Jackman v. McCann ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
CHRISTIAN GREGORY JACKMAN, Petitioner/Appellee,
v.
TERESA MARIE MCCANN, Respondent/Appellant.
No. 1 CA-CV 22-0341 FC
FILED 4-11-2023
Appeal from the Superior Court in Maricopa County
No. FC2014-096241
The Honorable Adele Ponce, Judge
AFFIRMED
COUNSEL
Teresa Marie McCann, Gilbert
Respondent/Appellant
JACKMAN v. MCCANN
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Anni Hill Foster joined.
H O W E , Judge:
¶1 Teresa Marie McCann (“Mother”) appeals the order denying
her petition to modify legal decision-making authority, parenting time, and
child support. Because she has shown no abuse of discretion or legal error,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Christian Gregory Jackman (“Father”) had three
minor children when they divorced in 2016. Two of the children have since
turned 18 and are not involved in this appeal. In the 2016 decree, the family
court found that Mother physically and emotionally abused the children.
Therefore, the court awarded Father sole legal decision-making authority.
The court also determined that awarding substantial parenting time to
Mother would endanger the children’s physical or emotional well-being.
As a result, the court ordered a parenting time plan that gradually increased
Mother’s time with the children and required that the family participate in
an intensive therapeutic reunification program.
¶3 While Mother’s appeal from the decree was pending, the
Department of Child Safety petitioned for the children’s dependency, and
the juvenile court found the children dependent as to Mother. See Jackman
v. McCann, 2017 WL 4052001, 1 CA-CV 16-0263FC, *1 ¶ 8 (Ariz. App. Sept.
14, 2017). Because the juvenile court order superseded the decree, this court
deemed Mother’s appeal from the legal decision-making and parenting
time orders in the decree moot. Id. at *1–2 ¶¶ 8–9 (citing A.R.S. § 8–202(F));
Michael M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 230, 234
¶ 15 (App. 2007). Later, the juvenile court took temporary jurisdiction over
the family court case, ordered the children to live with Father, allowed
parenting time with Mother at the children’s discretion, and dismissed the
dependency action. The juvenile court order is the most recent parenting
time order.
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JACKMAN v. MCCANN
Decision of the Court
¶4 In February 2021, Mother petitioned to modify legal decision-
making authority, parenting time, and child support orders. She sought
sole legal decision-making authority and supervised parenting time for
Father. The family court appointed an advisor to prepare a report. The court
held an evidentiary hearing, during which Mother, Father, and their
daughter testified. After the evidentiary hearing, the court denied Mother’s
petition to modify and again awarded Father sole legal decision-making
pursuant to the child’s best interests. Citing the unusual history of this case
and the fact that the only minor child was now 16 years old, the court found
that allowing the child to decide whether to communicate or spend time
with Mother was in the child’s best interests. The court also specified
parameters for Mother’s communications with the child and denied her
request to modify child support, finding no change from the child support
order in place. Mother timely appealed, and we have jurisdiction under
A.R.S. § 12–2101(A)(2).
DISCUSSION
¶5 Mother argues that the court erred in (1) awarding Father sole
legal decision-making authority, (2) violating her constitutional rights, and
(3) failing to reduce the child support order after the second child turned 18
in March 2022. Father did not file an answering brief, which we may treat
as a confession of error, but we decline to do so here because a child’s best
interests are involved. See In re Marriage of Diezsi, 201 Ariz. 524, 525 ¶ 2
(App. 2002).
¶6 As a threshold matter, Mother contends that the trial
transcript is inaccurate and was “tampered with.” The email she relies on
to support this claim is not part of the record on appeal. Therefore, we do
not consider it. GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4 (App.
1990). Mother failed to provide other record evidence of any inaccuracies
or an accurate copy of the transcript in accordance with Rule 19. See Ariz.
R. Fam. Law P. 19 (requiring party to identify lost or destroyed record,
provide accurate copy, and proof of accuracy).
I. The Record Supports the Legal Decision-Making Authority and
Parenting Time Orders.
¶7 We review the family court’s legal decision-making authority
and parenting time orders for an abuse of discretion. Engstrom v. McCarthy,
243 Ariz. 469, 471 ¶ 4 (App. 2018). We accept the court’s findings of fact
absent clear error. Id.3
JACKMAN v. MCCANN
Decision of the Court
¶8 The record supports the court’s order that Father be awarded
sole legal decision-making authority. The court determines legal decision-
making and parenting time “in accordance with the best interests of the
child,” which involves considering “all factors that are relevant to the
child’s physical and emotional well-being.” A.R.S. § 25–403(A). A finding
of any domestic violence creates a rebuttable presumption that awarding
sole or joint legal decision-making authority to a parent who has committed
an act of domestic violence is contrary to the child’s best interests. A.R.S.
§ 25–403.03(D); see DeLuna v. Petitto, 247 Ariz. 420, 424 ¶ 16 (App. 2019).
However, “[t]his presumption does not apply if both parents have
committed an act of domestic violence.” A.R.S. § 25–403.03(D).
¶9 Here, the family court considered both parents’ acts of
domestic violence in the record in making its findings. Evidence supports
the finding that Mother abused the children. Although she cites evidence
from the 2015 family court evaluation and the children’s 2017 psychological
evaluation that contradicted Father’s reports of her abuse, other evidence
supports the finding that Mother abused the children, including sworn
testimony by those with personal knowledge. Also, the original dissolution
decree found that Mother physically and emotionally abused the children.
