Durbin v. Keller

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DENISE ELAINE DURBIN, Petitioner/Appellant,

v.

RYAN M KELLER, Respondent/Appellee.

No. 1 CA-CV 17-0338 FC
FILED 4-12-2018

Appeal from the Superior Court in Maricopa County
No. FC2012-091723
The Honorable Laura M. Reckart, Judge

AFFIRMED

COUNSEL

Rubin & Ansel, PLLC, Scottsdale
By Yvette D. Ansel
Counsel for Petitioner/Appellant

Law Office of Joseph Ramiro-Shanahan, PLLC, Scottsdale
By Jessica E. Strain
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell
joined.

M c M U R D I E, Judge:

¶1 Denise Elaine Durbin (“Mother”) and Ryan M. Keller
(“Father”) have two children (the “Children”) in common. Mother appeals
the superior court’s legal-decision making and parenting time order and
the court’s order denying her new trial motion. For the following reasons,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father were never married. In October 2015,
Father petitioned to establish legal decision-making authority, parenting
time, and child support (“October 2015 petition”). Father sought joint
legal-decision making authority and to be named the primary residential
parent for the Children, with reasonable parenting time awarded to
Mother. 1 The court conducted a hearing on the petition on March 14, 2016,
where both parties represented themselves. After the hearing, the court
ordered that the Children be interviewed. The parties stipulated the
interview would be confidential and the results would only be provided to
the court. After the hearing, but before the court issued its decision, Mother
filed a Notice of Newly Discovered Evidence, notifying the court that
approximately one week after the hearing, Father was charged with
speeding, driving on a suspended license, and tampering with an ignition
interlock device. On June 6, 2016, the court awarded Mother and Father
joint legal-decision making authority, with Father having “presumptive

1 Prior to the October 2015 petition, the parties did not have a court
order establishing legal decision-making authority or parenting time. The
Children primarily resided with Mother, but in August 2015 the parties
agreed the Children would live with Father and Mother would have
parenting time on Wednesdays and every other weekend. However, after a
few months, Mother moved the Children back in with her.

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decision-making authority” (the “June 2016 Order”). 2 The court also
ordered Father to be the primary residential parent, with Mother having
parenting time one day during the week and on weekends.

¶3 After the superior court entered the June 2016 Order, Mother,
now represented by counsel, moved for relief from the judgment under
Arizona Rule of Family Law Procedure (“Rule”) 85 and for a new trial or
amended judgment under Rule 83. The motions, filed separately but on the
same day, raised similar arguments to justify relief: (1) Father committed
fraud on the court by making false statements while testifying at the
hearing, and (2) the superior court ignored evidence Mother presented
questioning Father’s parental fitness. Mother also argued she was entitled
to a new trial because the superior court did not make proper findings
under Arizona Revised Statutes (“A.R.S.”) sections 25-403(A) and -403.04.
Father did not respond to Mother’s Rule 85 motion, but disputed the
allegations raised in her Rule 83 motion.

¶4 Before the superior court ruled on Mother’s post-judgment
motions, Mother petitioned to modify legal decision-making and parenting
time under A.R.S. § 25-411(A), and moved for temporary orders pursuant
to Rule 48. In her emergency petition, Mother argued she should have final
legal decision-making authority and Father’s parenting time should be
suspended or supervised because the Children would suffer irreparable
harm if they remain in Father’s care because, inter alia, Father was driving
without a required ignition interlock device and would likely be evicted
soon and the Children’s grades were “plummeting.”

¶5 Father objected to Mother’s emergency petition, but the court
issued a temporary order granting Mother final legal-decision making
authority and ordered Mother to be the primary residential parent and that
Father’s parenting time be suspended or supervised. The superior court

2 We construe the superior court’s order as awarding Father sole
legal-decision making authority because, as this court recently recognized,
“[a]n award of joint legal decision-making that gives final authority to one
parent is, in reality, an award of sole legal-decision making.” Nicaise v.
Sundaram, 785 Ariz. Adv. Rep. 12, 16, ¶ 18 (App. 2018). This is because
“’[j]oint legal decision-making’ means both parents share decision-making
and neither parent’s rights or responsibilities are superior . . . .” A.R.S.
§ 25-401(2) (emphasis added).

