Opinion
1 CA-CV 12-0105
04-25-2013
In re the Matter of: BRANDY ANCHONDO, Petitioner/Appellant, v. GUILLERMO ANCHONDO, Respondent/Appellee.
Law Office of Gregory D. Green, PLLC By Gregory D. Green Attorney for Petitioner/Appellant Guillermo Anchondo Respondent/Appellee In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Navajo County
Cause No. S0900DO2005-0628
The Honorable Ralph E. Hatch, Judge
AFFIRMED
Law Office of Gregory D. Green, PLLC
By Gregory D. Green
Attorney for Petitioner/Appellant
Winslow Guillermo Anchondo
Respondent/Appellee In Propria Persona
Show Low CATTANI , Judge ¶1 Brandy Anchondo ("Mother") appeals from the family court's order modifying child custody and awarding primary physical custody to Guillermo Anchondo ("Father"). For the reasons set forth below, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father, who divorced in January 2007, have three children over whom they share joint custody. In July 2007, the court allowed Mother to move to Missouri with the children and granted Father parenting time over the summer, holidays, and school breaks. ¶3 In October 2010, Mother physically injured one of the children. In July 2011, Father filed a motion for temporary orders without notice and a petition to modify custody and parenting time based in part on the October 2010 incident. At the temporary orders hearing, the court conducted in camera interviews with the children, who were then 11, 13, and 16 years old. The court issued temporary orders designating Father as the primary physical custodian and allowing the children to attend school in Arizona. ¶4 After a final hearing, at which the court again conducted in camera interviews with the children, the court issued an order confirming joint legal custody and designating Father as the primary physical custodian. Mother timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2).
DISCUSSION
¶5 We review a decision modifying custody for an abuse of discretion. Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982); Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). A court abuses its discretion when it misapplies the law or when there is no competent evidence supporting the court's decision. Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004); Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668 (1963). ¶6 In a contested custody modification case, a court must consider and make findings on the record about all relevant factors enumerated in A.R.S. § 25-403(A) regarding the children's best interests. A.R.S. § 25-403(B); see also In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 4, 38 P.3d 1189, 1191 (App. 2002). Those factors are as follows: 1) the wishes of the parents as to custody; 2) the wishes of the children; 3) the interaction and interrelationship of the children with the parents; 4) the children's adjustment to home, school, and community; 5) the health of the parties involved; 6) which parent is more likely to allow the children frequent and meaningful contact with the other; 7) whether one parent has provided primary care of the children; 8) the extent of coercion or duress used by a parent in obtaining an agreement for custody; 9) whether the parents have complied with the education program requirements; 10) whether either parent was convicted of false reporting of child abuse or neglect; and 11) whether there has been domestic violence or child abuse. A.R.S. § 25-403(A)(1)-(11) (West 2012). ¶7 In the present case, the family court's order addressed the factors set forth in Section 25-403. The court found that both parents desire to be the custodial parent, the children wish to live with Father, the children have better interaction with Father than with Mother, the children are adjusted to their circumstance in Arizona, the physical and mental health of the parents is equally good, both parents are likely to allow frequent and meaningful contact with the other parent, the lack of agreement as to custody is not unreasonable, and Mother physically injured one of the children. Thus, the trial court did not abuse its discretion by modifying the prior custody arrangement. ¶8 Mother argues the court abused its discretion by finding that "[t]he children have all adjusted to their circumstances in [Arizona], including attending school there." A.R.S. § 25-403(A)(4). She contends the court erred by not comparing the homes, schools, and communities of each parent and by not considering the children's relationships with healthcare professionals in Missouri. Additionally, Mother asserts one child has been smoking and using drugs and/or alcohol while under Father's care. ¶9 Section 25-403 does not require findings that specifically compare the parents' homes, schools, and communities. Nevertheless, there is evidence that the family court made such a comparison. For example, in its temporary order, the court found that "[a]lthough the children are adjusted to home and school in Missouri, [the children] love their Father's home in Arizona and wish to go to school [t]here." ¶10 The family court's conclusions regarding the Section 24-403(A)(4) factor and the other statutory factors are supported by the evidence. The parties presented evidence that the children performed poorly in school in Missouri. Although the children likewise did poorly in school in Arizona, the children apparently like their new schools and want to continue to attend school in Arizona. Additionally, Father helps them with their homework. ¶11 Although the children have relationships with healthcare professionals in Missouri, they also have similar relationships in Arizona. Mother testified that one child, who has certain medical issues, goes to a Missouri hospital once a year. Father testified that the child goes to therapy every week in Arizona. ¶12 There was conflicting testimony about whether one of the children smoked while under Father's care. This court does not reweigh the evidence or witness credibility on appeal, and thus defers to the family court's assessment of this issue. