Love v. Love

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ASHLEY LOVE, Petitioner/Appellant,

v.

LEE LOVE, Respondent/Appellee.

No. 1 CA-CV 19-0470 FC
FILED 6-11-2020

Appeal from the Superior Court in Maricopa County
No. FC2017-003679
The Honorable Katherine M. Cooper, Judge

VACATED IN PART AND REMANDED WITH INSTRUCTIONS

COUNSEL

Sullivan Law Office, Mesa
By Diane Sullivan
Counsel for Petitioner/Appellant

Gillespie, Shields, Goldfarb & Taylor, Mesa
By Mark A. Shields
Counsel for Respondent/Appellee
 LOVE v. LOVE
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 Ashley Love (“Mother”) appeals the legal decision-making,
parenting-time, and child-support orders made by the superior court in the
decree dissolving her marriage to Lee Love (“Father”). Mother also appeals
two attorney’s fee awards issued during the dissolution proceedings. For
the following reasons, we affirm the court’s legal decision-making and
parenting-time orders but vacate its child-support and attorney’s fees
orders and remand for further proceedings.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Mother and Father married in 2014 and had a child, Austin,
in November 2015. In September 2017, Wife petitioned for the dissolution
of the parties’ marriage. After a hearing in November 2017, the superior
court issued temporary orders awarding Mother sole legal decision-making
authority, designating her the primary residential parent, and establishing
a parenting-time schedule for Father. The proceedings were thereafter
severely delayed by extensive litigation between the parties, a change of
judge, and several continuances.

¶3 A full evidentiary hearing on the petition for dissolution was
eventually scheduled for December 2018, and the parties filed separate
pretrial statements. In her pretrial statement, Mother requested that she be
awarded sole legal decision-making authority over Austin, remain the
primary residential parent, and Father be given weekend parenting time
during the daytime only. In his pretrial statement, Father requested he be

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
 LOVE v. LOVE
Decision of the Court

awarded sole legal decision-making authority and that the parents share
equal parenting time.

¶4 At the evidentiary hearing, a court-appointed advisor,
Mother, and Father testified. The advisor testified that both Mother and
Father had a history of substance abuse.2 She also testified that both parents
had a history of issues involving their mental health, but she was more
concerned with Mother than Father. The advisor found that, unlike Father,
Mother “completely minimized her mental health,” and that medical
records provided to her by Father painted a very different picture of
Mother’s history than she had described to the advisor. The advisor
testified that she did not believe Mother was adequately treating her
mental-health and substance-abuse issues and recommended Mother
engage in specialized therapy. The advisor also expressed concern that
Mother was engaging in conduct designed to prevent Father from having
contact with Austin.

¶5 For her part, Mother testified that Father had engaged in
harassing, controlling, and abusive conduct during the marriage and the
dissolution proceedings. Mother also outlined several incidents involving
Father’s care of Austin that, in her view, showed that awarding Father legal
decision-making authority and equal parenting time was not in Austin’s
best interest. In response to the advisor’s testimony concerning her
mental-health and substance-abuse history, Mother described two
instances where she was hospitalized in 2016 and 2017. She claimed that:
(1) the first incident was caused by her becoming scared that she “was
going to have a really bad reaction” to mixing alcohol and her prescribed
medications; and (2) the second incident was caused by an “allergic
reaction” to medication given to her after a car accident. Mother denied that
either event was a suicide attempt or an intentional overdose.

¶6 In January 2019, the court issued a decree that addressed legal
decision-making and parenting time. After analyzing the relevant statutory
factors, Ariz. Rev. Stat. (“A.R.S.”) § 25-403(A)(1)–(11), the court awarded
sole legal decision-making authority over Austin to Father. In doing so, the
court found, among other things, that medical records documenting
Mother’s 2016 and 2017 hospitalizations showed that both incidents

2 During the dissolution proceedings, both Mother and Father
participated in regular substance-abuse testing, and by the time of the
December 2018 hearing, neither parent had tested positive for
inappropriate substances for some time.

