Prescott v. Prescott

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

JENNIFER MELISSA PRESCOTT, Petitioner/Appellee,

v.

BRIAN LEE PRESCOTT, Respondent/Appellant.

No. 1 CA-CV 15-0669 FC
FILED 7-5-2016

Appeal from the Superior Court in Maricopa County
No. FC2014-052276
The Honorable Jennifer C. Ryan-Touhill, Judge

AFFIRMED

COUNSEL

Jennifer M. Prescott, Phoenix
Petitioner/Appellee

Brian Prescott, Phoenix
Respondent/Appellant
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MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Peter B. Swann joined.

T H O M P S O N, Judge:

¶1 Brian Lee Prescott (father) appeals from the family court’s
order granting Jennifer Melissa Prescott’s (mother) petition to modify legal
decision-making authority and parenting time. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and father were married in August 2010, and mother
gave birth to their daughter two months later. After an evidentiary hearing,
their marriage was dissolved pursuant to a decree of dissolution entered on
September 3, 2014. The decree granted joint legal decision-making
authority and designated mother as the primary residential parent. Father
was awarded parenting time one week each month and three consecutive
weeks during summer vacation. The court also awarded mother child
support payments of $769.01 per month from May 2014 through August
2014, and child support payments of $848.76 per month thereafter.

¶3 In April 2015, father filed a petition to modify custody,
parenting time and child support. Father sought sole legal decision-making
authority, a designation as primary residential parent, and child support
payments from mother based on his claim that mother’s fourteen year old
son sexually abused daughter. Mother opposed father’s petition, and filed
a cross-petition for sole legal decision-making authority based on father’s
failure to disclose a prior driving under the influence conviction, his false
allegations of sexual abuse, and behavior that made joint parenting
problematic.

¶4 After an evidentiary hearing, the court made its own detailed
and specific findings concerning changed circumstances and the relevant
factors identified in Arizona Revised Statutes (A.R.S.) § 25-403 (Supp.

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2015).1 Based on its findings, the court awarded mother sole legal decision-
making authority. The court awarded father the following parenting time:
every other weekend, seven consecutive days during daughter’s summer
vacation, and alternating holidays. Finally, the court awarded mother her
reasonable attorney fees and costs pursuant to A.R.S. §§ 25–324(A), (B)
(Supp. 2013), and -415 (Supp. 2013).

¶5 Father timely appealed.2 This court has jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1) (2016) and -2101(B) (2016).

1 Those factors are: (1) the past, present and future relationship
between each parent and the child; (2) the interaction of the child with her
parents, siblings, or any other person who may significantly affect the
child’s best interests; (3) the child’s adjustment to home, school and
community; (4) if the child is of suitable age, his or her wishes regarding
legal decision-making and parenting time; (5) the mental and physical
health of all individuals involved; (6) which parent is more likely to allow
the child frequent and meaningful continuing contact with the other parent;
(7) whether a parent intentionally misled the court to cause unnecessary
delay, increase the cost of litigation, or persuade the court to give legal
decision-making or parenting time preference to the parent; (8) whether
there has been any domestic violence or child abuse; (9) the nature and
extent of any coercion or duress used by a parent in obtaining an agreement
regarding legal decision-making or parenting time; (10) parental
compliance with chapter 3 article 5 of Title 25 (requiring completion of a
domestic relations educational program); and (11) any conviction for false
reporting of child abuse or neglect. A.R.S. § 25-403(A) (2015).

2 On March 14, 2016, mother filed a “Motion to Dismiss, Affirm, Strike,
and/or Apply Rule 25 Sanction.” We considered this motion, the response,
and reply. This court previously denied the motion to dismiss the appeal
and affirm the judgment below. We also struck pages 11-25 of mother’s
motion because those pages contained argument concerning father’s reply
brief. See ARCAP 13 (stating that a party is not permitted to file a response
to a reply brief without the court’s permission). We further denied mother’s
motion to strike evidence submitted by father in his reply brief appendix
which was not in the record as she did not specify which documents she
was requesting the Court strike. See GM Dev. Corp. v. Cmty. Am. Mortgage
Corp., 165 Ariz. 1, 4-5, 795 P.2d 827, 830-31 (App. 1990). We now
additionally deny mother’s motion for sanctions against father which she
makes pursuant to ARCAP 25 (stating sanctions may be awarded if appeal

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DISCUSSION

¶6 The court reviews petitions for modifying child custody
arrangements “in accordance with the best interests of the child.”3 A.R.S. §
25-403(A). The court has broad discretion in deciding whether to modify a
child custody order, and we will defer to its ruling absent clear abuse of that
discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App.
2003) (custody); Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d 818, 823 (1970)
(parenting time). “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.” State ex rel. Dep't of Econ.
Sec. v. Burton, 205 Ariz. 27, 30, ¶ 14, 66 P.3d 70, 73 (App. 2003).

