Hinton v. Hinton

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

APRIL C. HINTON, Petitioner/Appellant,

v.

KYLE D. HINTON, Respondent/Appellee.

No. 1 CA-CV 19-0427 FC
FILED 4-2-2020

Appeal from the Superior Court in Maricopa County
No. FC2016-004619
The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Gillespie, Shields, Goldfarb & Taylor, Phoenix
By DeeAn Gillespie Strub and Mark A. Shields
Counsel for Petitioner/Appellant

Kyle D. Hinton, San Tan Valley
Petitioner/Appellee

HINTON v. HINTON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.

M c M U R D I E, Judge:

¶1 April C. Hinton (“Mother”) appeals from an order modifying
legal decision-making and parenting time concerning her three children.
For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 Mother and Kyle D. Hinton (“Father”) married in 2000 and
together had three children: Bradlee, Kaden, and Amaya. In June 2016,
Mother petitioned for the dissolution of the parties’ marriage. The parties
ultimately submitted a shared parenting plan to the court. In the plan, the
parties conceded there had been mutual domestic violence during the
marriage, but agreed to joint legal decision-making with Mother designated
as the primary residential parent. The parties also agreed to the following
parenting time: (1) Father would have parenting time every other weekend
during the fall, winter, and spring and every other week during the
summer, with the children residing with Mother at all other times; and
(2) an equal share of all holidays and school breaks. The court entered a
consent decree dissolving the marriage and approving the parenting plan.

¶3 Over the next year and a half, a series of incidents escalated
the tension between Mother and Father over the exercise of Father’s
parenting time. In August 2017, while the children were staying with
Father, a physical altercation broke out between Bradlee (then 15 years old),
Father, and Father’s girlfriend. After a shouting match ensued over
Bradlee’s refusal to listen to Father and his girlfriend’s directions, Father
slapped Bradlee across his face. Bradlee responded by punching Father in

1 We view the facts in the light most favorable to sustaining the
superior court’s findings and orders. Alvarado v. Thomson, 240 Ariz. 12, 13,
¶ 1, n.1 (App. 2016).

2

HINTON v. HINTON
Decision of the Court

the head, and a scuffle broke out. The police were called to the scene, but
no charges were filed.

¶4 Next, in September 2017, Bradlee called the police after he
returned to Father’s house from a party and discovered Father and his
girlfriend were gone. They had left Kaden and Amaya, along with Father’s
girlfriend’s two children, ages one and two years old, unsupervised. When
Father and his girlfriend returned home about three hours later, they told
the police they went to a friend’s house, left Kaden (then eight years old) in
charge, and expected Bradlee to arrive shortly after they left to watch the
children. Father was charged with misdemeanor charges of child neglect
and contributing to the dependency of a minor, which were dismissed after
Father completed counseling services.

¶5 Finally, in May 2018, Father requested that the Goodyear
Police Department supervise an exchange of the children. When the police
arrived, Mother refused to exchange the children, explaining the children
did not want to go and that she had been granted a modification of
parenting time and an order of protection against Father. Although she did
not have a copy of the order of protection with her, she claimed it was in
the process of being served. These statements were false. Mother had not
acquired an order of protection or a modification at that time. Nevertheless,
the police took no action, the exchange did not take place, and the children
remained with Mother. Shortly thereafter, Mother petitioned for and
obtained an order of protection against Father. But the children were not
listed as protected parties under the order of protection, and the order of
protection was dismissed after a hearing.

¶6 The tension caused by these incidents came to a boil in
September 2018, when Mother filed a petition to modify parenting time. In
the petition, Mother asserted Bradlee and Kaden no longer wished to visit
Father and that, based on the incidents described above, the children were
no longer safe in Father’s care. Mother also asserted Father smoked
marijuana in his home, became aggressive when he smoked, and that a
“bong [was] near where the children were sleeping.” Mother requested the
court either limit Father’s parenting time to public visits at the children’s
discretion or eliminate his parenting time. The superior court set the matter
for an evidentiary hearing and issued an order requiring both parents to
appear. Before the hearing, Mother submitted numerous exhibits, including
an exhibit documenting that she had served Father with the petition and
the notice to appear. This exhibit included a return receipt purportedly
bearing Father’s signature.

