Dean v. Culp

NOTICE: NOT FOR PUBLICATION.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 Matter of:

DANIELLE ASHLEY E. DEAN, Petitioner/Appellant,

v.

BRADLEY R. CULP, Respondent/Appellee.

No. 1 CA-CV 13-0501
FILED 09-30-2014

Appeal from the Superior Court in Maricopa County
FC2008-053836, FC2009-002749
(Consolidated)
The Honorable Kristin C. Hoffman, Judge

AFFIRMED

COUNSEL

J. Douglas McVay, Phoenix
Counsel for Petitioner/Appellant
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.

B R O W N, Judge:

¶1 Danielle Ashley E. Dean (“Mother”) appeals the superior
court’s order awarding sole legal decision-making authority to Bradley R.
Culp (“Father”) and denying her request to relocate out of state with the
parties’ child. We conclude that the court did not abuse its discretion and
therefore affirm.

BACKGROUND

¶2 The parties are the unmarried parents of a child born in 2007.
In 2009, the superior court ordered the parties to share joint legal custody1
of the child, with Father having parenting time every other Thursday
through Sunday and one overnight on the alternate week.

¶3 In 2012, Mother and Father each filed petitions to modify the
custody and parenting time orders because Mother had moved to Las
Vegas, Nevada with the child. A court-appointed parenting conference
provider prepared a report that recommended awarding joint legal
decision-making authority and allowing Mother to remain in Las Vegas as
the child’s primary residential parent, with Father exercising parenting
time approximately half of the school breaks and summers and all three-
day weekends.

¶4 After an evidentiary hearing, the superior court denied
Mother’s request to relocate and awarded Father sole legal decision-making
authority. Mother timely appealed. Father failed to file an answering brief,
which we may treat as a confession of error; however, we exercise our
discretion to address the merits “because a child’s best interests are
involved.” See In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2, 38 P.3d 1189,
1190 (App. 2002).

1 Effective January 1, 2013, the term “custody” was replaced with
“legal decision-making.” See Ariz. Rev. Stat. (“A.R.S.”) § 25-402.

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DISCUSSION

¶5 Mother argues the superior court abused its discretion in
awarding Father sole legal decision-making authority, and thereby denied
her request for relocation. We review a superior court’s rulings addressing
legal decision-making and relocation for an abuse of discretion. Hurd v.
Hurd, 223 Ariz. 48, 52, ¶ 19, 219 P.3d 258, 262 (App. 2009); Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). We do not re-weigh
conflicting evidence or re-determine the preponderance of the evidence on
appeal. Hurd, 223 Ariz. at 52, ¶ 16, 219 P.3d at 262. We give due regard to
the court’s opportunity to judge the credibility of the witnesses, and
although conflicting evidence may exist, we will affirm the court’s ruling if
substantial evidence supports it. Id. The parent seeking to relocate with the
child has the burden of proving the move is in the child’s best interests. See
A.R.S. § 25-408(F).

A. Parenting Conference Report

¶6 Mother contends the superior court erred because it failed to
consider the recommendations of the parenting conference report. The
court, however, was not obligated to accept any of the findings or
conclusions included in the report. See DePasquale v. Superior Court
(Thrasher), 181 Ariz. 333, 336, 890 P.2d 628, 631 (App. 1995) (explaining that
a trial court must exercise independent judgment in making a custody
decision and may not delegate its judicial decision to an expert). Moreover,
even though the court’s order does not specifically refer to the parenting
conference report, the court stated that it considered the exhibits presented
at the hearing, which included the report.

¶7 Mother notes that the report found the parties were equally
likely to allow the child frequent, meaningful, and continuing contact with
the other parent, whereas the superior court found that Father was the more
likely party. See A.R.S. § 25-403(A)(6). The parenting conference report
failed to provide the basis for this conclusion; conversely, the superior court
noted that Mother had not allowed Father to have frequent, meaningful, or
continuing contact with the child since moving to Las Vegas. This finding
is supported by Father’s testimony that he had only seen the child three
times since Mother and the child moved to Las Vegas, that Mother
delivered the child after 11:00 p.m. on the court-ordered dates, and that he
had only been able to talk briefly with the child a few times each week.

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¶8 Mother also disputes the finding that relocation would not
allow Father a realistic opportunity for parenting time because the report
recognized Mother’s willingness to ensure Father’s parenting time. See
A.R.S. § 25-408(H)(5). Mother’s failure to provide Father with regular,
meaningful parenting time since she moved refutes this conclusory
statement of the parenting conference report. Thus, the superior court did
not abuse its discretion in reaching a different conclusion on this factor.2

¶9 Mother also contends the superior court should have adopted
the report’s conclusion that Father has not demonstrated he is capable of
being the primary residential parent and that such a change would not be
in the child’s best interests “given the historical context of parenting in this
case.” These statements are not supported by any factual discussion and
are contrary to the evidence. The record indicates that Father regularly
exercised his overnight parenting time prior to the relocation. Father’s
mother has historically cared for the child when he is at work and the Father
testified she would continue doing so. The child has her own room at her
paternal grandparents’ house, where Father also resides. Thus, the court
did not abuse its discretion in reaching its own conclusion.

