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Hostile Communications: A Basis to Modify Child Custody In Arizona

Posted on : July 6, 2016, By:  Christopher Hildebrand
Hostile Communications as a Basis to Modify Child Custody Orders in Arizona.

Hostile Communications: A Basis to Modify Child Custody in Arizona

The Arizona Court of Appeals in the unpublished case of McGinnis v. McGinnis reviewed a trial judge’s ruling granting Mother sole legal decision making of the parties’ children. The father was also ordered to pay child support, as well as child support arrearages. Father appealed the court’s decision.

Mother and Father were married in 2011. Their first child was born in 2012. Mother filed a petition for legal separation in November of 2013. The parties agree to convert the petition for legal separation to a petition dissolution of their marriage. Shortly thereafter, their second child was born.

After the trial, the decree of dissolution was issued awarding sole legal decision making to Mother and ordering Father to pay $1,290.00 per month in child support. He was also ordered to pay $1,153.50 in child support arrearages. Father appealed.

On appeal, Father argued the trial judge erred in calculating child support, granting the mother sole legal decision making, and other evidentiary rulings related to the case.

McGinnis v. McGinnis: The Calculation of Child Support

Father claims Mother failed to adequately prove her earnings and argued the family court just “took her word” for it.  After review, the court of appeals found the court did not abuse its discretion. Mother’s testimony was relevant, she answered questions from her attorney, the family court, and Father.

It was concluded testimony of her income was sufficient evidence because she had only been fully employed for one week. The court of appeals indicated the trial judge had the discretion to determine the credibility of all witnesses, including the wife in this case.

Arizona Child Custody Law.

Arizona Child Custody Law.

Father also claims the court did not consider Mother’s overtime income in the child support calculation. He argued Arizona Child Support Guidelines used to calculate child support state “…generally, the court should not attribute income greater than what would have been earned from full-time employment.” (A.R.S. Section 25-320).

The court may consider overtime income if there is a history of overtime income on a regular schedule with expectations that it will continue. However, there was no evidence of Mother receiving overtime pay or a history of her working overtime pay.

Trial Court Demonstrating The Child Support Calculations

Father also argues the trial judge erred in the amount he was ordered to pay. He argued the judge did not indicate “how they arrived” at the specific child support amount. The record of the trial shows the court calculated the child support payment according to the Child Support Guidelines.

The record shows the court found Father’s income to be $48,000 per year, Mother’s income at $19 per hour, Father’s payment of $75 per month for the children’s health insurance coverage, Mother’s payment of $1,500 per month for day care, and the amount of parenting time awarded to Father.

The court of appeals found the trial judge did not abuse his discretion and appropriately applied the Child Support Guidelines.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
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16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
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22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
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18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
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19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
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17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
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21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
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21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

McGinnis v. McGinnis: The Award of Sole Legal Decision Making

Father also argued the court erred in granting Mother sole legal decision making authority and failing to make specific findings to do so, as required by A.R.S. Section 25-403.

Upon review, it is apparent in the decree the court made specific written findings for each of the required factors listed in A.R.S. Section 25-403(B) and Section 25-403(A). Namely, the parents “toxic relationship” preventing effective co-parenting. The trial judge also reviewed the prior six months when Mother and Father shared temporary joint legal decision-making authority.  The “trial” period demonstrated an inability of the parents to co-parent their children.

It became necessary for the court to intervene during that time when Father refused to agree to not bottle feed the infant despite knowing Mother was breast-feeding the newborn baby. In addition, the parties’ emails to each other were inappropriate and harassing – even containing derogatory comments. The temporary joint legal decision-making order situation made it clear a permanent co-parenting arrangement was not in the children’s best interests.

Behaviors Found To Be Contrary to Children’s Best Interests

Detailed findings were also made in regards to the best interests of the children (A.R.S. 25-403(A)). Father had significantly more difficulty in moderating his behavior, often indulging in belligerence, angry outbursts, engendered conflict, sabotage of relationships and verbal abuse towards Mother.

Other examples of the inability of Father to moderate his behavior included paying Mother money he owed her by placing it in a plastic bag inside a bag of dirty diapers. He also screamed at Mother in front of a minor child at the daycare. The court also found other “significant acts of domestic violence towards Mother”.

Due to these detailed findings, the court of appeals found no abuse of discretion in finding sole legal decision making to be in the children’s best interests.

Father also argues Mother “fabricated stories” at trial. The court of appeals indicated does not reweigh conflicting evidence. The responsibility for determining the credibility of witnesses lies with the trial judge.

McGinnis v. McGinnis: Court’s Failure to Rule on a Motion

Father also alleged the family court erred in various evidentiary rulings. Father filed a motion prior to trial alleging Mother was abusing prescription pills.  Father filed that motion in an attempt to obtain her medical records. The court never ruled on the motion. Father, however, did not bring this back to the attention of the court before completing the trial. As a result, the motion is automatically deemed to have been denied by operation of law.

The court of appeals also concluded the trial judge did not abuse his discretion by failing to rule on the motion because Father’s failed to retain an expert to interpret the records he sought to obtain.

Father argued that Mother should not have been allowed to play an audio recording of the parents screaming at each other at the daycare during the trial. He argued he was provided timely disclosure of that recording. Mother proved the recording was emailed to Father’s lawyer months prior to the trial.

The court of appeals held that a client is generally bound to have knowledge held by his or her attorney. As a result, the court of appeals concluded the trial judge did not abuse his discretion in allowing the recording to be played at trial.

On appeal, The Arizona Court of Appeals affirmed the trial court’s rulings and orders.



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