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then held an evidentiary hearing on Mother’s emergency petition. 3 Prior to
taking evidence on Mother’s petition to modify, the court denied Mother’s
Motion for New Trial. After the hearing, the court dismissed the temporary
orders and affirmed the June 2016 Order. Mother timely appealed 4 the June
2016 Order and the court’s denial of her Motion for New Trial. 5 We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

A. The Superior Court’s Legal-Decision Making and Parenting-Time
Decision Was Not an Abuse of Discretion.

¶6 Mother contends the superior court’s legal-decision making
and parenting-time decision was an abuse of discretion. We review the
superior court’s legal decision-making and parenting-time rulings for an
abuse of discretion. See In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3 (App.
2002). The court abuses its discretion if the record is “devoid of competent
evidence to support the decision.” Borg v. Borg, 3 Ariz. App. 274, 277 (1966)
(citation omitted). We do not reweigh evidence on appeal and will affirm if
substantial evidence supports the court’s ruling. Hurd v. Hurd, 223 Ariz. 48,
52, ¶ 16 (App. 2009). “A child custody proceeding more than any other
court hearing challenges the trial judge to view and weigh the various
personalities, motives and abilities of all the parties. . . . Our observations
are limited to the transcript and we must therefore be very careful in
attempting to second guess the front line trial court from our rather limited
appellate vantage point.” Smith v. Smith, 117 Ariz. 249, 253 (App. 1977).

¶7 First, Mother argues the superior court failed to make
adequate findings on the record as required by A.R.S. § 25-403, and “failed
to consider and properly apply the best interests standard.” The superior

3 Prior to the hearing on Mother’s petition to modify, Father, now
represented by counsel, moved to dismiss Mother’s petition. The superior
court denied the motion prior to taking evidence on the petition.

4 On April 26, 2017, the superior court issued a final child support
order, which the parties do not appeal.

5 In her reply brief, Mother argues the superior court erred by denying
her emergency petition. However, we do not consider arguments raised for
the first time in a reply brief. Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91
(App. 2007).

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court must consider the factors enumerated in A.R.S. § 25-403(A) regarding
the children’s best interests when making a custody determination. Hart v.
Hart, 220 Ariz. 183, 185–86, ¶ 9 (App. 2009). “In a contested legal
decision-making or parenting time case, the court shall make specific
findings on the record about all relevant factors and the reasons for which
the decision is in the best interests of the child.” A.R.S. § 25-403(B).

¶8 Mother contends the superior court made incorrect or
inadequate findings on each of the following subsections: A.R.S.
§ 25-403(A)(2) (the Children’s relationship with their parents and families);
(A)(3) (the Children’s adjustment to home, school, and community); (A)(4)
(the Children’s wishes); (A)(5) (all parties’ physical and mental health); and
(A)(10) (the parents’ compliance with domestic relations education).
However, the superior court made specific findings on each of these factors
in the June 2016 Order. The court heard testimony or received evidence
regarding the Children’s school attendance record, performance in school,
and the relationship and home life with both Mother and Father. The court
also noted, “[t]here were no allegations of either parent or the Children
having physical or mental health issues,” and Mother completed a parent
education class on January 16, 2016, but did not submit a certificate of
completion until after the court entered the June 2016 Order.

¶9 Mother and Father also agreed to a confidential interview of
the Children. Mother contends the court did not make findings regarding
the Children’s “awesome” relationship with their half-siblings or how the
“substantial change in living circumstances may affect those relationships.”
She also argues the court found that the Children moving in with Father
and his parents would be a “substantial adjustment,” which, Mother
maintains, weighs against awarding Father the majority of parenting time.
However, the superior court explained it “reviewed and considered” the
confidential interview in determining the Children’s best interests. The
court found Father’s parents assist him in caring for the Children and that
Mother’s two older sons babysit the Children. Importantly, the court noted
“[c]oncerns have been raised regarding the appropriateness of the two
teenage boys babysitting the Children.” This court has reviewed the
interviews, and the record shows the superior court properly considered
the Children’s wishes, their home lives with Mother and Father, and their
best interests.

¶10 Mother also argues Father “intentionally misled” the superior
court by: (1) falsely testifying his driver’s license was not suspended, that
he was not evicted, and that the Children were “falling behind in school”
when with Mother; (2) “[l]eading the [c]ourt to assume that he was going

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to walk the children to a school 2.5 miles from his current residence;” and
(3) not disclosing “that he pled guilty to tampering with his ignition
interlock device.” Section 25-403(A)(7) requires the court to consider
“[w]hether one parent intentionally misled the court to cause an
unnecessary delay, to increase the cost of litigation or to persuade the court
to give a legal decision-making or a parenting time preference to that
parent.”

