Shifflett v. Porter

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROGER DALE SHIFFLETT, Petitioner/Appellant,

v.

JAIME BRANDON PORTER, Respondent/Appellee.

No. 1 CA-CV 13-0619
FILED 10-23-2014

Appeal from the Superior Court in Maricopa County
No. FC2012-051232
The Honorable Jay M. Polk, Judge

AFFIRMED

COUNSEL

Cynthia L. Best, Attorney at Law, Scottsdale
By Cynthia L. Best
Counsel for Petitioner/Appellant

Singer Pistiner, P.C., Phoenix
By Robert S. Singer
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Donn Kessler and Judge Kent E. Cattani joined.

T H O M P S O N, Judge:

¶1 Roger Dale Shifflett (Father) appeals from the minute entry
order denying his petition to modify custody, parenting time, and child
support on an expedited basis. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Jamie Brandon Porter (Mother) and Father were divorced in
Virginia in 2007 and have one Daughter together. The Virginia court
entered an order granting Mother sole legal custody1 and primary physical
custody of their Daughter. In 2008, the Virginia court also entered a
visitation order awarding Father parenting time alternating weekends from
Friday at 6:00 p.m. to Sunday at 6:00 p.m., and every other Wednesday from
4:00 p.m. to 7:00 p.m. Holidays and vacation time were divided between
the parents.

¶3 In approximately January 2009, Father began working and
occasionally living in Texas. Father relocated to Texas permanently in
March 2010. Three months later, Mother and Daughter moved from
Virginia to Florida; and in September 2011, relocated to Arizona. Father
registered the Virginia custody and visitation orders in Maricopa County
Superior Court, and on March 13, 2012, filed a petition to modify custody,
parenting time and child support on an expedited basis. Father alleged that
a modification of custody was necessary because Mother refused to comply
with the Virginia visitation order and Father feared Mother would flee
Arizona to evade enforcement of Father’s parenting time. Mother opposed
father’s petition, and filed a cross-petition for increased child support and

1 As of January 1, 2013, the Arizona legislature changed all references
to “legal custody” in Arizona Revised Statutes (“A.R.S.”) title 25, chapter
four to “legal decision-making.” See 2012 Ariz. Sess. Laws, ch. 309, § 4 (2d
Reg. Sess.); A.R.S. § 25–401(3). The revised statute applies to these
proceedings. Court rules, however, still use the term “custody” and thus
we use the terms interchangeably here.

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request for supervised visitation. The court held a return hearing on
Father’s petition and ordered the parties to attempt to agree upon a person
to conduct a limited family assessment. Thereafter, the parties mutually
agreed to expand the limited family assessment to a comprehensive
custody evaluation (custody evaluation), and agreed that Dr. Brian W. Yee
would be the custody evaluator.

¶4 In July 2012, while the petitions were still pending, Mother
and Daughter relocated to North Carolina. Father filed multiple motions,
including a request for order to prevent relocation, an expedited petition to
enforce father’s parenting time, and an emergency temporary order
without notice for custody and parenting time. Mother responded and filed
an affirmative request for an order permitting relocation, asserting that
relocation was necessary because her employment was terminating in
Arizona. The court denied Father’s motion for temporary orders as an
emergency, but set an evidentiary hearing for August 21, 2012. At the
request of Father’s counsel, the evidentiary hearing was continued, and was
eventually held on December 19, 2012 and February 26, 2013.

¶5 Prior to the hearing, Dr. Yee submitted his custody evaluation
to the court. The custody evaluation was based on individual and joint
interviews with Mother and Father; individual interviews with Daughter;
psychological testing of Mother and Father; examination of Mother’s
medical records; an interview with Dr. Henry J. Schulte, Mother’s treating
physician; and review of the parties’ depositions. The custody evaluation
stated: (1) the parties had difficulty communicating and cooperating with
each other; (2) Mother alleged Father had a history of domestic violence,
and though Father denied committing domestic violence, he admitted to
being jailed for violations of an order of protection; (3) Mother was treated
for anxiety and post-concussion effects resulting from a 2009 bus accident,
but remained effective in providing daily care for her Daughters; (4) both
Mother and Father have a history of frequent relocation; (5) Daughter is
psychologically attached to Father, Mother, and Mother’s daughter from a
prior relationship; (6) Daughter is well-adjusted under the primary care of
Mother and succeeding in school; and (7) both parents are likely to comply
with the court’s order regarding parenting time. Ultimately, Dr. Yee
concluded that a move to reside permanently with Father would not benefit
Daughter, and it would not be in Daughter's best interest to change the
custody arrangement.

