Michael v. Michael ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
AMBER LYNN MICHAEL, Petitioner/Appellee,
v.
JAMES ANDREW MICHAEL, Respondent/Appellant.
No. 1 CA-CV 14-0436
FILED 3-12-2015
Appeal from the Superior Court in Maricopa County
No. FC2013-007720 and FC2013-071942 (Consolidated)
The Honorable Michael W. Kemp, Judge
AFFIRMED
COUNSEL
Becker Zarling & Moye Law, Avondale
By Gina M. Becker-Zarling
Counsel for Petitioner/Appellee
Steven D. Keist, PC, Glendale
By Jackson L. Walsh
Counsel for Respondent/Appellant
MICHAEL v. MICHAEL
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.
C A T T A N I, Judge:
¶1 James Michael (“Father”) appeals from the provisions of the
decree dissolving his marriage to Amber Michael (“Mother”) relating to
legal decision-making for their child, parenting time, and property division.
Father argues the court erred by improperly restricting the presentation of
his case during the dissolution trial and by awarding Mother sole legal
decision-making and more than equal parenting time. For reasons that
follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father were married in November 2008. They
have one child together, born in May 2012.
¶3 In late August 2013, Mother sought an order of protection
against Father for herself and the child, citing alleged stalking behavior.
The court issued an order of protection, but later modified the order (with
the parties’ agreement) to exclude the child.
¶4 In September 2013, both Mother and Father filed petitions for
dissolution of marriage, which were consolidated into a single suit. While
the proceeding was pending, the parties repeatedly disagreed about
parenting time and scheduling concerns: Mother insisted that Father
receive only supervised time with the child, and the parties were unable to
agree on how to select individuals for such supervision.
¶5 Father is a registered sex offender, apparently stemming from
a 2004 offense involving possession of child pornography. Mother was
aware of his sex offender status and the circumstances of the offense before
the marriage.
¶6 After a two-hour evidentiary hearing, the superior court
entered the dissolution decree and awarded each party the personal
property in his or her possession. The court also made written factual
findings regarding parenting issues and the best interests of the child. The
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MICHAEL v. MICHAEL
Decision of the Court
court found that Father had engaged in domestic violence, noting his
stalking behavior and the order of protection that remained in effect, and
that Father was a registered sex offender, and accordingly awarded Mother
sole legal decision-making. The court granted Father unsupervised
parenting time every other weekend—beginning with part of the weekend,
then progressing to full weekends after six months—and made an express
finding that unsupervised parenting time was appropriate despite Father’s
sex offender status. After noting that no evidence had been presented
suggesting Father was a danger to the child or had interacted with him
inappropriately, the court specifically found that the circumstances
underlying Father’s sex offender status would not create a danger for the
child if Father were granted unsupervised parenting time.
¶7 Father timely appealed from the decree. We have jurisdiction
under Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(1).1
DISCUSSION
¶8 We review the superior court’s legal decision-making and
parenting time decisions for an abuse of discretion. Nold v. Nold, 232 Ariz.
270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013). In light of that court’s
“superior position and unique perspective in evaluating the sufficiency of
evidence,” Acuna v. Kroack, 212 Ariz. 104, 113, ¶ 35, 128 P.3d 221, 230 (App.
2006), we assess only whether “the record, viewed in the light most
favorable to upholding the trial court’s decision, is ‘devoid of competent
evidence to support’ the decision,” Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975
P.2d 108, 110 (1999) (citation omitted). We similarly review the court’s
division of property for an abuse of discretion. Helland v. Helland, 236 Ariz.
197, 199, ¶ 8, 337 P.3d 562, 564 (App. 2014).
¶9 Father first argues that the dissolution trial procedure was
fundamentally unfair. He asserts that the superior court unilaterally and
without notice shortened the proceeding to only two hours instead of the
scheduled three hours. Contrary to Father’s assertion, the hearing was in
fact scheduled for two hours. Although one minute entry subsequent to the
trial setting noted the allotted time as three hours, Father’s pretrial
statement acknowledged that “two hours for trial in this matter is
appropriate,” and, at the hearing, Father’s counsel expressed no surprise
and raised no objection to the two-hour timetable.
1 Absent material revisions after the relevant date, we cite a statute’s
current version.
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MICHAEL v. MICHAEL
Decision of the Court
¶10 Father also claims that the court improperly allowed him only
approximately one quarter of the total time to present his case, whereas
Mother received around three quarters of the time allotted. Accounting for
the amount of time that Father’s counsel cross-examined witnesses called
by Mother, however, the hearing transcript shows no substantial imbalance
in the time allowed for each side.