3

HINTON v. HINTON
Decision of the Court

¶7 On November 6, 2018, at the time scheduled for the
modification hearing, Father was not present. The court attempted to
contact him through a phone number listed for Father, but he did not
answer. The court then questioned Mother concerning whether she had
discussed the hearing with Father and asked her whether the signature on
the return receipt was Father’s. Under oath, Mother told the court that she
had not spoken with Father about the hearing, but asserted that the
signature on the return receipt was his. The court proceeded with the
hearing, received testimony and other evidence from Mother, and took the
matter under advisement.

¶8 Before the court ruled on the petition, two developments
resulted in further proceedings on Mother’s petition. First, after reviewing
the evidence presented by Mother, the court found that “it [was] in the
children’s best interest to conduct a further hearing on the issues
presented,” and scheduled another hearing for December 2018. Second,
Father filed a “Motion to Challenge Service of Hearing” asserting: (1) he
had never received notice of the November 2018 hearing; and (2) the
signature on the return receipt was not his.

¶9 At the December 2018 hearing, the court took testimony from
the parties concerning the service-of-process issue, including who signed
the return receipt. After comparing the signature on the return receipt with
other documents in the record and asking Mother to reaffirm her claim that
the signature was Father’s, the court concluded that Mother was not
credible and that she had deliberately and intentionally misled the court
regarding service of process in an attempt to restrict Father’s parenting
time. The court then: (1) appointed a therapeutic interventionist to provide
assistance to the court and facilitate the reunification of the children with
Father; and (2) ordered that Father have parenting time with the children
according to the dissolution decree’s parenting plan. Finally, the court set a
status conference regarding the therapeutic intervention for January 2019.

¶10 On December 28, 2018, another incident changed the nature
and urgency of the modification proceedings. During the exercise of her
parenting time, Mother took Amaya, who had been ill all week, to a clinic
where she was then transferred to the emergency department at Phoenix
Children’s Hospital (“PCH”). At PCH, Mother told hospital staff she
suspected that Amaya’s condition might be related to substance abuse by
Father and requested a drug test for Amaya. Although Amaya was not
showing any symptoms of substance exposure, Amaya’s treating
physicians conducted a urinalysis on Amaya. The test was positive for
amphetamines and fentanyl. PCH reported the positive test result to the

4

HINTON v. HINTON
Decision of the Court

Department of Child Safety (“DCS”), who, in turn, contacted the Goodyear
Police Department. A DCS investigator arrived shortly thereafter, and,
based on discussions with hospital staff concerning the length of time
amphetamines would remain present in an individual’s body, concluded
Amaya could not have been exposed to these drugs under Father’s care.
DCS then issued a “present danger plan” requiring Mother’s interactions
with the children to be supervised by a responsible adult.

¶11 Three days after the hospital incident, Father filed a motion
for temporary parenting orders. Father argued that he should be granted
sole legal decision-making over the children and that Mother should only
have restricted, supervised, or no parenting time. The court granted the
motion ex parte, ordered that Kaden and Amaya reside primarily with
Father and Mother’s parenting time with all of the children be supervised.
The court also set an evidentiary hearing on the motion for the same date
as the January 2019 status conference.

¶12 At the January 2019 hearing, Father, Mother, and the DCS
investigator testified regarding the circumstances surrounding Amaya’s
hospitalization and the temporary orders. The DCS investigator testified
that: (1) based on her training and experience and her discussions with
hospital staff, she concluded Amaya was exposed to the drugs under
Mother’s care; (2) she received a great deal of pushback from Mother when
she confronted Mother about the test; and (3) based on her interviews with
Bradlee and Kaden, she suspected the children had been coached on what
to say. She also testified that DCS’s investigation was ongoing. During
Mother’s testimony, Mother claimed the detective investigating Amaya’s
exposure to drugs told her that he was not concerned with Mother right
now, and “want[ed] to polygraph [Father].”

