Meyer v. Petroff

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROXANNE KATY MEYER, Petitioner/Appellee,

v.

NICK R. PETROFF, Respondent/Appellant.

No. 1 CA-CV 19-0442 FC
FILED 4-9-2020

Appeal from the Superior Court in Maricopa County
No. FC2016-092341
The Honorable Adele Ponce, Judge

AFFIRMED

COUNSEL

Crider Law, P.L.L.C., Mesa
By Brad J. Crider
Counsel for Petitioner/Appellee

Nick R. Petroff, Mesa
Respondent/Appellant
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MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 Nick R. Petroff (“Father”) appeals the family court’s May 7,
2019 orders on cross-petitions to modify. Father argues the court did not
fairly consider the evidence and exhibited bias in favor of Roxanne Katy
Meyer (“Mother”). He also argues the court abused its discretion in
ordering that (1) Mother retain sole legal decision-making, with Father’s
parenting time limited to twice-weekly supervised parenting time; and (2)
Father continue for six months to undergo random alcohol testing, with any
evidence of diluted tests to reset the required six-month testing period, and
Father now solely responsible for the cost of continued testing. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother married in March 2012. They are the
parents of one minor child, born in September 2012.

¶3 Father has a long history of alcohol abuse with significant
collateral consequences, including a DUI, initiating a bar brawl, domestic
altercations requiring police intervention, related arrests, and probation.
The parties’ marriage was punctuated by such incidents, with Father being
a primary source of both verbal and physical abuse.

¶4 The parties separated in January 2016. In April 2016, Mother
petitioned for dissolution of the marriage. Before she filed the petition,
Mother exercised sole legal decision-making and the parties shared equal
parenting time. During the dissolution proceedings, the court ordered that
Father undergo random substance abuse testing at TASC, with Mother
ordered to reimburse Father for one-half the cost of the testing.

¶5 In August 2016, the parties divorced. In dissolving the
marriage, the family court awarded sole legal decision-making to Mother,
ordered that the parties receive equal parenting time, and ordered that

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Mother pay Father child support.1 The court also made the following
finding:

Mother alleges Father has substance abuse issues. Father was
ordered to alcohol test at TASC. Father’s tests were negative,
but the last several tests were diluted samples. Father offered
that he drinks a lot of water due to his outdoor activities and
lifestyle. Father testified that he has been sober since January
31, 2016 with one exception, an incident that occurred in June
of 2016 in which Father had been drinking and was behaving
inappropriately. Father testified that he believes he has
proven himself through the months of testing and refuses to
undergo any further testing.

The family court found that “Father’s drinking is a concern” that “can be
alleviated by ordering Father not to consume alcohol during his parenting
time.” The court ordered Father not to consume alcohol during or twelve
hours before his parenting time.

¶6 On January 4, 2018, Father was admitted to the hospital,
where he was ultimately determined to have sepsis related to a kidney and
gastrointestinal issue that required surgical treatment. Father was released
from the hospital approximately three weeks later.

¶7 On February 16, 2018, Mother petitioned the court to modify
parenting time and child support and moved for temporary orders
regarding parenting time. Mother’s petition to modify alleged that at the
time of his hospital admission, Father was in severe alcohol withdrawal and
made admissions about the severity of his drinking that raised concerns
about his ability to care for the child.2 Mother requested that Father’s

1 In August 2017, the family court terminated Mother’s child support
obligation upon agreement of the parties.

2 At the March 4, 2019 evidentiary hearing on the cross-petitions to
modify, evidence was introduced that, at the time of his hospital admission,
Father appeared to be going through acute alcohol withdrawal. Father on
admission had admitted he could “drink over a fifth [of vodka] daily” and
had consumed a large amount of alcohol over the holidays, including the
day before. Father testified the hospital records documenting these
statements from him were not accurate, and if he made those statements,
he did so under the influence of morphine, and they were not true. Father

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parenting time be supervised until he had demonstrated six months’
sobriety.