3
 LOVE v. LOVE
Decision of the Court

involved intentional overdoses and that medical professionals designated
the 2016 hospitalization as a suicide attempt by overdose. The court found
that “[t]hese events are related to a lack of medical management with a
psychiatrist, counselor, and substance abuse program, combined with
[Mother’s] response to life stressors.” The court concluded: “It is inevitable
that Mother will continue to experience the kind of triggers that cause her
to decompensate, particularly without appropriate medical care and
substance abuse treatment.” Based on these findings, the court concluded
that allowing Mother to have unsupervised parenting time at the time of
the decree could seriously endanger “the child’s physical, mental, or moral
health or would significantly impair the child’s emotional development.”
See A.R.S. § 25-403.01(D). The court established a graduated parenting plan
whereby Mother would receive more frequent and less restricted parenting
time with Austin after demonstrating she was receiving treatment and
participating in substance-abuse testing. Finally, the court awarded Father
attorney’s fees under A.R.S. § 25-324 and, after calculating Mother’s
child-support obligation, ordered that Mother pay Father $492 per month
in child support.

¶7 Mother filed a combined motion under rules 85, 83, and 35.1
of the Arizona Rules of Family Law Procedure (“Rule”), requesting the
court grant her relief from, alter or amend, or reconsider the provisions of
the decree governing legal decision-making and parenting time, attorney’s
fees, and child support. After ordering Father to file a response to the
combined motion, the court summarily denied it and again awarded Father
attorney’s fees. Mother appealed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(1), (2), and Rule 78(c).

DISCUSSION

A. Mother’s Arguments Concerning Legal Decision-Making and
Parenting Time Are Moot.

¶8 Mother first argues the superior court erred by awarding
Father sole legal decision-making authority over Austin, making Father the
primary residential parent, and restricting her parenting time. Mother
asserts many of the court’s factual findings were erroneous and do not
support the conclusions the court reached. Considering these alleged
errors, Mother asks us to vacate the legal decision-making and
parenting-time provisions of the decree and remand for a reexamination of
both. However, we conclude events during the pendency of this appeal
have now rendered these arguments moot.

4
 LOVE v. LOVE
Decision of the Court

¶9 “A decision becomes moot for purposes of appeal where as a
result of a change of circumstances before the appellate decision, action by
the reviewing court would have no effect on the parties.” Bank of N.Y.
Mellon v. De Meo, 227 Ariz. 192, 193–94, ¶ 8 (App. 2011) (quoting Vinson v.
Marton & Assocs., 159 Ariz. 1, 4 (App. 1988)). “Although . . . Arizona courts
are not constitutionally constrained to consider only ‘cases’ or
‘controversies,’ we typically decline to consider moot or abstract questions
as a matter of judicial restraint.” Kondaur Capital Corp. v. Pinal County, 235
Ariz. 189, 192–93, ¶ 8 (App. 2014); Brionna J. v. DCS, 247 Ariz. 346, 351, ¶ 15
(App. 2019) (case is moot when it seeks to determine a question that does
not arise upon existing facts). “It is not an appellate court’s function to
declare principles of law which cannot have any practical effect in settling
the rights of litigants.” Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz.,
143 Ariz. 547, 548 (App. 1985).