¶11 The superior court found no evidence was presented at the
hearing on the October 2015 petition regarding whether one parent
intentionally misled the court, and the record does not support Mother’s
contention regarding this factor. Prior to the court issuing the June 2016
Order, Mother notified the court of newly discovered evidence, alleging
after the hearing Father had been charged with speeding, driving on a
suspended license, and unauthorized tampering of an ignition interlock
device. In the June 2016 Order, the court noted it had considered all the
evidence presented “as well as the case history” in reaching its conclusions.
Moreover, in his response to Mother’s subsequent Motion for New Trial,
Father provided his motor vehicle record and case information about the
charges, showing the speeding and driving on a suspended license charges
were dropped, that he did not have a suspended license, and that he pled
guilty to driving without a required ignition interlock device. There was
testimony at the hearing on the October 2015 petition regarding Father’s
past DUI convictions, whether his license was suspended, whether Father
had been evicted, and how he would take the Children to school. The
superior court is in the best position to judge the credibility of witnesses
and resolve disputed facts, and this court does not reweigh evidence on
appeal. Jesus M. v. ADES, 203 Ariz. 278, 280, 282, ¶¶ 4, 12 (App. 2002). The
superior court made sufficient findings under A.R.S. § 25-403(A) and
sufficient evidence supports the superior court’s ruling. See Hurd, 223 Ariz.
at 52, ¶ 16. We find no abuse of discretion.

¶12 Mother next argues the superior court “completely
disregarded” A.R.S. § 25-403.04(A), which provides:

If the court determines that a parent has abused drugs or
alcohol or has been convicted of any drug offense . . . or any
violation of § 28-1381, 28-1382 or 28-1383 within twelve
months before the petition or the request for legal
decision-making or parenting time is filed, there is a
rebuttable presumption that sole or joint legal
decision-making by that parent is not in the child’s best
interests.

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If the court determines a parent abused drugs or alcohol, the court is then
required to make certain findings of fact and consider evidence to
determine if the parent rebutted the presumption. A.R.S. § 25-403.04(B). In
the June 2016 Order, the superior court noted it must consider substance
abuse issues pursuant to § 25-403.04 and that “Mother expressed
apprehensions regarding Father’s previous[] conviction(s) for D.U.I.”

¶13 The superior court was not required to make additional
findings. Father’s convictions for driving under the influence occurred
more than 12 months before he petitioned to establish legal
decision-making and parenting time. Although Mother presented evidence
Father was arrested for speeding, driving on a suspended license, and
driving without a required ignition interlock device one week after the
hearing on Father’s petition, those offenses do not create the presumption
established by § 25-403.04. See A.R.S. §§ 28-1381 (DUI); -1382 (extreme
DUI); -1383 (aggravated DUI). Mother did not present any other evidence
that Father abused drugs or alcohol. The record does not support Mother’s
contention that the superior court “completely disregarded” A.R.S.
§ 25-403.04, or that the court erred by not making specific findings under
the section.

¶14 Finally, Mother argues the superior court abused its
discretion by significantly restricting her parenting time and preventing her
“from exercising substantial, frequent, meaningful and continuing
parenting time.” See A.R.S. § 25-103(B) (it is the state’s public policy that
“absent evidence to the contrary, it is in a child’s best interest . . . to have
substantial, frequent, meaningful and continuing parenting time with both
parents”). However, legal decision-making determinations must be made
in accordance with a child’s best interests, and the superior court has
discretion in awarding parenting time. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11
(App. 2013). The superior court addressed each relevant § 25-403(A) factor
and found it is in the Children’s best interests to award Mother parenting
time for one day during the week and on weekends during the school year,

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and every other week during the summer. The court’s parenting time order
was not an abuse of discretion or a violation of A.R.S. § 25-103(B). 6

B. The Superior Court Did Not Abuse Its Discretion by Denying
Mother’s Motion for New Trial.

¶15 Mother contends the superior court abused its discretion by
denying her request for a new trial. As relevant here, the superior court may
grant a new trial based on misconduct by a party or newly discovered
material evidence. Ariz. R. Fam. Law P. 83(A)(2), (4). Mother contends she
is entitled to a new trial because Father committed fraud upon the court by
making “several false statements under oath,” and the superior court did
not consider evidence that awarding Father primary physical custody is not
in the Children’s best interests. We review a superior court’s decision to
deny a motion for a new trial for an abuse of discretion. Pullen v. Pullen, 223
Ariz. 293, 296, ¶ 10 (App. 2009).

