Luvisi v. Ellison

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DANIEL LUVISI, Petitioner/Appellee,
v.
TAYLOR CLAIRE ELLISON, Respondent/Appellant.
No. 1 CA-CV 21-0380 FC
FILED 1-13-2022
Appeal from the Superior Court in Maricopa County
No. FC2016-072434
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Taylor Claire Ellison, Phoenix
Respondent/Appellant
LUVISI v. ELLISON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Michael J. Brown joined.
C R U Z, Judge:
¶1 Taylor Claire Ellison (“Mother”) appeals from the superior
court’s ruling denying her motion for an order directing Daniel Luvisi
(“Father”) to reimburse her for certain expenses, motion to remove
supervised visits, and petition to enforce parenting time.1 For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Father were married in August 2010 and share a
daughter, E.L., born in May 2013. Father filed a petition for dissolution in
December 2016. In a resulting May 2017 decree of dissolution of marriage,
the parties were awarded joint legal decision-making authority and equal
parenting time.
¶3 In January 2020, Father filed an emergency motion for
temporary orders regarding parenting time. Father alleged Mother was
abusing opioid pain killers, and Mother was expelled from her family’s
home for abusing illicit substances, leaving her homeless. Father also
alleged a Department of Child Safety (“DCS”) investigation had been
opened, but Mother was not cooperating. Following the emergency
hearing, the court ordered Mother to participate in drug testing, appointed
a court appointed advisor (“CAA”) to investigate Father’s allegations, and
set an evidentiary hearing for April 6, 2020. The prior parenting time orders
remained in effect.
¶4 Mother’s two drug tests were negative for illicit substances.
Due to COVID-19 restrictions, the court vacated the evidentiary hearing
1 Father did not file an answering brief, which we may, in our
discretion, deem a confession of reversible error. McDowell Mountain Ranch
Cmty. Ass’n, Inc. v. Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007). Particularly
given that the best interests of a child are involved, we decline to do so.
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and instead scheduled a telephonic status conference on April 8, 2020 to
discuss rescheduling the evidentiary hearing.
¶5 In early April 2020, E.L. returned to Father’s home for his
parenting time with an iPad she brought from Mother’s home. As he later
alleged, while assisting E.L. with her homework on the iPad, Father
observed numerous pornographic images, pictures of multiple prescription
bottles in Mother’s home within E.L.’s reach, a picture of a white crystalline
substance, and nude photos of Mother and E.L. The iPad also contained
text messages of what appeared to be Mother soliciting prostitution,
including an exchange with someone asking Mother for “both of you” and
“pics of you both.” Father also found text messages from Mother
requesting someone to “steal” or purchase a prescription drug for her.
¶6 Father gave the iPad to an IT professional to have the files and
photos copied. The IT professional indicated that the photos and files were
stored “in the cloud,” and it appeared Mother was deleting the files
remotely. Father then delivered the iPad to law enforcement, which opened
a criminal investigation, and DCS was also notified. In a proceeding
separate from the underlying matter, Father sought and obtained an order
of protection against Mother, that also included E.L. as a protected party.
¶7 At the April 8, 2020 telephonic status conference, Father
notified the court that he had successfully obtained an order of protection,
and so temporary orders regarding parenting time were no longer needed.
The court vacated the hearing and scheduled a status conference for July
2020 “to determine where things are” with the DCS and law enforcement
investigations.
¶8 In May 2020, Father filed another emergency petition to
modify parenting time. Father indicated that the order of protection had
been dismissed, and so he requested the court revoke Mother’s parenting
time. At an emergency hearing in May 2020, the court issued temporary
orders that Mother have four hours of supervised parenting time a week,
with Mother responsible for supervision costs. The court ordered Mother
to locate a supervisor and email Father the name of the proposed supervisor
and visitation dates. The court further ordered Mother to undergo a
psychological evaluation, with the cost to be split equally between the two
parties, subject to reallocation. Finally, the court ordered Mother to
participate in random drug testing, at Mother’s cost.
¶9 In February 2021, Mother filed a motion to remove the
requirement that her parenting time be supervised and a motion for
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reimbursement. Mother requested an order requiring Father to reimburse
her for half the cost of the psychological evaluation, drug testing, mailing,
and notary services. The following month, Mother filed a petition to
enforce parenting time, arguing Father was not cooperating with her
selected supervising agency in scheduling visits, and that he wrote a
disparaging email to her proposed visitation supervisor.
