Lamb v. Nielsen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHIRLEY RAE LAMB, Petitioner/Appellant,

v.

NEIL H. NIELSEN, Respondent/Appellee.

No. 1 CA-CV 17-0171 FC
FILED 11-21-2017

Appeal from the Superior Court in Maricopa County
No. FC2015-093296
The Honorable James D. Smith, Judge

AFFIRMED

COUNSEL

Alongi Law Firm, PLLC, Phoenix
By Thomas P. Alongi
Counsel for Petitioner/Appellant

Neil H. Nielsen, Glendale
Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.

W I N T H R O P, Presiding Judge:

¶1 Shirley Rae Lamb (“Mother”) appeals the family court’s
decree of dissolution and denial of her motion to amend the judgment,
arguing the court erred in failing to find that Neil H. Nielsen (“Father”)
committed domestic violence against Mother in the marital home pursuant
to Arizona Revised Statutes (“A.R.S.”) section 25-403.03 (2017).1 For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY2

¶2 The parties married in 2002 and have two minor children
(“the children”) in common. Mother suffers from chronic mental illness
that requires ongoing treatment. Specifically, Mother has Bipolar I
Disorder, which causes her to have “hypermania,” or extreme manic
episodes. During the parties’ marriage, Mother was hospitalized
approximately seven times for mental illness, often after she stopped taking
her medication.

¶3 While in Oregon in 2005, Mother, who was in a manic phase
at the time, alleged domestic violence against Father and obtained an order
of protection. The Oregon court ultimately quashed the protective order,
however, and Mother was hospitalized. After the Oregon Department of
Human Services concluded Father did not pose a threat to the older child,
but Mother did, the older child was placed with Father.

1 We cite the current version of the applicable statutes because no
revisions material to our analysis have occurred since the court’s rulings.

2 We view the facts and reasonable inferences in the light most
favorable to affirming the family court. See Mitchell v. Mitchell, 152 Ariz.
317, 323 (1987); Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984).

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¶4 On the evening of May 1, 2015, Mother and Father engaged in
an argument, which led to a brief physical altercation in the home.3 Mother
then “got her stuff,” and she and Father went next door to the home of
Father’s mother, where Mother accused Father of choking her.4

¶5 The next morning, Mother called 911, alleging Father had
physically assaulted her the evening before; however, when police arrived,
Mother told them Father had not intentionally put his hands around her
neck. Further, the reporting officer observed no injuries on Mother, and
Mother stated she did not want Father to be prosecuted. Later that day,
Mother went to Banner Estrella Medical Center, where she presented with
some bruising to her upper arm and face, and reported being choked.5

3 According to Father, Mother was angry when Father arrived home
and “purposely was picking a fight with [him] for some reason.” Father
eventually responded with an invective, Mother threatened to call the
police, and Father grabbed the phone from her. Mother then “went
berserk,” attacking Father like a “bobcat,” and when Father attempted to
restrain her, they both “went over the coffee table and landed on the ground
between the coffee table and the wall.” Mother became more “hysterical,”
screamed, scratched at Father, bit Father’s hand, and began swinging her
fists, trying to “smack” Father in the face, while Father continued to try to
restrain her until she eventually calmed down.

4 Father denied choking Mother and testified that he and his mother
examined Mother’s neck that evening and found no observable marks.

5 Four days after the altercation, Mother underwent a medical forensic
examination by the Glendale Police Department. The examiner
documented various injuries to Mother, including scratches and bruises,
and noted that Mother reported symptoms consistent with strangulation,
and exhibited a raspy voice. Father also had a bite mark and was covered
with numerous scratches and bruises, and he attributed Mother’s raspy
voice to Mother “screaming” at him throughout the May 1 incident.

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¶6 On May 4, 2015, Mother obtained an order of protection
against Father.6 Father was never criminally charged based on the May 1
incident.

¶7 On May 8, 2015, Mother petitioned for dissolution of the
parties’ marriage. Three days later, Mother filed a “Motion for Emergency
Orders Without Notice,” seeking temporary sole care and legal decision-
making authority over the children and that Father either (1) be denied any
parenting time with the children or (2) be allowed supervised parenting
time at his expense and that he complete a court-ordered anger
management program of at least twelve weeks in duration. In support of
her motion, Mother alleged that, on May 1, Father had attacked and choked
her, and she also alleged other instances of domestic violence by Father.

¶8 In response, Father denied Mother’s allegations and
countered with a request for emergency orders of his own, alleging that
Mother had

struggled with Bipolar 1 Disorder for most of her adult life.
When she is medicating and compliant with treatment she
seems to function well, when she is not medicated and not
compliant with treatment, she has psychotic episodes which
cause[] breaks in her perception of reality. During such
psychotic episodes she has obtained a number of orders of
protection over the years, both in the state of Oregon where
[Mother and Father] previously resided as well as one in the
state of Arizona. All of them have either been quashed by the
court or voluntarily by her as soon as she becomes compliant
with treatment including hospitalization and taking her
medication.

