Crump v. Dobbs

GASS, Judge

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County
No. FC2019-096007
The Honorable John L. Blanchard, Judge

COUNSEL

Berkshire Law Office, PLLC, Tempe
By Kristi Reardon, Keith Berkshire
Counsel for Petitioner/Appellant

Presiding Judge David B. Gass delivered the decision of the Court, in which Judge Michael J. Brown and Judge David D. Weinzweig joined.

GASS, Judge:

¶1 Akishia Crump appeals a superior court order granting Ryan John Dobbs joint legal decision-making authority over their natural children and declining to award retroactive child support. Because awarding father joint legal decision-making authority was an abuse of discretion, we vacate that portion of the order. The superior court, however, did not abuse its discretion by failing to award mother retroactive child support. Accordingly, we affirm the child support award and remand for the superior court to amend its legal decision-making order consistent with this decision.

¶2 Mother and father never married. Mother petitioned to establish paternity, alleging father committed significant domestic violence against her. Mother sought sole legal decision-making authority for the couple's twin boys and reasonable child support. Father denied the domestic violence allegations and requested joint legal decision-making.

¶3 The superior court held an evidentiary hearing in which father stipulated to paternity. After the hearing, the superior court found the "undisputed testimony" established father was suffering from "a substantial mental health problem," which likely caused his behavior. Regarding the domestic violence allegations, the superior court found:

Mother's summaries and the supporting evidence, including recordings, evidence substantial and sustained emotional abuse, harassment, and threats of physical violence against Mother, the Children, and third-parties. There is no question that Father's conduct constitutes substantial domestic violence.

. . . .

In the spectrum of domestic violence, the acts in this case are significant such that the prohibition on awarding sole or joint decision-making authority to the parent who committed the act of domestic violence does apply.

¶4 Even so, the superior court awarded joint legal decision-making with mother having the final authority if she and father could not agree. The superior court then ordered father to begin making child support payments the following month.

¶5 Mother moved to alter or amend the superior court's order, arguing Arizona prohibits an award of joint legal decision-making authority after a finding of significant domestic violence. See A.R.S. § 25-403.03.A. Mother also sought to amend the child support order to include retroactive payments. The superior court summarily denied her motion. Mother timely appealed. This court has jurisdiction under Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101.A.1.

¶6 Mother argues the superior court abused its discretion by awarding father joint legal decision-making after finding he committed significant domestic violence. We agree.

¶7 This court reviews a legal decision-making order for an abuse of discretion but reviews de novo "conclusions of law and the interpretation of statutes." DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). A superior court abuses its discretion by committing "an error of law in reaching a discretionary decision." Id.

¶8 In a contested legal decision-making case, the superior court must determine the children's best interests. See A.R.S. § 25-403. In making this determination, the superior court must specifically determine whether "there has been domestic violence or child abuse pursuant to § 25-403.03." See A.R.S. § 25-403.A.8. Subsection 25-403.03.A, in turn, says, "joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence . . . or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence." (Emphasis added.)

¶9 Here, the superior court found, by a preponderance of the evidence, father's acts of domestic violence "are significant such that the prohibition [in subsection 25-403.03.A] on awarding sole or joint decision-making authority . . . does apply." This prohibition is not subject to the rebuttable presumption in subsection 25-403.03.D. See A.R.S. § 25-403.03.A ("Notwithstanding subsection D of this section, . . . ."). And giving mother "tie-breaking" authority does not "convert joint into sole legal decision-making." See Nicaise v. Sundaram, 245 Ariz. 566, 568-69, ¶¶ 13-14 (2019).

¶10 It, therefore, was an abuse of discretion to award father joint legal decision-making authority despite the statutory prohibition of such an award. See A.R.S. § 25-403.03.A.

¶11 Mother argues the superior court erred by awarding only prospective child support. This court reviews a child support award for an abuse of discretion, accepting the superior court's "findings of fact unless they are clearly erroneous." Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 493, ¶ 16 (App. 2020). Though father did not file an answering brief, we decline to consider his failure to do so as a confession of error. See Cardoso v. Soldo, 230 Ariz. 614, 616, ¶ 4 n.1 (App. 2012). Mother did not have a transcript of the evidentiary hearing prepared and forwarded to this court as required. See ARCAP 11(c). Our review is thus limited to the superior court's order and attached child support worksheet, showing mother's income is more than five times greater than father's.

¶12 On appeal, mother argues the superior court "is statutorily required to order child support retroactive to the filing of" her petition, citing subsection 25-320.B. Mother's claim, however, is governed by a different subsection because she and father "lived apart before the date of the filing for . . . child support." See A.R.S. § 25-320.C. Indeed, in her motion to amend the superior court's order, mother quoted subsection 25-320.C and rightly conceded it is discretionary.

¶13 The superior court reviewed the evidence and testimony and found a "deviated child support amount is in [the children's] best interests and is appropriate and warranted under the circumstances." See A.R.S. § 25-320.D (allowing deviation when "application of the guidelines would be inappropriate or unjust"). Given this finding, mother's significantly greater income, and her failure to provide a transcript, "we assume the [testimony at the hearing] would support the" superior court's decision to

award only prospective child support. See State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16 (App. 2003).

¶14 Accordingly, on this record, we cannot say the superior court abused its discretion. See Gonzalez-Gunter, 249 Ariz. at 493, ¶ 16.

¶15 Mother requests her attorney fees and costs associated with this appeal under A.R.S. § 25-324. We exercise our discretion and decline to award mother her attorney fees. As the successful party on appeal, we award mother her reasonable costs under § 12-342 upon compliance with ARCAP 21.

¶16 We affirm the superior court's child support award but vacate the portion of the order awarding father joint legal decision-making authority. We remand for the superior court to amend its order consistent with this decision.