Johnson v. Johnson ( 2021 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
    CHRISTOPHER JOHNSON,
    Petitioner/Appellant,
    v.
    KIMBERLY JOHNSON,
    Respondent/Appellee.
    No. 1 CA-CV 20-0175 FC
    FILED 1-7-2021
    Appeal from the Superior Court in Maricopa County
    No. FC2015-095306
    The Honorable Joan M. Sinclair, Judge
    AFFIRMED
    COUNSEL
    Christopher Johnson, Gilbert
    Petitioner/Appellant
    Suzette Lorrey-Wiggs PC, Tempe
    By Suzette Belle Lorrey-Wiggs
    Counsel for Respondent/Appellee
    JOHNSON v. JOHNSON
    Decision of the Court
    MEMORANDUM DECISION
    Judge David D. Weinzweig delivered the decision of the Court, in which
    Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.
    W E I N Z W E I G, Judge:
    ¶1           Christopher Johnson (“Father”) appeals the superior court’s
    post-decree modification of joint legal decision-making, parenting time and
    child support terms. Because no error is shown, we affirm.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2            Father and Kimberly Johnson (“Mother”) were married for
    several years and share a minor daughter (“Daughter”), born in 2004. They
    divorced in 2018. The superior court entered a consent decree to
    memorialize their dissolution agreement, which included joint legal
    decision-making authority, equal parenting time, a 5-2-2-5 parenting time
    schedule, and no child support.
    ¶3           Soon after, in September 2018, Father had a serious argument
    with Daughter about a school dance and his parenting time all but
    vanished. Around a year later, Father petitioned the superior court to (1)
    enforce the consent decree and order parenting time, and (2) enter a
    temporary order modifying parenting time to a week-on/week-off
    schedule. The court declined to modify parenting time temporarily, but
    encouraged communication between Father and Daughter while setting an
    evidentiary hearing over parenting time for late January 2020. Father
    followed with an amended petition. Although Mother did not formally
    respond to Father’s petition or amended petition, her prehearing statement
    covered the issues, including parenting time, legal decision-making and
    child support.
    ¶4            After the evidentiary hearing, the court ordered Mother and
    Father to continue joint legal decision-making, but granted Mother final
    authority to decide if and when the parties cannot agree. The court also (1)
    directed Father to participate in counseling with Daughter, and (2)
    modified parenting time so Father had two hours per week, gradually
    increasing over a ten-month period and culminating in Father exercising
    parenting time on alternating weekends and holidays. And the court
    2
    JOHNSON v. JOHNSON
    Decision of the Court
    modified child support to reflect the new parenting time schedule. Father
    timely appealed. We have jurisdiction. See A.R.S. § 12-2101(A)(1).
    DISCUSSION
    I.    Parenting Time
    ¶5            Father argues the superior court abused its discretion and
    violated his due process rights when it decreased his parenting time sua
    sponte. Due process claims present legal issues for our de novo review.
    Mack v. Cruikshank, 
    196 Ariz. 541
    , 544, ¶ 6 (App. 1999). We review the
    parenting time modification for an abuse of discretion. Christopher K. v.
    Markaa S., 
    233 Ariz. 297
    , 300, ¶ 15 (App. 2013).
    ¶6            The record indicates no error. Father contends the court
    violated his due process rights when it considered whether to reduce his
    parenting time because Father had not sought such relief. “Due process
    entitles a party to notice and an opportunity to be heard at a meaningful
    time and in a meaningful manner.” Curtis v. Richardson, 
    212 Ariz. 308
    , 312,
    ¶ 16 (App. 2006). At minimum, however, the record shows that Mother
    raised the issue in her prehearing statement. Indeed, Mother asked the
    court to pause Father’s parenting time altogether until he attended
    counseling.
    ¶7            Beyond that, the court’s modified order reflected Father’s
    input, including his testimony that an immediate return to equal parenting
    time was not in Daughter’s best interest and instead suggesting he “slowly”
    be reintroduced through counseling. The superior court then clarified: “[I]f
    I understand you correctly, you’re asking for some kind of a gradual
    transition either through counseling, or through, like, limited periods of
    time—you see her a couple times a week for an hour, whatever, until
    they’re—and counseling so that it slowly gets built up.” Father answered
    “yes.”
    ¶8            Father also argues the evidence did not support the court’s
    modification and contends he would have introduced more evidence if he
    known a reduction in parenting time was possible. But the promised