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009). ¶13 Mother further argues that the court abused its discretion by finding that Father is likely to allow substantial and meaningful contact with Mother. Mother claims that Father showed "utter disregard for his responsibility to provide substantial meaningful parenting time" by filing the petition for modification just before the children were to return to live with Mother, approximately ten months after the October 2010 incident on which the petition was partially based. See A.R.S. § 25-403(A)(6). ¶14 Father testified, however, that he believed he needed physical custody of the children before filing a petition for modification, and the court accepted his testimony. Although Mother testified that Father prevents Mother from having meaningful contact with the children, the children speak with Mother by telephone whenever they want. Mother admitted she speaks to the children on the phone and sometimes the children choose not to speak to her. The court concluded "[b]oth parties are likely to allow frequent and meaningful contact with the other parent," and the evidence supports this finding. ¶15 In an argument presented for the first time on appeal, Mother asserts that the court erred by failing to make an explicit finding that she has provided primary care of the children. A.R.S. § 25-403(A)(7); see Reid v. Reid, 222 Ariz. 204, 209-10, ¶¶ 19-20, 213 P.3d 353, 358-59 (App. 2009) (declining to find waiver despite a party's failure to raise lack of custody findings in the family court proceedings). ¶16 Although the court below did not specifically state Mother has provided primary care of the children, the parties did not dispute that Mother provided primary care since moving to Missouri in 2007. Additionally, the court's findings reflect its awareness that Mother has provided primary care: 1) "[t]he children all did very poorly in school while with [Mother]"; 2) "the children affirm their prior statements that when living with [Mother] there was little food in the house"; and 3) the older children "have stated that they have spent all their lives living with their Mother and now they want to live with their Father." Based on these detailed findings, we conclude the family court properly considered A.R.S. § 25-403(A)(7). ¶17 Finally, Mother argues that the court erred in the manner, method, and scope of its in camera interviews with the children. Mother contends the court went beyond Arizona Rules of Family Law Procedure 12 and A.R.S. § 25-405 by asking leading questions specifically designed to gather evidence of abuse and neglect. Mother objects in particular to the court asking "what kind of grades did you get last year" and "tell me how [Mother has] hurt your brother." ¶18 Rule 12 allows an in camera interview with a minor child "to ascertain the child's wishes as to the child's custodian and as to parenting time." Accord A.R.S. § 25-405. At the hearing, one issue presented and discussed was the children's grades. The court first questioned one of the children about where he wished to live. The child answered that he wanted to live in Arizona with Father, explaining that he liked the schools in Arizona better and Father helps him with his homework. The court followed up with the question about the child's grades. ¶19 When questioning another child about why she preferred living in Arizona to living in Missouri, the child explained that "my mom hurts my little brothers, and I don't like it." The court followed up by asking whether Mother hurt her and asking how Mother hurt her brothers. The court's questions were not leading or suggestive, but rather followed up on answers the children gave regarding their wishes about where to live and the reasons for their decisions. ¶20 Mother requests attorneys' fees on appeal pursuant to A.R.S. § 25-324. After considering the financial resources of the parties and the reasonableness of their positions, we decline to award fees to either party. We award Father his costs on appeal subject to his compliance with ARCAP 21(a).
This statute was revised on January 1, 2013. We cite to the previous version of the statute.
The only factors under Section 25-403 not mentioned in the court's order were whether the parties complied with the parental education program requirements, and whether either party was convicted of false reporting of child abuse or neglect. A.R.S. § 25-403(A)(9),(10). There is no disagreement regarding these factors; thus, they are not relevant to the custody modification determination in this case. See Hart v. Hart, 220 Ariz. 183, 185-86, ¶ 9, 204 P.3d 441, 443-44 (App. 2009)(requiring findings regarding all relevant factors).
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CONCLUSION
¶21 For the foregoing reasons, we affirm the court's order modifying custody.
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KENT E. CATTANI, Judge
CONCURRING: __________
PATRICIA A. OROZCO, Presiding Judge
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PETER B. SWANN, Judge