McEnaney v. Ducharme

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KIRK MICHAEL MCENANEY, Petitioner/Appellee,

v.

TRACY DUCHARME, Respondent/Appellant.

No. 1 CA-CV 22-0203 FC
FILED 2-28-2023

Appeal from the Superior Court in Maricopa County
No. FC2013-090312
The Honorable Keith A. Miller, Judge

AFFIRMED IN PART; REVERSED IN PART; REMANDED

COUNSEL

Kirk Michael McEnaney, Gilbert
Petitioner/Appellee

DeWitt-Lopez Law, PC, Phoenix
By Kristen J. DeWitt-Lopez
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.

B A I L E Y, Judge:

¶1 Tracy DuCharme (“Mother”) appeals the superior court’s
post-decree modification of legal decision-making, parenting time, and
child support. For the following reasons, we affirm as to legal decision-
making and parenting time, but reverse and remand in part as to child
support.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Kirk Michael McEnaney (“Father”; collectively
“Parents”) married in 1998, had two children, and divorced in 2014. The
decree of dissolution awarded Parents joint legal decision-making
authority and equal parenting time.

¶3 In October 2020, Mother moved for a Post-Decree Temporary
Order Without Notice, asking the court to suspend Father’s parenting time
and award her sole legal decision making. She contemporaneously filed a
Petition to Modify Legal Decision-Making, Parenting Time and Child
Support (“October 2020 Petition”), requesting Father’s parenting time be
supervised and claiming the children wanted no contact with Father’s
girlfriend. In her motion, she alleged that Father “drives drunk with the
children[,] drinks to the point of memory loss,” had broken items and
cursed at the children. She noted that the Department of Child Safety
(“DCS”) was involved and attached a copy of the Present Danger Plan she
submitted to DCS. She alleged that an Order of Protection (“OOP”)
including the children had been granted but had not been served. Father
filed a verified response to the motion denying the allegations.

¶4 The superior court issued an emergency temporary order,
awarding Mother full custody of both children. In December, after a
hearing on the motion, the superior court ordered Mother to remain the
children’s sole legal decision maker and affirmed that Father would have
no parenting time while the OOP remained in effect. The court ordered that
if the children were removed from the OOP as parties in need of protection,

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Father could exercise only non-overnight parenting time and could not
drive with the children. The OOP was dismissed at Mother’s request three
days after the hearing. Father thus regained non-overnight parenting time,
but Mother retained sole legal decision-making.

¶5 Eight days after the hearing, Mother moved for Emergency
Supplemental Temporary Orders Without Notice, requesting an order that
Father abstain from alcohol, submit to alcohol testing, disclose the test
results to Mother, and forfeit his parenting time if a positive test occurred.
The court denied the motion.

¶6 In late January 2021, Mother again moved for Emergency
Supplemental Temporary Orders Without Notice, requesting that Father’s
parenting time be supervised, and he submit to random alcohol testing.
The court granted the motion in part, requiring Father to test for alcohol
with BACtrack before he exercised parenting time, and ordering Father to
disclose the test results to Mother.

¶7 The superior court held a one-day trial on Mother’s October
2020 Petition in November 2021. By that time, only the younger child was
unemancipated; the eldest child turned 18 in May 2021. The eldest child,
Father, Mother, and the younger child’s therapist testified.

¶8 After taking the matter under advisement, the court found
that Father’s “alcohol abuse in October of 2020” was a material change in
circumstances, and ordered Parents to share joint legal decision-making
authority, with Father having final authority. Parents were awarded
alternating weeks of parenting time, which the younger child wanted. The
court also awarded retroactive child support to Mother for the younger
child for the period covering the temporary order and adjusted prospective
child support.

¶9 As to legal decision-making the court made findings under
A.R.S. § 25-403.01, including that “Mother’s desire for sole legal decision
making is partially influenced by her animosity towards Father,” and that
the court “has concerns that the way Mother wielded sole legal decision-
making over the past year [was] indicative of a desire to alienate the
[younger] child from Father.”

¶10 On parenting time, the court made specific factual findings on
each of the A.R.S. § 25-403(A) factors. The court noted “significant domestic
violence during the parties’ marriage,” but found “no recent acts of alleged
domestic violence.”

