NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. 

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of: 

SCOTT HULL, Petitioner/Appellant,

v.

DARCY WESLEY, Respondent/Appellee.

No. 1 CA-CV 15-0640 FC

Appeal from the Superior Court in Maricopa County

No. FC2014-093174

The Honorable Theodore Campagnolo, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Davis Miles McGuire Gardner, Tempe

By Douglas C. Gardner, Karl T. Scholes

Counsel for Petitioner/Appellant

Atchley & Delgado LLP, Mesa

By Michael G. Delgado

Co-Counsel for Respondent/Appellee

The Law Office of Kyle T. Green, PLLC, Mesa 

By Kyle Green 

Co-Counsel for Respondent/Appellee
HULL v. WESLEY

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judges Randall M. Howe and Andrew W. Gould joined.

J O H N S E N, Judge:

¶1 Scott Brian Hull ("Father") appeals from an order awarding 

joint legal decision-making authority to him and Darcy Wesley ("Mother"), 

appointing Mother's parents to supervise her parenting time, and ordering

Mother to pay him no child support. For the reasons stated below, we 

affirm the order in part and vacate and remand in part.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties are the unwed parents of a child born in 2014. 

Initially, the parties stipulated to joint legal decision-making, and because 

they lived together, they agreed to share physical custody and not pay child 

support. Before her pregnancy, Mother suffered serious back injuries and 

was prescribed various pain medications, which she continued to take 

during pregnancy. As a result, the child was born addicted to the pain 

medications and experienced withdrawal and other complications after 

birth.

¶3 Shortly after the child was born, at the urging of the medical 

staff and social services, Father successfully petitioned for emergency sole 

legal decision-making and supervised parenting time for Mother to occur 

at his house. Father simultaneously sought to modify the stipulated legal 

decision-making, parenting time, and child support orders. After a hearing 

on Father's emergency petition, the court affirmed the temporary orders, 

ordered Mother to submit to weekly random drug tests, and "ordered that 

Mother shall immediately avail herself to counseling and rehabilitation 

treatment."

¶4 One year passed before the court held an evidentiary hearing 

on Father's petition to modify legal decision-making, parenting time and 

child support. Following the hearing, the court ordered the parties to share 

joint legal decision-making authority and set forth a detailed parenting time 

plan, conditioned on Mother's participation in substance-abuse classes and 

psychological counseling. At first, Mother's limited parenting time was to 
HULL v. WESLEY

Decision of the Court

3

be supervised by her parents. Mother's parenting time would become 

unsupervised and gradually increase in amount starting January 1, 2016, if 

she continued substance-abuse classes and counseling. After applying the 

self-support reserve test in the Child Support Guidelines, see Arizona 

Revised Statutes ("A.R.S.") section 25-320 app. § 15 (2016) ("Guidelines"), the 

court did not order Mother to pay any child support.

1

¶5 Father filed a timely notice of appeal; we have jurisdiction 

pursuant to A.R.S. § 12-2101(A)(1) (2016).

DISCUSSION

A. Legal Decision-Making and Parenting Time.

¶6 Father contends that, presented with evidence that Mother 

abused drugs, the superior court failed to properly apply the presumption 

against joint legal decision-making set forth in A.R.S. § 25-403.04 (2016). He 

further argues the evidence does not support the award of joint legal 

decision-making. We review the court's legal decision-making and 

parenting time rulings for an abuse of discretion. In re Marriage of Diezsi, 

201 Ariz. 524, 525, ¶ 3 (App. 2002).

¶7 Section 25-403.04(A) creates a rebuttable presumption that it 

is contrary to a child's best interests to award sole or joint legal decisionmaking authority to a parent who has abused drugs or alcohol within 12

months before filing of the petition or request for legal decision-making or 

parenting time. In determining whether the presumption has been 

rebutted, the court "shall consider, at a minimum," whether the parent has 

been convicted of a drug offense within the past five years, the "[r]esults of 

random drug testing for a six month period that indicate that the person is 

not using" illegal drugs and the results of alcohol or drug screening. See 

A.R.S. § 25-403.04(B). Father contends the evidence and the court's findings 

do not support the conclusion that Mother rebutted the presumption.

¶8 The court found Mother had a substance-abuse problem and 

was possibly addicted to her prescription pain medications and other nonprescription drugs. The evidence supports the court's finding that random 

drug tests conducted between the child's birth and the time of trial showed

the presence of alcohol, opiates, amphetamines and other prescription 

drugs. There also was evidence that Mother stole prescription drugs from 

family members, refilled one prescription twice, presented a "highly 

 

