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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
ROBYN HANGER,
Petitioner/Appellee,
v.
JOEL HANGER,
Respondent/Appellant.
No. 1 CA-CV 21-0138 FC
FILED 5-17-2022
Appeal from the Superior Court in Maricopa County
No. FC2012-070854
The Honorable Lisa Ann VandenBerg, Judge
AFFIRMED
APPEARANCES
Strong Law, Phoenix
By Marc R. Grant, Jr.
Counsel for Petitioner/Appellee
Joel Hanger, Tonopah
Respondent/Appellant
HANGER v. HANGER
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.
M O R S E, Judge:
¶1 Joel Hanger ("Father") appeals the family court's order
modifying his parenting time. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Robyn Hanger ("Mother") divorced in December
2012. The parties have three minor children ("Children"). The original
decree granted joint legal decision making and a 50-50 parenting time
schedule.
¶3 In 2019, Father petitioned to modify legal decision making
and parenting time. Mother counter-petitioned. The Department of Child
Safety ("DCS") became involved and imposed a safety plan restricting
Father's visitation. DCS had concerns regarding Father and his live-in-
girlfriend's children. After the Best Interest Attorney raised concerns
regarding Father's mental health, Mother moved for a psychological
evaluation. The court granted the motion, but Father refused to participate.
¶4 At a hearing in October 2020, the court heard testimony from
Mother, Father, and a Court Appointed Advisor. The court awarded
Mother sole legal decision making and limited Father's parenting time to
alternating weekends. The court also awarded Mother $12,334.25 in fees
and costs.
¶5 Father appealed and we have jurisdiction under A.R.S. § 12-
2101(A)(2).
DISCUSSION
I. Procedural Issues.
¶6 As an initial matter, Mother asserts that Father's opening brief
is procedurally deficient and asks us to affirm the family court's ruling
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HANGER v. HANGER
Decision of the Court
summarily.1 Admittedly, Father's brief is thin on supporting legal authority
and lacks a statement of the issues. See ARCAP 13(a)(6)-(7). However, we
decline Mother's invitation because we prefer to decide cases upon their
merits. Drees v. Drees, 16 Ariz. App. 22, 23 (1971). We address Father's
arguments, but consider waived any arguments not supported by adequate
explanation, citations to the record, or authority. See In re Aubuchon, 233
Ariz. 62, 64-65, ¶ 6 (2013).
¶7 Father asks the Court to take judicial notice of numerous
documents, some of which he does not provide and asks us to locate.
Although we may take judicial notice of documents in other court cases, In
re Sabino R., 198 Ariz. 424, 425, ¶ 4 (App. 2000), the records Father provides
or asks us to locate have little bearing on the issues relevant to this appeal.
We decline Father's request to search for documents. See Adams v. Valley
Nat'l Bank of Ariz., 139 Ariz. 340, 342-43 (1984) ("[The Court is] not required
to assume the duties of an advocate and search voluminous records and
exhibits to substantiate an appellant's claims."); see also United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting
for truffles buried in [the record].").
II. The Child Custody Order.
¶8 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-
12 (2000). "The family court . . . has discretion to determine parenting time
based on all the evidence before it." Gonzalez-Gunter v. Gunter, 249 Ariz.
489, 492, ¶ 11 (App. 2020) (as amended). "To change a previous custody
order, the family court must determine that there has been a material
change in circumstances affecting the welfare of the child." Vincent v.
Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015) (internal quotation marks
omitted). This is a "fact-intensive . . . inquiry." Engstrom v. McCarthy, 243
Ariz. 469, 472, ¶ 10 (App. 2018). Because Father failed to provide a
transcript of the proceedings below, we assume that the facts support the
family court's finding. See State ex rel. Brnovich v. Miller, 245 Ariz. 323, 325,
¶ 9 (App. 2018); ARCAP 11(c).
¶9 Father first argues the court abused its discretion in making
the changes to parenting time and legal decision-making "absent findings
of abuse, neglect, abandonment or exigent circumstances." Father is
1 Mother also reasserts that this appeal should be dismissed as moot.
However, we previously denied Mother's motion to dismiss on that issue.
See Hanger v. Hanger, 1 CA-CV 21-0138 (Ariz. App. Sept. 29, 2021) (order).