¶10 Here, granting the relief Mother seeks—reconsideration of the
superior court’s legal decision-making and parenting-time order—would
no longer serve any purpose given two events that occurred while this
appeal was pending. First, according to an agreement approved by the
court on January 13, 2020, Mother is now entitled to unsupervised, equal
parenting time with Father. Second, on April 3, 2020, Mother filed a petition
to modify legal decision-making in the superior court requesting the parties
share joint legal decision-making authority. Father filed a response shortly
thereafter agreeing that Mother and Father should now exercise joint
decision-making authority over Austin.3 These events demonstrate that the
current circumstances surrounding legal decision-making and parenting
time have significantly changed from the time of the court’s original orders
nearly a year and a half ago. Given these developments, rewinding the
clock by assessing the superior court’s original legal decision-making and
parenting-time orders would have no practical effect in settling the rights
of Mother and Father as they exist today. See Brionna J., 247 Ariz. at 351,
¶ 15. Simply put, although the parties still are not in total agreement on
every aspect of Austin’s care, Mother and Father have substantially
accomplished, through conciliation and compromise, what any action by
this court could achieve. Accordingly, we conclude Mother’s arguments

3 We take judicial notice of Father’s response to Mother’s petition to
modify legal decision-making. In re Pima County Mental Health No.
MH-959-10-85, 149 Ariz. 7, 9 (App. 1986) (court make take judicial notice of
the contents of the superior court’s file).

5
 LOVE v. LOVE
Decision of the Court

concerning the superior court’s original legal decision-making and
parenting-time orders are now moot and do not address them further.

B. The Superior Court Erred by Miscalculating Mother’s
Child-Support Obligation.

¶11 Next, Mother argues the court erred by failing to
appropriately credit her for the cost of medical insurance for Austin when
calculating her child-support obligation. We review child-support awards
for an abuse of discretion. Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App.
2018). “A trial court abuses its discretion when it misapplies the law or
predicates its decision on incorrect legal principles.” Hammett v. Hammett, 247 Ariz. 556, 559, ¶ 13 (App. 2019) (quoting State v. Jackson, 208 Ariz. 56,
59, ¶ 12 (App. 2004)).

¶12 Under the child-support guidelines, when determining the
total child-support obligation, the court “[s]hall add to the Basic Child
Support Obligation the cost of the children’s medical dental or vision
insurance coverage.” A.R.S. § 25-320(9)(A) (child-support guidelines). “If a
parent pays a cost under [§ (9)(A), the court must] deduct the cost from that
parent’s Proportionate Share of Income to arrive at the Preliminary Child
Support Amount.” A.R.S. § 25-320(13) (child-support guidelines).

¶13 Here, the court ordered that Mother was responsible for
providing medical insurance for Austin, including continuing “to pay
premiums for any medical, dental and vision policies covering the child
that are currently in existence.” But in calculating Mother’s child-support
obligation, the court appears to have used the sum of Father’s asserted total
monthly cost for medical insurance in his affidavit of financial information,
$84.46, instead of the total monthly cost of medical insurance stated by
Mother in her affidavit of financial information. This was error. If the court
intended for Mother to provide Austin medical insurance by paying the
premiums owed under Father’s medical insurance plan, it should have
attributed the monthly payments to Father and added the cost to Mother’s
monthly child-support obligation. If, on the other hand, the court intended
for Mother to pay the premiums associated with her medical-insurance

6
 LOVE v. LOVE
Decision of the Court

plan, it should have used the cost of those premiums to determine the
child-support obligation.4

¶14 Because we lack the means to determine what the court
intended and because this aspect of the court’s child-support order is
erroneous as constructed, we vacate the child-support order and remand
for the court to recalculate Mother’s child-support obligation. In doing so,
we recognize Mother’s child-support obligation has been reduced to $0
effective January 1, 2020, under a court-approved stipulation. But contrary
to Husband’s assertions on appeal, this does not render the court’s
miscalculation of Mother’s child-support obligation from February 2019 to
January 2020 harmless or moot. Mother is entitled to reimbursement for any
amount she overpaid during the period the child-support order was active.
See A.R.S. § 25-527(A).

