Strovink v. Jones

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 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 Marriage of:
ROBERT N. STROVINK, Petitioner/Appellant,
v.
CHIFFON V. JONES, Respondent/Appellee.
No. 1 CA-CV 13-0604
FILED 11-20-14
Appeal from the Superior Court in Maricopa County
No. FC2011-005366
The Honorable Susan M. Brnovich, Judge
AFFIRMED
COUNSEL
Robert M. Strovink, El Mirage
Petitioner/Appellant
Chiffon V. Jones, Phoenix
Respondent/Appellee
STROVINK v. JONES
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.
GOULD, Judge:
¶1 Robert N. Strovink (“Father”) appeals the family court’s
decree awarding joint legal decision-making authority to him and his ex-
spouse, Chiffon V. Jones (“Mother”). Father also appeals the family court’s
award of child support in favor of Mother, and its denial of his petition for
in loco parentis custody of his stepchild. For the following reasons, we
affirm.1
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Mother were married in 2003. The marriage
produced one child, S.S. Mother also has a child, A.J., from a previous
relationship. Father filed a petition for dissolution in 2011, and both parties
sought sole legal decision-making authority for S.S. Father also requested,
over Mother’s objection, for in loco parentis custody of A.J.
¶3 The family court conducted a one-day hearing at which both
parties testified. The court then filed a decree awarding the parties joint
legal decision-making authority for S.S., designating Mother as the primary
residential parent, and ordering Father to pay child support to Mother. The
family court also denied Father’s request for in loco parentis custody of A.J.
¶4 Father, who had filed a pre-trial request for findings of fact
and conclusions of law, moved to amend the court’s findings and
conclusions regarding legal decision-making authority and child support.
Mother agreed with Father that the parenting time order should be
amended because it conflicted with her work schedule. The family court
subsequently amended the decree, in relevant part, by filing two orders
1 Mother did not file an Answering Brief. Because child custody is at
issue, we will not treat this omission as a confession of error. See Hoffman
v. Hoffman, 4 Ariz. App. 83, 85, 417 P.2d 717, 719 (1966); see generally Ariz. R.
Civ. App. P. 15(c).
2
STROVINK v. JONES
Decision of the Court
stating that (1) neither party was designated as the primary residential
parent and (2) awarding both parties equal parenting time. The family
court then revised the amount of child support to reflect the fact that
Mother and Father shared equal parenting time, and reduced Father’s
monthly child support obligation from $293 to $76 per month.
¶5 Father timely appeals from the decree.
DISCUSSION
I. Default/Sanctions
¶6 Father initially contends that the family court should have
entered a default or sanctioned Mother by denying her a “defense” based
on her failure to respond/untimely responses to his pleadings and motion
to compel. Whether to impose sanctions is an issue generally left to a family
court’s sound discretion. Woodworth v. Woodworth, 202 Ariz. 179, 180, ¶ 2,
42 P.3d 610, 611 (App. 2002). The child’s interest is paramount, however,
and we cannot agree that Mother should forfeit the right to present
evidence based upon these actions. “When custody of children is involved
in a court proceeding, it seems to us to be the duty of the trial court to hear
all competent evidence which may be offered.” Hays v. Gama, 205 Ariz. 99,
103, ¶ 21, 67 P.3d 695, 699 (2003) (citation omitted) (vacating evidentiary
sanction in child custody case). Nor can we agree with Father’s
unsupported statement that the failure to award sanctions against Mother
was a “tribute to [the trial judge’s] own bias and prejudices.”
II. Joint Legal Decision-Making for S.S.
¶7 Father contends that the family court erroneously awarded
the parties joint legal-decision making for S.S. Father argues that he should
have been awarded sole legal decision-making authority and designated as
the primary residential parent. We review the family court’s determination
as to legal decision-making for an abuse of discretion. Owen v. Blackhawk,
206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). Because Father
requested findings of fact and conclusions of law prior to trial, the family
court must expressly state the basis for its conclusions. Kelsey v. Kelsey, 186
Ariz. 49, 50-51, 918 P.2d 1067, 1068-69 (App. 1996). We will uphold the
family court’s factual findings absent clear error. In re Marriage of Berger,
140 Ariz. 156, 161, 680 P.2d 1217, 1222 (App. 1983).
¶8 As a preliminary matter, we note that Father has failed to
provide a transcript of the dissolution trial. As the appellant, Father is
required to provide a complete record to this court, including a trial
3
STROVINK v. JONES
Decision of the Court
transcript. See Ariz. R. Civ. App. P. 11(b)(1). In the absence of a transcript,
we presume the record supports the family court’s findings and
conclusions. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995)
(affirming decision in the absence of a transcript).
