Searles v. Wolfe ( 2024 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
HEATHER ANNE SEARLES, Petitioner/Appellant,
v.
JASON LEE WOLFE, Respondent/Appellee.
No. 1 CA-CV 24-0074
FILED 10-24-2024
Appeal from the Superior Court in Maricopa County
No. FC2020-050160
The Honorable Colleen E. O’Donnell-Smith, Judge
AFFIRMED
COUNSEL
Reardon House Colton PLC, Scottsdale
By Kristi A. Reardon, Taylor S. House, Sally M. Colton
Counsel for Petitioner/Appellant
Stanley David Murray Attorney at Law, Scottsdale
By Stanley D. Murray
Counsel for Respondent/Appellee
SEARLES v. WOLFE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.
C A T L E T T, Judge:
¶1 Heather Searles (“Mother”) appeals the superior court’s
decision awarding Mother and Jason Wolfe (“Father”) joint legal decision-
making authority and denying Mother’s request for attorney fees. Because
the court did not abuse its discretion, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father never married but are the parents of S.W.
(“Child”), who was born in September 2013. Mother and Father’s
disagreements over legal decision-making, parenting time, and child
support began four years ago.
¶3 In January 2020, Mother petitioned for sole legal decision-
making authority, citing concerns about Father’s illegal drug use and arrest
in 2019, which occurred in Child’s presence. The Maricopa County
Attorney’s Office elected not to pursue charges against Father. In response
to Mother’s petition, the court ordered Father to undergo random drug
testing. Father completed a hair follicle test, which was positive for MDMA
(commonly known as ecstasy), cocaine, and benzoylecgonine (the major
metabolite of cocaine). About a week later, Father completed two urinalysis
drug tests. Both tests were negative for all substances.
¶4 Shortly thereafter, the superior court issued temporary orders
awarding the parties joint legal decision-making with Mother having the
final say, restricting Father to supervised parenting time, ordering Father
to continue random drug testing, and designating a Court-Appointed
Advisor (“CAA”).
¶5 After trial on Mother’s petition, the court modified its
temporary orders because Father provided several negative drug tests. The
court ordered Father to begin testing only for alcohol and allowed him
unsupervised parenting time so long as he continued to test negative. The
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court also awarded Mother and Father joint legal decision-making
authority.
¶6 In October 2022, Mother filed a petition to modify, requesting
sole legal decision-making authority due to renewed concerns about
Father’s drug use. Mother also filed a Motion for Drug Testing of Father,
which the court granted. On November 2, 2022, Father’s hair follicle test
was positive for cocaine and benzoylecgonine. Father’s urine test from the
same day, however, was negative for all substances. The court approved
an agreement between Father and Mother that Father would resume
random drug testing twice a week and test for alcohol twice a day on the
days he exercised parenting time. The court’s drug testing order provided
that a missed test or diluted sample “may be considered an admission by
[Father] that the testing, if properly conducted, would have revealed the
use of the substance(s) tested for[.]” The court also reinstated the CAA.
¶7 Shortly thereafter, Father tested positive for alcohol in
December 2022, and tested positive for opiates twice in January 2023.
Father tested positive on days he was with Child. At Mother’s request, the
court held a hearing to discuss the positive results. During the hearing,
Father disputed each positive test. Father provided a negative alcohol test
from the same day, but from a different testing facility. Father attributed
his positive drug tests to a poppy seed muffin he ate out of Child’s
lunchbox. Father also provided a negative hair follicle test taken three
weeks after his last positive drug test. Finally, Father assured the court he
had not missed any required tests and that all tests since January had been
negative. The court ordered Father’s parenting time be supervised until he
could demonstrate 45 days of consistent, negative drug and alcohol test
results. The court also increased the frequency of Father’s alcohol testing
to three times a day during his parenting time.