Father stated that Mother had recently been “off her medication and [was]
again experiencing a manic episode consistent with Bipolar Disorder.” He
also noted the maternal grandmother (Mother’s mother) had recently
expressed concern “that [Mother] is definitely manic” and had stated that
“[Mother] knows that she would not get custody of the [children] because
of the bi-polar history, so she has to manufacture spousal abuse in hopes of
accomplishing her goal. It’s so heartbreaking that she put [the older child]

6 At the May 12 hearing on the order of protection, the parties entered
an agreement to leave the order in place, but to significantly reduce the
order’s scope.

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through this once again let alone the [younger child].” Father sought sole
care and legal decision-making authority and argued that Mother’s
parenting time should be supervised. Father also sought an order requiring
Mother to undergo a psychological evaluation.

¶9 On May 19, 2015, the parties agreed to temporarily share joint
legal decision making for the children. Mother also agreed to submit to a
psychological evaluation.

¶10 A few days later, Father’s sister petitioned to have Mother
involuntarily committed to a secure facility for inpatient psychiatric
treatment.7 The petition alleged Mother was experiencing a psychotic
episode and was a danger to herself and others. Doctors concluded that
Mother was seriously mentally ill, and a detention order for psychiatric
treatment was issued on May 29. Ultimately, sheriff’s deputies had to take
Mother into custody with their weapons drawn.8

¶11 Because Mother had been involuntarily committed to a
mental health facility, Father filed an emergency motion for sole decision-
making authority and to suspend parenting time for Mother on June 2, 2015.
The court granted Father’s motion, and subsequently ordered that Mother
have supervised parenting time. On August 12, 2015, the parties stipulated
that Father continue to have sole legal decision-making authority over the
children and Mother continue to have supervised parenting time.

¶12 On August 9 and November 23, 2016, the family court
conducted a two-part evidentiary hearing on issues presented in the
dissolution. In August, the court addressed legal decision making and
parenting time, and in November, the court addressed property and debt
issues related to the dissolution proceedings.

¶13 After taking the matter under advisement, the family court
entered a decree of dissolution on November 30, 2016. The court awarded
sole legal decision making to Father, but also awarded Mother parenting

7 The record indicates that Father’s sister filed the petition after the
maternal grandmother requested that she intervene.

8 Mother remained in the mental health facility until January 2016. At
trial, however, Mother presented no medical records or testimony from any
medical professional to demonstrate she is complying with her required
psychiatric regimen.

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time. As relevant to this appeal, the court found Mother had not established
that Father committed domestic violence against her:

THE COURT FINDS that . . . Mother has not
established that Father has engaged in an act of domestic
violence against Mother. The evidence created at or near the
time of the [May 1, 2015] incident supports Father’s version of
events. Mother was inconsistent in her statements to law
enforcement compared to later statements to medical
professionals at Banner Hospital. Moreover, we know that
Mother was involuntarily committed for inpatient treatment
approximately three weeks later, further supporting the
notion that Mother was experiencing a manic episode tied to
failing to take the medication required for her bipolar
condition.

¶14 Mother moved to amend the judgment pursuant to Rule 83,
Ariz. R. Fam. Law P., requesting the family court reverse its finding that she
failed to prove Father committed domestic violence against her. The court
denied the motion.

¶15 Mother timely appealed. We have jurisdiction pursuant to
A.R.S § 12-2101(A)(1), (2) (2016).

ANALYSIS

I. Standard of Review

¶16 We will affirm if reasonable evidence supports the family
court’s decision, Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9 (App. 2007), and
will not substitute our opinion for that of the family court unless there has
been a clear abuse of discretion, Deatherage v. Deatherage, 140 Ariz. 317, 319,
(App. 1984). A court abuses its discretion when it commits an error of law
in reaching a discretionary decision, reaches a conclusion without
considering the evidence, commits another substantial error of law, or
makes a finding lacking substantial evidentiary support. Flying Diamond
Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007).

¶17 We will not set aside findings of fact unless they are clearly
erroneous. Ariz. R. Fam. Law P. 82(A). “A finding of fact cannot be ‘clearly
erroneous’ if there is substantial evidence to support it, even though there
might be substantial conflicting evidence.” Moore v. Title Ins. Co. of Minn.,
148 Ariz. 408, 413 (App. 1985) (citation omitted).

