Chandler v. Ellington

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHELE RENEE CHANDLER, Petitioner/Appellee,

v.

CHRISTOPHER MICHAEL ELLINGTON, Respondent/Appellant.

No. 1 CA-CV 13-0648 FC
FILED 6-18-2015

Appeal from the Superior Court in Maricopa County
No. FC2009-005572
The Honorable Roger E. Brodman, Judge

AFFIRMED

COUNSEL

Christopher M. Ellington, Mesa
Respondent/Appelant
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Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.

W I N T H R O P, Judge:

¶1 After approximately eight years of marriage, Michele Renee
Chandler (“Mother”) served a petition for dissolution on Christopher
Michael Ellington (“Father”). Following entry of a dissolution decree, the
family court awarded Father and Mother joint legal decision-making
authority for their two children. Father contends the family court abused
its discretion by awarding Mother final authority in the event of a decision-
making conflict. Finding no abuse of discretion or legal error, we affirm.1

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties married in 2001 and are the parents of two minor
children. In 2009, Mother served a petition for dissolution of the marriage,
and both parties requested sole legal decision-making authority for the
children. The family court’s 2010 dissolution decree awarded Mother sole
legal decision-making authority and required Father to pay child support.
The decree also granted Father unsupervised parenting time on alternate
weekends and holidays, subject to his adherence to a random drug testing
regimen.

¶3 A series of motions followed, prompted in part by Mother’s
relocation with the children to Alabama and eventual court-ordered return
in 2011. In addition, each party obtained orders of protection against the
other party, and claimed at various times that the other party was
endangering the children’s health. The family court appointed a Best
Interests Attorney (“BIA”) for the children.

¶4 Both parties moved for modification of the dissolution
decree’s legal decision-making and parenting time orders, and Father filed

1 Mother did not file an answering brief. However, because legal
decision-making - which affects the best interest of the children - is at issue,
we do not treat this omission as a confession of error. See Hoffman v.
Hoffman, 4 Ariz. App. 83, 85, 417 P.2d 717, 719 (1966).

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a motion to modify child support. Mother, claiming Father had violated
orders and endangered the children, requested that the family court
continue to order drug testing for Father, require supervised parenting
time, refer Father’s child support arrearages to a Title IV-D commissioner,
and order Father to undergo counseling. Father, citing the children’s
“deteriorating” physical and emotional conditions and concerning
behaviors, requested (1) an emergency award of joint or “full” legal
decision-making authority with designation as the primary residential
parent, and (2) a finding of contempt based on Mother’s alleged violation
of parenting time orders. At the time, the parties did not dispute that a
substantial and continuing change materially affecting the children’s
welfare had occurred.

¶5 After referring the child support issues to a Title IV-D
commissioner, the family court held two evidentiary hearings on
modifying legal decision-making and parenting time. The first hearing,
held February 13, 2013, addressed Father’s request for emergency
modification of legal decision-making and parenting time and his notice of
violation of a court order regarding parenting time. Mother was
represented by counsel, and Father appeared pro per.

¶6 After taking the matters under advisement, the family court
issued a minute entry filed April 16, 2013, denying any claim for relief by
Father based on his notice of violation of a court order. As to Father’s
emergency motion to modify child custody and decision-making authority,
the court found no evidence of mistreatment of the children by Mother as
alleged by Father, and also noted that Child Protective Services (“CPS”)2
had found no substantiation for Mother’s allegations of mistreatment and
neglect against Father. The court further noted that a week on/week off
schedule over the summer of 2012 had “reduced conflict between the
parties” and “resulted in a period of relative calm.” Accordingly, the family
court increased Father’s parenting time to every other week but found no
basis to alter Mother’s sole legal decision-making authority. The family
court also agreed to revisit certain issues at the second hearing, including
whether the children had been exposed to inappropriate conduct and
whether Father had violated parenting time orders. Additionally, the court

2 In May 2014, CPS was removed as a division of the Arizona
Department of Economic Security (“ADES”) and replaced by the
Department of Child Safety, an entity outside of ADES. See 2014 Ariz. Sess.
Laws, ch. 1, §§ 6, 20, 54 (2d Spec. Sess.). We refer to the former CPS in this
decision.

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noted that Mother had sufficient income to pay attorneys’ fees and ordered
her to pay one-half of the BIA’s fees.

¶7 Approximately six months later, on August 2, 2013, the family
court conducted a one-day evidentiary hearing to address several
additional motions by the parties and any carry-over issues. The motions
primarily concerned legal decision-making, parenting time, and alleged
violations of the court’s prior orders. Both Mother and Father appeared pro
per and testified, and the BIA addressed the court. The parties entered an
agreement pursuant to Rule 69, Ariz. R. Fam. Law P., providing for equal
parenting time, and Mother expressed support for a joint legal decision-
making order. Consistent with the BIA’s recommendation, the family court
awarded the parties joint legal decision-making authority, with Mother
having final authority in the event of a conflict. The court also referred the
matter to a Title IV-D commissioner, see Ariz. R. Fam. Law P. 3(B)(10); 42
U.S.C. §§ 651-669b, for new child support orders as applicable in light of the
court’s new orders, and denied all other requested relief. Father timely
appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(2)
(Supp. 2014).