¶13 During the cross-examination of Father, Mother attempted to
ask Father about the service-of-process issue and his signature on the return
receipt. The court interjected, stating, “[w]e’re not relitigating that. We had
a hearing on that. That is tak[en] care of.” When Mother claimed that she
“need[ed] to make a record” concerning this issue, the court repeated: “No
ma’am. I said, we’re not relitigating the issue.” After the hearing, the court
affirmed the temporary parenting-time order.

¶14 The court held a final hearing on Mother’s petition to modify
in March 2019, during which the police detective investigating Amaya’s
exposure to drugs, Mother, Father, and several members of their respective
families testified. The therapeutic interventionist assigned to the case, Dr.
Ronn Lavit, did not testify, but the court admitted a summary of his

5

HINTON v. HINTON
Decision of the Court

preliminary report into evidence. Upon examination, the detective testified
that the positive result for amphetamines in Amaya’s drug test was
ultimately determined to be a false positive and that they were awaiting
additional tests for the fentanyl. The detective also testified that law
enforcement was still investigating both Mother and Father.

¶15 During Mother’s testimony, she was questioned about a
series of text-message conversations that occurred between Mother, Kaden,
and Bradlee around January 3 and 4, 2019. In the conversations, Mother
made numerous troubling statements to Kaden and Bradlee, including
statements: (1) requesting Kaden question Amaya about why she told the
DCS investigator that Mother put “meth” in her urine sample, and asserting
that “[Father] is going to be so shocked real soon here”; (2) telling Bradlee
that Father “doesn’t know how deep he’s in yet”; (3) encouraging Kaden to
“say [you] want out of that drug house” after she sent police to Father’s
home; and (4) stating to Kaden that she was “slamming [Father and his
girlfriend] in court.” When confronted with these conversations, Mother
claimed that she had stopped messaging the children after she retained
counsel and that she sent the messages to try and comfort Kaden because
he was “breaking down and scared and fearful.” Images of the text-message
conversations were admitted into evidence.

¶16 On March 12, 2019, the superior court issued a 27-page ruling
modifying Mother and Father’s legal decision-making and parenting time.
In the ruling, the court engaged in a detailed analysis of each of the
statutory factors governing legal decision-making and parenting time, Ariz.
Rev. Stat. (“A.R.S.”) § 25-403(A), and found that each factor weighed in
favor of Father. Relying on the text messages between Mother, Kaden, and
Bradlee, the circumstances surrounding Amaya’s hospitalization, Mother’s
misrepresentations to the police during the May 2018 custody exchange
incident, and Mother’s unreasonable positions regarding Father during the
proceedings, the court found Mother had deliberately “engaged in a
several-year course of conduct intended to undermine Father’s relationship
with the children.”

¶17 After comparing Father’s current relationship with the
children to his relationship with them in 2016, the court found Father’s
relationship with Bradlee and Kaden had considerably deteriorated and
that Mother’s “long campaign of alienation” was primarily responsible for
the break-down of their relationship with Father. Based on these findings,
the court concluded the modification of legal decision-making and
parenting time was appropriate and awarded Father sole legal
decision-making authority regarding the children.

6

HINTON v. HINTON
Decision of the Court

¶18 The court also concluded that allowing the children
unsupervised parenting time with Mother would endanger the mental and
emotional health of the children due to “substantial evidence of alienating
conduct and manipulation of the children.” The court ordered that,
effective immediately, Kaden and Amaya would live with Father, and that
Mother would only be allowed supervised parenting time subject to
numerous conditions. The court did not make orders concerning Mother’s
parenting time with Bradlee because he would emancipate in October 2019
but ordered that he was to have no contact with Kaden and Amaya due to
his allegiance to Mother.

¶19 A few days later, the court set a review hearing for May 2019
“to ensure that the children’s educational and counseling needs [were]
being met pursuant to [the March 2019 modification order].”

¶20 Mother filed a motion to alter or amend the March 2019
modification order under Arizona Rule of Family Law Procedure (“Rule”)
83,2 arguing, inter alia, that the court findings related to the
service-of-process issue at the December 2018 hearing were erroneous.
Mother attached documents to the motion that she claimed would show
that it was Father, not Mother, who misled the court regarding the service
of Mother’s modification petition.

