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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
CHRISTIE MAY DEMARIO, Petitioner/Appellant,
v.
ERIC DAVID DEMARIO, Respondent/Appellee.
No. 1 CA-CV 15-0316 FC
No. 1 CA-CV 15-0317 FC
(Consolidated)
FILED 12-27-2016
Appeal from the Superior Court in Maricopa County
No. FC2012-071473
The Honorable Carey Snyder Hyatt, Judge, Ret'd
AFFIRMED AS MODIFIED
COUNSEL
Christie May DeMario, Goodyear
Petitioner/Appellant
Lukacsik Law Office, PC, Glendale
By Heidi A. Lukacsik
Counsel for Respondent/Appellee
DEMARIO v. DEMARIO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Paul J. McMurdie joined.
J O H N S E N, Judge:
¶1 Christie May DeMario ("Mother") appeals from certain
rulings in the superior court's decree of dissolution, the denial of her motion
for new trial, and the award of attorney's fees to Eric David DeMario
("Father"). For the reasons set forth below, we affirm the rulings and the
judgment, as modified.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were married in September 2011, and their
daughter was born a month later. In August 2012, Mother filed a petition
for legal separation, which was later converted to a petition for dissolution.
The superior court appointed a best-interests attorney ("BIA") for the child.
See Ariz. Rev. Stat. ("A.R.S.") § 25-321 (2016).1 Two years later, the court
discharged the BIA and thereafter set trial to determine the contested issues
of legal decision-making and parenting time, child support and reallocation
of fees.
¶3 Following a one-day trial in January 2015, the superior court
entered a decree of dissolution, awarding Father sole legal decision-making
authority and Mother parenting time and ordering Mother to pay $400 per
month in child support, $1,600 in child support arrearages and $1,600 of the
custody evaluator's fees. See Ariz. R. Fam. Law P. 81. The court later denied
Mother's motion for new trial and awarded Father attorney's fees of
$25,000. Mother timely appealed. We have jurisdiction pursuant to Article
6, Section 9 of the Arizona Constitution and A.R.S. § 12-2101(A)(1), (5)(a)
(2016).
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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DEMARIO v. DEMARIO
Decision of the Court
DISCUSSION
A. Legal Decision-Making and Parenting Time.
¶4 We review the court's legal decision-making and parenting-
time rulings for an abuse of discretion. In re Marriage of Diezsi, 201 Ariz.
524, 525, ¶ 3 (App. 2002). We do not reweigh the evidence and will affirm
if substantial evidence supports the court's ruling. Hurd v. Hurd, 223 Ariz.
48, 52, ¶ 16 (App. 2009).2
1. Best-interests attorney.
¶5 Mother argues the superior court erred in considering
statements made by the BIA as evidence on the issue of custody. See Ariz.
R. Fam. Law P. 10(E). A best-interests attorney may advocate for the child
and urge the court to reach a particular result based on the evidence
presented. Aksamit v. Krahn, 224 Ariz. 68, 71, ¶ 12 (App. 2010). Conversely,
a best-interests attorney may not give a substantive report, however
denominated, that the court relies upon as evidence. Id. at 72-74, ¶¶ 16-20.
We review the court's interpretation of a rule of procedure de novo. Felipe v.
Theme Tech Corp., 235 Ariz. 520, 524, ¶ 10 (App. 2014).
¶6 Initially, Mother argues the superior court erred in denying
her February 2013 motion to strike statements made by the BIA and her
November 2013 motion for recusal of the BIA.3 The gravamen of her
complaints was that the BIA had told third parties involved in the case that
Mother was mentally ill and possibly suffered from Munchausen's
Syndrome by Proxy. To the extent Mother suggests error in connection
2 Mother's opening brief largely fails to cite the record or legal
authority, which could constitute a waiver of the issues raised. See ARCAP
13(a); Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 137 n.2, ¶ 7 (App.
2011). Nevertheless, given that the best interests of a child are involved, we
exercise our discretion to address Mother's arguments as best as we can
discern them. See Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003); In re Aubuchon,
233 Ariz. 62, 64-65, ¶ 6 (2013).
3 Mother withdrew motions she had filed in February 2013 seeking
recusal/removal of the BIA and a new hearing/trial based on complaints
about the BIA and, thus, has waived on appeal the arguments raised in
those two motions. See Amparano v. ASARCO, Inc., 208 Ariz. 370, 374, ¶ 13
(App. 2004) (failure to raise an issue in the superior court constitutes waiver
of issue on appeal).