And in the 2015 court-ordered family assessment, Mother admitted to
hitting the children with a wooden spoon and putting hot sauce in their
mouths as punishment. Additionally, Mother provided the middle child’s
medical records in which he confirmed the past abuse. At this hearing,
Mother admitted to locking the children in their rooms at night with no
access to a bathroom. Mother also offered evidence of Father’s 2020
conviction for domestic violence against her. Because Mother and Father
each committed acts of domestic violence, the presumption does not apply.
Therefore, the court did not err in awarding Father sole legal decision-
making authority.
¶10 The court also did not err in finding that living with Father
and contacting Mother on his own terms is in the minor child’s best
interests. As the family court explained, this case is “unusual.” Contrary to
Mother’s contention, the court expressly considered that Father may have
improperly influenced the child’s wishes on this issue. Mother had abused
the children in the past, damaging her relationship with them. On the other
hand, Father further alienated Mother by discouraging reunification efforts
and acting contrary to the children’s best interests. Given these
circumstances, the court did not abuse its discretion when it considered the
16-year-old child’s expressed desire to have no relationship with Mother.
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JACKMAN v. MCCANN
Decision of the Court
¶11 Mother contends that the family court “intentionally and
willfully ignore[d]” evidence weighing against Father. Throughout the
ruling, however, the court acknowledged that Father’s alienation and
continued portrayal of Mother as a danger and a threat harmed the
children. The court also questioned some of Father’s allegations. The court
considered the best interest attorney’s concerns that Father’s failure to
protect the children from Mother’s abuse harmed the children. Finally, the
court noted that Father did not complete the court-ordered counseling.
Mother asks this court to weigh this evidence differently. But we do not
reweigh the evidence or make credibility determinations on appeal. Hurd
v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009). Because the family court is in the
best position to determine witness credibility and resolve conflicts in the
evidence, we defer to its findings. Vincent v. Nelson, 238 Ariz. 150, 155 ¶ 18
(App. 2015). 1
II. The Family Court Did Not Violate Mother’s Constitutional Rights.
¶12 Parents have a fundamental right to decide on the care,
custody, and management of their children. Troxel v. Granville, 530 U.S. 57,
65–66 (2000). And absent evidence to the contrary, both parents providing
“substantial, frequent, meaningful and continuing parenting time” with the
child and “participat[ing] in decision-making about the child” is generally
in that child’s best interests. A.R.S. § 25–103(B). A court should also
maximize parenting time consistent with the child’s best interests, A.R.S.
§ 25–403.02(B), and “shall not restrict a parent’s parenting time rights unless
it finds that the parenting time would endanger seriously the child’s
physical, mental, moral or emotional health.” A.R.S. § 25–411(J).
¶13 In the original decree, the family court found that unrestricted
parenting time would endanger the child’s physical, mental, moral or
emotional health based on the “long history of emotional and physical
abuse.” The original decree conditioned Mother’s parenting time on an
intensive therapeutic reunification process. Then, the juvenile court further
limited Mother’s contact to occur only if the children wanted it. The
parenting time order continues to allow parenting time at the child’s
discretion, but it now allows Mother to communicate with the child
electronically within specific parameters. The court expressly found “this
1 Having concluded that the family court did not ignore evidence, we
do not reach Mother’s assertion that the court violated Arizona Rule of
Family Law Procedure 2, which requires compliance with the Arizona
Rules of Evidence at a properly noticed hearing.
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JACKMAN v. MCCANN
Decision of the Court
to be the right amount of contact given the history of the case.” Because the
record supports the findings of past abuse, and the restrictions are
reasonably crafted to minimize the danger of further emotional or physical
abuse, we find no violation of Mother’s constitutional rights and affirm. See
Paul E. v. Courtney F., 246 Ariz. 388, 394 ¶ 20 (2019).
III. The Record Supports the Child Support Order.
¶14 We review the ruling on a petition to modify child support for
an abuse of discretion. See Little v. Little, 193 Ariz. 518, 520 ¶ 5 (1999). The
child support order was proper.
¶15 The family court properly denied Mother’s request to modify
child support because it did not modify the parenting time orders. A parent
must pay child support for a child who turns 18 while still attending high
school. A.R.S. § 25–320(F); A.R.S. § 25–501(A). Here, although the middle
child turned 18 on March 3, 2022, he was a junior in high school during the
2021-2022 academic year. Absent evidence that the child graduated,
completed a high school equivalency program, or stopped attending school
at the time of the trial, the family court properly included the 18-year-old
middle child in calculating the child support order. Id.
¶16 Mother contends that she is not required to pay child support
because she has no parental rights. But the courts did not terminate
Mother’s parental rights. For that reason, her child support obligation
continues regardless of the amount of court-ordered parenting time. See
A.R.S. § 25–320 app., Child Support Guidelines § I(C)(6) (“The obligation to
pay . . . child support is separate from any rights or responsibilities relating
to legal decision-making and parenting time.”); A.R.S. § 25–501(A) (absent
an exception not applicable here, “every person has the duty to provide all
reasonable support for that person’s natural and adopted minor,
unemancipated children.”). The court did not err.
CONCLUSION
¶17 We affirm the order denying Mother’s petition to modify.
AMY M. WOOD • Clerk of the Court
FILED: CC
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