Hillegass v. Garmon

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
BRETT DAVID HILLEGASS, Petitioner/Appellant,
v.
MELISSA MEJIA GARMON and TREVOR GARMON,
Respondents/Appellees.
SANDY L. and DONALD R. HILLEGASS, Intervenors/Appellees.
No. 1 CA-CV 13-0201
FILED 2-25-2014
Appeal from the Superior Court in Maricopa County
No. FC2011-002642
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
Brett David Hillegass, Florence
Petitioner/Appellant In Propria Persona
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
W I N T H R O P, Judge:
HILLEGASS v. GARMON et al.
Decision of the Court
¶1 Brett David Hillegass (“Appellant”) appeals the family
court’s judgment determining paternity, custody, parenting time, and
child support, and the court’s subsequent order granting in part and
denying in part Appellant’s motion to alter or amend the judgment.
Appellant raises several issues primarily related to his parenting time. For
the following reasons, including that the court’s subsequent orders have
largely rendered his arguments moot, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On August 20, 2005, the child who is the subject of this
appeal was born to Melissa Mejia Garmon (“Mother”). Appellant and
Mother have never been married; in fact, Mother was married to Trevor
Garmon (“Garmon”) at the time of the child’s conception and birth.1
Nevertheless, Appellant has maintained that he is the biological father of
the child.
¶3 Appellant is an inmate in the Arizona Department of
Corrections (“ADOC”), and has a history of drug addiction and an
extended criminal record, including multiple felony convictions for
possession of dangerous drugs for sale. In 2006, he received sentences
totaling fifteen years for drug-related felonies committed in May and
August 2005.
¶4 In 2010, pursuant to a stipulated agreement entered between
Appellant and Mother, Appellant submitted to a private paternity test,
which indicated a 99.996 percent probability of his being the child’s
biological father. In April 2011, Appellant filed a “Petition for Paternity,
Child Custody, Parenting Time and Child Support,” through which he
sought a determination of paternity and either joint custody or visitation
rights.
¶5 On September 13, 2012, the family court held an evidentiary
hearing on Appellant’s April 2011 petition. In a detailed, signed judgment
filed October 8, 2012, the family court in part (1) found that Appellant is
the natural father of the child, and ordered the child’s birth certificate
amended to reflect that fact, (2) denied Appellant’s request to change the
child’s name, (3) ordered Mother to complete an approved parent
education program and file proof of completion by October 31, 2012, (4)
1 Mother and Garmon were divorced on May 20, 2013.
2
HILLEGASS v. GARMON et al.
Decision of the Court
considered the best interest of the child pursuant to Arizona Revised
Statutes (“A.R.S.”) section 25-403, 2 (5) awarded Mother sole legal custody
of the child, (6) outlined custody terms, (7) ordered that Father could
exercise limited parenting time, subject to specified conditions, including
prior evaluation and approval by a court-appointed therapeutic
interventionist, and (8) after noting that neither party had presented any
evidence of financial factors in the matter, declined to order child support,
without prejudice to subsequent petitions to modify the court’s order.
Within the judgment, the court also ordered a follow-up status conference
“to specifically review the status of the visits and to determine whether
the visits should be increased or decreased based upon the testimony of
the parties and input from the Therapeutic Interventionist.” 3
¶6 On October 19, 2012, Appellant filed a “Motion to Alter or
Amend Judgment or Alternatively Motion for New Trial or Alternatively
Motion for Relief From Judgment.” In the motion, Appellant argued
primarily that the therapeutic interventionist’s fees were beyond his
financial means, and he requested that the family court (1) order Mother
to pay fifty percent of the fees, (2) find a less expensive alternative, and (3)
order ADOC to provide him with telephonic access and visitation “as
needed.” Appellant also raised several other issues, which he described
as “ancillary matters,” including requesting that the court reconsider its
order denying his request to change the child’s name on the birth
certificate and issue orders designed to facilitate his access to Mother and
the child.
¶7 In a signed minute entry filed February 11, 2013, the family
court granted in part the motion by ordering that Mother and Appellant
each be responsible for fifty percent of the therapeutic interventionist’s
fees. The court otherwise denied Appellant’s motion.
¶8 Appellant filed a timely notice of appeal from the court’s
October 2012 judgment and February 2013 order. This court has
2 We cite the current version of the applicable statutes unless
changes material to our decision have occurred.
3 The family court issued a separate order setting out the role and
responsibilities of the therapeutic interventionist, including providing for
“90-day intervention summaries to the court” and other reporting as
necessary.
3
HILLEGASS v. GARMON et al.
Decision of the Court
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1) and
(5)(a).
ANALYSIS
¶9 Appellant raises several arguments reflecting his
dissatisfaction with the family court, including that he was unable to
provide a transcript of the September 13, 2012 evidentiary hearing because
the court failed to assist him. However, Appellant points to no evidence
that he requested any assistance. Moreover, as the appellant in a civil
case, it is Appellant’s responsibility to ensure the record on appeal
contains all transcripts and documents necessary to address the issues
raised on appeal. State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30,
¶ 16, 66 P.3d 70, 73 (App. 2003); ARCAP 11(b)(1). When a party fails to
include necessary items in the record on appeal, we assume the missing
items support the family court’s findings and conclusions. Baker v. Baker,
183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).