¶6 After receiving the custody evaluation, Father retained Gary
Prince, M.D, as an expert to address Mother’s medical records, Father’s
relationship with Daughter, and the custody evaluation. Dr. Prince based

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his evaluation on a ninety-minute interview with Father and examination
of Mother’s medical records. Father introduced a letter from Dr. Prince into
evidence, which opined that Mother had unresolved personal and
psychological issues and appeared unable to provide a secure, steady
environment for Daughter. Dr. Prince concluded it was in Daughter’s best
interest to reside permanently with Father.

¶7 At the evidentiary hearing, the court heard testimony from
Mother, Father, and Drs. Yee, Prince, and Schulte. The court found “Dr.
Yee’s Report, opinions, and testimony significantly more persuasive than
Dr. Prince’s Report, opinions, and testimony.” Thereafter, the court made
its own detailed and specific findings concerning changed circumstances
and the relevant factors identified in Arizona Revised Statutes (“A.R.S.”)
section 25-403 (Supp. 2013).2 Based on its findings, the court denied
Father’s request to modify legal custody and affirmed the Virginia court’s
award of sole legal decision-making to Mother. The court awarded Father
the following parenting time: one weekend per month; all of Daughter’s
summer vacation, with the exception of the first and last week; and
alternating winter, thanksgiving, and spring breaks. Additionally, the
court found that because neither Father nor Mother registered the Virginia
court’s child support order in Arizona, the court did not have jurisdiction
to modify the child support order. Finally, the court awarded Mother a

2 Those factors are: (1) the past, present and future relationship
between each parent and the child; (2) the interaction of the child with her
parents, siblings, or any other person who may significantly affect the
child’s best interests; (3) the child’s adjustment to home, school and
community; (4) if the child is of suitable age, his or her wishes regarding
legal decision-making and parenting time; (5) the mental and physical
health of all individuals involved; (6) which parent is more likely to allow
the child frequent and meaningful continuing contact with the other parent;
(7) whether a parent intentionally misled the court to cause unnecessary
delay, increase the cost of litigation, or persuade the court to give legal
decision-making or parenting time preference to the parent; (8) whether
there has been any domestic violence or child abuse; (9) the nature and
extent of any coercion or duress used by a parent in obtaining an agreement
regarding legal decision-making or parenting time; (10) parental
compliance with chapter 3 article 5 of Title 25 (requiring completion of a
domestic relations educational program); and (11) any conviction for false
reporting of child abuse or neglect. A.R.S. § 25-403(A).

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portion of her reasonable attorney fees and costs pursuant to A.R.S. § 25–
324 (Supp. 2013).3

¶8 Father timely appealed. This court has jurisdiction pursuant
to A.R.S. §§ 12-120.21 and -2101(B) (Supp. 2013).

DISCUSSION

¶9 The superior court reviews petitions for modifying child
custody arrangements “in accordance with the best interests of the child.”
A.R.S. § 25-403(A). The court has broad discretion in deciding whether to
modify a child custody order, and we will defer to its ruling absent clear
abuse of that discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d
667, 669 (App. 2003) (custody); Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d
818, 823 (1970) (parenting time). “An abuse of discretion exists when the
record, viewed in the light most favorable to upholding the trial court’s
decision, is devoid of competent evidence to support the decision.” State ex
rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 14, 66 P.3d 70, 73 (App.
2003).

Sanctions Imposed by the Court

¶10 Father first argues that the court improperly sanctioned him
for retaining Dr. Prince as an expert witness following the issuance of Dr.
Yee’s custody evaluation. Father does not specifically explain what
sanctions were ordered by the court. Rather, Father asserts that the court
ignored Dr. Prince’s opinion and should not have found Dr. Yee’s opinion
“significantly more persuasive” than Dr. Prince’s opinion. Father, in
essence, is asking this court to reweigh the evidence, which we will not do.
See Double AA Builders, Ltd. v. Grand State Constr. L.L.C., 210 Ariz. 503, 511,
¶ 41, 114 P.3d 835, 843 (App. 2005) (stating we give deference to the trial
court's opportunity to judge the credibility of the witnesses, and will not
reweigh the evidence on appeal); see also Gutierrez v. Gutierrez, 193 Ariz. 343,

3 Father asserts in the “Conclusion” section of his opening brief that
the court’s award of attorneys’ fees to Mother improperly sanctioned him
for “taking his case to trial.” However, Father presents no argument to
support this assertion. “In Arizona, opening briefs must present significant
arguments, supported by authority, setting forth an appellant's position on
the issue raised. Failure to argue a claim usually constitutes abandonment
and waiver of that claim.” State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382,
1390 (1989); see also ARCAP 13(a)(6). Because Father failed to sufficiently
raise this issue on appeal, we deem it waived.