    evidence would only show communication between Father and Daughter
    after September 2018, which the superior court accepted as true. Father
    shows no prejudice. See Volk v. Brame, 
    235 Ariz. 462
    , 470, ¶ 26 (App. 2014)
    (“Due process errors require reversal only if a party is thereby
    prejudiced.”).
    3
    JOHNSON v. JOHNSON
    Decision of the Court
    ¶9            Father also challenges the court’s exclusion of written
    communications, which we review for an abuse of discretion. Davis v.
    Davis, 
    246 Ariz. 63
    , 65, ¶ 6 (App. 2018) (evidentiary rulings are reviewed on
    appeal for an abuse of discretion and resulting prejudice). Father has
    shown no abuse of discretion or prejudice. The communications in the
    excluded exhibits predated the consent decree and thus held questionable
    relevance to the modification issues raised months after the entry of the
    decree.1
    II.    Legal Decision-Making
    ¶10           Father contends the superior court erroneously modified the
    consent decree to recognize Mother as sole legal decision-maker. The court
    continued joint legal decision-making authority, however, only recognizing
    ultimate authority in Mother when the parties could not agree. And the
    Arizona Supreme Court has recognized that courts may “provide for joint
    legal decision-making [under A.R.S. § 25-401(2)] with one parent having
    final authority over certain matters.” Nicaise v. Sundaram, 
    245 Ariz. 566
    , 568,
    ¶¶ 13, 16-17 (2019).
    ¶11           Father also challenges the record basis for the court’s
    designation of Mother as the final voice. But Father does not account for
    evidence that Mother and Father had trouble communicating and making
    joint decisions, all of which supported the superior court’s finding that
    Mother and Father “are unable to communicate in any effective manner at
    all.” The record shows that Mother and Father could not even arrange
    routine dental appointments or share health insurance information. The
    court did not abuse its discretion by awarding final authority to Mother.
    III.   Child Support
    ¶12           Father argues the superior court erroneously awarded child
    support to Mother in violation of his due process rights, stressing that
    nobody asked for child support. We review for an abuse of discretion.
    Milinovich v. Womack, 
    236 Ariz. 612
    , 615, ¶ 7 (App. 2015).
    1      Father also argues the superior court should have held Mother in
    contempt, but the denial of a petition for contempt is not appealable,
    Danielson v. Evans, 
    201 Ariz. 401
    , 411, ¶ 35 (App. 2001). And because Father
    did not develop the argument with record or legal citations, we will not
    exercise our discretion hear the issue as a special action.
    4
    JOHNSON v. JOHNSON
    Decision of the Court
    ¶13           Father was not deprived of due process. Arizona law
    empowered the superior court to revisit child support after and based on
    its modifications to parenting time. A.R.S. § 25-403.09(A); Heidbreder v.
    Heidbreder, 
    230 Ariz. 377
    , 379-80, ¶¶ 7, 9 (App. 2012). And Father had
    “adequate notice and a meaningful opportunity to be heard” on child
    support issues. 
    Id. at 381, ¶ 13
    . Indeed, Father himself petitioned the court
    to modify the child support order so that Mother paid support to Father.
    Mother’s prehearing statement also identified child support as a contested
    issue and sought an increased amount of child support. Thus, Father had
    notice that modification of child support was at issue.
    ¶14           Father also argues the child support order hinges on
    incomplete evidence. He contends Mother’s financial affidavit did not
    include her last three tax returns or show income from her second job and
    maintains he did not offer evidence of Mother’s income because he was not
    aware child support modification was at issue. But again, Father had
    adequate notice and never offered such evidence. Nor did Father argue at
    the hearing that Mother had undisclosed income from a second job. He
    cannot raise this argument for the first time on appeal. Bobrow v. Bobrow,
    
    241 Ariz. 592
    , 597, ¶ 23 (App. 2017). The court did not abuse its discretion
    in modifying the child support order based on the new parenting time
    orders.
    CONCLUSION
    ¶15          We affirm the superior court’s modification order. After
    considering the reasonableness of the parties’ positions and their financial
    resources, we exercise our discretion to award Mother her attorney fees and
    costs on appeal upon compliance with Arizona Rule of Civil Appellate
    Procedure 21. See A.R.S. §§ 25-324(A); 12-342(A).
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CV 20-0175-FC

Filed Date: 1/7/2021

Precedential Status: Non-Precedential

Modified Date: 1/7/2021