Cherry v. Mendoza ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
LINDY LOU CHERRY, Petitioner/Appellee,
v.
JAIME JESUS MENDOZA, Respondent/Appellant.
No. 1 CA-CV 22-0348 FC
FILED 3-21-2023
Appeal from the Superior Court in Maricopa County
No. FC2017-071414
The Honorable Stasy Avelar, Judge
AFFIRMED
COUNSEL
Lindy Cherry, Peoria
Petitioner/Appellee
Jaime Mendoza, Phoenix
Respondent/Appellant
CHERRY v. MENDOZA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Michael J. Brown and Judge Michael S. Catlett joined.
M c M U R D I E, Judge:
¶1 Jaime Jesus Mendoza (“Father”) appeals from the superior
court judgment modifying parenting time and child support. He argues
that the “illegitimate actions” of the judge and the court-appointed advisor
violated his rights and deprived him of a fair hearing. We find no error and
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Lindy Lou Cherry (“Mother”) and Father have two minor
children in common. In April 2017, following the dismissal of a juvenile
dependency action, the juvenile court entered temporary orders for legal
decision-making, parenting time, and child support for the children. The
court awarded sole legal decision-making to Mother. The court ordered that
Father have supervised parenting time, but “Mother is not required to
provide such supervision.” Finally, the court suspended Mother’s prior
child support obligation “until further order of the family court.” The
temporary orders became final when neither party began a modification
proceeding before the date set by the juvenile court.
¶3 In October 2021, Father petitioned to modify legal
decision-making, parenting time, and child support. The superior court
held an evidentiary hearing and received testimony from Mother, Father,
and a court-appointed advisor. After the hearing, the court made several
factual findings and issued a judgment “affirming to Mother sole legal
decision-making” and modifying the parenting time and child support
orders in Mother’s favor.
¶4 The superior court found that “Father has not demonstrated
that he is clean and sober and no longer suffering from any mental health
issues, drug addiction issues, or that he will comply with Court orders and
return the children as required.” The court also found that paternal
parenting time “would endanger the children’s physical, mental, moral or
emotional health” and concluded that unsupervised parenting time with
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Decision of the Court
Father was inappropriate. See A.R.S. § 25-403.01(D). The court’s modified
judgment granted Father supervised parenting time only after submitting
a clean hair follicle test. Father can progress to unsupervised parenting time
after completing assigned counseling. Finally, the court found “a
substantial and continuing change of circumstances relevant to the
calculation of child support” and ordered Father to pay $723 monthly. See
A.R.S. § 25-503.
¶5 Father appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(1).
DISCUSSION
¶6 “We view the facts in the light most favorable to sustaining
the superior court’s order” and give “due regard” to the court’s witness
credibility assessments. Clark v. Kreamer, 243 Ariz. 272, 275, ¶ 10 (App.
2017). We will affirm the superior court’s fact-finding unless it is clearly
erroneous. See Ariz. R. Fam. Law P. (“ARFLP”) 82(a)(5).
¶7 We note that Father’s brief does not follow the requirements
established by Arizona Rule of Civil Appellate Procedure (“ARCAP”) 13(a).
See ARCAP 13(a)(1) (“‘table of contents’ with page references”); ARCAP
13(a)(2) (table of citations); ARCAP 13(a)(4) (Statement of the case must
“state the nature of the case, the course of the proceedings, the disposition
in the court from which the appeal is taken, and the basis of the appellate
court’s jurisdiction” and must include “references to the record.”); ARCAP
13(a)(7) (Argument must contain “supporting reasons for each contention,”
“legal authorities and appropriate references to . . . the record,” and the
“standard of appellate review.”). On this basis, we could decide that
Father’s arguments are waived. See Adams v. Valley Nat. Bank of Ariz., 139
Ariz. 340, 342 (App. 1984). But because we prefer to decide cases upon their
merits, we will consider Father’s arguments as much as possible. See Adams,
139 Ariz. at 342 (citing Clemens v. Clark, 101 Ariz. 413, 414 (1966)).
¶8 First, Father says that he “wish[es] to press criminal charges
against [the court-appointed advisor and superior court judge].” Next, he
lists a series of statutes from the Arizona criminal code that ostensibly
apply: A.R.S. §§ 13-2702, -105, -302, -305, -803, and -804. Father does not
elaborate on this list, simply alleging “multiple violations” by the superior
court judge and court-appointed advisor.