¶9 In challenging the family court’s joint legal decision-making
determination, Father argues that the findings made by the family court
pursuant to A.R.S. § 25-403(A) were insufficient, and that the evidence
presented at trial did not support its findings. In making a determination
concerning legal decision-making, the family court must consider the best
interests of the child and all of the factors listed in A.R.S. § 25-403(A).
Additionally, the family court must make express findings as to each factor
and explain its reasoning in support of each finding. A.R.S. § 25-403(B).
¶10 Here, the decree reflects that the family court made findings
as to each factor under A.R.S. § 25-403(A), and cited specific evidence to
support all of its findings. We find no error.
¶11 Nonetheless, Father asks this court to reweigh the evidence
presented at trial, contending that it supports an award of sole legal
decision-making to him. However, this court’s “duty on review does not
include re-weighing conflicting evidence.” Hurd v. Hurd, 223 Ariz. 48, 52,
¶ 16, 219 P.3d 258, 262 (App. 2009). The family court was in the best position
to weigh this evidence, and we will not re-weigh it on appeal. Gutierrez v.
Gutierrez, 193 Ariz. 343, 347-48, ¶ 13, 972 P.2d 676, 680-81 (App. 1998); see
also Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203,
205 (App. 2002) (explaining that the trier of fact is in the best position to
weigh evidence). Additionally, because there is no trial transcript, we
presume the record supports the family court’s findings. See Baker, 183
Ariz. at 73, 900 P.2d at 767.
¶12 Accordingly, we conclude the family court did not err in
awarding joint legal decision-making to the parties.
III. In Loco Parentis Custody of A.J.
¶13 Father also contends the family court erred by denying his
request for in loco parentis custody of A.J. We review a family court’s
decision regarding in loco parentis custody for an abuse of discretion. Egan
v. Fridlund-Horne, 221 Ariz. 229, 240-41, ¶ 43, 211 P.3d 1213, 1224-25 (App.
2009).
¶14 In order to show he stood in loco parentis to A.J., Father was
required to prove A.J. treated him as a parent and that he had “formed a
4
STROVINK v. JONES
Decision of the Court
meaningful relationship” with A.J. “for a substantial period of time.” A.R.S.
§ 25-401(1), -415(A)(1) (2012).2 In addition to establishing an in loco parentis
relationship, Father was required to prove “[i]t would be significantly
detrimental” for A.J. “to remain . . . in the custody” of Mother, who in fact
wished to retain custody. A.R.S. § 25-415(A)(2) (2007). A rebuttable
presumption exists that it is in A.J.’s best interest to award custody to
Mother, her legal parent. See A.R.S. § 25-415(B); see also A.R.S. § 25-415(G)(2)
(defining a “legal parent” as “a biological or adoptive parent whose
parental rights have not been terminated”). To rebut this presumption,
Father was required to produce clear and convincing evidence that
awarding custody to Mother was not in A.J.’s best interests. See A.R.S. § 25-
415(B).
¶15 The family court determined that Father failed to show he
stood in loco parentis to A.J. The family court found that despite the fact
Father was A.J’s stepfather for seven years, Father treated A.J. “differently
than his natural daughter,” and there was “no evidence” that a father-
daughter bond ever developed. We presume that the transcript supports
this finding. See Baker, 183 Ariz. at 73, 900 P.2d at 767.
¶16 The limited record available to us also supports the family
court’s finding. Mother took A.J. to Michigan before this case commenced.
The family court also found that Father admitted to hitting A.J., and that
Mother sent A.J. to Michigan “to protect her from [Father].” During her
absence, Father acknowledged that A.J. did not want to return home.
According to Mother, A.J. has had no contact with Father since March 2011
and has told Mother on several occasions that “she wants nothing to do
with [Father] and wishes he would leave her alone.”
¶17 On this record, we affirm the family court’s finding that
Father failed to show, by clear and convincing evidence, that he stood in an
in loco parentis relationship with A.J.
2 The trial in this case occurred in 2012. The Arizona Legislature
revised the statutes for third-party rights effective January 1, 2013. The
applicable statute is now A.R.S. § 25-409 (Supp. 2014).