¶8 On April 23, 2018, during a return hearing on Mother’s
motion for temporary orders filed with her petition to modify, the family
court ordered Father to submit to a hair follicle test and random alcohol
testing on a twice-weekly basis. The order stated “that the failure, neglect
or refusal to participate in testing, or providing a diluted test sample at the
time of testing, may be considered an admission by the party that the
testing, if properly conducted, would have revealed the use of the
substance(s) tested for, which finding is contrary to the best interest of a
child.” The court also ordered that Mother reimburse Father for any tests
with negative results.

¶9 After testing on May 10, 2018, Father failed to test again until
July 6, 2018, missing at least fifteen testing dates. On June 27, Mother filed
an emergency motion to modify Father’s parenting time to require
supervision at an agency location.

¶10 On July 3, 2018, Father filed a counter-petition to modify legal
decision-making, parenting time, and child support. Father sought joint
legal decision-making, alleging that Mother changed the child’s school
without notifying or consulting with Father and failed to tell Father about
the child’s medical concerns and/or treatment. Father also claimed he had
stopped alcohol testing because he was confused about what the court’s
order required. Additionally, Father filed a petition to enforce parenting
time, arguing that, for several months, Mother had routinely ignored or
refused to allow Father his parenting time.

¶11 On July 9, 2018, the family court granted Mother’s emergency
motion for temporary orders, ordering that Father’s parenting time be
limited to four hours a week and supervised at one of three designated
agencies. Later that month, at a temporary orders hearing, the court named
a court-appointed advisor (“CAA”), ordered that Father continue alcohol

claimed, however, not to remember making the statements because he
remembered nothing that occurred before he woke up following the
surgical procedure. In the hospital records, however, Father was described
as coherent, conversant, and answering questions appropriately, and when
the statements were noted, he was described as resting comfortably. The
record suggests Father later resided in a sober living facility for
approximately thirty days, although Father has denied this.

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testing, and reaffirmed that Father’s parenting time be supervised by a
third-party agency.

¶12 On September 24, 2018, the CAA submitted her report to the
court. As part of her report, the CAA interviewed the parties and Father’s
girlfriend. The CAA also reviewed relevant Department of Child Safety
records; Father’s TASC records; relevant police agency records from
Chandler, Gilbert, Mesa, and Apache Junction; court and medical records;
and text messages and emails involving the parties and Father’s girlfriend.

¶13 The communications described Father’s ongoing problems
with alcohol and how verbally abusive Father became while drinking, and
reflected concerns about how Father could treat and care for children,
including the parties’ child, while intoxicated. Some messages indicated
Father had engaged in drinking during his parenting time. The CAA noted
several issues of concern, including “domestic violence/anger
management, Father’s apparent excessive alcohol consumption, and
Father’s continual false statements.”

¶14 The CAA recommended Father participate in a substance
abuse evaluation, an anger management class, and continued random
alcohol testing. The CAA also recommended that the child remain in
Mother’s primary care, and Father have supervised parenting time, with no
overnight visits, on either Saturdays or Sundays, and if that could not be
arranged, then Father’s parenting time be supervised at a facility.3

¶15 On January 3, 2019, Father filed a petition to terminate alcohol
testing, arguing he had completed six months of testing from July 6, 2018,
to January 6, 2019. Father conceded he had two diluted tests during that
time, but again cited his active lifestyle and heavy water consumption as
the reason for the diluted tests.4 In a minute entry filed January 16, 2019,
the family court summarily denied the motion.

3 At an October 3, 2018 temporary orders hearing, the parties agreed
Father would have unsupervised parenting time every Wednesday evening
and every other Saturday from 9:00 a.m. until 5:00 p.m.

4 Contrary to Father’s representation and the CAA’s testimony, the
record reflects Father had at least three diluted tests during this time period.
Further, in December 2018, Father had posted photographs on-line of
himself drinking beers after a hike.