ANALYSIS

¶8 Father contends the family court erred in awarding Mother
final authority in the event of a legal decision-making conflict. He argues a
new hearing is warranted to consider issues unaddressed by the family
court, as well as any new evidence concerning the children’s best interests,
in order to resolve this question. We disagree.

I. Standards of Review

¶9 We review the family court’s legal decision-making ruling for
an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79
P.3d 667, 669 (App. 2003). A court abuses its discretion when it commits an
error of law in making a discretionary decision, reaches a conclusion
without considering evidence, commits some other substantial error, or
makes a finding lacking substantial evidentiary support. Flying Diamond
Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App.
2007) (citation omitted). Nevertheless, our duty “does not include re-
weighing conflicting evidence.” Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219
P.3d 258, 262 (App. 2009) (citation omitted); Gutierrez v. Gutierrez, 193 Ariz.
343, 347-48, ¶ 13, 972 P.2d 676, 680-81 (App. 1998) (deferring to the trial
court’s determination of the witnesses’ credibility and the weight accorded
to conflicting evidence); Hamilton v. Mun. Court, 163 Ariz. 374, 378, 788 P.2d

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107, 111 (App. 1989) (holding that the appellate court does not weigh the
evidence; instead, the court decides whether substantial evidence supports
the decision).

¶10 Because Father requested findings of fact and conclusions of
law, the family court was required to clearly state the basis for its
conclusions. See Kelsey v. Kelsey, 186 Ariz. 49, 50-51, 918 P.2d 1067, 1068-69
(App. 1996); Ariz. R. Fam. Law P. 82(A). This court will affirm the family
court’s factual findings absent clear error, In re Marriage of Berger, 140 Ariz.
156, 161, 680 P.2d 1217, 1222 (App. 1983), and will give due regard “to the
opportunity of the trial court to judge the credibility of witnesses.” Ariz. R.
Fam. Law P. 82(A). We review de novo the court’s application of statutes.
Nolan v. Kenner, 226 Ariz. 459, 461, ¶ 4, 250 P.3d 236, 238 (App. 2011).

II. The A.R.S. § 25-403(A) Findings

¶11 In challenging the family court’s legal decision-making order,
Father argues the evidence at trial did not support the court’s best interest
findings pursuant to A.R.S. § 25-403(A) (Supp. 2014). According to Father,
the family court also exhibited a judicial bias against him; based its award
on Mother’s provision of pharmaceutical and pharmacological care for the
children, as opposed to use of holistic or homeopathic methods; engaged in
libel and slander against Father; mischaracterized Father’s testimony;
considered “fraudulent and incomplete” testimony; failed to consider
pertinent evidence; misapplied the law; improperly relied on the BIA’s
opinion; and failed to fully address issues identified but not fully resolved
in the first modification hearing.

¶12 In a contested case, a court must make specific findings on the
record about the relevant factors and the reasons why its award is in the
children’s best interest. A.R.S. § 25-403(B). The family court’s twelve-page
order includes detailed findings relating to all the A.R.S. § 25-403(A)
factors3 with citations to relevant evidence. We conclude the family court

3 These factors are: (1) each parent’s relationship with the children; (2)
the interaction and interrelationship of the children with the parents,
siblings, and any other person affecting the children’s best interest; (3) the
children’s adjustment to home, school, and community; (4) the children’s
wishes regarding legal decision-making and parenting time; (5) the health
of the parties involved; (6) which parent is more likely to allow the children
frequent, meaningful, and continuing contact with the other parent; (7)
whether one parent has misled the court to cause unnecessary delay or

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did not abuse its discretion by weighing some evidence more heavily than
other evidence. The court gave Mother final decision-making authority
because “Mother is more open to addressing [the older child’s] issues, and
[] Father’s rigid thinking would not, in the long run, be in the children’s
best interests.” Likewise, the court expressed concern “that Father’s rigid
positions on some issues relating to the children would, if granted sole
decision-making, exclude Mother from the process.”

¶13 Our review of this decision is limited by the absence of the
hearing transcript. As the appellant, Father was required to supply a
complete record to this court, including a trial transcript. See ARCAP
11(b)(1) (“If the appellant intends to urge on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the evidence,
the appellant shall include in the record a certified transcript of all evidence
relevant to such finding or conclusion.”); see State ex rel. Dep’t of Econ. Sec.
v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73 (App. 2003) (upholding the
denial of a modification of child support in the absence of a hearing
transcript). Because Father failed to provide the transcript, we are required
to assume the missing record supports the family court’s findings and
conclusions. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App.
1995). In view of that assumption, and the clear basis for the family court’s
analysis under Rule 82(A), we find no error. See id.; see also Romero v. Sw.
Ambulance & Rural/Metro Corp., 211 Ariz. 200, 203, ¶ 4, 119 P.3d 467, 470
(App. 2005) (holding that unsupported arguments without the relevant
transcripts are insufficient for this court to meaningfully review the trial
court’s rulings or overcome the presumption that those rulings are
supported by the record).