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347, ¶ 13, 972 P.2d 676, 680 (App. 1998). Moreover, Father’s claim that the
court ignored Dr. Prince’s opinion is unsupported by the record. In the
custody order, the court discussed Dr. Prince’s report and testimony, and
quoted his opinion regarding Mother’s mental health and parental fitness.
But the court also noted that Dr. Prince had never met with Mother and had
simply reviewed Mother’s medical records. The court's decision not to
adopt Dr. Prince’s recommendation does not mean it abused its discretion.
See DePasquale v. Superior Court, 181 Ariz. 333, 336, 890 P.2d 628, 631 (App.
1995) (stating that a court may consider expert opinion in making a child-
custody determination, but it must exercise independent judgment in
custody matters); see also A.R.S. § 25–403(A) (“court shall determine legal
decision-making and parenting time”).

¶11 Additionally, Father argues that the court improperly based
its legal decision-making ruling on the finding that Father “unreasonably”
challenged the custody evaluation. We disagree. Among the factors the
court must consider in awarding legal decision making is “[w]hether a
parent's lack of an agreement is unreasonable or is influenced by an issue
not related to the child's best interests.” A.R.S. § 25-403.01(B)(2) (Supp.
2013). In considering this factor, the court addressed its “significant
concerns regarding the Parents’ failure to reach an agreement after the Yee
Report was issued.” The court noted that Father first nominated Dr. Yee to
conduct the CCE, and that Dr. Yee’s evaluation was extremely thorough.
Rather than trying to reach an agreement with Mother upon receiving the
custody evaluation, Father retained Dr. Prince in an attempt to discredit it.
The court found that because Dr. Prince “performed only a superficial
investigation of the facts,” Father acted unreasonably in failing to reach an
agreement with Mother regarding joint legal decision-making. Father's
disagreement with the court's analysis of this statutory factor does not
establish an abuse of discretion. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219
P.3d 258, 262 (App. 2009); see also Jesus M. v. Ariz. Dep't of Econ. Sec., 203
Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (explaining that the trier of
fact is in the best position to weigh the evidence).

Domestic Violence

¶12 Father next argues that the trial court erred in considering
Mother’s domestic violence allegations in its custody determination
because the domestic violence incidents occurred prior to the Virginia
divorce decree and custody orders. Father’s opening brief is devoid of
relevant legal authority in support of his argument. As a result, this
argument is waived. See ARCAP 13(a)(6) (“[E]ach contention raised on
appeal . . . shall be identified, with citations to relevant authority.”); see also

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Polanco v. Indus. Comm'n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2
(App. 2007) (recognizing that an argument is waived on appeal if the
opening brief lacks citations to supporting authority).4

¶13 Father also disputes the existence of a domestic violence
conviction and order of protection violation, and argues the court erred in
finding the existence of domestic violence without any corroborating
evidence. We will not set aside a trial court's findings of fact unless they
are clearly erroneous. McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6, 49 P.3d 300,
302 (App. 2002).

¶14 The record does not support Father’s contention. During his
deposition, Father admitted to pleading guilty to assault following an
incident with Mother, taking anger management classes, and being placed
in jail for violations of the order of protection. Father also stated that he
believed Mother was awarded sole legal decision-making authority
because of the order of protection. The custody evaluation likewise
acknowledged the domestic violence conviction and order of protection
violations. Additionally, at the hearing, Mother testified that before and
after she obtained the order of protection in 2006, Father harassed her,
physically assaulted her, and threatened to harm her and members of her
family. Accordingly, substantial evidence supported the court’s finding
that Father had a history of domestic violence against Mother. Moreover,
the court noted in its order that even if Father had been able to rebut the
presumption that an award of sole or joint legal decision-making authority
to Father was contrary to Daughter’s best interest, see A.R.S. § 25-403.03(D),
the court nonetheless found that the remaining relevant statutory factors
weighed in favor of Mother retaining sole legal decision-making authority.
Accordingly, we find no abuse of discretion.

4 Even if we considered Father’s argument, we would find no error.
Under A.R.S. § 25-403.03 (Supp. 2013), the court must consider instances of
domestic violence when determining child custody and shall consider such
evidence as being contrary to the best interests of the child. Although the
significance the court places on pre-decree or post-decree instances of
domestic violence is within the court’s discretion, the court is not precluded
from considering pre-decree acts of domestic violence when determining
child custody. See Canty v. Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005
(App. 1994) (finding no error in court giving less weight to evidence of pre-
decree domestic violence than it gave other statutory factors).