¶21 At the May 2019 review hearing, Mother’s counsel again
attempted to make a record on the service-of-process issue, and requested
an opportunity to call a postal worker to testify concerning the infallibility
of the method by which Mother chose to serve Father. The court refused to
address the issue, explaining: “Counsel, please do not go there. That has
been ruled upon, and that issue is . . . over.” Shortly after that hearing, the
court issued an order denying Mother’s Rule 83 motion. Mother appealed,
and we have jurisdiction under A.R.S. § 12-2101(A)(2) and Rule 78(c).

DISCUSSION

¶22 On appeal, Mother argues: (1) the superior court erred by
refusing to consider evidence undermining its finding that Mother misled
the court concerning the service of the petition for modification and that
this erroneous finding prejudiced the court against Mother; (2) the court

2 The Arizona Rules of Family Law Procedure have since been
abrogated and replaced but because the relevant rules do not materially
differ from the new rules, we cite to the current rules.

7

HINTON v. HINTON
Decision of the Court

abused its discretion by failing to consider evidence of Father’s drug use,
domestic violence, and child neglect; and (3) there was insufficient evidence
to support the March 2019 decision-making and parenting-time order.3

¶23 “We review the superior court’s legal decision-making and
parenting-time orders for an abuse of discretion.” DeLuna v. Petitto, 247
Ariz. 420, 423, ¶ 9 (App. 2019). But we review the interpretation of rules de
novo. Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018). “A court
abuses its discretion if it commits an error of law in reaching a discretionary
conclusion, it reaches a conclusion without considering the evidence, it
commits some other substantial error of law, or ‘the record fails to provide
substantial evidence to support the trial court’s finding.’” Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9 (App. 2012) (quoting Flying Diamond Airpark, L.L.C.
v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007)).

A. The Superior Court’s Actions Concerning the 2018
Service-of-Process Finding Did Not Result in Reversible Error.

¶24 Mother argues the superior court’s refusal to allow her to
offer evidence refuting the court’s finding that she misled the court
regarding service of the petition for modification during the December 2018
evidentiary hearing, January 2019 temporary orders hearing, and May 2019
review hearing constituted reversible error. Because the court did not
certify its finding that Mother falsified evidence concerning service of the
petition for modification as final under Rule 78(b), Mother asserts the order
was “subject to revision at any time,” and the court was obligated to allow
Mother to submit relevant evidence undermining the court’s
service-of-process finding. Mother also contends the court’s refusal to
revisit its allegedly erroneous conclusion was not harmless error because
the conclusion caused the superior court to become biased against her, and
that this bias permeated the rest of the court’s March 2019 parenting order.

3 Because Father did not respond to these arguments in his answering
brief, Mother asserts in her reply brief that these arguments should be
deemed admitted. Although a party’s failure to contest an argument on
appeal may be deemed a confession of error, see In re 1996 Nissan Sentra, 201
Ariz. 114, 117, ¶ 7 (App. 2001), we decline to do so here.

8

HINTON v. HINTON
Decision of the Court

1. The Superior Court Did Not Err by Refusing to Consider
Evidence Related to the Service-of-Process Finding.

¶25 At the outset, we reject Mother’s claim that Rule 78(b)
required the superior court to reconsider the service-of-process finding
each time Mother decided to furnish related evidence. Mother is correct that
the rule provides that “any decision . . . that adjudicates fewer than all the
claims . . . is subject to revision at any time before the entry of a judgment
adjudicating all the claims” unless the court certifies the judgment as final
in the manner the rule requires. Ariz. R. Fam. Law P. (“ARFLP”) 78(b). But
Mother cites no authority for the proposition that this language means the
court must allow a party to reopen an issue it has decided whenever and in
whatever manner a party chooses.