¶8 For the next several months, Father consistently tested
negative for drugs and alcohol. Father missed a drug test on May 12, 2023,
due to an out-of-state trip. Father gave Mother advance notice that it was
possible he would miss the scheduled test. Father also completed an
unobserved drug test while on his trip, which came back negative. In
response, Mother filed a motion requesting sole legal decision-making
authority on the basis that Father violated the court’s drug testing order by
missing a scheduled test. Mother also requested that Father submit to a
hair follicle test. The court found that Father had violated the court’s drug
testing order by missing his scheduled test but denied Mother’s request for
sole legal decision-making authority. The court instead ordered Father to
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give Mother a written itinerary of any future travel plans and to file the
results of a hair follicle test. Father’s hair follicle test results were negative.
¶9 On June 22, 2023, the drug testing facility reported Father was
a “no show.” Father claimed the “no show” result was an error because the
facility refused to test him that day. To comply with the court’s drug testing
order, Father tested at a different facility the same day and filed his negative
results with the court.
¶10 The testing facility reported another “no show” for Father’s
scheduled test on July 15, 2023. Father explained the facility erroneously
scheduled him for a third weekly test on July 15, when he was only required
to test twice weekly. And despite having already tested negative twice that
week, upon receiving the “no show” report, Father went to another testing
facility and completed an observed test. That test was negative for all
substances.
¶11 On September 19, 2023, Father’s drug test was reported
positive because the sample was diluted. In response, Father opted to
submit to a hair follicle test on September 25, 2023, which came back
negative for all substances.
¶12 At the hearing on Mother’s petition to modify, the CAA
expressed concerns about Father’s substance abuse history and that Mother
was causing Child emotional distress by discussing the ongoing litigation
with Child. The CAA was also concerned that Father did not give a
complete history of his substance abuse during his screening, which might
have affected his treatment recommendation. The CAA, however, did not
recommend changing the existing joint legal decision-making order.
¶13 Mother testified she was concerned about Father’s missed
and diluted tests because, in her opinion, they demonstrated disrespect for
the court’s testing orders. Mother was also concerned Father was dishonest
in his substance abuse screening. But Mother testified she no longer sought
sole legal decision-making authority; rather, she sought joint legal decision-
making authority with her having the final say.
¶14 Father testified he had eleven months of negative hair follicle
tests and over 500 negative alcohol tests. Father also presented evidence
showing that in May 2023, he completed a substance abuse screening.
Father testified he gave the screening facility all his drug test results. In his
screening, Father admitted he used cocaine multiple times, including in
August 2022, but claimed he had not used drugs since. Father also told the
clinician that his relapse in August 2022 “was not a favorable experience
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and [he did] not want to do [it] again.” The clinician recommended no
further treatment for Father.
¶15 In its order on Mother’s petition to modify, the court first
found that Child had close bonds with Mother and Father, and it was in
Child’s best interests to continue splitting time between both parents. The
court then addressed Father’s drug use. The court found that Father’s
positive drug test from November 2022 clearly established that he abused
drugs within twelve months before Mother filed her petition, giving rise to
a rebuttable presumption against awarding him legal decision-making
authority. See A.R.S. § 25-403.04(A). The court, however, concluded that
Father rebutted the presumption because, except for the two missed tests,
Father complied with the court’s drug testing orders and completed
hundreds of negative alcohol tests. The court expressed concern with
Father’s diluted urinalysis test, but ultimately did not change its previous
order awarding Mother and Father joint legal decision-making authority.
¶16 The court also denied Mother and Father’s requests for
attorney fees, finding neither party acted unreasonably and there was no
substantial disparity of financial resources between the parties. Mother
filed a Motion to Alter or Amend the Judgment, which the court denied.
¶17 Mother timely appealed. We have jurisdiction. See A.R.S.
§ 12-2101(A)(1).
DISCUSSION
I. Legal Decision-Making
¶18 Mother argues the superior court erred by failing to properly
apply the statutory presumption against awarding joint legal decision-
making authority to a parent who has abused drugs within twelve months
before a petition is filed. See A.R.S. § 25-403.04.
