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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
CHRISTIAN GREGORY JACKMAN, Petitioner/Appellee,
v.
TERESA MARIE MCCANN, Respondent/Appellant.
No. 1 CA-CV 16-0263 FC
FILED 9-14-2017
Appeal from the Superior Court in Maricopa County
No. FC2014-096241
The Honorable Peter A. Thompson, Judge
APPEAL DISMISSED IN PART, AFFIRMED IN PART
COUNSEL
Berkshire Law Office PLLC, Phoenix
By Keith Berkshire, Maxwell Mahoney
Counsel for Petitioner/Appellee
Teresa Marie McCann, Gilbert
Respondent/Appellant
JACKMAN v. MCCANN
Decision of the Court
MEMORANDUM DECISION
Acting Presiding Judge Peter B. Swann delivered the decision of the court,
in which Judge Michael J. Brown and Judge Maria Elena Cruz joined.
S W A N N, Judge:
¶1 This is an appeal from a dissolution decree’s orders regarding
legal decision-making, parenting time, property allocation, and attorney’s
fees. We hold that the legal decision-making and parenting-time orders
have been rendered moot by the juvenile court’s determination that the
children are dependent as to the appellant. We therefore dismiss that
portion of the appeal. We affirm as to the property-allocation and
attorney’s fee orders because we find no abuse of discretion.
FACTS AND PROCEDURAL HISTORY
¶2 Teresa Marie Jackman (“Mother”) and Christian Gregory
Jackman (“Father”) married in 2000. In October 2014, Father left the marital
home with the parties’ three minor children. He obtained an order of
protection, which included the children, based on allegations that Mother
abused the children. The parties later agreed that Mother would have
supervised parenting time three times a week, and the court appointed a
best-interests attorney for the children.
¶3 Between December 2014 and February 2015, Mother had nine
supervised visits. In May 2015, the court ordered Father to make the
children available for telephonic contact once a week. Mother thereafter
had some telephonic visits with the children, but the interactions ceased
around August 2016 because Father claimed that the children did not want
to participate.
¶4 Under a stipulated order entered in mid-2015, Mother was to
submit to alcohol testing for ninety days, and Father was to undergo two
drug tests, ninety days apart. Father tested positive for codeine in May
2015, and he tested positive for codeine and hydrocodone in a second,
untimely test in December 2015. Mother provided several diluted urine
samples but by October 2015 eventually satisfied her alcohol-testing
regimen.
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JACKMAN v. MCCANN
Decision of the Court
¶5 After a trial, the superior court found that Mother had
physically and emotionally abused the children, and that she was in denial
regarding her alcohol abuse. The court concluded that Father should have
sole legal decision-making authority. The court further concluded that
awarding substantial parenting time to Mother would endanger the
children’s physical or emotional health. The court therefore ordered a
parenting-time plan that gradually increased Mother’s time with the
children and was conditioned on the family participating in an intensive
therapeutic reunification program, individual counseling for the parents,
and Mother testing negative on a full-spectrum drug test for eighteen
months.
¶6 The court divided the marital property, including the marital
residence, between Mother and Father. The court awarded Mother $6,000
in attorney’s fees under A.R.S. § 25-324(A). The court denied Mother’s
motion to amend the judgment or grant a new trial.
DISCUSSION
¶7 Mother challenges the dissolution decree’s orders regarding
legal decision-making, parenting time, property allocation, and attorney’s
fees. We address each issue in turn.
I. MOTHER’S APPEAL IS MOOT AS TO THE LEGAL DECISION-
MAKING AND PARENTING-TIME ORDERS.
¶8 After the close of briefing in this appeal, Mother notified this
court of In the Matter of M.J., J.J., N.J., Maricopa County Superior Court Case
No. JD530683, a pending dependency action against her and Father as to
the children. We take judicial notice of the juvenile court’s March 14, 2017
orders finding the children dependent as to Mother, placing the children in
the physical custody of the Department of Child Safety, and prohibiting
Mother from visiting the children until therapeutically recommended.