¶26 Adopting Mother’s interpretation of Rule 78(b) would render
the procedural mechanisms provided by the Arizona Rules of Family Law
Procedure meaningless to parties seeking to have the court clarify,
reconsider, alter, or amend an order, judgment, or ruling. See, e.g., ARFLP
35(a)(1) (party must request court order by motion); ARFLP 35.1(a) (“A
party seeking reconsideration of a court order or ruling may file a motion
for reconsideration.”); ARFLP 83 (on motion by a party, the court may alter
or amend all or some of its rulings on any one of eight grounds); ARFLP
84(a) (party may file a motion seeking clarification of confusing or
ambiguous court ruling). And it would undermine the superior court’s
authority “to control the courtroom and trial proceedings.” Christy A. v.
ADES, 217 Ariz. 299, 308, ¶ 31 (App. 2007). Outside the recognized
procedural mechanisms described above, whether a party may present
evidence or argument concerning an issue decided by a court in an earlier
proceeding is a matter within the court’s discretion. We will not disturb the
court’s decision “unless we are persuaded that the exercise of such
discretion resulted in a miscarriage of justice or deprived one of the litigants
of a fair trial.” Id. (quoting O’Rielly Motor Co. v. Rich, 3 Ariz. App. 21, 27
(1966)).

¶27 Here, the superior court acted within its discretion when it
rejected Mother’s attempts to relitigate the service-of-process finding
during the December 2018, January 2019, and May 2019 hearings. Simply
put, Mother did not present her arguments and evidence concerning the
service-of-process issue at the proper time and manner. Concerning the
December 2018 hearing, it is unclear whether Mother’s request to make a
statement concerned the service-of-process matter, and, if so, the request
was made after the court: (1) had already found her testimony on this issue
lacked credibility; and (2) had concluded she had misled the court. As for

9

HINTON v. HINTON
Decision of the Court

the January 2019 hearing, it was a temporary orders hearing held to address
the allegations surrounding Amaya’s exposure to dangerous substances
and for the court to determine whether maintaining its emergency
parenting orders were necessary. And the May 2019 hearing was a review
hearing set for the court to assess whether “the children’s educational and
counseling needs were being met” under the March 2019 parenting order.
The court’s decision to confine Mother to the issues relevant to those
proceedings did not constitute a miscarriage of justice or deprive Mother of
a fair trial.

¶28 To be sure, had the superior court refused to allow Mother to
present evidence challenging the service-of-process finding at the March
2019 modification hearing, her claim of error would potentially have merit.
Such evidence was undoubtedly relevant to the court’s evaluation of the
children’s best interests at the hearing. See A.R.S. § 25-403(A)(7) (court is to
consider “[w]hether one parent intentionally misled the court to cause an
unnecessary delay, to increase the cost of litigation or to persuade the court
to give a legal decision-making or a parenting time preference to that
parent”). And the court ultimately referenced the service-of-process finding
in its analysis of the statutory factors. But other than briefly mentioning the
service-of-process issue in her pretrial statement, Mother did not attempt to
submit her evidence at the March 2019 modification hearing. Thus, we
conclude the court did not err by rejecting Mother’s efforts to relitigate the
issue during proceedings where it served no purpose.

¶29 Finally, Mother was not deprived of a fair trial because she
was able to file a Rule 83 motion in which she challenged the
service-of-process finding and presented the offer of proof the court refused
to allow during the hearings. Although the superior court summarily
denied the motion, we assume the court considered the evidence presented
and made the findings necessary to support its judgment. In re CVR 1997
Revocable Tr., 202 Ariz. 174, 177, ¶ 16 (App. 2002) (when the superior court
does not make specific findings of fact, an appellate court presumes “that
the trial court found every fact necessary to sustain its ruling and will affirm
if any reasonable construction of the evidence supports its decision”). And
while Mother contends it was error to force her to make this argument in a
separate motion, she does not explain why requiring her to raise her claim
via a mechanism provided explicitly for this purpose was an error or how
this process harmed her.