¶10 Appellant also asserts the family court violated Article 6,
Section 21, of the Arizona Constitution and Rule 91(e), Arizona Rules of
the Supreme Court, by failing to rule within sixty days on several of the
myriad pretrial motions before the court. Even assuming without
deciding that each of Appellant’s assertions is correct, these provisions are
directory, not mandatory. In re Estate of Appleton, 15 Ariz. App. 490, 493,
489 P.2d 864, 867 (1971). Thus, even if the family court failed to rule on a
matter within sixty days, the remedy is merely a mandate from this court
that the family court enter a ruling on the matter. See W. Sav. & Loan Ass’n
v. Diamond Lazy K Guest Ranch, Inc., 18 Ariz. App. 256, 261, 501 P.2d 432,
437 (1972). In this case, the record indicates the family court ultimately
addressed the numerous matters Appellant raised. 4
¶11 Appellant also contends the family court abused its
discretion by ordering therapeutic intervention without considering a less
4 Appellant also complains the family court did not timely rule on a
letter from the therapeutic interventionist. In the letter, the therapeutic
interventionist requested release from her appointment, primarily due to
Appellant’s purported inability to pay. The letter was not a pleading filed
with the court, and the court ostensibly addressed the matter in its
February 2013 order modifying the terms of payment. Furthermore, as we
indicate infra, this matter is now moot.
4
HILLEGASS v. GARMON et al.
Decision of the Court
expensive alternative based upon Appellant’s financial status. However,
because Appellant has failed to provide a transcript of the September 13,
2012 evidentiary hearing, we presume the missing transcript would
support the family court’s findings and conclusions. Baker, 183 Ariz. at 73,
900 P.2d at 767. Moreover, the limited record refutes the premise
underlying Appellant’s contention because, as we have recognized, the
court indicated within its judgment that neither party had presented any
evidence at the evidentiary hearing regarding financial factors in this
matter.5
¶12 Appellant further argues the family court abused its
discretion in failing to address the therapeutic interventionist’s request for
release, declining to find Mother and Garmon in contempt of court for
lack of compliance with court orders, and not requiring Mother to provide
her address to Appellant. Although Appellant attempts to bolster his
argument in part based upon his personal “summary” of the testimony
proffered at the September 13, 2012 hearing, we do not consider his
“summary” absent the transcript. See generally id.
¶13 Moreover, our review of the family court’s subsequent
minute entries in this case makes clear that the court has consistently
addressed Appellant’s complaints. See State v. Valenzuela, 109 Ariz. 109,
110, 506 P.2d 240, 241 (1973) (recognizing that the reviewing court may
take judicial notice of the records of the superior court). Since July 2013,
the court has held three status conferences and an additional evidentiary
hearing. Further, the court’s minute entries indicate that, after receiving
an update from the therapeutic interventionist, the court issued orders
allowing the parties to seek a more affordable alternative for reunification
therapy, and later accepted the recommendation of the child’s paternal
grandmother to appoint the grandmother’s colleague, Dr. Marge Jones-
Schafer, to facilitate the integration of the child, subject to acceptance of
the role by Dr. Jones-Schafer.
¶14 The record further indicates the court issued additional
orders requiring Mother to, inter alia, comply with and pay half the costs
of amending the birth certificate, file her parent information program
5 Despite Appellant’s contention that he lacks any financial means to
pay a therapeutic interventionist, Appellant acknowledges that, in
addition to the scant wages he earns in prison, his parents provided him
with $750.00 for that purpose. Nevertheless, the family court has recently
found that “both parties are indigent.”
5
HILLEGASS v. GARMON et al.
Decision of the Court
certificate, arrange for payment of the court-approved therapeutic
interventionist, and draft a signed, notarized letter authorizing the
paternal grandmother to bring the child to the prison facility to visit
Appellant. 6 Additionally, the family court has ordered Mother to
communicate with the paternal grandparents on various matters,
including the child’s whereabouts, and provide Appellant with the child’s
progress reports from the past year, school information, shot records,
contact information for the child’s doctor, and a monthly letter regarding
the child’s status. The court has also ordered Mother to contact the child’s
school to ensure Appellant is listed as the child’s father at the school and
placed on the school’s correspondence list. 7 Finally, the family court has
appointed a “Best Interests Attorney,” or “Court-Appointed Advisor,” to
investigate and make recommendations to the court regarding the child’s
living arrangements, Mother’s involvement in parenting the child,
whether guardianship should be considered, and any other issues in the
best interests of the child. 8 Accordingly, the family court’s orders have
rendered moot Appellant’s arguments regarding the therapeutic
interventionist, Mother’s lack of compliance with court orders, and
Appellant’s purported need to contact Mother.
6 Mother has since presented the court with a certificate indicating
she has completed the parenting class and a copy of the child’s birth
certificate as ordered, signed a paternal “Grandparent Visitation
Schedule” affirmed by the court, and at the court’s direction, signed an
“Application to Visit Inmate” document, allowing the paternal
grandparents to take the child to visit Appellant in prison.
7 The court has provided for fines for Mother’s non-compliance with
several of the court’s orders.
8 The court has ordered the Office of Public Defense Services to
“reimburse the fees and costs of the Court Appointed Advisor, subject to
reallocation.”
6
HILLEGASS v. GARMON et al.
Decision of the Court
CONCLUSION
¶15 We affirm the family court’s judgment filed October 8, 2012,
and order filed February 11, 2013.
:mjt
7