¶9 We lack jurisdiction to charge or try a defendant in a criminal
case. See Ariz. Const. art. VI, § 9 (The jurisdiction of the appellate courts is
governed by statute.); A.R.S. §§ 12-120.21, -2101 (jurisdiction statutes); see
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also Ariz. Const. art. VI, § 14(4) (The superior court has original jurisdiction
of criminal cases.). And Father fails to explain how these allegations show
error in the superior court’s ruling on legal decision-making, parenting
time, and child support. Nowhere in his brief does Father request that the
order for legal decision-making, parenting time, and child support be
reversed. Instead, Father asks “to be compensated for the damages and
losses sustained.” But Father cites no applicable authority to grant such a
request.
¶10 Next, Father alleges that the court-appointed advisor
“knowingly and intentionally lied in her [report] as well as adhere [sic] to
her role and responsibilities as a court appointed advisor.” But Father fails
to cite evidence supporting his claims.
¶11 Father does reference an email by the advisor where she
stated, “[M]y role on this case is for the best interest of your children as the
Court Appointed Advisor, not a private investigator.” Father suggests this
statement was deceptive because her testimony at trial reveals she was
acting as an investigator and thereby “not adhering to the ‘role’ of [a
court-appointed advisor].” But Father ignores the plain text of the court’s
order appointing the advisor. In that order, the court stated, “A
Court-Appointed Advisor is specifically required by Rule 10.1(d)(5) to
submit a report authorized by A.R.S. 25-406, and may be called to testify about
the advisor’s recommendations regarding the best interests of the
children.” (Emphasis added.)
¶12 We also note that the trial transcripts are not in the appellate
record. An appellant must include the transcripts or other documents
necessary to resolve the issues. ARCAP 11(b), (c); State ex rel. Dep’t of Econ.
Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16 (App. 2003). Because we do not have the
trial transcripts, we must assume the missing record supports the superior
court’s findings. See Kline v. Kline, 221 Ariz. 564, 572, ¶ 33 (App. 2009). We
thus conclude that Father has shown no error with the court-appointed
advisor’s reports or testimony.
¶13 Father also claims that the superior court judge “knowingly
and intentionally refused to adhere to her oath of office, as well as her role
and responsibility as a Judge with independence, integrity, and
[impartiality].” The single sentence Father offers in support of the allegation
that he “advised [the judge] of the wrongdoing of [the court-appointed
advisor] and [the judge] refused to act” suggests that Father disagreed with
the superior court’s findings and judgment. But mere disagreement with a
judge’s ruling is not a basis for reversal on appeal. And Father’s
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unsupported conclusions about the superior court judge’s integrity or
impartiality are meritless.
¶14 Finally, Father makes a string of conclusory objections about
the superior court’s judgment. We address each in turn.
¶15 Father argues the judgment does not “abide[] by the rights of
we the people.” But the superior court explicitly considered Father’s rights
in its analysis. It “remain[ed] mindful of the fundamental rights of the
parents” when considering the best interests of the children and only
limited Father’s parenting time after finding that “continuing contact with
the children would endanger the children’s physical, mental, moral or
emotional health.”
¶16 Father claims the “ruling violates . . . [Father’s] right to live
freely and [procreate].” But the order does not limit Father’s ability to
procreate, and Father does not explain how the order impermissibly
restricts his freedom.
¶17 Finally, Father asserts that the decision fails to “comply with
the [civil] rights movement.” Father has referenced no evidence that the
concerns of the civil rights movement are at issue. Father cites no case,
statute, or constitutional provision to support his claim, nor does he identify
the alleged noncompliance of the superior court’s order with civil rights.
CONCLUSION
¶18 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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