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DEMARIO v. DEMARIO
Decision of the Court
with temporary orders, these are not subject to review on appeal. See
Villares v. Pineda, 217 Ariz. 623, 624-25, ¶¶ 10-11 (App. 2008) (temporary
orders not appealable). Mother continued to argue this issue at trial, several
months after the BIA was discharged, but the court made clear on the record
that it did not consider the BIA's (asserted) statements as substantive
evidence or rely on them in deciding custody. Cf. Aksamit, 224 Ariz. at 73-
74, ¶¶ 19-22. And although Mother argues the BIA's statements "corrupted"
the findings of Dr. Brian Yee (the custody evaluator) and Dr. Alvin Burstein
(the independent psychiatric evaluator) on the issue of Mother's mental
health, the record simply does not bear out that suggestion.
2. Best-interests determination.
¶7 Mother also argues the superior court abdicated to Dr. Yee
and Dr. Burstein its responsibility to determine the best interests of the
child.
¶8 When physical custody of a child is contested, the superior
court must make specific findings as to why its decision is in the child's best
interests. A.R.S. § 25-403 (2016); e.g., Nold v. Nold, 232 Ariz. 270, 273, ¶ 11
(App. 2013). "[T]he responsibility to make the findings is the court's alone."
Christopher K. v. Markaa S., 233 Ariz. 297, 301, ¶ 20 (App. 2013) (citing
DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 336 (App. 1995)). The
court may consider an expert's opinion, but it must weigh the evidence
itself, and may not simply adopt the findings of an expert witness or
delegate the best-interests determination to such a witness. Christopher K.,
233 Ariz. at 301-02, ¶¶ 20-21 (citations omitted). We presume the superior
court has considered the evidence presented before making its decision.
Fuentes v. Fuentes, 209 Ariz. 51, 55-56, ¶ 18 (App. 2004) (citation omitted).
¶9 In making its best-interests findings, the superior court stated
it "considered the evidence, including the demeanor of the witnesses,
reviewed the exhibits as well as the case history, and considered the parties'
arguments." In so doing, the court made independent findings, supported
by the evidence presented, regarding the child's best interests. Mother
particularly challenges the court's finding that Mother has significant
mental health issues, including anti-social personality disorder and
hypervigilance. See A.R.S. § 25-403(A)(5). The court gave careful
consideration to the evidence regarding Mother's mental health, and it
clearly set forth the evidence it considered to be credible on the issue.
Because the record supports this finding, we find no abuse of discretion.
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DEMARIO v. DEMARIO
Decision of the Court
¶10 Mother obliquely contends the superior court erred in
considering Dr. Burstein's report because his evaluation failed to comply
with the protections of Arizona Rule of Family Law Procedure 63. But
Mother did not object to the report on this basis, nor does she argue how
this purported failure was prejudicial. Mother does not suggest she lacked
time to obtain a second mental-health evaluation, and indeed she offered
Dr. D.J. Gaughan to rebut Dr. Burstein's opinion. Mother questions Dr.
Burstein's qualifications and the scientific reliability and relevance of his
report. See generally Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93
(1993); Ariz. R. Evid. 702 & cmt. to 2012 Amendment. Mother did not raise
this issue in the superior court; thus, we decline to address it for the first
time on appeal. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994).
¶11 Mother argues the superior court erred by failing to give
greater weight to evidence of domestic violence, including allegedly
abusive text messages Father sent in December 2011. See A.R.S. §§ 25-
403(A)(8), -403.03(B). However, although she provided more than 5,000
pages of documentation to Dr. Yee to consider in rendering his opinion, she
did not provide him with the text messages. Mother and her mother
testified about other alleged incidents of domestic violence, but the court
did not find either of them credible. We defer to the superior court's
determinations of witness credibility and the weight to give the evidence.
See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998).
¶12 Mother suggests the superior court's allocation of holidays is
"inconsistent and ambiguous." Mother does not clearly develop this
argument in a manner that permits us to address it. See Polanco v. Indus.
Comm'n of Ariz., 214 Ariz. 489, 491 n.2, ¶ 6 (App. 2007) (declining to address
merits of argument mentioned in passing in opening brief).
B. Child Support.
¶13 Mother argues the superior court abused its discretion in
awarding $400 per month to Father in child support. We review a child
support award for an abuse of discretion, and the court's application of the
Child Support Guidelines de novo. Engel v. Landman, 221 Ariz. 504, 510, ¶
21 (App. 2009); see A.R.S. § 25-320 app. § 15 (2016).
