Swansen v. Ball
1 CA-CV 21-0075-FC
| Ariz. Ct. App. | Nov 30, 2021Background:
- Parents divorced in 2017; decree awarded joint legal decision-making and equal parenting time for minor C.B. (b. 2004) and no child support.
- In Sept. 2019 Mother petitioned to modify legal decision-making, parenting time, and child support, alleging Father’s worsening substance abuse and related DCS involvement concerning an older child.
- After trial the family court awarded Mother sole legal decision-making, left Father’s parenting time to C.B.’s discretion, and ordered Father to pay $802/month child support.
- The court found the rebuttable presumption against joint legal decision-making (A.R.S. §25-403.04) was triggered by Father’s substance abuse within the relevant 12-month period and concluded Father failed to rebut it.
- The court acknowledged and struck an improperly judicially noticed Foster Care Review Board report but explained abundant other admissible evidence supported its findings.
- Father appealed but failed to provide the trial transcript; the appellate court presumed the record supported the family court, affirmed the modification order, and awarded Mother $3,000 in appellate attorney’s fees.
Issues:
| Issue | Ball’s Argument | Swansen’s / Court’s Argument | Held |
|---|---|---|---|
| Whether the rebuttable presumption against joint legal decision-making under §25-403.04 was properly applied based on Father’s substance abuse | Court erred: no recent convictions, relied on out-of-window events, and Father had many negative drug tests | Evidence included an event within 12 months and other credible evidence of long-term substance abuse; conviction not required | Affirmed: presumption properly applied; Father failed to rebut; award of sole legal decision-making upheld |
| Confrontation Clause challenge to court’s reliance on testimonial evidence | Father claims he was convicted in effect without opportunity to confront accusers | This is a civil family-law proceeding, not criminal; Confrontation Clause inapplicable | Affirmed: claim without merit |
| Use of child support guidelines without updated financial affidavit | Father faults court for relying on outdated financial evidence and misapplying guidelines | Father failed to file updated affidavit; court may use most recent record evidence to calculate support | Affirmed: no abuse of discretion |
| Judicial notice of FCRB report and alleged due process violation/termination of parental rights | Court improperly took judicial notice without hearing; due process/termination concerns | Court struck the FCRB reference, explained ample other evidence supports the ruling, and did not terminate parental rights | Affirmed: striking cured the error; no due process violation; parental rights were not terminated |
| Appellate claim that findings lacked evidentiary support and exhibits were untimely | Father argues insufficient evidence and discovery/exhibit issues; asks for new trial | Father failed to provide trial transcript as required on appeal, so record is presumed to support the family court | Affirmed: issues unreviewable due to missing transcript; court’s findings stand |
Key Cases Cited
- MacMillan v. Schwartz, 226 Ariz. 584 (App. 2011) (child’s choice can affect parenting-time determinations)
- Engstrom v. McCarthy, 243 Ariz. 469 (App. 2018) (abuse-of-discretion standard for family-court rulings)
- Garlan v. Garlan, 249 Ariz. 278 (App. 2020) (affirming family court if any reasonable evidence supports the decision)
- Hill v. City of Phoenix, 193 Ariz. 570 (1999) (defective notice of appeal does not necessarily deprive appellate jurisdiction if not prejudicial)
- Kline v. Kline, 221 Ariz. 564 (App. 2009) (appellant must provide transcripts to challenge evidentiary support; otherwise record is presumed to support the trial court)