-making, unless
the court finds parenting time “would endanger the child’s [well-being]”),
-411(J) (prohibiting a court from “restrict[ing] a parent’s parenting time
rights unless it finds that the parenting time would endanger seriously the
child’s [well-being]”). The court, however, made an express endangerment
finding:
THE COURT FINDS that parenting time that ensures that
Father will have substantial, frequent, meaningful and
continuing contact with the child would endanger the child’s
physical, mental, moral or emotional health because Father
6 Father also cites A.R.S. § 25-411(A) in his endangerment argument.
See A.R.S. § 25-411(A) (requiring leave of court and affidavit showing
child’s well-being “may [be] seriously endanger[ed]” to petition for
modification earlier than one year after prior orders). Section 25-411 is a
preliminary procedural statute, and, typically, any alleged noncompliance
must be challenged by special action, prior to resolution on the merits. In re
Marriage of Dorman, 198 Ariz. 298, 302–03, ¶¶ 11–12 (App. 2000) (explaining
that appellant “will have great difficulty showing prejudice . . . after a
hearing has occurred”). Moreover, the family court’s April 2019 orders
permitted Mother to seek modification “notwithstanding the provisions of
A.R.S. § 25-411(A)” should Father fail to comply with the court’s drug
testing orders. Father has not argued that the court’s April 2019 orders did
not effectively nullify A.R.S. § 25-411(A)’s serious endangerment
requirement here, and he did not object to modification on this basis in the
family court. Therefore, Father has waived any argument that the
modification did not comport with A.R.S. § 25-411. See Englert v. Carondelet
Health Network, 199 Ariz. 21, 26–27, ¶ 13 (App. 2000) (explaining issues
raised for first time on appeal are generally waived); see also Ritchie v.
Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (explaining failure to develop
argument with citation to record and legal authority can lead to waiver).
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has continued to abuse drugs during his parenting time with
the child and has failed to submit to random testing as
previously ordered. Father has continued to engage in a
pattern of violent behavior culminating in yet another
criminal conviction when he threatened his own Mother with
a firearm and was arrested earlier this year. Father’s
testimony shows a lack of remorse or any accountability for
his behavior or how it has negatively affected his son. The
child was with Father and witnessed his arrest, no doubt
traumatic for the child. The child also described the ways in
which Father and his girlfriend mistreated the child during
his interview with the court appointed advisor.
The court also found Christopher would be endangered because Father
“continu[ed] to reside with [Fiancée] who also abuses drugs.” Father does
not appear to dispute that these were findings of serious endangerment.
Rather, he argues Christopher was not “in any ‘present’ danger” because
his alleged assault on Grandmother occurred nine months before the
hearing, because the charges he pled guilty to were classified as non-
dangerous and non-violent, and because the evidence that he pointed the
handgun at Grandmother was unreliable hearsay. In essence, Father
suggests the evidence of his assault on Grandmother was not persuasive or
credible. We will not reweigh the evidence or second-guess the court’s
credibility determinations. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20
(App. 2019). The court’s endangerment finding is reasonably supported by
its factual findings, and the record reasonably supports its factual findings.
¶17 Second, Father argues the family court’s parenting-time
orders violated A.R.S. § 1-601, which provides as follows:7
A. The liberty of parents to direct the upbringing, education,
health care and mental health of their children is a
fundamental right.
7 In a related argument, Father contends the family court erred by
failing to balance “[t]he state’s interest in investigating any reports of
alleged harm to [Christopher] and [his] interest in his familial right of
association.” We find this argument waived because Father did not raise it
in the family court, see Englert, 199 Ariz. at 26–27, ¶ 13, and has not
developed it with citation to legal authority. See Ritchie, 221 Ariz. at 305,
¶ 62.
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B. This state, any political subdivision of this state or any
other governmental entity shall not infringe on these rights
without demonstrating that the compelling governmental
interest as applied to the child involved is of the highest order,
is narrowly tailored and is not otherwise served by a less
restrictive means.
Section 1-601, however, is part of the Parents Bill of Rights, which concerns
parents’ rights to make choices about education, religion, health care,
criminal proceedings, and child welfare investigations. See A.R.S. § 1-602.