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¶11 As to Father’s alcohol abuse, the court found that his October
2020 episode (characterized as when he “drunkenly broke [the younger
child’s] alarm clock”) created a rebuttable presumption that sole or joint
legal decision-making by him was not in the child’s best interest. See A.R.S.
§ 25-403.04(A). But, in considering all relevant factors in subsection (B), the
court found that Father’s BACtrack results between October 2020 and
October 2021 “indicate that Father is not currently abusing alcohol.” The
court found that Father was “largely, though not perfectly, sober,” between
October 2020 and February 2021 owing to his TERROS results, and noted
that he tested negative for alcohol in every test taken after January 23, 2021.
The court accordingly found “Father’s alcohol use is now under control”
and Father rebutted the presumption.

¶12 Mother timely appealed. We have jurisdiction pursuant to
A.R.S § 12-2101(A)(2).

DISCUSSION

¶13 Father did not file an answering brief, and while we may
consider the failure to file an answering brief a concession of error, we
decline to do so here. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2 (App.
2002) (citing Ariz. R. Civ. App. P. 15(c)).

¶14 We review an award or modification of legal decision-making
and parenting time for an abuse of discretion. Owen v. Blackhawk, 206 Ariz.
418, 420, ¶ 7 (App. 2003). We will affirm the superior court’s order if
supported by competent record evidence. Smith v. Smith, 253 Ariz. 43, 45,
¶ 9 (App. 2022). We do not reweigh conflicting evidence on appeal or
second-guess the court’s credibility assessments. Gutierrez v. Gutierrez, 193
Ariz. 343, 347, ¶ 13 (App. 1998).

I. Reasonable evidence supports a finding that Father rebutted the
presumption under A.R.S. § 25-403.04.

¶15 Mother argues the superior court lacked sufficient evidence
to find Father overcame the presumption that joint legal decision-making
and parenting time were not in the younger child’s best interests under
A.R.S. § 25-403.04.

¶16 In its order, the court considered each factor under A.R.S. §
25-403.04(B). The court found Father tested negative for alcohol between
December 2020 and October 2021. The TERROS report from October 2020
through February 2021 reflects several missed calls but no missed
scheduled tests. Apart from one scheduled test, the BACtrack results

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disclose no other missed tests from February 2021 onward. Father testified
at trial that he had participated successfully in two alcohol treatment
programs. The superior court’s conclusion that Father rebutted the
presumption against awarding him joint legal decision-making is
supported by reasonable evidence. The court considered and weighed the
evidence as required, and we find no abuse of discretion.

II. Mother’s argument on the law of the case is meritless.

¶17 Mother argues that the superior court’s finding, that she used
her temporary sole legal decision-making authority to alienate the children
from Father, violates the law of the case or constitutes a failure to enforce
the court’s own orders. But Mother cites no authority suggesting that a
factual finding that critiques how she exercised her legal authority
constitutes “a retroactive[] rexamin[ation] [of] the temporary award” of sole
legal authority, or a failure to enforce prior orders. Contrary to Mother’s
argument, the court did not penalize her for exercising legal decision-
making authority, but for how she did so. The superior court’s finding did
not violate the law of the case.

III. The superior court considered all factors under A.R.S. § 25-
403(A).

¶18 Mother contends the superior court abused its discretion by
failing to consider each A.R.S. § 25-403(A) factor when determining the
child’s best interests. Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11 (App. 2009). But
the superior court considered the required factors with specificity.

¶19 Indeed, Mother's argument invites us to reweigh the
evidence, which we must decline. See Gutierrez, 193 Ariz. at 347, ¶ 13. She
suggests, among other things, that the court mischaracterized the
relationship between Father and the children, did not consider Father’s
failure to attend parent-teacher meetings while subject to the OOP, and
failed to discern the youngest child’s true wishes. But Mother points to no
section 403(A) factor for which the court lacked record evidence to make its
findings. At best, she disagrees with the superior court’s credibility
determinations and contested evidence at trial. The superior court did not
abuse its discretion here.