¶10 The court addressed Father’s motion to modify parenting
time, Mother’s petition to enforce parenting time, Mother’s motion to
remove the parenting time supervision requirement, and Mother’s motion
for reimbursement at an April 2021 hearing. At that hearing, Mother,
Father, and the CAA testified. Father provided evidence that the DCS and
law enforcement investigations were ongoing. Some of the photos and text
messages from the iPad were admitted into evidence, along with reports
from the psychological evaluator and the CAA. The court also reviewed
Mother’s drug testing results.
¶11 Given the nature of the photographs of E.L. and Mother,
Mother’s positive drug tests, recent inconsistent drug testing, and Father’s
testimony regarding Mother’s history of substance abuse, the court found
supervised visits were in E.L.’s best interests and ordered supervised
parenting time of four hours per week. The court further ordered that
Mother could have unsupervised parenting time after submitting twelve
months of clean drug testing results with no missed tests, successful
completion of a substance abuse treatment program within one year and
providing proof that any criminal or DCS case is closed.
¶12 Regarding Mother’s petition to enforce parenting time, the
court ordered Mother could select a professional supervisor without input
from Father. Finally, the court denied any other affirmative relief sought
before the date of the order that was not expressly granted.
¶13 Mother timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2). See Yee v. Yee,
251 Ariz. 71, 76, ¶ 13 (App. 2021).
DISCUSSION
I. Supervised Parenting Time
¶14 The superior court must “determine legal decision-making
and parenting time . . . in accordance with the best interests of the child.”
A.R.S. § 25-403(A). The court may order supervised parenting time if it
finds “that in the absence of supervision the children’s physical health
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would be endangered or their emotional development significantly
impaired or that unsupervised parenting time would seriously endanger
the children’s physical, mental, moral, or emotional health.” Hart v. Hart,
220 Ariz. 183, 187, ¶ 16 (App. 2009); see also A.R.S. §§ 25-403.04, -410(B),
-411(J). The court is not required to make findings on the record to support
a supervision order, but the evidence must support the order. Hart, 220
Ariz. at 187-88, ¶¶ 16, 19; see also Taliaferro v. Taliaferro, 188 Ariz. 333, 335-36
(App. 1996). We review the superior court’s parenting time orders for an
abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003).
We will uphold the superior court’s factual findings unless clearly
erroneous. In re Marriage of Berger, 140 Ariz. 156, 161 (App. 1983).
¶15 The superior court found supervised parenting time was in
E.L.’s best interests, and the evidence supports the finding that
“unsupervised parenting time would seriously endanger [E.L.]’s physical,
mental, moral, or emotional health.” See Hart, 220 Ariz. at 187, ¶ 16. The
superior court had “grave concerns about photos Mother admittedly took
of the child, Mother’s alleged abuse of narcotics, and Mother’s lack of
understanding regarding exposing the child to certain sexually explicit
images.” Mother has shown no error.
¶16 A significant portion of Mother’s brief challenges Father’s
evidence and the superior court’s factual findings, including
determinations of Mother’s credibility, the status of the DCS and police
investigations, the wishes of E.L. regarding custody, that Father is
physically and mentally healthy, and that Father is more likely than Mother
to allow frequent and meaningful contact with E.L. However, we do not
reweigh conflicting evidence on appeal and, instead, give due regard to the
court’s credibility determinations. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App.
2009).
¶17 Mother also argues there is no evidence to support the
superior court’s finding that she suffered from substance abuse issues.
Mother claims she did not submit any negative drug tests, but the record
demonstrates Mother tested positive for amphetamines in May and June
2020, and she was a “no show” for testing nine times between November
2020 and April 2021. After Mother was ordered to begin testing for
buprenorphine, her results were positive for that substance at each
subsequent drug test. While Mother claims she is taking this substance to
treat chronic pain, the superior court found Mother lacked credibility,
especially given what appeared to be a personal relationship between
Mother and her prescribing doctor, as evidenced by their text
conversations. Further, Father provided testimony regarding Mother’s
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long history of abusing prescription drugs and Mother’s tablet contained
photos of multiple prescription bottles. Mother denies these allegations;
but again, we do not second-guess the superior court’s credibility
determinations, nor do we reweigh conflicting evidence on appeal. See
Hurd, 223 Ariz. at 52, ¶ 16. Substantial evidence supports the superior
court’s finding that Mother had a drug abuse problem that justified
supervised visitation. See id.