¶16 Mother contends the superior court failed to address the
evidence Mother submitted to the court in her Notice of Newly Discovered
Evidence regarding Father’s arrest in March 2016. She maintains Father was
arrested for speeding, driving on a suspended license, and tampering with
an ignition interlock device, and that, because of his arrest and driving
record, Father is “not a safe candidate as the primary residential parent.”
As discussed above, in Father’s response to Mother’s Motion for New Trial,
he presented evidence that the speeding and driving on a suspended license

6 Mother also argues this case involved a “school placement dispute,”
and therefore the superior court erred by not considering the factors laid
out in Jordan v. Rea, 221 Ariz. 581 (App. 2009). While there is a dispute
regarding the Children’s academic success while in each parent’s care, the
superior court did not order the Children to attend a particular school.
Rather, the court awarded decision-making authority, which includes the
right to make educational decisions. See A.R.S. § 25-401(3) (legal
decision-making authority “means the legal right and responsibility to
make all nonemergency legal decisions for a child including those
regarding education . . . .”). The court was not required to consider the
Jordan factors, and the court properly exercised its discretion. See Nicaise,
785 Ariz. Adv. Rep. at 19, ¶ 29 (departing from Jordan “to the extent it held
that the court may make substantive legal decisions for parents who are
unable to agree,” and holding “[i]f the court determines that the parents
cannot agree, the court must choose which parent shall decide. But the court
cannot make the decision itself.”).

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charges were dropped, that he does not have a suspended license, and that
he pled guilty to driving without a required ignition interlock device.

¶17 The superior court denied Mother’s Motion for New Trial at
the beginning of the evidentiary hearing on Mother’s petition to modify
legal-decision making and parenting time, which also included allegations
about Father’s March 2016 arrest. The court stated this case presented “a
difficult choice because, frankly, to be honest, I wasn’t impressed with
either parent and it was a difficult choice for this Court to make and it
weighed heavily on what to do.” The court then heard testimony about the
arrest from Mother and Father. After the hearing, the court stated it found
“no emergency” existed, that it previously granted temporary orders out of
“an abundance of caution because it felt that perhaps there was new
evidence that was being presented, but [the court has not] heard anything
new,” and that the court did not hear evidence supporting Mother’s
allegations that Father is driving on a suspended license. The court also
ordered Father to keep an ignition interlock device on his car until April
2017. Thus, the record does not support Mother’s contention the superior
court ignored the evidence she presented. “If a court’s decision is based
upon ‘a determination of disputed questions of fact or credibility . . . or any
other basis to which we should give deference,’ we will not second-guess
or substitute our judgment for that of the trial court.” Gen. Elec. Capital Corp.
v. Osterkamp, 172 Ariz. 185, 188 (App. 1992) (quoting City of Phoenix v. Geyler,
144 Ariz. 323, 329 (1985)).

¶18 Mother further contends Father made several misstatements
to the superior court constituting fraud, thereby justifying relief. Mother
again points to Father’s statements made while testifying about whether his
license was suspended, whether he was recently evicted, and the Children’s
grades. However, as discussed above, Father presented evidence
contradicting Mother’s claims that Father lied to or misled the court, and
the record shows the superior court properly weighed the evidence and
judged the credibility of witnesses. See Jesus M., 203 Ariz. at 280, ¶ 4. The

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superior court did not abuse its discretion by denying Mother’s new-trial
motion. 7

C. Attorney’s Fees on Appeal.

¶19 Mother and Father both request an award of attorney’s fees
on appeal pursuant to A.R.S. § 25-324. In the exercise of our discretion, we
decline to award either party attorney’s fees. As the prevailing party on
appeal, Father is entitled to his reasonable costs upon compliance with
Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶20 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA
7 Mother contends the superior court “summarily denied” her Motion
for New Trial. Even if we were to agree the court should have held a hearing
before ruling on the motion, after denying Mother’s new-trial motion, the
court proceeded with the evidentiary hearing on Mother’s petition to
modify. The court heard testimony about the issues raised by Mother in her
new-trial motion, including testimony about the status of Father’s driver’s
license, whether he was required to have an ignition interlock device,
whether he was likely to be evicted, and the Children’s grades. Father also
provided documents in his responses to Mother’s Motion for New Trial and
her petition to modify showing the speeding and driving on a suspended
license charges were dropped and that he pled guilty to driving without a
required ignition interlock device. Accordingly, because the court heard
testimony and received evidence about the arguments Mother raised in her
Motion for New Trial and denied relief, the issue whether a hearing should
have been held is moot as Mother cannot show prejudice. Ariz. R. Fam. Law
P. 86 (“No error . . . in anything done or omitted by the court . . . is ground
for . . . disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”).

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