IV. Mother’s argument concerning domestic violence fails.

¶20 Mother also contends the court failed to make specific
findings on her allegations that Father drove while intoxicated, verbally
abused the children, and broke an alarm clock. A.R.S. § 25-403.03 requires

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a court, upon a finding of significant domestic violence or of a significant
history of domestic violence, to presume that an award of sole or joint legal
decision-making to the offending parent is contrary to the child’s best
interests in a parenting time award. The offending parent may rebut this
presumption, and in so doing the court must consider the factors outlined
in A.R.S. § 25-403.03(E) and (F). When this presumption exists, it is error
for the court to fail to make findings accordingly. DeLuna v. Petitto, 247
Ariz. 420, 425, ¶¶ 17-19 (App. 2019).

¶21 Mother argues the court disregarded the eldest child’s
testimony about Father’s drinking and driving with the children. But
Father testified and categorically denied the accusations, and we will not
question the superior court’s credibility determination. See Gutierrez, 193
Ariz. at 347, ¶ 13. Father also denied throwing the alarm clock, though he
admitted to hitting an alarm clock against a desk. The younger child’s
counselor testified that the child never reported any abuse, verbal or
otherwise, and that the younger child enjoyed spending time with Father.
Father also denied ever using abusive language. Reasonable evidence
supports a finding that no verbal abuse occurred.

¶22 The court found no domestic violence or child abuse beyond
what occurred on November 20, 2020. Even so, Mother contends that “no
incident occurred or was alleged to have occurred on that date,” and a
search of the record reveals that the specific date alleged was likely a
scrivener’s error.

¶23 Because reasonable evidence supports the court’s finding of
no post-decree domestic violence, the presumption did not apply. The
court did not abuse its discretion here.

V. Reasonable evidence supports the court’s determination of Child
Support Income, but the court erred by failing to award
retroactive child support for the eldest child.

¶24 The superior court’s order adopted two Child Support
Worksheets, calculated pursuant to the 2022 Child Support Guidelines.
While Mother notes that both orders appear to cover the same period, it is
clear from the order that one is retrospective and the other prospective.
Mother challenges the orders on two grounds: 1) the $6,000 per month of
income imputed to her, and 2) the failure to award retroactive support for
the eldest child.

¶25 The court did not err in imputing a $6,000 per month income
to Mother. Although Mother filed an Affidavit of Financial Information

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listing a gross salary of $5,200 per month in December 2020, she also
disclosed a bank statement showing an average of $6,295.59 in monthly
deposits from January through July 2021. Mother did not provide more
recent or more comprehensive financial information for 2021, despite
Father’s requested discovery. To the extent the superior court found, in
weighing credibility and the evidence presented, that the 2021 deposits
more accurately reflected Mother’s true earnings, it did not abuse its
discretion by annualizing her income based on those deposits. See A.R.S. §
25-320 app. § 2(A)(1)(c) (permitting annualization of fluctuating income).

¶26 That said, the court erred by failing to award retroactive child
support to Mother for the eldest child for the period between the October
2020 temporary order and the child’s emancipation. Courts must order
retroactive support back to the filing date of a petition to modify. A.R.S. §
25-809(A); see also Gelin v. Murray, 251 Ariz. 544, 547, ¶ 14 (App. 2021). The
Child Support Guidelines “generally require support to continue until the
child is emancipated or reaches majority.” In re Marriage of Allen, 241 Ariz.
314, 317, ¶ 15 (App. 2016).

¶27 Because the order does not state findings to support a
deviation from the Guidelines, it was error for the court not to award child
support to Mother for the eldest child. A.R.S. § 25-320 app. § 1(C)(1) (“These
Guidelines apply to all children for whom there is a legal obligation to
support.”); see also A.R.S. § 25-809(A) (“. . .the court shall direct, subject to
applicable equitable defenses . . .”). We remand for the superior court to
recalculate child support to include support for the eldest child or to make
findings that a deviation is in the children’s best interest.

CONCLUSION

¶28 We affirm the superior court’s orders as to joint legal decision-
making and parenting time but reverse and remand for recalculation of
retroactive child support as set forth above.

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

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