¶11 Father further asserts that the court’s rigid adherence to an
arbitrary time limit did not allow him adequate time to present evidence
relevant to the property division. This court has recognized that the
superior court is vested with broad discretion to impose reasonable time
limits, see Ariz. R. Fam. Law P. 22(1), but may not adhere to rigid time limits
if doing so would operate to eliminate any meaningful opportunity for the
parties to present evidence. Volk v. Brame, 235 Ariz. 462, 464, 468, ¶¶ 1, 20–
21, 333 P.3d 789, 791, 795 (App. 2014) (holding that the court’s refusal to
allow additional time beyond the originally-scheduled 15 minutes for an
“evidentiary” hearing—regarding a material contested issue hinging on
credibility—violated the parties’ due process rights).
¶12 Here, there is no indication that the two-hour time limit was
unreasonable. Father’s counsel examined each witness extensively
regarding the child, the parties’ relationship, and parenting time, as well as
each party’s income and expenses. Father’s pretrial statement referenced a
“[l]ist of items removed from house by [Mother] that are either separate
property of [Father] or community property to be divided” as a potential
exhibit, but not as a contested issue. Father’s counsel did not ask any
witnesses about this personal property, and did not offer the list into
evidence. Moreover, Father’s counsel never mentioned these items when
the court clarified which issues remained contested—legal decision-
making, parenting time, and child support—at the time of the hearing.
Under these circumstances, Father has not shown error.
¶13 Finally, Father argues that the superior court provided
insufficient justification for its decision to award sole legal decision-making
to Mother and to award less than equal parenting time to Father. When
determining legal decision-making and parenting time, the superior court
must consider all relevant factors weighing on the child’s best interests,
including certain factors enumerated by statute; if the issues are contested,
the court must set forth these findings on the record. A.R.S. § 25-403; see
also Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11, 219 P.3d 258, 261 (App. 2009). In
addition to the best interests factors described in § 25-403(A), other statutes
set forth rebuttable presumptions against awarding legal decision-making
or unsupervised parenting time to a parent who has committed domestic
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MICHAEL v. MICHAEL
Decision of the Court
violence against the other or is a registered sex offender. A.R.S. §§ 25-
403.03(D)–(F), -403.05(A)(1).
¶14 Father claims that the court failed to adequately explain its
conclusion that granting Mother sole legal decision-making would be in the
child’s best interests. But the court entered specific written findings as to
each best interests factor listed in § 25-403(A), including a finding that
Father had committed domestic violence by stalking Mother (which led to
the order of protection), see A.R.S. §§ 13-3602(A), -3601(A)(1), -3923; each
legal decision-making factor in § 25-403.01(B), including the parents’
inability to cooperate in joint decision-making and Mother’s desire for sole
decision-making authority given Father’s sex offender status; and that
Father was a registered sex offender. Each of these findings was supported
by testimony at trial, and all support the award of sole legal decision-
making to Mother.
¶15 The court expressly found Father had not rebutted the
presumption (arising from Father’s acts of domestic violence against
Mother) favoring sole decision-making for Mother. See A.R.S. § 25-
403.03(D). Although Father argues that the court did not explain its
analysis of factors relevant to rebutting the domestic-violence presumption,
see A.R.S. § 25-403.03(E), he does not claim to have rebutted the
presumption and does not point to any evidence that would meet his
burden to do so. Moreover, Father does not address the separate statutory
presumption against awarding legal decision-making to a registered sex
offender. See A.R.S. § 25-403.05(A)(1). Although the court found that
unsupervised parenting time with Father would present no significant risk
to the child, it made no such finding regarding legal-decision making. See
A.R.S. § 25-403.05(A).
¶16 Father also claims that the court showed “no logical
consistency” in awarding him less than equal parenting time despite its
decision that unsupervised parenting time was appropriate. The court
specifically found that the circumstances of Father’s sexual offense did not
create a danger for the child, and more generally noted that Father did not
present a danger to the child. But these were the baseline findings
necessary to allow Father any parenting time (or unsupervised parenting
time), not a justification for equal parenting time. See A.R.S. § 25-403.03(F)
(requiring that parent who committed domestic violence show that any
parenting time would not endanger the child); A.R.S. § 25-403.05(A)(1)
(precluding unsupervised parenting time for a sex offender absent a written
finding concluding there would be no significant risk to the child).
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MICHAEL v. MICHAEL
Decision of the Court
¶17 Moreover, the court, while noting Father’s desire to reach
equal parenting time and his successful supervised visits, also recognized
that Father had only had limited contact with the child while the dissolution
proceedings were pending, including almost eight months without any
contact. Although the court is directed to adopt a plan that maximizes each
parent’s parenting time, the plan must be consistent with the child’s best
interests. A.R.S. § 25-403.02(B). In these circumstances, Father has not
shown that the court’s graduated parenting plan leading to unsupervised
parenting time every other weekend was not in the child’s best interests.
Accordingly, we affirm.
¶18 Both parties request an award of attorney’s fees under A.R.S.
§ 25-324. In our discretion, we deny both requests.
CONCLUSION
¶19 The superior court’s decision is affirmed.
:ama
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