Opinion
No. 2 CA-CV 2018-0148-FC
05-08-2019
LUIS R. BEJARANO, Petitioner/Appellee, v. KESHIA Y. CASTRO, FKA KESHIA Y. OLEA, Respondent/Appellant.
COUNSEL The Jaszewski Law Firm P.L.L.C., Tucson By Samuel F. Jaszewski Counsel for Petitioner/Appellee Solyn Law PLLC, Tucson By Melissa Solyn Counsel for Respondent/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. SP20150287
The Honorable Laurie B. San Angelo, Judge Pro Tempore
AFFIRMED
COUNSEL The Jaszewski Law Firm P.L.L.C., Tucson
By Samuel F. Jaszewski
Counsel for Petitioner/Appellee Solyn Law PLLC, Tucson
By Melissa Solyn
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 In this paternity action, Keshia Castro appeals from the trial court's ruling granting Luis Bejarano's petition for modification of parenting time and naming him the primary residential parent of their daughter. Castro contends the court erred because (1) awarding Bejarano primary residential parenting time effectively awarded him sole legal decision-making authority for their daughter's education; (2) the court failed to find a material change in circumstances warranting modification; and (3) insufficient evidence supports the ruling. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the trial court's ruling. See In re Marriage of Downing, 228 Ariz. 298, ¶ 2 (App. 2011). Castro and Bejarano have one daughter, L.B., who was born in June 2013. In July 2015, the trial court approved the parties' stipulation to share joint legal decision-making for L.B. and to alternate parenting time on a weekly basis. The following year, the parties agreed to modify their parenting plan, with each parent continuing to have approximately equal time with L.B. The parties also agreed L.B. would begin attending a preschool program in Ajo, where they both lived.
¶3 In July 2017, Castro moved to Buckeye with her husband. The following month, she filed a motion to allow L.B. to attend kindergarten in Buckeye starting in 2018. Bejarano opposed her motion, arguing, "for [L.B.] to attend school in Buckeye there would need to be a modification of parenting time filed and granted" and "that has not taken place." He further requested that the trial court order L.B. to attend her Ajo preschool program "continuously" because she had "been absent from school each and every day that [Castro] had parenting time since the commencement of the school year." Bejarano simultaneously filed a petition for modification of legal decision-making and parenting time, asserting that Castro's move to Buckeye and L.B.'s school schedule made the current arrangement "not feasible or realistic."
The parties agreed that the move was not more than one hundred miles within the state. Accordingly, A.R.S. § 25-408(A), which requires advance notice of a relocation more than one hundred miles, does not apply.
The motion also included a request that L.B. undergo speech therapy. But the parties subsequently reached an agreement on that issue.
¶4 At a hearing in September 2017, the trial court ordered, on a temporary basis, that L.B. attend the Ajo preschool program during Bejarano's parenting time and a Buckeye preschool program during Castro's parenting time. The court continued the hearing to the following month and identified the sole remaining issue as "the parenting time schedule and transportation in regards to [L.B.'s] Pre-K attendance." After hearing testimony from both parties, the court "approv[ed Bejarano's] request to modify the current parenting plan" but ordered the parties to attend mediation "with respect to a parenting time plan for when [L.B.] begins to attend kindergarten."
¶5 Bejarano subsequently requested an order granting or denying a hearing on his petition for modification of legal decision-making. The trial court denied his request to modify legal decision-making, finding inadequate cause to set a hearing. In mediation, the parties were unable to reach an agreement regarding parenting time.
¶6 In August 2018, after a three-day trial, the court issued an under-advisement ruling modifying parenting time. The court named Bejarano the primary residential parent and awarded him parenting time during the school week and the third weekend of every month. Castro was awarded parenting time the remaining weekends each month. The court further ordered the parties to alternate parenting time each week over the summer. Castro has appealed that ruling, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(2). See In re Marriage of Dorman, 198 Ariz. 298, ¶ 4 (App. 2000) (order modifying physical custody and visitation appealable as special order after judgment).
Legal Decision-Making
¶7 Castro first argues the trial court erred in "awarding [Bejarano] primary residential parenting time" because it "effectively awarded [him] sole legal decision making regarding school choice/education." We review a ruling modifying parenting time for an abuse of discretion. Baker v. Meyer, 237 Ariz. 112, ¶ 10 (App. 2015). However, we review questions of law de novo. McClendon v. McClendon, 243 Ariz. 399, ¶ 8 (App. 2017).
¶8 "'Legal decision-making' means the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions." A.R.S. § 25-401(3). By contrast, parenting time is "the schedule of time during which each parent has access to a child at specified times." § 25-401(5). "To modify any type of legal decision-making or parenting time order a person shall submit an affidavit or verified petition setting forth detailed facts supporting the requested modification and shall give notice . . . to other parties to the proceeding." A.R.S. § 25-411(L); see also Ariz. R. Fam. Law P. 91.3. For a modification of legal decision-making, "[t]he court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings . . . ." § 25-411(L); see also § 25-411(N).