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Consideration of Mother’s “Unreasonable Behavior”

¶15 Father next argues that the trial court abused its discretion by
ignoring Mother’s “unreasonable behavior” in its consideration of the
factors under A.R.S. § 25-403(A). The family court’s decision indicates it
specifically and thoroughly considered the relevant statutory factors and
placed its findings on the record. A.R.S. § 25-403(B); Downs v. Scheffler, 206
Ariz. 496, 500, ¶ 16, 80 P.3d 775, 779 (App. 2003). Nevertheless, Father
argues that, when considering the statutory factors, the court ignored
evidence, and failed to properly evaluate the evidence. Much of Father's
argument on appeal is a request for a different weighing of the evidence,
which is not appropriate for appellate review. See In re Estate of Pouser, 193
Ariz. 574, 579, ¶ 13, 975 P.2d 704, 709 (1999); Hurd, 223 Ariz. at 52, ¶ 16, 219
P.3d at 262 (“Our duty on review does not include re-weighing conflicting
evidence or redetermining the preponderance of the evidence.”).
Therefore, we decline to substitute our own analysis of the statutory factors,
and do not address those factors for which Father argues only that the court
should have evaluated the evidence differently. See O'Hair v. O'Hair, 109
Ariz. 236, 240, 508 P.2d 66, 70 (1973) (“[T]he duty of a reviewing court
begins and ends with the inquiry whether the trial court had before it
evidence which might reasonably support its action viewed in the light
most favorable to sustaining the findings . . . .”).

¶16 Moreover, Father's assertion that the court ignored evidence
of Mother's unauthorized relocation, her misrepresentations to the court as
to her reason for relocation,5 her mental health issues, and Mother’s
alienation of Daughter from Father, is contrary to the record.6 Father and

5 Father again failed to cite legal authority for his assertion that the
trial court abused its discretion in failing to sanction Mother after she
relocated without the court’s approval. Thus, Father has waived this
argument on appeal. See ARCAP 13(a)(6) (requiring that the opening brief
contain “citations to the authorities, statutes and parts of the record relied
on”). Even if Father properly argued this issue on appeal, we find no abuse
of discretion. See Woodworth v. Woodworth, 202 Ariz. 179, 180, ¶ 2, 42 P.3d
610, 611 (App. 2002) (stating that sanctions are generally left to the sound
discretion of the trial court).

6 For instance, the court specifically noted in its detailed minute entry
order that it would consider whether Mother’s moves, “from Virginia to
Florida and then to Arizona and North Carolina . . . justify a modification
of legal decision-making.” The court also discussed inaccuracies in

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Mother presented conflicting evidence on these issues, and the court was
required to weigh credibility on these issues and others. See State v.
Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) (stating that the
credibility of witnesses is for the trier of fact, not an appellate court). We
will not second-guess the court's credibility determinations, but only
determine whether reasonable evidence supports the superior court's
decision. Rowe v. Rowe, 154 Ariz. 616, 620, 744 P.2d 717, 721 (App. 1987). In
awarding sole legal decision-making authority to Mother, the court stated
that it had “considered the evidence, including the demeanor of the
witnesses, reviewed the exhibits as well as the case history, and considered
the parties’ arguments.” Because the court made all relevant findings as
required under A.R.S. § 25-403, and its findings are supported by the
record, there was no error.

Mother’s testimony regarding her reasons for relocation, as well as
inconsistencies in Father’s deposition and trial testimony pertaining to the
amount of frequent, meaningful contact between Father and Daughter. The
court ultimately concluded that both Mother and Father intentionally
misled the court to cause unnecessary delay, to increase the cost of
litigation, or to persuade the court to give a legal decision-making or
parenting time preference to themselves. Additionally, the court
thoroughly discussed the “substantial evidence presented regarding
Mother’s mental health,” ultimately concluding that the evidence does not
“suggest that Mother has any mental health issues that would significantly
impair her ability to parent [Daughter].”

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CONCLUSION

¶17 For the foregoing reasons, we affirm. Both parties request an
award of attorneys’ fees and costs on appeal pursuant to A.R.S. § 25-324
(Supp. 2013). In the exercise of our discretion, having considered the
disparity in the parties' resources and the reasonableness of their positions
on appeal, we award Mother her reasonable attorneys' fees and costs
incurred on appeal, in an amount to be determined upon her compliance
with Arizona Rules of Civil Appellate Procedure (ARCAP) 21.

:gsh

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