¶10 Mother cites Reid v. Reid, 222 Ariz. 204, 207, ¶ 13, 213 P.3d 353,
356 (App. 2009), for the proposition that a court abuses its discretion when
it rejects the opinion of a custody evaluator without explaining the basis for
its own conclusion. Contrary to Mother’s characterization of the case, Reid
did not hold that a superior court must defer to a custody evaluator report.
Instead, the case held that a court must make specific findings pursuant to
A.R.S. § 25-403 when “making a custody determination.” Id. at 207-10, ¶¶
11-20, 213 P.3d at 356-59. Here, the superior court provided a thorough
analysis of the statutory factors and discussed how it weighed the relevant
evidence. Because the evidence underlying the court’s conclusions was
presented at an evidentiary hearing, the superior court was within its
discretion to disregard the conclusions in the parenting conference report
in favor of the court’s first-hand observation and determination of the
parties’ credibility.

2 Mother also contends the court ignored the finding that the parties
would be equally likely to comply with parenting time orders. See A.R.S. §
25-408(H)(3). However, the parenting conference report contained no
comment or analysis regarding this factor.

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B. Child’s Sibling

¶11 Mother contends the superior court failed to address the
impact that denying her relocation request would have on child’s
relationship with her half-sister. See A.R.S. §§ 25-403(A)(2); -408(H)(3).
The court expressly noted the child has a good relationship with her infant
half-sister. Although the court did not comment on how that relationship
impacts the child’s best interests or how it factored into the relocation
decision, the record reflects the sibling relationship was among the factors
the court considered. We find no abuse of discretion.

C. Father’s Prior Agreement

¶12 Mother argues the superior court ignored evidence that
Father previously agreed Mother could relocate to California. Father did
not object when Mother told him she was moving to California to live with
her mother. However, Mother admitted that she lied to Father and never
intended to move to California, but instead planned to move to Las Vegas
where she works. The superior court’s findings specifically referenced
Mother’s deception when considering the parties’ ability to cooperate in
decision-making to the extent required for joint legal decision-making. See
A.R.S. § 25-403.01(B)(3). The court did not ignore the circumstances of
Father’s prior agreement, rather, the court concluded that Mother’s
deception in obtaining Father’s agreement demonstrated an inability to
cooperate. Id. Because we do not reweigh the evidence on appeal, we find
no abuse of discretion.

D. Whether Either Party Intentionally Misled the Court

¶13 Mother also takes issue with the superior court’s finding that
she provided false information about the child’s schooling while at the
same time the court failed to consider that Father misled a different judge
regarding his status as a registered sex offender. See A.R.S. § 25-403(A)(7)
(in determining child’s best interests a court shall consider whether a parent
intentionally misled the court to obtain more favorable legal decision-
making or parenting time decision). Father’s misrepresentation to the court
occurred during a 2009 hearing to resolve a parenting time dispute. At that
time, the court ordered Father’s parenting time to be supervised by his
mother. Less than two months later, Father was allowed to resume
unsupervised, overnight parenting time. Since then, Father regularly
exercised his unsupervised parenting time until Mother moved in
September 2012. Although the court in this proceeding did not discuss
Father’s conviction as a factor under A.R.S. § 25-403(A)(7), the court

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specifically found Father was a convicted sex offender currently on
probation in discussing two other statutory factors. See A.R.S. §§ 25-
403(A)(5) (the parties’ mental and physical health) and -403.05
(presumptions applied to sex offenders). It was within the court’s
discretion to disregard a misrepresentation that occurred four years earlier
on a separate issue. Mother, on the other hand, provided false information
to the court about the child’s schooling. Thus, the court acted within its
discretion in considering Mother’s misrepresentation and the weight to
which it was entitled.

E. Mother’s Conviction for a Drug Offense

¶14 Finally, Mother argues the superior court failed to properly
weigh the factors in A.R.S. § 25-403.04 regarding her drug conviction.3 The
court found that Mother failed to rebut the presumption against awarding
joint legal decision-making to a parent with a conviction for a drug offense
in the past twelve months. See A.R.S. § 25-403.04. Mother argues the court
failed to consider the absence of any other drug conviction during the
previous five years, the results of random drug testing, and the fact that her
probation was ending soon. We disagree. The findings specifically refer to

3 Section 25-403.04 provides, in relevant part:

A. If the court determines that a parent . . . has been
convicted of [an enumerated drug offense] within twelve
months before the petition or the request for legal decision-
making or parenting time is filed, there is a rebuttable
presumption that sole or joint legal decision-making by that
parent is not in the child’s best interests[.]

B. To determine if the person has rebutted the
presumption, at a minimum the court shall consider the
following evidence:
1. The absence of any conviction of any other drug
offense during the previous five years.
2. Results of random drug testing for a six month
period that indicate that the person is not using [illegal]
drugs[.]
3. Results of alcohol or drug screening provided
by a facility approved by the department of health services.

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Mother’s single drug conviction and the lack of any drug test results.4 The
length of Mother’s probation is not a statutory factor. See A.R.S. § 25-
403.04(B). Thus, Mother’s arguments go to the weight the court gave these
factors, and we find no abuse of discretion.

CONCLUSION

¶15 We affirm the order awarding Father sole legal decision-
making and denying Mother’s request to relocate. In our discretion, we
deny Mother’s request for attorneys’ fees on appeal pursuant to A.R.S. § 25-
324.

:gsh

4 Mother contends the court failed to note that she was not required to
drug test; however, that is not a statutory factor. See A.R.S. § 25-403.04(B).
In any event, Mother could have voluntarily submitted to drug testing
which, if negative, would have provided evidence to rebut the presumption
against joint legal decision-making. In the absence of any such evidence,
the court’s finding is supported by the record.

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