¶9 Here, Bejarano filed a petition for modification of legal decision-making and parenting time. The trial court denied Bejarano's petition for modification of legal decision-making, finding inadequate cause to set that matter for a hearing. See § 25-411(L), (N). Consequently, the sole issue at trial was parenting time. In its under-advisement ruling, the court noted that Castro and Bejarano "share joint legal decision making" and quoted A.R.S. § 25-403.02(E), which provides: "Shared legal decision-making does not necessarily mean equal parenting time." The court then set out the specifics of the new parenting plan. Thus, on its face, the ruling was limited to parenting time and did not award Bejarano sole legal decision-making authority over L.B.'s education.
The only other issue mentioned in the trial court's under-advisement ruling is child support. See A.R.S. § 25-320 app. § 11 (child support adjusted based on parenting time). However, the court ordered that "the parties confer on the issue" because "there was no evidence presented on child support."
¶10 Castro's reliance on Nicaise v. Sundaram, 244 Ariz. 272 (App. 2018), vacated in part on other grounds, 245 Ariz. 566, ¶ 17 (2019), is unavailing. In that case, "the parents' relationship was volatile" and "highly contentious." Id. ¶¶ 6, 11. The trial court found the parents could not agree on school choice and it was not in the child's best interests for either parent to be given final decision-making authority on that issue. Id. ¶ 13. Accordingly, the trial court decided the school in which the child would be enrolled. Id. On appeal, this court remanded the matter to the trial court "to decide which parent (or whether the parents jointly) shall decide which school [the c]hild will attend." Id. ¶ 31. This court explained that the trial court "does not have plenary authority to make decisions in place of the parents when it deems them to be in a child's best interests." Id. ¶ 28. Instead, "If the court determines that the parents cannot agree, the court must choose which parent shall decide. But the court cannot make the decision itself." Id. ¶ 29.
Our supreme court recently disapproved Nicaise, 244 Ariz. 272, ¶ 29, to the extent it suggested the trial court is "limited to merely vesting one parent with sole legal decision-making authority on the disputed issue." Paul E. v. Courtney F., No. CV-18-0111-PR, ¶ 27, 2019 WL 1811328 (Ariz. Apr. 25, 2019). Instead, the trial court "is authorized to resolve any conflict" if the parties share joint legal decision-making authority. Id.
¶11 In this case, because the parties share joint legal decision-making, they both have "the legal right and responsibility to make all nonemergency legal decisions for [L.B.] including those regarding education." § 25-401(3); see also § 25-401(2) (defining joint legal decision-making). Nothing prevents Castro and Bejarano from agreeing to send L.B. to a different school. Cf. Nicaise, 245 Ariz. 566, ¶ 14 (when parents share joint legal decision-making, but one has superior authority, they still must try to reach agreement in good faith). We recognize that as a result of the trial court's determination, L.B. will presumably attend the Ajo Unified School District, which is consistent with Bejarano's wishes. Nevertheless, unlike in Nicaise, the court did not order that L.B. attend a particular school in Ajo. Rather, the court adopted a plan giving Bejarano primary residential parenting time. Accordingly, the court did not err. See Baker, 237 Ariz. 112, ¶ 10; McClendon, 243 Ariz. 399, ¶ 8.
When they were both living in Ajo, Castro and Bejarano agreed L.B. would attend the Ajo Unified School District.
Castro argues, "[T]he trial court should have addressed the school choice issue by awarding one parent sole or final . . . decision making in the area of education." But Castro never made such a request below, and the court had previously denied the petition for modification of legal decision-making. That issue was therefore not before the court. --------
Change in Circumstances
¶12 Castro next contends the trial court erred by "awarding [Bejarano] primary residential parenting time when it did not find that there had been a material change in circumstances warranting modification." The trial court has broad discretion to determine whether a change of circumstances has occurred, and we will not disturb its decision on appeal absent a clear abuse of discretion. Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982).
¶13 Before modifying parenting time, the trial court must first "ascertain whether there has been a change in circumstances materially affecting the welfare of the child." Black v. Black, 114 Ariz. 282, 283 (1977); accord Christopher K. v. Markaa S., 233 Ariz. 297, ¶ 15 (App. 2013). After finding such a change has occurred, the court must then consider the best interests of the child. Black, 114 Ariz. at 283; see A.R.S. § 25-403(A). The requirement that the court determine whether there has been a material change in circumstances is based on our case law, not a statute. Hendricks v. Mortensen, 153 Ariz. 241, 243 (App. 1987); cf. § 25-403(B) (in contested case, court shall make findings on record about all factors and reasons for which decision is in best interests of child).