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¶16 That same day, Mother filed an emergency motion for
temporary orders without notice regarding parenting time, alleging Father
had continued to drink alcohol and requesting Father’s parenting time be
immediately supervised through a licensed facility approved by the court,
at Father’s expense. The court denied the motion. Meanwhile, however,
Father submitted a urine sample that tested positive for alcohol, and
Mother filed a renewed emergency motion on January 17, 2019, which the
court also denied.

¶17 On March 4, 2019, the court held the evidentiary hearing on
Mother’s petition to modify and Father’s counter-petition. The CAA
testified she had continuing concerns about Father minimizing his use of
alcohol, and she opined that Father’s continued use of alcohol could
jeopardize the safety of the child. Mother testified the child had been
residing primarily with her since the temporary orders were entered and
that he was thriving and his grades, behavior, and anxiety level had
improved markedly while under her primary care. Mother also expressed
concerns about Father’s continuing alcohol, abuse, and candor issues.
Father testified regarding the details of his January 2018 hospitalization,
and he denied consuming alcohol before his admission. He admitted
having three diluted alcohol test results and one positive result after he
resumed testing in July 2018 through February 20, 2019, but claimed his
diluted tests resulted from living an active lifestyle that required him to
consume significant quantities of water. He nevertheless agreed that, if the
court found he had been drinking as much as had been reported, it would
be appropriate to order that he “continue drug testing until [he had] clear,
unmissed, undiluted tests for a certain period of time” and that missing a
test would “be considered like failing a test.” He also agreed that multiple
positive tests would indicate “[t]here’s an issue there, obviously.” At the
end of the hearing, the court took the matter under advisement.

¶18 Meanwhile, Father submitted diluted urine samples to TASC
on March 1, 7, 19, and 27, and April 1, 2019, and submitted a sample that
tested positive for alcohol on March 8, 2019. On April 23, 2019, noting that
Father had been involved in alcohol-related domestic disturbances with his
girlfriend that generated police reports on April 5 and 6, Mother filed
another emergency motion for temporary orders without notice regarding
parenting time, which the court again denied.

¶19 In a detailed twelve-page minute entry dated May 3, 2019, the
family court issued its findings and orders. The court found that “[s]ince
the prior order, despite an avowed commitment to sobriety, Father has
engaged in drinking, at times to significant excess, indicating a continued

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substance abuse problem.” The court also found that, because of Father’s
positive and diluted tests, and given his history of heavy drinking, Father
had not rebutted the finding that he has a substance abuse problem. The
court ordered in part that Mother retain sole legal decision-making
authority over the child, that Father continue to have supervised parenting
time on Wednesdays from 5:00 p.m. to 8:00 p.m. and Saturdays from 9:00
a.m. to 5:00 p.m., and that Father continue to participate in twice-weekly
alcohol testing. The court also ordered that when Father had completed six
months of alcohol testing without any missed, diluted, or positive tests, the
parties would resume equal unsupervised parenting time and Father could
apply to the court for an adjustment of the child support order.5

¶20 The court dismissed Father’s subsequent petition to modify
legal decision-making, parenting time, and child support and denied
Father’s motion to alter or amend the judgment pursuant to Rule 83 of the
Arizona Rules of Family Law Procedure. We have jurisdiction over Father’s
timely appeal pursuant to Arizona Revised Statutes (”A.R.S.”) section 12-
2101(A)(1) and (2).

ANALYSIS

I. Standard of Review and Applicable Law

¶21 We will affirm if substantial evidence supports the family
court’s decision, Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009), and will
not substitute our opinion for that of the family court unless there has been
a clear abuse of discretion, Deatherage v. Deatherage, 140 Ariz. 317, 319 (App.
1984). Further, we will not set aside findings of fact unless they are clearly
erroneous. Ariz. R. Fam. Law P. 82(a)(5). To the extent the family court
based its rulings on the weight it gave to conflicting evidence and the
parties’ credibility, we defer to the court’s judgment. See Gutierrez v.
Gutierrez, 193 Ariz. 343, 347-48, ¶ 13 (App. 1998).