¶7 Father argues that the court’s order awarding mother sole
legal decision-making authority was not supported by the evidence.
However, father failed to provide this Court with transcripts from the court
proceedings. As the appellant, it is father’s responsibility to ensure the
record on appeal contains all transcripts and documents necessary to
address the issues raised on appeal. Id. at 30, ¶ 16, 66 P.3d at 73; see also
ARCAP 11(c)(1)(B) (“If the appellant will contend on appeal that a
judgment, finding or conclusion, is unsupported by the evidence or is
contrary to the evidence, the appellant must include in the record
transcripts of all proceedings containing evidence relevant to that

is “frivolous or was filed solely for the purpose of delay”), and ARCAP 11
(imposing a duty on appellants to ensure the record on appeal contains
transcripts and necessary documents). Mother also avers that a “Rule 52”
supports her request for sanctions, however, there is no ARCAP 52 and
Arizona Rules of Civil Procedure 52, discusses amendments and findings,
not sanctions. ARCAP 25 is the only rule mother cites that would permit
us to administer sanctions against father. We decline to conclude that
father’s appeal is either frivolous or taken solely for delay; we accordingly
deny mother’s request for sanctions.

3 Before a court can modify a custody order, there must be a
substantial and continuing change of circumstances materially affecting the
welfare of the child. Hendricks v. Mortensen, 153 Ariz. 241, 243, 735 P.2d 851,
853 (App. 1987). Father does not dispute circumstances changed since the
decree was entered, and the court found there was little co-parenting in the
prior year, father failed to comply with court orders, and modification of
the custody order was in daughter’s best interest. See A.R.S. § 25-411(A), (J)
(Supp. 2015).

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judgment, finding or conclusion.”). Consequently, we must assume the
missing items support the court’s findings and conclusions.4 Baker v. Baker,
183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).

¶8 The limited record before this court reveals that the court did
not abuse its discretion in granting mother’s petition to modify legal
decision-making and awarding mother sole custody. The court’s decision
indicates it specifically and thoroughly considered the relevant statutory
factors and placed its findings on the record. See A.R.S. § 25-403 (A), (B);
Downs v. Scheffler, 206 Ariz. 496, 500, ¶ 16, 80 P.3d 775, 779 (App. 2003).
Regarding the factors father specifically contests, the court found “both
parents have good relationships with [daughter] . . . [t]he [c]ourt does,
however, have concerns about father’s poor choices and how those choices
have impacted his daughter.” See A.R.S. § 25-403(A)(1). Further, the court
found that daughter is “well-adjusted to mother’s home and community,”
but the court “has repeated examples of father’s lack of veracity and, thus,
can only give partial weight to father’s claims that [daughter] thrives in his
care.” See id. § 25-403(A)(3). Without a transcript, we cannot conclude that
these findings are improper or unsupported. See Baker, 183 Ariz. at 73, 900
P.2d at 767.

¶9 Nevertheless, father contends that with the exception of his
prior driving under the influence conviction, the court cited no evidence to
support its “concerns about father’s poor choices and how those choices
have impacted his daughter.” We disagree. The court found that father
made false claims of daughter’s sexual abuse and sexual misconduct by
mother’s son in order to gain an advantage in this case. The court noted
that father did not report daughter’s sexual abuse or any prior sexual
misconduct by mother’s son until after the court held multiple hearings on
father’s noncompliance with its orders and denied father’s repeated verbal
requests for 50/50 parenting. Text messages between the parties revealed
that father “attempt[ed] to manipulate mother into agreeing to a 50/50
parenting schedule by claiming [her son] is a perpetrator.” The court also

4 We also note that father failed to adequately support his arguments
in his opening brief. See ARCAP 13(a)(7) (requiring the opening brief to
contain “[a]ppellant’s contentions concerning each issue presented for
review . . . with citations of legal authorities and appropriate references to
the portions of the record on which the appellant relies”). Although we
could treat father’s issues presented on appeal as waived, we decline to do
so. See Polanco v. Indus. Comm'n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391,
393 n.2 (App. 2007) (recognizing that an argument is waived on appeal if
the opening brief lacks citations to supporting authority).

