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Scott v. Cusick

Court of Appeals of Arizona, First Division

December 17, 2013

DAYNA MARIE SCOTT, Petitioner/Appellee,
v.
TIM JAMES CUSICK, Respondent/Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. FC2010-001544 The Honorable Christopher T. Whitten, Judge

Dayna Marie Scott, Phoenix Petitioner/Appellee In Propria Persona

McCulloch Law Office, Tempe By Diana McCulloch Counsel for Respondent/Appellant

Judge Kent E. Cattani delivered the decision of the court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined.

MEMORANDUM DECISION

Kent E. Cattani, Judge

¶1 Tim Cusick appeals the denial of his petition to modify child custody and request for attorney's fees. For reasons that follow, we affirm.

PROCEDURAL AND FACTUAL HISTORY

¶2 Tim Cusick ("Father") and Dayna Scott ("Mother") are parents of a son born in 2004. As the result of a 2011 consent decree and stipulated parenting plan, Father and Mother have shared joint legal and physical custody of their son. In May 2012, Father filed an emergency petition seeking sole legal custody and an order that Mother have supervised parenting time as a result of her arrest for extreme DUI and other episodes of excessive drinking.

¶3 After a return hearing on the emergency petition, the family court declined to modify joint custody or parenting time. The court ordered, however, that Mother undergo random alcohol testing not less than twice a week. The court further directed that, if Mother were to test positive or miss an alcohol test, her parenting time would be suspended.

¶4 Prior to the scheduled evidentiary hearing on Father's petition, Mother asked the court to terminate the random alcohol testing requirement because she was planning to travel abroad and would have an ignition interlock device on her car when she was not traveling. Father objected, and the court denied Mother's request.

¶5 After Mother missed a scheduled alcohol test in June, Father filed an emergency request to suspend her parenting time. The court denied the request, but affirmed Mother's obligation to test regardless of her location. Father filed another notice when Mother missed another scheduled test. Mother admitted missing the two scheduled tests, and the court granted the parties' stipulated request for supervised parenting time until the scheduled evidentiary hearing.

¶6 On September 27, 2012, the court conducted an evidentiary hearing, at which both parties testified, as did Mother's doctor, who evaluated Mother for alcohol use and possible dependence. The doctor noted that Mother's DUI appeared to be an isolated incident of alcohol abuse, and he opined that Mother was not dependent on alcohol. He also offered his view that Mother exercised poor judgment by drinking while in Europe and while still subject to court-ordered random alcohol testing. The doctor recommended an additional six months of monitoring and random testing.

¶7 After considering the testimony presented, the court concluded that continuing joint legal custody was in the child's best interest. The court reaffirmed its prior orders regarding custody and parenting time, conditioned on Mother's complete abstinence from alcohol and compliance with a treatment program and random alcohol testing six times per month for at least six months. The court denied both parties' requests for attorney's fees.

¶8 Father filed a notice of appeal of the order denying his petition to modify and his request for attorney's fees. He also filed a motion for reconsideration that was subsequently denied. We have jurisdiction over Father's appeal of the order denying the petition to modify and the request for attorney's fees. See Ariz. Rev. Stat. ("A.R.S.") § 12-2101(A)(2).[1]

DISCUSSION

I. Sufficiency of Findings.

¶9 We review a family court's decision regarding child custody issues under an abuse of discretion standard. See In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1191 (App. 2002). Father argues that the court abused its discretion by failing to make findings required under A.R.S. §§ 25-403 (Supp. 2012), 25-403.01 (2007), and 25-403.04 (2007).[2]See Owen v. Blackhawk, 206 Ariz. 418, 421-422, ¶ 12, 79 P.3d 667, 670-71 (App. 2003); Diezsi, 201 Ariz. at 526, ΒΆ 5, 38 P.3d at 1191. We conclude that the family court made the required findings ...


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