II. Father’s Allegations of an Unfair Trial and Bias

¶22 Father argues the family court did not fairly consider the
evidence presented at trial and was biased against him. The family court
has discretion over the control and management of the trial. See Hales v.
Pittman, 118 Ariz. 305, 313 (1978). “We will not interfere in matters within
the [family] court’s discretion unless we are persuaded that the exercise of
such discretion resulted in a miscarriage of justice or deprived one of the

5 The court ordered that Father pay child support to Mother in the
amount of $492 per month.

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litigants of a fair trial.” Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299,
308, ¶ 31 (App. 2007) (citation omitted). In this case, Father’s arguments
amount to a request that we reweigh the evidence, something we will not
do. See Hurd, 223 Ariz. at 52, ¶ 16. On this record, we find no evidence that
the court denied Father a fair trial.

¶23 As for Father’s argument that the family court was biased
against him, we begin our analysis with the presumption that the family
court judge is free of prejudice and bias. State v. Ramsey, 211 Ariz. 529, 541,
¶ 38 (App. 2005). To overcome this presumption, Father must prove the
court harbored “a hostile feeling or spirit of ill-will, or undue friendship or
favoritism.” State v. Cropper, 205 Ariz. 181, 185, ¶ 22 (citation omitted),
supplemented by 206 Ariz. 153 (2003). To prove this, Father must “set forth a
specific basis for the claim of partiality and prove by a preponderance of
the evidence that the judge is biased or prejudiced.” State v. Medina, 193
Ariz. 504, 510, ¶ 11 (1999). In this case, Father has not rebutted the
presumption of judicial impartiality. After reviewing the entire record
presented, including the transcript of the March 4 hearing, we conclude the
record reflects no bias and indicates the family court impartially considered
the parties’ positions.

III. Legal Decision-Making and Parenting Time

¶24 Father argues the family court abused its discretion in
ordering that Mother retain sole legal decision-making, with Father’s
parenting time limited to twice-weekly supervised parenting time.

¶25 We review for an abuse of discretion the family court’s legal
decision-making and parenting time orders. Engstrom v. McCarthy, 243
Ariz. 469, 471, ¶ 4 (App. 2018); Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013). In deciding legal decision-making and parenting time, courts must
consider a child’s best interest. A.R.S. § 25-403; see also Hays v. Gama, 205
Ariz. 99, 102, ¶ 18 (2003) (stating that “the child’s best interest is
paramount”). The best interest of the child is for the family court alone to
decide. Nold, 232 Ariz. at 273, ¶ 14 (citing DePasquale v. Superior Court
(Thrasher), 181 Ariz. 333, 336 (App. 1995)).

¶26 Here, the family court’s May 2019 minute entry makes clear
the court found a proper legal basis for modification, considered issues
regarding the parents pursuant to A.R.S. § 25-403.01, and carefully
considered the evidence presented at the March 4 hearing, including the
CAA’s report and testimony, in light of each of the best interest factors of
A.R.S. § 25-403. The court also considered other relevant issues, including

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evidence presented by both parties related to substance abuse, see A.R.S.
§ 25-403.04, and explained in detail why it did not find much of Father’s
testimony credible. The court found that Father “can be verbally abusive
when he is drinking,” that he “has engaged in unreasonable behavior such
as putting the child in time out for mentioning the name of Mother’s
boyfriend,” and that significant evidence indicates “Father has an alcohol
abuse problem,” including Father’s admission that he continues to consume
alcohol.

¶27 The family court had the discretion to consider Father’s
alcohol use, the details surrounding his hospitalization, and his
documented verbal abuse as factors in its decisions regarding legal
decision-making and parenting time. Our review of the record confirms
that substantial evidence supports the court’s decisions; accordingly, it did
not abuse its discretion in concluding the child’s best interest was served by
awarding sole legal decision-making to Mother, with Father’s parenting
time limited to twice-weekly supervised parenting time.