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¶18 We also defer to the family court’s credibility determinations
when evidence conflicts. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App.
1998); Ariz. R. Fam. Law P. 82(A). We will not reweigh conflicting evidence,
and although conflicting evidence may exist, we will affirm if substantial
evidence supports the court’s decision. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16
(App. 2009).

¶19 “If the court determines that a parent who is seeking sole or
joint legal decision-making has committed an act of domestic violence
against the other parent, there is a rebuttable presumption that an award of
sole or joint legal decision-making to the parent who committed the act of
domestic violence is contrary to the child’s best interests.”9 A.R.S. § 25-
403.03(D); see also A.R.S. § 25-403.03(B) (“The court shall consider evidence
of domestic violence as being contrary to the best interests of the child.”).10
Under § 25-403.03(D), a person commits an act of domestic violence if that
person (1) intentionally, knowingly, or recklessly causes or attempts to
cause sexual assault or serious physical injury, (2) places a person in
reasonable apprehension of imminent serious physical injury to any person,
or (3) engages in a pattern of behavior for which a court may issue an ex
parte order to protect the other parent who is seeking child custody or to
protect the child and the child’s siblings.

II. The Merits

¶20 Mother argues the weight of the evidence compelled a finding
that Father committed an act of domestic violence against her in the marital
home, and the family court abused its discretion in failing to make such a
finding.11 We disagree.

9 “This presumption does not apply if both parents have committed
an act of domestic violence.” A.R.S. § 25-403.03(D).

10 Further, “[n]otwithstanding subsection D of this section, joint legal
decision-making shall not be awarded if the court makes a finding of the
existence of significant domestic violence . . . or if the court finds by a
preponderance of the evidence that there has been a significant history of
domestic violence.” A.R.S. § 25-403.03(A).

11 Although Mother does not directly say so, her argument challenges
the court’s finding that “it is in the children’s best interest to award sole
legal decision-making authority to Father” and its order awarding Father
such authority regarding the children.

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¶21 Before finding that Mother had not proven Father committed
an act of domestic violence, the family court carefully considered any
evidence of each of the factors enumerated in A.R.S. § 25-403.03(C),
including (1) findings from another court of competent jurisdiction, (2)
police reports, (3) medical reports, (4) records of the Department of Child
Safety, (5) domestic violence shelter records, (6) school records, and (7)
witness testimony.

¶22 Substantial evidence supports the family court’s finding. As
the court recognized, Mother has a history of manic episodes, which have
previously led her to make unsubstantiated claims of domestic violence
against Father. The Oregon court concluded that Mother, rather than
Father, was a danger to the children, and none of Mother’s several
allegations against Father have resulted in charges being filed against him.
As for the May 1, 2015 incident, Father was not arrested or charged with
any crime. Mother, however, was involuntarily committed shortly after the
incident, and she remained hospitalized for mental illness for more than
seven months.12 Father denied assaulting Mother and contended Mother
was the aggressor, ostensibly because Mother was experiencing a manic
episode connected to her mental illness. Father also suffered numerous
injuries, consistent with his testimony that Mother had attacked him, and
Father’s testimony was supported by substantial evidence in the record,
including photographs of his injuries and statements from the investigating
police officer and the parties’ older child, both of whom stated they did not
observe any marks on Mother’s neck following the incident. Further,
Father’s testimony at trial remained consistent with his previous statements
to investigators, whereas Mother initially denied to the investigating officer
that Father choked her, and several of her statements at trial were
inconsistent with the evidence and her previous statements. On this record,
we cannot say the family court abused its discretion in finding that Mother
failed to establish that Father engaged in an act of domestic violence against
her.

12 Although Mother insisted at trial that she agreed to the mental health
treatment, the record indicates otherwise, including the examining
psychiatrist’s report that Mother “has limited insight into her illness and is
unwilling to agree to treatment on a voluntary basis.” A second medical
professional agreed that Mother required “involuntary inpatient treatment
until she is sufficiently stabilized to transition to outpatient treatment.”

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III. Attorneys’ Fees and Costs on Appeal

¶23 Mother requests an award of attorneys’ fees on appeal
pursuant to A.R.S. §§ 25-324 (2017), 25-403(A)(7) (2017), and 25-415(A)(1)
(2017). As for A.R.S. § 25-324, Mother has provided no information as to
the parties’ financial resources, and Father’s position has not been
unreasonable. Further, § 25-403(A)(7) does not provide for attorneys’ fees,
and § 25-415(A)(1) is inapplicable here. Accordingly, we deny Mother’s
request for attorneys’ fees on appeal. As the successful party on appeal,
Father is entitled to an award of his taxable costs upon compliance with
Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶24 The family court’s decree and order denying Mother’s motion
to amend the judgment are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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