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found that father “coached” daughter to provide answers to leading
questions to support his claim of sexual abuse, and failed to provide
evidence at the hearing to support his claims of sexual misconduct by
mother’s son. As a result of father’s allegations, daughter “suffered
physical examinations, multiple interviews with professionals, and
increased conflict between the parents.”

¶10 Father also argues there was insufficient evidence to support
the court’s decision to “only give partial weight to father’s claims that
[daughter] thrives in his care,” and its finding that daughter has only “spent
limited time in father’s physical residence.” Father essentially argues that
the court ignored evidence, failed to properly evaluate the evidence, and
improperly rejected his testimony. Much of father's argument on appeal is
a request for a different weighing of the evidence, which is not appropriate
for appellate review. See In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975
P.2d 704, 709 (1999); Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (“Our
duty on review does not include re-weighing conflicting evidence or re-
determining the preponderance of the evidence.”). We will not second-
guess the court's credibility determinations, but only determine whether
reasonable evidence supports its decision. Rowe v. Rowe, 154 Ariz. 616, 620,
744 P.2d 717, 721 (App. 1987). Father’s disagreement with the court’s
analysis of the statutory factors does not establish an abuse of discretion.
See Hurd, 223 Ariz. at 52, ¶ 16, 219 P.3d at 262.

¶11 In awarding sole legal decision-making authority to mother,
the court stated that it had “considered the evidence, including the
demeanor of the witnesses, reviewed the exhibits as well as the case history,
and considered the parties’ arguments.” Because the court made all
relevant findings as required under A.R.S. § 25-403 (A), and its findings are
supported by the record, there was no error.

¶12 Father next argues the court’s award of sole legal decision
making authority to mother was based on the court’s biased opinion of
father. The court is presumed to be unbiased, and the party seeking
removal must show actual bias by a preponderance of the evidence. See
State v. Hurley, 197 Ariz. 400, 404-05, ¶ 24, 4 P.3d 455, 459-60 (App. 2000).
Moreover, “[i]t is generally conceded that the bias and prejudice necessary
to disqualify a judge must arise from an extra-judicial source and not from
what the judge has done in his participation in the case.” Smith v. Smith,
115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App. 1977). Father offered no
admissible evidence or transcripts establishing any improper comments,
conduct, or alleged bias by the court. Thus, father failed to establish bias or
prejudice in this case.

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¶13 Lastly, father argues that the court erred in awarding mother
her attorney’s fees because he did not present a false claim about daughter’s
sexual abuse. We review the attorney's fees award for abuse of discretion.
In re Marriage of Berger, 140 Ariz. 156, 167, 680 P.2d 1217, 1228 (App. 1983).

¶14 In awarding mother’s attorney’s fees, the court found that:

There is no substantial disparity of financial resources
between the parties. . . .

Father did act unreasonably in the litigation.
Specifically, father acted unreasonably by failing to comply
with Court Orders, making spurious accusations against
[m]other and her other child, subjecting [daughter] to
unnecessary evaluations, and his lack of veracity to the
court. . . .

[T]he provisions of A.R.S. § 25-324(B) apply because
the petition was not filed in good faith, the petition was not
grounded in fact or based on law, and the petition was filed
for an improper purpose, such as to harass the other party,
to cause an unnecessary delay or to increase the cost of
litigation to the other party. . . .

Father knowingly presented a false claim . . . such that
an award of attorney fees and costs is appropriate under
A.R.S. § 25-415.

A.R.S. §§ 25-324(A), (B), -415.

¶15 In deciding whether to award attorneys' fees, the court was
presented with and carefully considered evidence related to the financial
resources of the parties, including the parties' testimony and affidavits of
financial information filed by each party. 5 Sufficient evidence in the record
supports the court’s determination that there was “no substantial disparity
of financial resources” between mother and father; father “acted
unreasonably” by failing to comply with court orders, making false claims
against mother and her child; and father did not file the petition in good
faith. We find no abuse of the court's discretion in awarding attorneys' fees
to mother.

5 We reject father’s argument that the court erred in not including the
income of mother’s live-in boyfriend in mother’s financial resources.

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CONCLUSION

¶16 For the foregoing reasons, we affirm. Mother requests an
award of costs on appeal. As the successful party to this appeal, we award
mother her costs on appeal pursuant to A.R.S. § 12-341 (2016) upon her
compliance with ARCAP 21.

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