¶14 We are also unable to fully address most of Father’s other
arguments on this limited record. Without a transcript, we cannot
determine whether Father objected to the proceedings on the grounds he
raises on appeal. Further, we cannot assess whether the family court failed
to consider evidence, improperly admitted evidence, precluded
presentation of evidence on issues identified in the first custody hearing,
violated court rules, or committed any of the other transgressions alleged

expense or to obtain a preferential ruling; (8) whether there has been
domestic violence or child abuse; (9) the nature and extent of coercion or
duress employed by a parent in obtaining a parenting time or legal
decision-making agreement; (10) whether the parents have complied with
education program requirements; and (11) whether either parent was
convicted of false reporting of child abuse or neglect. A.R.S. § 25-403(A)(1)-
(11).

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by Father. Moreover, given the non-specific and conclusory arguments
Father presents on appeal, we have no basis for disturbing the family
court’s ruling. See Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 343, 678
P.2d 525, 528 (App. 1984) (stating that an appellate court may decline to
perform an advocate’s role and search the record to substantiate an
appellant’s claim); see also Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 191,
193, 836 P.2d 404, 406 (App. 1992) (stating that a judgment is presumed
correct and the appellant bears the burden to show otherwise); see generally
ARCAP 13(a)(6) (requiring a party to support contentions on appeal with
specific references to the record and legal authorities).

¶15 Father does specifically argue the family court misquoted his
testimony when finding that Father “stated he would not allow his children
to take medications.” He concedes, however, that he opposes “flu shots
and vaccinations.” In the absence of a transcript, we presume the record
supports the family court’s finding. See Baker, 183 Ariz. at 73, 900 P.2d at
767.

¶16 Even assuming Father’s testimony is accurately reflected in
his opening brief, the family court was not required to accept it. See
Standage v. Standage, 147 Ariz. 473, 479, 711 P.2d 612, 618 (App. 1985)
(recognizing the family court is in the best position to assess the credibility
of witnesses, and the appellate court gives deference to its determination),
superseded in part by statute as stated in Myrick v. Maloney, 235 Ariz. 491, 494,
¶ 8, 333 P.3d 818, 821 (App. 2014); Estate of Reinen v. N. Ariz. Orthopedics,
Ltd., 198 Ariz. 283, 287, ¶ 12, 9 P.3d 314, 318 (2000) (stating that the superior
court is not bound to accept even the uncontradicted evidence of an
interested party). On this limited record, we conclude the family court did
not err in awarding the parties joint legal decision-making authority and
granting Mother final decision-making authority.4

4 Nor can we agree the family court defamed Father in describing his
position on administering medications to the children. Moreover, even if
we were to conclude the statements about Father were defamatory, “[a]
judge or other officer performing a judicial function is absolutely privileged
to publish defamatory matter in the performance of the function if the
publication has some relation to the matter before him.” Restatement
(Second) of Torts § 585 (1977). Because the family court made statements
about Father’s stance on medications in the course of making a legal
decision-making determination, the privilege applies and precludes a
defamation claim. See id.; Owen v. Kronheim, 304 F.2d 957, 959 (D.C. Cir.

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III. Judicial Bias

¶17 Although Father attributes adverse rulings to judicial bias, we
must presume the family court judge is free of prejudice and bias. State v.
Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2005). To overcome
this presumption, a party must prove “a hostile feeling or spirit of ill-will,
or undue friendship or favoritism, towards one of the litigants.” State v.
Cropper, 205 Ariz. 181, 185, ¶ 22, 68 P.3d 407, 411 (citation omitted),
supplemented by 206 Ariz. 153, 76 P.3d 424 (2003). “Opinions formed by the
judge on the basis of facts introduced or events occurring in the course of
the current proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.” State v. Henry,
189 Ariz. 542, 546, 944 P.2d 57, 61 (1997) (quoting Liteky v. United States, 510
U.S. 540, 555-56 (1994)).

¶18 Father has not rebutted the presumption of judicial
impartiality. Although we lack the transcript, the portions of the record
available reflect the family court extensively and impartially considered the
parties’ positions and entered orders in the children’s best interest.

CONCLUSION

¶19 The family court’s order is affirmed.

:ama

1962) (holding that the statements of a judge uttered in his official capacity
and acting within the limits of his jurisdiction were absolutely privileged);
Lewis v. Linn, 26 Cal. Rptr. 6, 8-9 (Cal. Dist. Ct. App. 1962) (recognizing that
an absolute privilege applies to statements made from the bench); see also
Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984)
(explaining that the absolute privilege generally applies to judicial
proceedings and “protects judges, parties, lawyers, witnesses and jurors”).

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