The rights protected by A.R.S. § 1-602 fall within legal decision-making, not
parenting time. Regardless, Father has not shown how an alternative
arrangement, such as regular supervised parenting time, would have been
better for Christopher. The record shows Father has not taken full
responsibility for his violent behavior, drug problem, or the trauma
Christopher suffered as a result. Christopher told the advisor Father
“cusses” at him and “is sometimes mean,” and the advisor recommended,
“supervised parenting time, possibly in a treatment setting.” See A.R.S.
§ 25-403.03(F)(2) (requiring court, in case where parent commits domestic
violence but proves parenting time will not harm child, to “place conditions
on parenting time that best protect the child,” which may include an
“[o]rder that an agency specified by the court must supervise parenting
time”). Given these facts, the court did not abuse its discretion in ordering
therapeutic supervision.
¶18 Finally, Father argues the family court erred by citing an
irrelevant statute, A.R.S. § 25-403.02(E), following a finding that its
parenting time orders were “practical and also maximize[d] each parent’s
parenting time to the extent it [wa]s in [Christopher’s] best interests.” See
A.R.S. § 25-403.02(E) (“Shared legal decision-making does not necessarily
mean equal parenting time.”). The court likely meant to cite Subsection B of
A.R.S. § 25-403.02. See A.R.S. § 25-403.02(B) (“Consistent with the child’s
best interests . . . , the court shall adopt a parenting plan . . . that maximizes
their respective parenting time.). Father has not shown how this clerical
error caused prejudice, so it is not grounds for reversal. See Creach v. Angulo,
189 Ariz. 212, 214 (1997) (error reversible only if prejudicial).
D. Parenting Plan
¶19 Father next challenges the sufficiency of the family court’s
parenting plan. Specifically, citing A.R.S. § 25-403.02(C)(6), he contends the
court erred by omitting a time limit on his parenting time restrictions, a
reunification plan, and a procedure for periodic review of the parenting
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plan. Section 25-403.02(C) requires a parenting plan to include at least eight
specified elements, including, as relevant to Father’s arguments, “[a]
procedure for periodic review of the plan’s terms by the parents.” A.R.S.
§ 25-403.02(C)(6). Section 25-403.02(C) does not expressly require a time
limit for parenting-time restrictions or a reunification plan. The family court
has the discretion to structure parenting time along a timeline or to create a
reunification program if doing so would serve the child’s best interests. See,
e.g., Berkel v. Berkel, 1 CA-CV 19-0829 FC, 2020 WL 7353763, at *2–3, ¶¶ 12,
14–15 (Ariz. App. Dec. 15, 2020) (mem. decision). But Father cites no
authority that requires time limits or reunification plans. Moreover, the
parties’ 2016 stipulated parenting plan included a procedure for yearly
review and none of the court’s subsequent orders altered that procedure.
II. Procedural Challenges
A. Due Process8
¶20 Father first raises what appears to be a due process challenge,
arguing that the court ignored his position and evidence, cut his testimony
short, and prevented him from calling witnesses. Parents contesting
modification have a due-process right “to be heard at a meaningful time
and in a meaningful manner.” Volk v. Brame, 235 Ariz. 462, 468, ¶¶ 19–20
(App. 2014) (quotation omitted). Nonetheless, “the family court enjoys
broad discretion to ‘impose reasonable time limits on all proceedings,” id.(quoting Ariz. R. Fam. Law P. 22(1)), and to “exercise reasonable control
over the mode and order of examining witnesses and presenting evidence.”
Ariz. R. Evid. 611(a).
¶21 The hearing transcript reveals no violation of Father’s
procedural rights. The family court asked Father to explain what he sought
for modification. It allowed him to answer in the narrative and asked him
about his version of events, particularly the incident with Grandmother.
Father marked six exhibits for admission, but he did not ask the court to
admit them or mention any of them during his testimony. After his
testimony, the following exchange occurred:
8 Father contends the family court misrepresented the procedures
used, evidence presented, and witnesses appearing at the evidentiary
hearing as well as what evidence the court reviewed. These arguments are
waived as Father fails to develop them with specific citations to the record
and legal authority. See Ritchie, 221 Ariz. at 305, ¶ 62.
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THE COURT: Okay. Anything else that you want to
say in support of your position?
[FATHER]: I mean, not –- not really. There’s
not really much I can say.
THE COURT: Okay. I’m going to take this under
advisement so I can type up my ruling.