5
STROVINK v. JONES
Decision of the Court
IV. Child Support3
A. Earning Capacity
¶18 Father argues that the child support order erroneously
attributes monthly income to him of $2800 per month, or $33,600 annually,
when his last tax return reported earnings of $19,188. We review the family
court’s child support determination for abuse of discretion. Little v. Little,
193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999). Our review of the court’s
interpretation of the Arizona Child Support Guidelines, A.R.S. § 25-320
app. § 5(E) (Supp. 2014) (“Guidelines”), is de novo. Clay v. Clay, 208 Ariz.
200, 202, ¶ 5, 92 P.3d 426, 428 (App. 2004).
¶19 Courts may look to earning capacity and prior work
experience in evaluating a parent’s income for purposes of child support.
Guidelines § 5(E) (if a parent is unemployed or working below full earning
capacity, the family court may consider the reasons and “may attribute
income to a parent up to his or her earning capacity”); Taliaferro v. Taliaferro,
188 Ariz. 333, 337, 935 P.2d 911, 915 (App. 1996). Father sustained a
shoulder injury in 1997 but continued to work as a carrier for the U.S. Postal
Service until 2005. He is now unemployed. Mother contended that the
family court should attribute at least part-time income of $1200 per month
to Father in view of his paralegal associate degree. The family court
adopted Mother’s income figure and added it to Father’s monthly $1600
payments from Social Security. The court found “no evidence” of a
disability preventing Father from working as a paralegal.
¶20 The family court acted within its discretion in implicitly
rejecting Father’s claim that job prospects offering much lower earnings,
such as a light cashier, represented his actual earning capacity. Because we
lack a trial transcript, we assume that the trial record supports the family
court’s income attribution. See Baker, 183 Ariz. at 73, 900 P.2d at 767.
¶21 Moreover, the limited record before us fails to support
Father’s argument. According to Father, a ruling by an administrative law
judge (“ALJ”) supports his inability to secure employment as a paralegal.
3 Father also claimed that the family court should have attributed a
different annual income to Mother. Because he failed to cite legal
authorities and the record, and did not otherwise develop this argument,
we decline to address it. See Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2,
¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (declining to consider an undeveloped
argument mentioned in passing); see generally Ariz. R. Civ. App. P. 13(a)(6).
6
STROVINK v. JONES
Decision of the Court
That November 30, 2012 ruling, however, post-dates the decree and was
only submitted to the family court with a motion for reconsideration.
Although acknowledging Father’s shoulder injury, the ALJ found that
Father was “not under a disability” and “there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed.” Examples of occupations “in significant numbers” available
to Father include mail clerk, cashier, and ticket taker. The ALJ did not state
that Father was incapable of working as a paralegal; rather, the ALJ noted
that Father had told a physician he had unsuccessfully sought work in that
field.
¶22 Accordingly, on this record, we hold that the family court
appropriately attributed part-time income to Father. See Taliaferro, 188 Ariz.
at 336-37, 935 P.2d at 914-15 (affirming attribution of income to father who
was capable of gainful employment notwithstanding his receipt of
disability benefits).
B. Support Calculation
¶23 Father argues the family court’s child support calculation is
erroneous because it credits Mother with a half-day of parenting time when
she actually spends six hours with the child that day. As the family court
noted, Father never states what the adjustment should be, and the court had
already revised its support calculation to reflect equal parenting time. Even
assuming that the family court erred in crediting Mother for six extra hours
per week, any impact on the $76 monthly support award was de minimis
and does not constitute an abuse of discretion.
C. Insurance Cost
¶24 Father further complains that he is required to pay “all” of
Mother’s health insurance costs and contends that the funds are not child
support. We disagree.
¶25 Mother’s affidavit of financial information states that her
medical plan charges $87.23 for insuring S.S., and the dental plan charges
$16.62. The combined charge is $103.85. The family court explained that it
attributed $100 to this expense, not the $300 as Father had claimed. The cost
of this insurance qualifies as child support. See A.R.S. § 25-500(9) (Supp.
2014) (defining “support” as “the provision of maintenance or subsistence
and includes medical insurance coverage, or cash medical support, and
uncovered medical costs for the child, arrearages, interest on arrearages,
past support, interest on past support and reimbursement for expended
public assistance”).
7
STROVINK v. JONES
Decision of the Court
CONCLUSION
¶26 We affirm the family court’s decree.
:jt
8