¶18 Another significant portion of Mother’s brief identifies
several arguments that are undeveloped and unsupported by authority.
For example, Mother vaguely argues that Father and Father’s counsel
violated her rights by accessing her iPad without permission, but she fails
to support that argument factually or legally and fails to explain which
rights were violated. Mother also contends the court failed to advise her of
her Fifth Amendment rights until after she began testifying, but she does
not identify which incriminating statements she was compelled to make.
See State v. Maldonado, 181 Ariz. 208, 210 (App. 1994) (“[A] witness does not
possess an absolute right to raise the Fifth Amendment to avoid testifying.
The witness must first show a reasonable ground to apprehend danger
from [her] being compelled to answer.”) (internal quotation marks and
citations omitted). Mother also claims the court erred in failing to order the
parents to participate in co-parenting counseling as recommended by the
psychologist, but cites to no legal authority holding the court is bound by
an evaluator’s recommendations. Accordingly, she has waived these
arguments on appeal, and we do not address them further. See Sholes v.
Fernando, 228 Ariz. 455, 460, ¶ 14 n.3 (App. 2011); Polanco v. Indus. Comm’n,
214 Ariz. 489, 491, ¶ 6 n.2 (App. 2007).
¶19 Finally, Mother raises various challenges as to the admission
of the tablet photos at the hearing. Mother argues Father “did not provide
the basis” of the images, “did not provide how he obtained” the images, he
did not provide the physical iPad, and he did not provide “a basis for an IT
professional” who allegedly pulled the photos off the iPad for Father. To
the extent Mother is raising authentication issues, there is no indication the
Rules of Evidence were invoked at the hearing. See Ariz. R. Fam. Law P.
2(b)(1). Nevertheless, Mother fails to cite any authority to support her
suggestion that the tablet photos were not properly admitted. She has
shown no error.
¶20 The superior court did not abuse its discretion in finding
“unsupervised parenting time would seriously endanger [E.L.]’s physical,
mental, moral, or emotional health.” See Hart, 220 Ariz. at 187, ¶ 16.
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II. Reimbursement
¶21 Mother also argues that the court failed to address her request
for reimbursement. Before the hearing, and in taking the matters under
advisement at the hearing, the court issued minute entries stating it would
address Mother’s motion for reimbursement. Although there is no specific
mention of Mother’s request for reimbursement in the court’s ruling, the
superior court denied “any affirmative relief sought before the date of this
Order that is not expressly granted above,” which would encompass
Mother’s request for reimbursement. Mother did not make a request for
written findings, did not request clarification or reconsideration and has
failed to submit the hearing transcript. We assume the missing portions of
the record support the superior court’s ruling. See Baker v. Baker, 183 Ariz.
70, 73 (App. 1995); see also ARCAP 11(c); Horton v. Mitchell, 200 Ariz. 523,
526, ¶ 13 (App. 2001) (“When there is no request for findings and the trial
court does not make specific findings of fact, we must assume that the trial
court found every fact necessary to support its [ruling] and must affirm if
any reasonable construction of the evidence justifies the decision.”)
(internal quotation marks and citations omitted).
¶22 Mother argues the court erred in failing to order Father to
reimburse her for half of the psychological evaluation fee and all of the drug
testing fees. While the court initially ordered the parties to equally pay the
fees for the psychological evaluation, it stated the fees were “subject to
reallocation.” Again, Mother failed to submit the hearing transcript, and so
we assume the record supports the court’s allocation of these costs to
Mother. See Baker, 183 Ariz. at 73; ARCAP 11(c). Mother fails to elaborate
or cite to any authority that would show she is entitled to reimbursement
for these costs. She has shown no error.
¶23 Finally, Mother asks that we order Father to reimburse her for
a court filing fee and supervision costs. However, Mother failed to raise
these requests in her motion before the superior court. Therefore, she has
waived these arguments. Cont’l Lighting & Contracting, Inc. v. Premier
Grading & Utils., LLC, 227 Ariz. 382, 386, ¶ 12 (App. 2011) (arguments not
raised with the superior court are waived on appeal). Further, this court
cannot award superior court costs on appeal. See ARCAP 21(b)(1) (allows
court to award only costs incurred “on appeal or review”).
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CONCLUSION
¶24 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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