IV. The Requirement of Continued Random Alcohol Testing

¶28 Noting that he has submitted numerous urine samples that
have tested negative for alcohol, Father next argues the family court abused
its discretion in ordering that he continue to submit to random alcohol
testing, with diluted tests resetting the required six-month testing period,
at his sole expense.

¶29 We review the court’s orders regarding alcohol testing for an
abuse of discretion. See In re Miguel R., 204 Ariz. 328, 333, ¶ 14 (App. 2003).

¶30 The record indicates that Father has a long history of alcohol
abuse coupled with anger management issues. Before the parties’ divorce,
from late June to mid-August 2016, Father had seven instances of diluted
test results, which the court appropriately viewed as positive results. In
late April 2018, after Father’s hospitalization, the court again ordered Father
to submit to random alcohol testing on a twice-weekly basis and warned
him that missed or diluted tests “may be considered an admission by the
party that the testing . . . would have revealed the use of the substance(s)
tested for, which finding is contrary to the best interest of a child.”
Nonetheless, after testing on May 10, Father failed to test again until July 6,
2018, missing at least fifteen testing dates. After he resumed testing in July
2018, Father submitted multiple diluted samples and one positive sample
before the March 4, 2019 hearing. Further, evidence was presented that
Father became verbally abusive while drinking, and the CAA expressed

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concerns about how Father could treat children, including the parties’ child,
while intoxicated.

¶31 Given this evidence, the family court did not abuse its
discretion in ordering that Father continue to undergo twice-weekly alcohol
testing at his sole expense. Father’s own conduct has placed him in this
position, and as for his argument that diluted tests should not restart the
testing period, he fails to recognize that he alone controls whether the tests
are diluted. Further, he was on notice as early as 2016 that a diluted test
would be considered a positive test and acknowledges in his reply brief that
“[t]he trial court is within its discretion to make decisions regarding the
interpretation of a diluted or missed drug test in accordance with what it
believes will best serve the interests of the child.” Father’s failure to rebut
the evidence that he suffers from a substance addiction to alcohol warrants
his continued monitoring, and his achieving and demonstrating sustained
sobriety is in the child’s best interest.

¶32 Further, in ordering Father to undergo random alcohol
testing, the court has given Father a path to eventually petition the court to
modify its orders if he meets the criteria to do so. Finally, because Father
has been given multiple opportunities to demonstrate he is free from
alcohol addiction, and he has failed to do so, the court did not abuse its
discretion in shifting the full cost of random testing to Father.6

V. Costs and Attorneys’ Fees

¶33 Arguing that “Father has unreasonably contested the [family]
court’s ruling by his refusal to acknowledge his own actions which led to
the [family] court’s findings,” Mother requests an award of her costs and
attorneys’ fees on appeal pursuant to A.R.S. §§ 12-349 and 25-324. We
decline to award fees pursuant to § 12-349. As for Mother’s request under
§ 25-324, the most current financial information provided by the parties
indicates there is little disparity as to their financial resources. As for the
reasonableness of the parties’ positions, we agree with Mother that Father’s
position on appeal is unreasonable. Accordingly, we award Mother taxable

6 Father also contends Mother has not reimbursed him for previous
negative tests. He provides no affidavit or other proof in support of his
contention. Moreover, he does not claim that he presented this issue to the
family court or cite to any such request in the record. As a general rule, we
will not consider arguments not presented in the court below. See Barrio v.
San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 104 (1984); Richter
v. Dairy Queen of S. Ariz., Inc., 131 Ariz. 595, 596 (App. 1982).

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costs and attorneys’ fees on appeal, in an amount to be determined upon
compliance with Rule 21, ARCAP.

CONCLUSION

¶34 The family court’s May 3, 2019 post-decree orders are
affirmed.

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

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