¶14 The under-advisement ruling in this case lacks any express determination that "there has been a change in circumstances materially affecting [L.B.'s] welfare." Black, 114 Ariz. at 283. However, we can reasonably infer that the trial court found such a change. See Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990) (generally, appellate court may infer trial court made additional findings necessary to sustain judgment, provided additional findings are reasonably supported by evidence and do not conflict with express findings). In its ruling, the court noted, "[I]deally, [the parties] would continue to share equal parenting time" but "[g]iven the distance between their homes and the child's educational needs [that] is not feasible." Thus, it appears the court considered Castro's move to Buckeye in light of L.B.'s need to start school as a material change in circumstances. And we agree that such a change justified modification of parenting time in this case. See Canty v. Canty, 178 Ariz. 443, 448-49 (App. 1994) (mother's move was change in circumstances trial court could consider, despite minute entry not specifically finding such change).
¶15 Castro nevertheless argues that the trial court's determination about their parenting plan no longer being feasible "did not take into account [her] proposal of a substantially equal parenting time plan with [L.B.] attending a four day a week school in Buckeye." But Castro's proposal for a hypothetical, future parenting-time arrangement was not an appropriate consideration in the changed-circumstances determination. See Pridgeon, 134 Ariz. at 180 (change in circumstances requires comparison between "new, previously unconsidered changed circumstance" and "prior circumstances"). And the court here considered it as part of the best-interests determination, noting that Castro preferred a school in Buckeye because it had "a four-day curriculum that would allow for a closer shared parenting arrangement, as the parents could exchange the child on Thursday evening each week, rather than Friday."
¶16 Moreover, throughout these proceedings, the parties treated Castro's move to Buckeye as if it were a change in circumstances materially affecting L.B.'s welfare. Notably, Castro's own motion requesting that L.B. attend school in Buckeye triggered this litigation. Bejarano filed his petition for modification in response, based largely on Castro's relocation and L.B.'s need to start kindergarten. At trial, Castro did not argue that a change in circumstances materially affecting L.B.'s welfare had not occurred. Accordingly, the trial court did not abuse its discretion. See id. at 179.
Sufficiency of the Evidence
¶17 Castro lastly argues that "awarding [Bejarano] primary residential parenting time was contrary [to] the weight of the evidence." As mentioned above, we review the modification of parenting time for an abuse of discretion. Baker, 237 Ariz. 112, ¶ 10. An abuse of discretion occurs when the record is devoid of evidence to support the decision. Hurd v. Hurd, 223 Ariz. 48, ¶ 19 (App. 2009). However, we must affirm if substantial evidence supports it. Id. ¶ 16.
¶18 The trial court must determine parenting time in accordance with the best interests of the child. § 25-403(A); see also A.R.S. § 25-403.02(B) (consistent with child's best interests, court must adopt parenting plan allowing both parents to share legal decision-making and maximizing respective parenting time). Pursuant to § 25-403(A), the court must "consider all factors that are relevant to the child's physical and emotional well-being," including those enumerated therein. See Andro v. Andro, 97 Ariz. 302, 305 (1965) (trial court in best position to judge best interests of child; appellate court will not disturb that decision absent clear abuse of discretion). Those factors include, inter alia, "[t]he interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest," § 25-403(A)(2), and "[t]he child's adjustment to home, school and community," § 25-403(A)(3). In a contested case, the court must "make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child." § 25-403(B); see also Baker, 237 Ariz. 112, ¶ 11.
¶19 Castro recognizes that, in its under-advisement ruling, the trial court made specific findings regarding all the relevant best-interests factors, including those listed in § 25-403(A). She, however, maintains that none of those findings "favored either parent." Accordingly, Castro reasons that the court "did not provide a nexus between its statutory factor analysis and its conclusion to award [Bejarano] primary residential parenting" and failed to explain "why it was in L.B.'s best interest to award [Bejarano] primary residential parenting." We disagree.
¶20 Although many of the trial court's findings regarding the § 25-403(A) factors seem to be largely neutral, as Castro suggests, they nonetheless help explain the court's best-interests determination. For example, with respect to § 25-403(A)(2), the court found that L.B. has additional family in Ajo, including maternal grandparents with whom she has a good relationship. In addition, concerning § 25-403(A)(3), the court found that in Ajo, L.B. would remain in a school district where she had already been attending preschool and had established friends. The court added that "[L.B.] has done well" there and "is looking forward to attending that school with her friends." These findings are supported by the record. See Hurd, 223 Ariz. 48, ¶ 16; see also McNutt v. McNutt, 203 Ariz. 28, ¶ 6 (App. 2002) (we accept trial court's findings of fact unless clearly erroneous).
¶21 Nevertheless, Castro questions the trial court's findings concerning L.B.'s education, arguing that she presented "substantially more evidence" about her school choice. She points to trial testimony that she contends shows a better "quality of life for L.B. in Buckeye." But Castro's argument amounts to a request that we reweigh the evidence. That is not our function. Hurd, 223 Ariz. 48, ¶ 16. Rather, we defer to the trial court's determination of witness credibility and the weight to give conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13 (App. 1998). The court here recognized the difficulty of this decision; it clearly grappled with the relevant factors and weighed the evidence in its thorough, six-page ruling. Because substantial evidence supports the trial court's ruling, we find no abuse of discretion. See Baker, 237 Ariz. 112, ¶ 10.
Disposition
¶22 For the foregoing reasons, we affirm.