1 Absent material revision after the relevant date, we cite the current 

version of a statute unless otherwise stated.
HULL v. WESLEY

Decision of the Court

4

suspicious story" regarding kidney pain at an emergency room and drank

alcohol while taking prescription pain medication despite direct warnings 

from medical professionals not to do so. The court also considered Mother's 

prior arrests for driving under the influence, and found that although she

was not convicted of driving under the influence, it was concerned that she 

admitted drinking while driving and after taking prescription pain 

medication.2

¶9 Father contends Mother did not rebut the presumption 

against joint legal decision-making because she did not show that she tested 

clean for a six-month period and, in fact, she continues to have positive 

drug screens. Section 25-403.04(B), however, requires only that the court 

"consider" evidence of the drug test and screening results. The statute does 

not require that test results dictate the court's decision. Mother has been 

prescribed pain medications to manage an undisputed history of chronic 

back pain; therefore, positive results for these narcotics would not be 

unexpected. Father argues the drug tests revealed that Mother was 

drinking alcohol, but the court also heard evidence that Mother attended 

substance abuse counseling and Alcoholics Anonymous sessions after the 

court ordered her to "avail herself to counseling and rehabilitation 

treatment" in July 2014. The court properly considered these facts in 

addition to the drug test results when determining whether Mother 

rebutted the presumption against joint legal decision-making.

¶10 Finally, the court conditioned Mother's parenting time on her 

continued participation in substance abuse classes and counseling. The 

court also imposed supervised parenting time initially and the record does 

not indicate any subsequent problems with Mother's compliance with the 

schedule the court ordered. Father also retained final decision-making 

 

2 Father argues the court erred by finding that he testified Mother 

completed a 45-day stay in a rehabilitation center. The court found, "Father 

testified that he and the paternal grandfather took Mother to a 

rehabilitation center because she was having drug withdrawal symptoms, 

where she stayed for approximately 45 days." Although this finding 

misstates Father's testimony, it is based on facts in the record: Mother did 

attend a 45-day rehabilitation program in 2010 and Father did take Mother 

to a three-day detox program at Community Bridges in July 2014. Thus, the 

mistake does not warrant reversal.
HULL v. WESLEY

Decision of the Court

5

authority for all major issues if the parties were unable to reach an 

agreement after a good-faith effort.3

¶11 The court cited A.R.S. § 25-403.04 in its order, and its findings 

and conclusions demonstrate the court gave careful consideration to the 

evidence of Mother's drug and alcohol use, and that it carefully weighed 

that evidence against evidence Father offered in support of his request for 

sole legal decision-making. The statutes give the superior court discretion 

to determine the degree of protection warranted in a particular case, and 

absent an abuse of that discretion, we will not substitute our judgment on 

appeal. The restrictions the court placed on Mother's parenting time and 

Father's final decision-making authority satisfy the statutory requirement 

that the court's orders must appropriately protect the child. See A.R.S. § 25-

403.04(A)(2). We find no abuse of discretion and affirm the order for joint 

legal decision-making.

¶12 Father also argues the court abused its discretion in allowing 

Mother's parents to supervise her parenting time. Pursuant to the superior 

court's order, Mother's parenting time became unsupervised as of January 

1, 2016. Nothing in the record indicates Father sought continued

supervised parenting time beyond that date. Therefore, this issue is now 

moot.

B. Child Support.

¶13 The court concluded Mother should not pay child support at 

this time because she had a negative income after applying the self-support 

reserve test. See Guidelines § 15. We review child support awards for an 

abuse of discretion. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21 (App. 2009).

 

3 In denying Father's request for sole legal decision-making authority, 

the court also noted that Father knew of Mother's substance abuse problem 

when he agreed to joint legal decision-making and did not seek sole legal 

decision-making until after he was told he could not take the child home 

from the hospital unless he did so. The record supports these findings. 

Father contends the court could not take his conduct into account in 

determining whether Mother overcame the presumption against joint legal 

decision-making. Section 25-403.04(B) does not restrict the evidence a court 

may consider in deciding whether the presumption has been rebutted. 

Thus, the court did not abuse its discretion in considering Father's actions 

along with the evidence concerning Mother. 
HULL v. WESLEY

Decision of the Court

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¶14 Father argues the superior court abused its discretion in 

finding Mother's monthly income was $823. He argues this finding is 

contrary to the evidence and the statutory presumption that a parent is 

capable of working full-time at minimum wage. See A.R.S. § 25-320(N)

(2016). At oral argument, Mother conceded the court's child support order 

is incorrect. Accordingly, we vacate and remand the ruling concerning 

child support.

¶15 Father also contends the court erred by failing to give him

credit for the health insurance and day-care costs he incurs for the child. 

On remand, the superior court should consider whether evidence of 

Father's insurance and day-care costs affect a proper recalculation of child 

support.4 

C. Attorney's Fees on Appeal.

¶16 Both parties request an award of attorney's fees and costs on 

appeal pursuant to A.R.S. § 25-324 (2016). In the exercise of our discretion, 

we deny the requests for an award of fees to either party. As the successful 

party, Mother is entitled to an award of costs on appeal upon compliance 

with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. § 12-342 

(2016).

 

4 We note the superior court used the 2015 Guidelines, which apply to 

actions filed after June 30, 2015. See Guidelines § 15 (2015). However, 

because this action was filed on July 18, 2014, the 2011 Guidelines apply. 
HULL v. WESLEY

Decision of the Court

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CONCLUSION

¶17 We affirm the superior court's order granting joint legal 

decision-making parenting time but vacate and remand its order 

concerning Father's request for child support.