McRae v. Hunter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TODD DOUGLAS MCRAE,
Petitioner/Appellant,

v.

LISA MARIE HUNTER,
Respondent/Appellee.

No. 1 CA-CV 19-0445 FC
FILED 6-16-2020

Appeal from the Superior Court in Maricopa County
FC2015-054089
The Honorable Dawn M. Bergin, Judge

AFFIRMED

COUNSEL

Michael P. Schloss Attorney at Law, Scottsdale
By Michael P. Schloss
Co-Counsel for Petitioner/Appellant

The Murray Law Offices, PC, Scottsdale
By Stanley D. Murray
Co-Counsel for Petitioner/Appellant
Law Office of Timothy M. Collier, PLLC, Scottsdale
By Timothy M. Collier, William A. Weber
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

M O R S E, Judge:

¶1 Todd Douglas McRae ("Father") appeals from the superior
court's decision awarding sole legal decision-making authority to Lisa
Marie Hunter ("Mother") for their minor child. For the following reasons,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father never married but are the biological
parents of one minor child. For five years they have been involved in a
dispute over legal decision-making for their child. The parties were
awarded joint legal decision-making by an Arizona court in 2014, an
Alberta court in 2015 ("Canadian order"), and finally again by an Arizona
court in March of 2017 ("current order"). In August of 2018 Father
petitioned to modify the current order, seeking sole legal decision-making
authority. Father also filed a Motion for Temporary Orders ("MTO")
seeking temporary sole legal decision-making regarding medical decisions.
Mother opposed both motions, arguing for continued joint legal decision-
making or that she be awarded sole legal decision-making authority.

¶3 At the MTO hearing, the court heard evidence about how
both parties have "harassed" and "hound[ed]" medical providers during
their constant disputes about medical decisions for their child. After noting
that neither party was a good option, the court concluded that joint
decision-making was not possible, and awarded Father temporary sole
legal decision-making authority for medical decisions. However, the court
warned that it could change its decision "at any time" if Father began
"abusing" his authority.

¶4 At trial on Father's petition to modify, the court heard
extensive evidence about the parties "relentless and petty bickering" and

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their inability to "cooperate in decision-making." Accordingly, pursuant to
A.R.S. § 25-403.1(B), the court found that joint legal decision-making was
no longer in the child's best interest and awarded Mother sole legal
decision-making authority. The court denied both parties' motions for
attorney fees. Father timely appeals from both the award of sole legal
decision-making authority to Mother and denial of his motion for attorney
fees. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶5 Father agrees with the superior court's decision that joint legal
decision-making is no longer in the child's best interest. However, he
argues that the court abused its discretion by awarding Mother sole legal
decision-making authority because the evidence did not support that
decision.

¶6 We review a legal decision-making order by the superior
court for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420,
¶ 7 (App. 2003). An abuse of discretion occurs when the record is "'devoid
of competent evidence to support the decision,' or when the court commits
an error of law in the process of reaching a discretionary conclusion."
Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018) (citation omitted).
"We defer to the court's findings of fact unless they are clearly erroneous."
Id.

¶7 In a contested action for legal decision-making authority the
superior court must consider the statutorily enumerated factors in A.R.S. §
25-403(A), Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11 (App. 2009), and 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," A.R.S. § 25-
403(B). Here, the superior court made written findings for all eleven
statutorily enumerated factors.

¶8 Regarding the child's best interests, the court opined that as
the child gets older, it will become "more and more important for the legal
decision-maker to consider [the child's] thoughts and wishes on [her] own
medical care." The court found that Father "believes he is smarter than
everyone else and should not have to consider others' input." By contrast,
the court found that despite her many flaws, "Mother is more likely to listen
to [the child] than Father is." As such, the court held that awarding Mother
sole legal decision-making authority was in the child's best interest. The
record includes competent evidence to support this finding. Father had
ignored the child's concerns after he was awarded temporary sole legal

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decision-making. On three occasions, Mother tried to inform Father that
the child was unhappy with the choice of doctor and time of doctor
appointments. Father belittled the concerns in each instance, explaining
that he did "not require [Mother's] input on these matters."

¶9 Further, the court also found that Father had placed his
disdain for Mother above the child's best interest, and would reflexively
oppose a course of treatment "simply because Mother was in favor of it."
The record includes evidence to support this finding. Father has
historically disagreed or argued with medical providers who agree with
Mother. Indeed, the catalyst for Father petitioning to modify the current
order and seeking sole legal decision-making authority was his
disagreement with a gynecologist who agreed with Mother on the timing
of a vaccination. Moreover, the court-appointed expert reported that Father
has "acknowledged long-term issues with his temper" and has difficulty
controlling his anger. Father confirmed this problem at the hearing, often
becoming "extremely argumentative" with the court.

¶10 Father counters with evidence of Mother's shortcomings, but
this court "does not reweigh evidence[.]" Clark v. Kreamer, 243 Ariz. 272,
276, ¶ 14 (App. 2017) (citation omitted). The existence of conflicting
evidence does not rebut the substantial evidence that supports the superior
court's best-interest finding. Hurd, 223 Ariz. at 52, ¶ 16 ("Even though
conflicting evidence may exist, we affirm the trial court's ruling if
substantial evidence supports it.").

¶11 Father also asserts that the trial court erred by finding that
Father abused his temporary legal decision-making authority. Temporary
orders under A.R.S. § 25-404 are "preparatory in nature" and "made in
anticipation of further resolution of the issues at trial." Villares v. Pineda, 217
Ariz. 623, 625, ¶ 11 (App. 2008). Therefore, the superior court had authority
to reverse its decision and verbally warned Father that his ongoing conduct
would matter to the court's final decision. Father further contends that
gender presumptions impermissibly prompted the superior court's
decision. This argument lacks merit as the same court awarded temporary,
sole legal decision-making to Father only four months earlier. There is no
evidence to suggest that gender presumptions, rather than Father's own
actions, guided the superior court's decision.

¶12 Finally, Father challenges the superior court's denial of his
motion for attorney fees pursuant to A.R.S. § 25-324. We review the
superior court's denial of attorney fees for an abuse of discretion. See
Mangan v. Mangan, 227 Ariz. 346, 352, ¶ 26 (App. 2011). The superior court

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declined to award fees because "both parties have acted equally
unreasonably in these proceedings." The evidence in the record supports
that finding and we affirm.

CONCLUSION

¶13 For the foregoing reasons we affirm. Both parties have
requested attorney fees on appeal pursuant to A.R.S. § 25-324. In our
discretion and after considering the parties' positions and economic
resources, we deny both requests.

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

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