Father did not interject to inform the court that he wished to provide further
testimony, introduce exhibits into evidence, or call witnesses. In sum, the
court provided Father a meaningful opportunity to be heard.
¶22 Father also contends the court erred by failing to timely set
the evidentiary hearing, failing to make accommodations for his lack of
legal representation, and coercing him to admit to criminal acts in violation
of his Fifth Amendment rights.9 These arguments are waived because
Father fails to develop them with citations to the record or legal authority.
See Ritchie, 221 Ariz. at 305, ¶ 62. Waiver aside, the hearing occurred slightly
more than seven months after Mother petitioned for modification, cf.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 (1985) (“A 9-month
adjudication is not, of course, unconstitutionally lengthy per se.”); “[w]e
hold unrepresented litigants in Arizona to the same standards as
attorneys,” Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017); and Father
expressed no desire to remain silent about his criminal conduct. Cf. Berghuis
v. Thompkins, 560 U.S. 370, 382 (2010) (holding a suspect in custodial
interrogation must unambiguously invoke a right to remain silent). Thus,
those three arguments are without merit.
B. Judicial Bias
¶23 Father next contends the assigned judge was biased.10 “Bias is
a hostile feeling or spirit of ill-will . . . towards one of the litigants.” Simon
v. Maricopa Med. Ctr., 225 Ariz. 55, 63, ¶ 29 (App. 2010) (quotation omitted).
We presume trial judges are free of bias. Id. To overcome this presumption,
9 U.S. Const. amend. V (“No person . . . shall be compelled in any
criminal case to be a witness against himself, . . . .”).
10 Father alleges the judge violated the Rules of Judicial Conduct. We
lack jurisdiction to consider these allegations. In Arizona, the Commission
on Judicial Conduct and the Supreme Court are responsible for judicial
discipline. See Matter of Peck, 177 Ariz. 283, 284–85 (1994).
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the challenging party must set forth specific facts that prove bias by a
preponderance of the evidence. Id. Generally, the basis for disqualification
“must arise from an extra-judicial source and not from what the judge has
done in [her] participation in the case.” Id. (quotation omitted); see also In re
Aubuchon, 233 Ariz. 62, 66-67, ¶ 17 (1994) (“[E]xpressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of
what imperfect men and women, even . . . judges, sometimes display do not
establish bias or partiality.” (quotation omitted)).
¶24 As evidence of bias here, Father argues the assigned judge
never sanctioned Mother, questioned him in a hostile manner, ignored
contrary evidence, and used to be a member of a women’s rights
organization. Father also faults the judge for offering to admit several
exhibits, believing them to be Mother’s, but later failing to provide him
similar guidance, after realizing the exhibits were his. And he speculates
whether the judge “may have” prejudged the outcome of the case because
she informed the parties after the hearing of what her ruling would be and
issued a ruling the next morning.
¶25 Except for the allegation about the assigned judge’s prior
affiliation, all of these facts concern her participation in the case and are
therefore not probative of judicial bias.11 The fact that the judge reached a
conclusion immediately after receiving the evidence is not probative of
whether she had reached a conclusion before hearing the evidence. Finally,
the allegation about the judge’s former membership in an organization
Father describes as having “a mission of achieving gender parity” is too
speculative to prove bias. See Costa v. Mackey, 227 Ariz. 565, 571, ¶ 12 (App.
2011). (“A change of judge for cause is not warranted if based merely on
speculation, suspicion, apprehension, or imagination.” (quotation
omitted)). Taken together, Father’s arguments fall well short of meeting his
burden to overcome the presumption of neutrality.
11 Having offered to aid Mother in admitting her exhibits, the court
could have extended the same courtesy to Father. Father has not argued
how he was prejudiced by the omission of this evidence, however, and
ultimately, it was his responsibility to introduce evidence, not the court’s.
Flynn, 243 Ariz. at 84, ¶ 24 (“[C]ourts may not afford special leniency to pro
se litigants.”).