10

HINTON v. HINTON
Decision of the Court

2. Even if the Court Committed Error, the Error Was Harmless.

¶30 Even assuming the service-of-process finding and the court’s
refusal to permit Mother to present evidence were both erroneous, these
errors were harmless. See ARFLP 86 (“Unless justice requires otherwise, an
error in admitting or excluding evidence—or any other error by the court
or a party—is not grounds for . . . disturbing a judgment or order. At every
stage of the proceeding, the court must disregard all errors and defects that
do not affect any party’s substantial rights.”). In its 27-page modification
ruling, the court only referenced the service-of-process finding a total of
three times: twice in its summary of the facts and history of the case, and
once while evaluating “whether one parent intentionally misled the
court . . . to persuade the court to give a legal decision-making or a
parenting time preference to that parent.” A.R.S. § 25-403(A)(7). And the
service-of-process finding was only one of several instances where the court
found Mother misled the court. Thus, there was ample basis for the court
to conclude this statutory factor weighed against Mother even if the
service-of-process finding was taken out of the equation.

¶31 Mother nonetheless contends the service-of-process finding
and the court’s refusal to allow her to present evidence concerning it were
prejudicial because these actions caused the court to become biased against
her. “We presume that a judge is impartial, and ‘the party seeking recusal
must prove bias or prejudice by a preponderance of the evidence.’” In re
Aubuchon, 233 Ariz. 62, 66, ¶ 14 (2013) (quoting State v. Carver, 160 Ariz. 167,
172 (1989)). “A party challenging a trial judge’s impartiality must overcome
the presumption that trial judges are ‘free of bias and prejudice.’” Simon v.
Maricopa Med. Ctr., 225 Ariz. 55, 63, ¶ 29 (App. 2010) (quoting State v. Rossi, 154 Ariz. 245, 247 (1987)). “Judicial rulings alone do not support a finding
of bias or partiality without a showing of an extrajudicial source of bias or
a deep-seated favoritism.” Id. To rebut the presumption of judicial
impartiality, “the challenging party must show actual bias; mere
speculation about bias is not sufficient.” Emmett McLoughlin Realty, Inc. v.
Pima County, 212 Ariz. 351, 357, ¶ 24 (App. 2006).

¶32 Applying these principles here, Mother’s claim of bias is
fatally flawed for two reasons. First, the alleged bias did not arise from an
extrajudicial source, but from rulings the court made during the
proceedings. Second, Mother has not presented evidence of actual bias. She
merely speculates that the “only explanation” for many of the court’s
findings and conclusions in the March 2019 modification ruling was that
the court was improperly biased when it made the service-of-process
finding and later refused to consider evidence indicating that finding was

11

HINTON v. HINTON
Decision of the Court

incorrect. Thus, Mother has failed to overcome the presumption that the
superior court was free from bias and has not demonstrated how she was
prejudiced by the court’s treatment of the service-of-process issue.
Accordingly, we conclude the court’s actions here did not result in
reversible error.

B. The Superior Court Did Not Fail to Consider Evidence of Drug
Use, Domestic Violence, and Neglect.

¶33 Citing A.R.S. § 25-403.03 and -403.04—which, inter alia,
establish presumptions against awarding a parent sole or joint legal
decision-making if they abuse drugs, engage in domestic violence, or
commit child abuse—Mother next argues the court abused its discretion by
failing to consider evidence of: (1) Father’s alleged abuse of marijuana;
(2) the altercation between Bradlee and Father; and (3) child neglect by
Father. Mother also asserts the superior court’s “only finding” on the
subject of Father’s alleged drug abuse was that “Father has a medical
marijuana card,” and that the court improperly disregarded statements by
the children concerning Father’s alleged drug abuse and violent behaviors.

¶34 However, our review of the record and the court’s March 2019
modification ruling reveals it considered and accounted for the allegations
surrounding Father’s marijuana use, as well as the evidence of Father’s
alleged domestic violence and child neglect. Indeed, the court made
detailed findings about many of the incidents Mother claims the court failed
to consider or adequately weigh, and concluded that they did not support
a finding of domestic violence or drug abuse that was contrary to the
children’s best interests. For example, the court found there was no
evidence “that Father’s marijuana use presents a risk of harm to the
children,” that Father had received certification to purchase medical
marijuana as early as December 2017, and rejected Mother’s unsupported
claim that Amaya frequently returned sick from Father’s home due to
exposure to marijuana.