C. We Vacate Father’s Attorney’s Fees awards.

¶15 Finally, Mother argues the court erred by awarding Father
attorney’s fees under A.R.S. § 25-324. Section 25-324(A) provides that the
court “from time to time, after considering the financial resources of both
parties and the reasonableness of the positions each party has taken
throughout the proceedings, may order a party to pay a reasonable amount
to the other party for the costs and expenses of maintaining or defending
any proceeding.” We review the award of attorney’s fees under the statute
for an abuse of discretion. Lehn v. Al-Thanayyan, 246 Ariz. 277, 286, ¶ 29
(App. 2019). “In doing so, we defer to the court’s factual findings so long as
there is competent evidence to support them.” Quijada v. Quijada, 246 Ariz.
217, 222, ¶ 13 (App. 2019).

¶16 Here, the superior court concluded an award of attorney’s
fees under A.R.S. § 25-324(A) was warranted because it found Mother
“acted unreasonably in the litigation.” Specifically, the court found:

Mother attempted to mislead the Parenting Conference
provider, the [advisor], and the Court regarding her history
of mental health instability and abuse of alcohol. Mother
failed to comply with the parties’ February 2018 Agreement

4 It is not clear what Mother’s total monthly cost for medical insurance
for Austin was at the time of the decree. On remand, Mother will only be
entitled to claim insurance expenses to the extent she can clarify and explain
the actual amount she pays each month for Austin’s medical insurance.

7
 LOVE v. LOVE
Decision of the Court

regarding parenting time. She withheld Austin from Father
even on Father’s Day and his other designated holidays, in
addition to his agreed-upon regular parenting time. Mother’s
conduct caused Father to incur unnecessary fees and costs
with counsel attempting to resolve this issue and then filing a
motion for the Court to restore Father’s access to the child.

The record supports the court’s first finding. During interviews with a
parenting-conference provider and the advisor, and while testifying at the
December 2018 hearing, Mother admitted she was temporarily hospitalized
in 2016 for an incident involving her medications. She minimized the event
in each instance by asserting it was either not an overdose at all or an
accidental overdose caused by her attempting to use her medication to get
more rest. Mother also vacillated between claiming the incident did not
involve alcohol and conceding that she was drinking at the time. However,
medical records admitted into evidence show that Mother told her treating
physicians that she intentionally overdosed on her medications after
drinking, acknowledged that she was attempting to hurt herself, and left a
note. Mother’s treating physicians characterized the incident as a suicide
attempt by overdose. The court was thus within its discretion to conclude
that Mother’s lack of candor concerning this incident was an attempt to
mislead the court and its advisor and that this conduct was unreasonable.

¶17 Two of the court’s other findings, on the other hand—that
Mother failed to abide by the parties’ agreement regarding parenting time
and withheld Austin from Father on Father’s Day and other designated
holidays—are not supported by the record. Although the parties did enter
into a Rule 69 agreement with an altered parenting-time arrangement in
February 2018, the judicial officer presiding over the case at that time
reinstated the temporary parenting-time arrangement established by the
court in November 2017. Under Rule 69, a written and signed
parenting-time agreement is binding only on the parties, not the court, and
the court had the authority to reinstate its temporary parenting-time orders.
Ariz. R. Fam. Law. P. 69(a)(1), (b). It was improper for a different judicial
officer to later fault Mother for failing to comply with an agreement that
was no longer in force.

¶18 Regarding the court’s finding that Mother withheld Austin
from Father on Father’s Day and other holidays, both parties stated that
Austin did spend Father’s Day with Father. And the November 2017
temporary orders only provided a holiday schedule for Thanksgiving and
Christmas 2017. The finding by the court was erroneous.

8
 LOVE v. LOVE
Decision of the Court

¶19 Because we are remanding the case for redetermination of
child support, the court can reconsider its awards of fees without the
inappropriate findings.

CONCLUSION

¶20 We affirm the decree except for the order of child support and
attorney’s fees. Both parties request an award of attorney’s fees and costs.
In our discretion, we decline to award attorney’s fees; however, as the
prevailing party, Mother is entitled to costs upon compliance with Arizona
Rule of Civil Appellate Procedure 21. We remand for further proceedings
consistent with this decision.

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

9