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C. Father’s Petition to Enforce Parenting Time
¶26 Finally, Father argues the court erred by failing to address his
petition to enforce the family court’s 2016 parenting-time orders. In his
petition, Father claimed that Mother had prevented him from exercising his
parenting time. The court had meant to consider Father’s petition at the
hearing on Mother’s petition for modification, but neither the court nor the
parties mentioned Father’s petition during the hearing. “When a court fails
to expressly rule on a motion, we deem it denied.” State v. Mendoza-Tapia,
229 Ariz. 224, 231, ¶ 22 (App. 2012). And here, the court’s implicit denial
was not an abuse of discretion. Father’s petition was clearly mooted by the
court’s 2021 parenting-time orders. Once the court issued the modification,
there was no basis to enforce the 2016 parenting-time orders, particularly
because the new orders significantly curtailed Father’s parenting time.
Nothing prevents Father from filing a new petition should Mother fail to
comply with the court’s current orders.
III. Evidentiary Issues12
A. Hearsay Evidence
¶27 Father argues the family court violated the rules of evidence
by considering hearsay statements in the court-appointed advisor’s
report.13 Certain Arizona Rules of Evidence, including those governing
hearsay, are not applicable in family court unless a party timely requests
strict compliance. See Ariz. R. Fam. Law P. 2. Father did not request strict
compliance, so the court did not err in considering hearsay statements. See
Woyton v. Ward, 247 Ariz. 529, 533, ¶ 16 (App. 2019). Moreover, Father did
12 To the extent Father contends the family court erred by failing to call
witnesses or to admit evidence sua sponte, by considering unfairly
prejudicial character evidence, and by calculating child support without
documentary evidence of Mother’s income and Christopher’s expenses,
those arguments are waived because Father fails to develop them with
citations to legal authority. See Ritchie, 221 Ariz. at 305, ¶ 62.
13 Father only cites the Federal Rules of Evidence in his opening brief.
The Federal Rules of Evidence are not applicable in state courts. See Fed. R.
Evid. 101 (“These rules apply to proceedings in United States courts.”),
1101. The Arizona Rules of Evidence govern proceedings in Arizona courts.
Ariz. R. Evid. 101(a). Because Arizona’s rules of evidence often mirror the
federal rules, see, e.g., Phillips v. O’Neil, 243 Ariz. 299, 302, ¶ 13 (2017), we
assume Father intended to reference the Arizona Rules of Evidence.
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not object to the admission of the advisor’s report, so his argument is also
waived on appeal. See id. at 534, ¶ 16.
B. Destruction of Unadmitted Exhibits
¶28 Lastly, Father contends the family court improperly
destroyed his unadmitted exhibits on the day of the hearing. More than
three months before the hearing, the court warned Father that it required
electronic exhibits and “that any exhibits not offered/received into
evidence will be disposed of by the clerk and not returned to counsel
and/or the parties.” Father did not object to this policy in the family court,
so his argument is waived on appeal. See Englert, 199 Ariz. at 26–27, ¶ 13.
Waiver aside, the family court’s policy does not violate Maricopa County’s
court rules, as Father contends. See Ariz. Local R. Prac. Super. Ct.
(Maricopa) 2.8(d) (Maricopa Local Rules) (permitting clerk to dispose of
exhibits any time beginning 90 days after the conclusion of case). Based on
its plain language, Maricopa Local Rule 2.8(d) applies only to exhibits “that
[an] attorney or party introduce[es].” Ariz. Local R. Prac. Super. Ct.
(Maricopa) 2.8(d)(1). Moreover, Father has not shown how the forewarned
destruction of exhibits he did not offer for admission caused prejudice. See
Creach, 189 Ariz. at 214.
CONCLUSION
¶29 For the reasons above, we affirm the family court’s November
19, 2021 ruling. As the prevailing party, Mother is entitled to recover her
taxable costs on appeal. See A.R.S. § 12-341. Mother also requests her
attorney’s fees on appeal pursuant to A.R.S. § 25-324(A), which authorizes
an award of attorney’s fees after consideration of the parties’ financial
resources and the reasonableness of their positions on appeal. The parties
appear to have similar financial resources, but Father has taken
unreasonable positions on appeal. In violation of ARCAP 13(a)(7), Father
raises about a dozen arguments either for the first time on appeal, without
adequate citation to the record, or without supporting legal authority. His
arguments about legal decision-making and hearsay are contrary to
applicable statutes and court rules, and his arguments about due process
14
BENNIE v. JOHNSON
Decision of the Court
misconstrue the record. Therefore, pending her compliance with ARCAP
21, we award Mother her taxable costs and reasonable attorney’s fees
incurred on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
15