¶35 The court also found the evidence surrounding the August
2017 altercation between Bradlee and Father indicated both parties were at
fault, and there was no evidence that Father was violent or a danger to the
children. As for the September 2017 incident that gave rise to the
child-neglect allegations against Father, the court found that it was an
isolated incident for which Father acknowledged fault and completed
counseling services. And concerning the children’s other claims of drug
abuse and domestic violence by Father, the court found these allegations
were either unsupported, contradicted by other evidence, or lacked

12

HINTON v. HINTON
Decision of the Court

credibility given evidence that Mother coached the children. The superior
court’s accurate citations to the record demonstrate the record supports
these findings. Thus, despite Mother’s attempts to present them otherwise,
her arguments concerning these issues are mostly an invitation for this
court to reweigh the evidence in her favor, something we will not do. See
Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52, ¶ 11 (App. 2009) (“We will not
reweigh the evidence or substitute our evaluation of the facts.”).

¶36 Moreover, the evidence regarding Father’s drug use,
domestic violence, and child neglect must be balanced against the
substantial evidence that Mother engaged in attempts to undermine the
children’s relationship with Father and, in doing so, caused severe
emotional damage to the children. We cannot say the court abused its
discretion by resolving this conflicting evidence against Mother and
concluding that awarding Father sole legal-decision making and Mother
supervised parenting time was in the children’s best interests.

C. This Court Will Not Reweigh the Evidence, and Reasonable
Evidence Supports the Superior Court’s Findings.

¶37 Finally, Mother contends that the March 2019 parenting order
is unsupported by the record. In doing so, Mother alleges that the court’s
bias against her skewed the court’s findings and that it failed to consider
evidence of Father’s alleged drug abuse, child abuse, and neglect by Father.
Mother also argues the court’s findings and conclusions are odds with the
findings of the court’s appointed expert, Dr. Lavit, and therefore cannot be
sustained. Mother concludes that, without these alleged errors, the court
could not have found that awarding Father sole legal decision-making and
Mother supervised parenting time was in the children’s best interests.

¶38 But again, at their core, Mother’s arguments are another
request for this court to reweigh the evidence. Mother’s first two claims
have been addressed above. As for Mother’s argument concerning Dr.
Lavit’s report, the court was not required to disregard its assessment of the
evidence and align itself with an expert’s findings and conclusions. This
court has held that it is reversible error for the superior court to abandon its
role as the finder of fact and defer to an expert. DePasquale v. Superior Court, 181 Ariz. 333, 336 (App. 1995) (“[A] court can neither delegate a judicial
decision to an expert witness nor abdicate its responsibility to exercise
independent judgment. The best interests of the child . . . are for the court
alone to decide.”); see also Christopher K. v. Markaa S., 233 Ariz. 297, 301–02,
¶¶ 21–23 (App. 2013) (vacating order concerning legal decision-making

13

HINTON v. HINTON
Decision of the Court

and parenting time where court incorporated expert witness’ findings “by
reference” and made no independent findings on a contested issue).

¶39 As the finder of fact, the superior court was obligated to
consider Dr. Lavit’s report and give it the weight it was due. See In re Gen.
Adjudication of All Rights to Use Water in Gila River Sys. & Source, 198 Ariz.
330, 340, ¶ 25 (2000) (“The trial court . . . weighs the evidence and resolves
any conflicting facts, expert opinions, and inferences therefrom.”). The
court’s numerous references to Dr. Lavit’s report in the March 2019
parenting order indicate it did just that, and we will not substitute our
judgment for the superior court regarding the report’s evidentiary value.
Ballesteros-Suarez, 222 Ariz. at 52, ¶ 11.

¶40 Consistent with its statutory mandate, the superior court
made detailed findings concerning each factor listed in A.R.S. § 25-403(A)
and supported these findings with citations to the record. See A.R.S.
§ 25-403(B) (“In a contested legal decision-making or parenting time case,
the court shall make specific findings on the record about all relevant
factors and the reasons for which the decision is in the best interests of the
child.”). Reasonable evidence supports the court’s findings. The court did
not err by modifying the decree to award Father sole legal decision-making
and Mother supervised parenting time.

CONCLUSION

¶41 We affirm the superior court’s orders concerning legal
decision-making and parenting time.

AMY M. WOOD • Clerk of the Court
FILED: AA

14