In re the Marriage of: Maria Antonia Olvera n.k.a. Zamora, Appellee, and Javier Olvera, Appellant.
Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20012721 The Honorable Laurie B. SanAngelo, Judge Pro Tempore
Willman Law Firm, Tucson By Paul E. Willman Counsel for Appellee
Javier Olvera, Tucson In Propria Persona
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Miller and Judge Espinosa concurred.
ECKERSTROM, Chief Judge
¶1 In this post-dissolution child custody modification proceeding, appellant Javier Olvera challenges the trial court's order concerning parenting time. For the following reasons, we affirm.
Factual and Procedural Background
¶2 Maria Zamora and Javier Olvera dissolved their marriage in 2001. In the decree of dissolution, sole legal and physical custody of their minor children was awarded to Zamora, with "reasonable visitation" for Olvera. In April 2013, Olvera filed a motion seeking joint legal decision-making with equal parenting time. The parties were ordered to participate in mediation and eventually resolved all issues but that of a regular parenting time schedule. The court approved the parenting plan and held a trial to determine parenting time. After a bench trial, the court ordered that Olvera have parenting time every other weekend from Saturday morning at 9:00 a.m. until Sunday evening at 6:00 p.m., and, on the weeks Olvera does not have weekend parenting time, two hours on Wednesday evening. Olvera filed a motion for reconsideration, then several days later filed a notice of appeal. The trial court properly refused to consider Olvera's motion for reconsideration. See In re Marriage of Johnson & Gravino, 231 Ariz. 228, ¶ 6, 293 P.3d 504, 506 (App. 2012) (notice of appeal perfects appeal and deprives trial court of jurisdiction); see also Munger Chadwick P.L.C. v. Farwest Dev. & Constr. of the Sw., LLC, 235 Ariz. 125, ¶ 4, 329 P.3d 229, 230 (App. 2014) (motion for reconsideration does not extend time for appeal). We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101.
¶3 Olvera initially argues the trial court erred in several of its factual findings: first, that Zamora had no history of denying Olvera parenting time or preventing his access to the children; second, that Olvera had an inconsistent relationship with his children; and third, that Olvera had a history of domestic violence. On review, we view the facts in the light most favorable to upholding the trial court's decision. See Vincent v. Nelson, 719
Ariz.Adv.Rep. 35, ¶ 17 (Ct. App. Aug. 20, 2015). We will not disturb the trial court's factual findings unless they are clearly erroneous. See Walsh v. Walsh, 230 Ariz. 486, ¶ 9, 286 P.3d 1095, 1099 (App. 2012).
¶4 Olvera essentially claims the trial court erred in determining which witnesses to find credible. But it is the role of the trial court to judge the credibility of witnesses, and we will not reverse the trial court's findings of fact simply because conflicting evidence exists. Hurd v. Hurd, 223 Ariz. 48, ¶ 16, 219 P.3d 258, 262 (App. 2009). We therefore find no basis to disturb the trial court's findings of fact.
¶5 Olvera next claims the court erred in considering domestic violence in its order regarding parenting time. "We review an order modifying parenting time for an abuse of discretion ..... Baker v. Meyer, 237 Ariz. 112, ¶ 10, 346 P.3d 998, 1002 (App. 2015). Olvera's contention is based on A.R.S. § 25-403.03(A), which states that a court shall not award joint legal decision-making if one parent has a "significant history" of domestic violence, and § 25-403.03(D), which creates a rebuttable presumption against an award of sole or joint legal decision-making to a parent who has committed domestic violence against the other parent. Olvera contends the evidence does not support ...