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HANGER v. HANGER
Decision of the Court
incorrect; the court has discretion to adopt a parenting plan that is in the
Children's best interest based on the evidence. See Gunter, 249 Ariz. at 492,
¶ 11 ("Contrary to Father's contention, A.R.S. § 25-403.02(B) does not
mandate equal parenting time absent parental unfitness or
endangerment."). We also reject Father's argument that A.R.S. § 25-411(J)
similarly barred the court from reducing his parenting time. That statute
refers to the court's power to place conditions on how a parent exercises his
or her parenting time, not to a diminution in parenting time. Gunter, 249
Ariz. at 492, ¶ 13.
¶10 Second, Father argues the court abused its discretion by
considering his failure to undergo a psychological evaluation when making
the parenting-time determination. As part of the best-interests
determination, the court must consider the "mental and physical health of
all individuals involved." A.R.S. § 25-403(A)(5); see Ariz. R. Fam. Law P. 63.
The court granted Mother's motion for a psychological evaluation of Father,
and warned Father that failure to comply would result in an adverse
inference. Father refused to participate, and the court noted that he "failed
to demonstrate for the record that he is stable enough to assist Mother in
elevating each Child's needs and the Child's best interest above his own
wants." The court did not abuse its discretion. See Montoya v. Superior Court,
173 Ariz. 129, 131 (App. 1992) (noting that a court in a custody proceeding
"may draw a negative inference from the father's" refusal to answer
questions about drug use); cf. also Hays v. Gama, 205 Ariz. 99, 104, ¶ 23 (2003)
(noting superior court's contempt sanctions must not impact "ability to
consider the best interests of the child").
¶11 Third, Father asserts the court erred by admitting the Court
Appointed Advisor's report into evidence on its own motion. "We will not
disturb a trial court's rulings on the exclusion or admission of evidence
unless a clear abuse of discretion appears and prejudice results." Gemstar
Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996). The record does not reflect
an objection to the report's admission. See Starkins v. Bateman, 150 Ariz. 537,
544 (App. 1986) (finding failure to lodge contemporaneous or continuing
objection waived issue). Further, the Court Appointed Advisor's report is
admissible. Ariz. R. Fam. Law P. 10.1(d)(5). Finally, the report is in the
record and subject to judicial notice. See Sabino R., 198 Ariz. at 425, ¶ 4. The
court did not err.
¶12 Fourth, Father asserts the court erred by failing "to make
findings for each child individually." But Father cites no authority, and we
aware of none, that the findings need to be made specifically for each child.
Instead, A.R.S. § 25-403(B) requires the court to "make specific findings on
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HANGER v. HANGER
Decision of the Court
the record about all relevant factors and the reasons for which the decision
is in the best interests of the child." Those findings are required not only to
"aid an appellant and the reviewing court, but also . . . all parties and the
family court in determining the best interests of the child or children both
currently and in the future." Reid v. Reid, 222 Ariz. 204, 209, ¶ 18 (App.
2009). Here, the court provided a detailed order with numerous findings
of fact showing the court considered the required factors in determining the
best interests of the Children. See A.R.S. § 25-403, -403.01.
¶13 Fifth, Father argues the court abused its discretion by failing
to order DCS to produce requested records. The court denied the petition
as not ripe, noting Father had not requested the records from DCS. See Ariz.
Admin. Code R21-1-103 (outlining procedures for requesting DCS
information); cf. Am. Civil Liberties Union v. Ariz. Dep't of Child Safety, 240
Ariz. 142, 151, ¶ 30 (App. 2016) (rejecting request to require DCS to generate
documents when petitioner had not asked DCS to inspect record). We
agree that Father's petition failed to identify steps he had taken to request
these records from DCS, or establish he is a party entitled to the records.
See A.R.S. § 8-807 (providing who may receive confidential DCS records).
The court did not err.
¶14 Finally, Father asserts the family court "ignored the facts" and
asks this Court to re-weigh the evidence. We must decline this invitation.
See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998) ("We will defer
to the [family] court's determination of witnesses' credibility and the weight
to give conflicting evidence.").
III. Attorney Fees and Costs.
¶15 Both parties request an award of attorney fees on appeal. We
find that Father took unreasonable positions in this appeal. We further note
Father's superior resources. In the exercise of our discretion, pursuant to
A.R.S. § 25-324(A), we award Mother a reasonable portion of her attorney
fees incurred on appeal. We also award Mother her costs. See ARCAP 21.
We deny Mother's request for sanctions.
CONCLUSION
¶16 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA 5