¶19 We review the superior court’s ruling on legal decision-
making authority for an abuse of discretion. DeLuna v. Petitto, 247 Ariz. 420,
423 ¶ 9 (App. 2019). The court abuses its discretion “when the record is
‘devoid of competent evidence to support the decision,’ or when the court
commits an error of law in the process of reaching a discretionary
conclusion.” Engstrom v. McCarthy, 243 Ariz. 469, 471 ¶ 4 (App. 2018). We
do not reweigh the evidence on appeal. Lehn v. Al-Thanayyan, 246 Ariz. 277,
284 ¶ 20 (App. 2019).
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¶20 Section 25-403.04(A) creates a rebuttable presumption that it
is not in a child’s best interests to award sole or joint legal decision-making
authority to a parent who has abused drugs or alcohol within twelve
months before the petition is filed. The superior court must make
“[f]indings of fact that support its determination that the parent abused
drugs or alcohol,” and it must make further “[f]indings that the legal
decision-making or parenting time arrangement ordered by the court
appropriately protects the child.” A.R.S. § 25-403.04(A)(1)–(2). But a parent
may nonetheless rebut the presumption. See A.R.S. § 25-403.04(B). In
determining whether the parent has rebutted the presumption, the court
must consider the absence of any conviction for drug offenses, the results
of random drug testing over six months, and the results of alcohol or drug
screenings. A.R.S. § 25-403.04(B)(1)–(3).
¶21 Father admitted he used cocaine in August 2022, and his
November 2022 hair follicle test was positive for cocaine and
benzoylecgonine. The superior court therefore properly found that Father
abused drugs within the twelve months before Mother’s October 2022
petition. That finding triggered a rebuttable presumption against awarding
Father joint legal decision-making authority.
¶22 Mother contends the court erred in finding Father rebutted
the presumption because, in the six months before trial in November 2023,
Father missed two drug tests and had a diluted test. Mother asserts that,
pursuant to the terms of the court’s drug testing orders, these three tests
should have been treated as admissions of substance abuse preventing
Father from rebutting the presumption. See A.R.S. § 25-403.04(B)(2).
Mother also argues the court erred in finding Father rebutted the
presumption because he did not provide “reliable results” of alcohol or
drug screening. See A.R.S. § 25-403.04(B)(3).
¶23 Contrary to Mother’s argument, the court correctly applied
§ 25-403.04. Mother’s assertion that, to rebut the presumption, Father was
required to produce negative drug testing results for a six-month period
misreads the law. Subsection (A) requires the court to make explicit
findings whether a parent has abused alcohol or drugs to determine
whether the presumption applies. A.R.S. § 25-403.04(A)(1). But the next
step under subsection (B) requires the court to simply consider, at a
minimum, the absence of any conviction for drug offenses, the results of
random drug testing over a six-month period, and the results of substance
abuse screenings. A.R.S. § 25-403.04(B)(1)–(3). The legislature
differentiated between the explicit findings required under subsection (A)
and the evidence the court need only consider under subsection (B). And
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that differentiation matters. We will not read additional findings
requirements into the statute. See Hart v. Hart, 220 Ariz. 183, 187 ¶ 17 (App.
2009) (“[S]tandard principles of statutory construction require that we do
not judicially impose a requirement the legislature has intentionally chosen
not to require.”); Luchanski v. Congrove, 193 Ariz. 176, 179 ¶ 14 (App. 1998)
(“When the legislature has specifically included a term in some places
within a statute and excluded it in other places, courts will not read that
term into the sections from which it was excluded.”). The court was,
therefore, required only to consider Father’s missed tests and diluted
sample, which it did.
¶24 Although Mother is correct that the court was permitted to
consider Father’s two missed tests and diluted sample as admissions of
substance use, it was also permitted to view them as isolated instances in
the context of Father’s entire testing history. The record contains
approximately 54 negative drug tests and 299 negative alcohol tests from
the same six-month period. Moreover, Father provided approximately
eleven months of negative hair follicle test results and largely complied
with the court’s drug and alcohol testing orders. Mother has not
established that the court abused its discretion in concluding Father
rebutted the presumption despite having two missed tests and a diluted
sample.