¶14 Mother disputes that Father's Affidavit of Financial
Information ("AFI") was complete or accurate. However, because Mother
did not object to admission of Father's AFI at trial, she may not contest it on
appeal. See Trantor, 179 Ariz. at 300. Mother also disputes the $338 per
month childcare credit, contending the child's daycare costs are paid by
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DEMARIO v. DEMARIO
Decision of the Court
Social Security, but she does not cite the record in support. See Flood Control
Dist. of Maricopa County v. Conlin, 148 Ariz. 66, 68 (App. 1985) (appellate
court will disregard statements of fact that lack appropriate citation to the
record and are not supported by the record); see also ARCAP 13(a)(7).
Indeed, Mother conceded that Father's records indicate he pays between
$117 and $167 per week for daycare. Accordingly, reviewing the award for
an abuse of discretion, we discern no error.
¶15 Mother contends she is entitled to a credit for child support
paid pursuant to a temporary order from October 1, 2014 through January
31, 2015 against the $1,600 judgment for past child support during the same
four-month period. Father does not dispute that the judgment was based
on the superior court's finding of current support retroactive to October 1,
2014, nor does he dispute that Mother was current on child support through
the entry of the decree. On this basis, we modify the judgment to reflect the
amount owed by Mother to Father in past child support is $1,367.48.
C. Fee Awards.
1. Reallocation of fees.
¶16 When it appointed Dr. Yee as the custody evaluator, the
superior court ordered that his fees up to $2,500 would be paid by the Office
of Public Defense Services, with Father paying the balance subject to
reallocation. Thereafter, the parties agreed that allocation "for any and all
professional and evaluator fees" would abide the trial. After trial, the
superior court reallocated to Mother $1,600 of the $3,600 Father had paid to
Dr. Yee based on the "unusually extensive amount of collateral
documentation" Mother presented to Dr. Yee. On appeal, Mother states,
without argument, that the court erred by making the reallocation. We
disagree. The court had authority to allocate Dr. Yee's fees based on the
financial circumstances of the parties, and Mother has not shown the court
abused its discretion in directing her to pay a portion of those fees. See
A.R.S. § 25-406(B) (2016).
¶17 Lastly, Mother argues the superior court erred by denying her
request to allocate to Father a portion of the fees she incurred for supervised
parenting time with the child. The court concluded that Mother was
responsible for the conduct that led to the restrictions imposed on parenting
time. Again, deferring to the court's determination of witness credibility
and weight to give the evidence, we discern no error. See Gutierrez, 193
Ariz. at 347, ¶ 13.
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DEMARIO v. DEMARIO
Decision of the Court
2. Attorney's fees.
¶18 Mother argues the superior court lacked sufficient evidence
of the parties' financial resources on which to base an award of attorney's
fees. See A.R.S. § 25-324(A) (2016). We review an award of attorney's fees
for an abuse of discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36
(App. 2011); see also Magee v. Magee, 206 Ariz. 589, 590, ¶ 6 (App. 2004).
¶19 Both parties' AFI's were in evidence, and both parties testified
about their finances. The court's findings with regard to financial resources
and the reasonableness of the parties' positions were supported by the
evidence, and its decision to award Father a portion of his attorney's fees
was not an abuse of discretion.
D. Motion for New Trial.
¶20 Mother argues the superior court erred in denying her motion
for new trial. The superior court has significant discretion to determine
whether to grant a new trial, and its decision should remain undisturbed
absent clear abuse of that discretion. Ariz. R. Fam. Law P. 83; Pullen v.
Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009) (citations omitted). "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." Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (internal
quotation and citation omitted).
¶21 Essentially, Mother contends the superior court's legal
decision-making and parenting-time order was erroneous because the
court did not consider all evidence bearing on the child's best interests. See
Hays, 205 Ariz. at 103, ¶ 21 (courts must consider all relevant evidence
relating to children's best interests in custody disputes). However, unlike
in Hays, the court in this case did not exclude any evidence that had an
"especially significant effect" on its ability to determine the child's best
interests. Cf. id. at ¶ 22. It is apparent from the record that the court
properly addressed the best-interests inquiry. We defer to the court's
assessment of Mother's credibility and the weight it gave to the conflicting
evidence. See Gutierrez, 193 Ariz. at 347, ¶ 13. Accordingly, we discern no
error in the court's denial of the motion for new trial.
CONCLUSION
¶22 For the foregoing reasons, we affirm the decree as modified
and the award of $25,000 in attorney's fees to Father. In the exercise of our
discretion, we deny Father's request pursuant to A.R.S. § 25-324 for an
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DEMARIO v. DEMARIO
Decision of the Court
award of attorney's fees on appeal. As the successful party, Father is
entitled to an award of costs on appeal upon compliance with Arizona Rule
of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
8