Those orders supersede the legal decision-making and parenting-time
orders. See A.R.S. § 8-202(F); Michael M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz.
230, 234, ¶ 15 (App. 2007). Our review of the legal decision-making and
parenting-time orders therefore could provide no practical relief to Mother.
¶9 We will dismiss an appeal as moot when our action will have
no effect on the parties, unless the issue on appeal is one of great public
importance or is capable of repetition, yet evades review. Cardoso v. Soldo,
230 Ariz. 614, 617, ¶ 5 (App. 2012). The legal decision-making and
parenting-time orders in this case, while significant to the parties, does not
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JACKMAN v. MCCANN
Decision of the Court
have broad public impact and is based on the specific facts. We therefore
conclude that Mother’s appeal from those orders is moot.
II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION WITH
RESPECT TO PROPERTY ALLOCATION.
¶10 Mother contends that the superior court erred by failing to
order reimbursement for half of approximately $9,000 she spent to maintain
the marital residence after service of the petition for dissolution. Those
expenses were not mortgage payments affecting the equity in the house;
rather, Mother paid ordinary upkeep, HOA fees, and taxes. Father
maintained the insurance on the marital residence and paid Mother
temporary spousal maintenance during the litigation. Father also incurred
expenses to maintain his own residence.
¶11 The court ordered the marital residence sold, all outstanding
encumbrances paid,1 and any remaining proceeds equally shared. The
court has broad discretion in apportioning community assets in a
dissolution, and we will not disturb that allocation absent an abuse of
discretion. Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007). In
view of the foregoing facts, we discern no abuse of discretion here.
III. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION WITH
RESPECT TO THE ATTORNEY’S FEES AWARD.
¶12 The superior court, finding under A.R.S. § 25-324(A) that
there was a substantial disparity of financial resources favoring Father but
that neither party acted unreasonably in the litigation, awarded Mother
approximately 10% of the attorney’s fees and costs she requested. Mother
contends that she was entitled to a greater award because the evidence does
not support the court’s finding that Father acted reasonably. Mother also
contends that she was entitled to her attorney’s fees under A.R.S.
§ 25-408(J), which provides that “[t]he court shall assess attorney fees and
costs against either parent if the court finds that the parent has
unreasonably denied, restricted, or interfered with court-ordered parenting
time.”
1 Mother contends that the superior court failed to consider a debt
owed to her father related to the marital residence. But Father
acknowledges that the decree ordered all outstanding encumbrances paid
before the equity is divided. Accordingly, the debt owed to Mother’s father
is a non-issue.
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JACKMAN v. MCCANN
Decision of the Court
¶13 Mother contends that Father acted unreasonably by, among
other things, refusing to encourage the children to participate in the court-
ordered supervised parenting time and telephonic access, failing to timely
comply with the drug-testing order, failing to fully comply with the
counseling orders, and failing to comply with orders to compel financial
discovery. Where there are disputed facts or inferences to be drawn from
those facts, and credibility determinations to be made, we will not reweigh
the evidence or substitute our opinions for the superior court’s findings. See
Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 13 (App. 1998). The superior
court found that many of Father’s behaviors were not in the children’s best
interests. But the court did not specifically find that Father’s conduct was
unreasonable. In fact, the court found that “Father has acted as a gatekeeper
to protect the children [from] emotional and physical abuse,” and that the
role was “partially validated by the facts of this case.” The court also found
that the delays in counseling were caused, in part, by circumstances beyond
Father’s control. The record supports the superior court’s findings. We
discern no abuse of discretion in the attorney’s fees award.
CONCLUSION
¶14 We dismiss the appeal from the legal decision-making and
parenting-time orders as moot. In all other respects, we affirm the decree.
¶15 We deny Father’s request for an award of attorney’s fees and
costs on appeal under A.R.S. § 25-324. Though we conclude that Mother’s
appeal lacks merit, we do not find it frivolous or abusive.
AMY M. WOOD • Clerk of the Court
FILED: AA
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