¶25 Mother’s argument that the court erred in finding that Father
rebutted the presumption because he failed to provide “reliable results” of
alcohol or drug screening also fails. Again, the court was required only to
consider the results of a substance abuse screening. A.R.S. § 25-403.04(B)(3).
Nothing in the record indicates the court failed to do so. The court admitted
the results of Father’s substance abuse screening into evidence. The results
show Father admitted he used cocaine multiple times, including in August
2022, but had not used drugs since. During the screening, Father also stated
his relapse “was not a favorable experience and [he] does not want to do
[it] again.” The clinician ultimately recommended no further treatment for
Father.
¶26 The court also heard testimony on the topic from three
witnesses—Father, Mother, and the CAA. Father testified that he gave the
screening facility all his test results. Mother testified she did not believe
Father was truthful in his screening, but she also testified she was fine with
joint legal decision-making authority so long as she had the final say. And
while the CAA testified that she had concerns with how forthcoming Father
was during the screening, she still recommended Mother and Father have
joint legal decision-making authority. Although the court did not mention
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Father’s drug screening in its order, it heard evidence about the drug
screening, and that evidence reasonably supports the order. We, therefore,
infer the trial court made the findings necessary to sustain its judgment.
E.g., Boyle v. Boyle, 231 Ariz. 63, 67 ¶ 15 (App. 2012); Elliott v. Elliott, 165
Ariz. 128, 135 (App. 1990).
¶27 The record thus adequately supports the court’s findings that
Father rebutted the presumption. The court did not abuse its discretion in
awarding Mother and Father joint legal decision-making authority.
II. Superior Court Attorney Fees
¶28 Mother also challenges the court’s denial of her request for
attorney fees. Mother argues the court erred when it found no financial
disparity between the parties and that neither party acted unreasonably.
We review the court’s denial of attorney fees for an abuse of discretion. See
Magee v. Magee, 206 Ariz. 589, 590 ¶ 6 (App. 2004). The superior court may
award reasonable attorney fees after objectively considering (1) the
financial resources of both parties and (2) the reasonableness of each party’s
positions throughout the proceedings. A.R.S. § 25-324; In re the Marriage of
Williams, 219 Ariz. 546, 549 ¶ 11 (App. 2008).
¶29 Mother argues the court erred in finding no substantial
disparity of financial resources because the court found for child support
purposes that Mother’s monthly income was $4,712, while Father’s
monthly income was $22,024. Mother argues this is a significant disparity
supporting attorney fees. Mother also argues Father acted unreasonably
because he tested positive for drugs, violated court orders by missing tests,
and provided a diluted sample.
¶30 Mother overlooks that the court received evidence that her
income is amply supplemented by her husband’s income and that her
husband paid her legal fees. The court considered the parties’ financial
resources and had a justifiable reason for its decision.
¶31 Even after considering both statutory factors, awarding
attorney fees is squarely within the superior court’s discretion, which we
will not supplant. See A.R.S. § 25-324(A) (“The court from time to time
. . . may order a party to pay a reasonable amount to the other” for attorney
fees) (emphasis added); Myrick v. Maloney, 235 Ariz. 491, 494 ¶ 9 (App.
2014); Ferrill v. Ferrill, 253 Ariz. 393, 399 ¶ 25 (App. 2022) (“Balancing and
evaluating factors pertinent to an award of attorney[] fees is within the
superior court’s discretion, and this court will not substitute its discretion
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for that of the superior court.”). The superior court did not abuse its
discretion by denying Mother’s request for attorney fees.
ATTORNEY FEES
¶32 Both Mother and Father request attorney fees on appeal
under A.R.S. § 25-324. After reviewing the record and considering the
financial resources of both parties and the reasonableness of their positions,
we decline to award attorney fees to either party.
CONCLUSION
¶33 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AGFV
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