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Opening Brief in an Arizona Family Law Appeal

Posted on : April 20, 2016, By:  Christopher Hildebrand
Gift of Separate Property Through Joint Tenancy Deed

Opening Brief in an Arizona Family Law Appeal

When a person filed an appeal, the arguments they present must be supported by law and the evidence placed upon the record at trial. The Arizona Court of Appeals will not reconsider evidence that has already been considered by the court, but will review the record to determine if the trial court made an error in reaching its decision. The appeals court will not substitute its opinion of the evidence or testimony as credible except in cases of obvious error.

A Brief History of the Unpublished Court of Appeals Case: Gagliardi v. Gagliardi

Since the divorce of Wife and Husband in 2009, extensive post-decree litigation occurred. The January 12, 2015 judgment at issue in the current appeal addresses child support modification issues. The opening brief identified other issues, but the appeals court confined its review to the judgment on appeal. Issues include on appeal are required to comply with the Arizona Rules of Civil Appellate Procedure. The opening brief contained a number of issues listed without corresponding legal arguments or citations. Arizona Community Property Law Opening briefs are required to present “specific arguments” that are supported by authority and that set forth the position of the appellant on the issues raised. When there is a failure to argue a claim – it typically results in its abandonment and waiver.

Arguments Presented on Appeal: Insufficient Parenting Time, Parenting Time Spent at School, Medical Percentage & Bias

The Appellant argues on appeal that the child support modification issued on January 12, 2015 included insufficient parenting time. At the hearing on January 6th, Appellant requested that the court use the “Judge’s order” of 145 days of parenting time. Mother argued at the time of the hearing that 52 days was a more accurate number. The court adopted neither position. The court noted that the previously set 115 days resulted in no appeal or objection at the time of the order in relation to the number of days of parenting time ordered, so the court was not going to alter it. The use of 115 days of parenting time attributed to Appellant for the calculation of child support in April 2014 was confirmed by the record of the trial. The Appellant offered no explanation as to why the court using the same figure nine months later would be in error.

Appellant also presented an argument that the court should not consider the time spent during “parenting time” at school as part of the child support calculations. Appellant offered not additional legal support for this argument and appellate courts do not consider arguments posited without authority. Additionally, the Arizona Child Support Guidelines address this issue of time a child spends at school not being included, but limits it to calculating parenting time for a noncustodial parent (per A.R.S. Section 25-320 app. Section 11).

Appellant also waived his claim on appeal regarding the trial court’s modification of each parent’s share of uninsured medical expenses because he failed to provide any argument or citations to the record regarding that issue in his opening appellate brief. Appellant also claimed the superior court commissioner that ordered the child support modification was biased against him. In order for this argument to be valid, the Appellant is required to show (by a preponderance of evidence) that the trial judge was actually biased. Otherwise, the trial judge is presumed free of both bias and prejudice.

Appellant presented no such evidence in this case. While Appellant claims he received inadequate notice of the proceedings, the record does not support that claim and the denial of his oral motion to continue does not establish judicial bias either.


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