Opinion
1 CA-CV 22-0309 FC
02-28-2023
In re the Matter of: FRANK DWAYNE PHOENIX, Petitioner/Appellee, v. CHELSEA NICOLE FERGUSON, Respondent/Appellant.
Law Office of James B. Rolle, Phoenix By James B. Rolle, III Counsel for Petitioner/Appellee Fromm, Smith & Gadow, P.C., Phoenix By Kareen O'Brien Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2017-050623 The Honorable Andrew J. Russell, Judge
Law Office of James B. Rolle, Phoenix By James B. Rolle, III Counsel for Petitioner/Appellee
Fromm, Smith & Gadow, P.C., Phoenix By Kareen O'Brien Counsel for Respondent/Appellant
Judge Michael S. Catlett delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.
MEMORANDUM DECISION
CATLETT, JUDGE
¶1 Chelsea Nicole Ferguson ("Mother") challenges the superior court's modification order granting Frank Dwayne Phoenix ("Father") unsupervised parenting time with the parties' minor child. Mother also contends the court erred by failing to establish procedures for exchanging the child. We affirm the award of unsupervised parenting time but remand for the superior court to set appropriate procedures for exchanging the child.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The parties have one minor child in common. In October 2017, Father petitioned to establish legal decision-making authority, parenting time, and child support. Based on the parties' agreement, the superior court entered temporary orders granting the parties joint legal decision-making authority and Father supervised parenting time.
¶3 Following a December 2019 trial on Father's petition, the superior court found Father had committed "a wide range of domestic violence against Mother." It also found, based in part on an independent psychological evaluation ("IPE") prepared by Dr. Ann Schroeckenstein and a comprehensive family evaluation ("CFE") prepared by Dr. Raymond Branton, that Father "struggle[d] with poor anger management, impulsivity, and a lack of empathy for the impact of his actions on others." The court (1) granted Mother sole legal decision-making authority, (2) awarded Father four hours of supervised parenting time every other weekend, and (3) awarded Mother monthly child support. The court also endorsed the evaluators' recommendations that Father undergo "forensically informed therapy."
¶4 In March 2021, Father petitioned to modify legal decision-making authority, parenting time, and child support. Stating that he had completed a 15-week "Relapse Prevention Plan" and was enrolled in a "specific Batterer's Prevention Program," Father sought, as relevant here, unsupervised parenting time "on a reasonable basis."
¶5 The superior court held an evidentiary hearing at which Dr. Schroeckenstein and Dr. Branton testified, and Mother sought to admit the 2019 IPE and CFE. The court admitted both evaluations but stated that it would give them the weight the court thought they deserved because the reports were more than two years old. After the hearing, the court found Father had established a substantial and continuing change in circumstances through (1) his "steps to address his anger management issues" including the counseling programs discussed above, (2) his improved employment situation, and (3) his move out of his parents' home.
¶6The superior court also found, however, that Father "suffered] from seizures significant enough to require hospitalization at least twice last year" and that he admitted not taking all prescribed medications to address those seizures. The court reasoned that "[a]llowing Father to exercise extended periods of parenting time . . . increases the possibility that he could suffer a seizure while responsible for the child's care." The court was also concerned about Father's living situation because Father "lives with a 'family friend' in an apartment where he only has one bedroom." The superior court, therefore, denied Father's petition as to legal decision-making authority and child support but awarded him nine hours of unsupervised parenting time on alternating Sundays and holidays. The court also denied both parties' attorney fee requests.
¶7 Mother timely appealed. We have jurisdiction under A.R.S. § 12-2101(A)(2).
DISCUSSION
¶8 We review an order modifying parenting time for an abuse of discretion. Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 491 ¶ 9 (App. 2020). A court abuses its discretion if (1) it commits an error of law in reaching a discretionary conclusion, (2) it reaches a conclusion without considering the evidence, (3) it commits some other substantial error of law, or (4) the record lacks substantial evidence to support the superior court's finding. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50 ¶ 27 (App. 2007).
I. Expert Reports
¶9 Mother first contends the superior court improperly disregarded the 2019 IPE and CFE. She argues the court "summarily rejected" both reports "solely due to their age" even though neither "ha[s] an expiration date."
¶10 The court did not reject or disregard the 2019 IPE and CFE. It instead admitted both into evidence, stating that it would give each report the weight it deserved. It also considered Dr. Schroeckenstein's and Dr. Branton's testimony from the March 2022 hearing, with one exception discussed below. The superior court, not this court, weighs admitted expert evidence. See Larchick v. Pollock, 252 Ariz. 364, 368 ¶ 17 (App. 2021) ("As the trier of fact, the family court would be free to give the expert's opinion little or no weight.").
II. Unsupervised Parenting Time Award
¶11 Mother next contends the court abused its discretion by awarding Father unsupervised parenting time. When addressing a request to modify parenting time, the court must undergo a two-step analysis. Backstrand v. Backstrand, 250 Ariz. 339, 343 ¶ 14 (App. 2020). The court first must determine whether there has been a change of circumstances materially affecting the child's welfare. Id. (quoting Black v. Black, 114 Ariz. 282, 283 (1977)). If the court determines there has been such a change of circumstances, it then must consider whether modification would serve the child's best interests. Id. Father bore the burden to show a sufficient change in conditions to justify modification. Id. (quoting Burk v. Burk, 68 Ariz. 305, 308 (1949)).
¶12 Mother argues that the superior court abused its discretion by shifting the applicable burden of proof to Mother. There is no express indication in the court's written decision that it shifted the burden of proof to Mother, and we will not assume it did. Walton v. Arizona, 497 U.S. 639, 653 (1990) ("Trial judges are presumed to know the law and to apply it in making their decisions."). As explained further below, the court applied the governing legal standards to determine, based on the evidence before it, whether Father had met his burden to show a change of circumstances.
¶13 Mother next contends the court's findings that Father "has taken steps to address his anger management issues" but "still believes that he has not perpetrated any [domestic violence] against Mother" are irreconcilable and do not demonstrate a change in circumstances. The record sufficiently supports both findings, and the superior court has broad discretion to decide whether the evidence presented establishes a change in circumstances. See Gonzalez-Gunter, 249 Ariz. at 492 ¶ 11.
¶14 Mother next asserts the court overlooked "a plethora of medical evidence demonstrating [Father] refuses to take prescribed medications for his seizure condition and has violent seizures frequently." As noted above, the superior court expressed concerns regarding "how much of an increase [in Father's parenting time] is in [the child's] best interests" based on Father's apparent unwillingness to take prescribed seizure medications. The court refused to grant the full amount of parenting time Father requested because "[a]llowing Father to exercise extended periods of parenting time under these circumstances increases the possibility that he could suffer a seizure while responsible for the child's care." The court plainly considered the medical evidence in deciding to deny Father's request for overnight or "extended" unsupervised parenting time.
¶15 Last, Mother believes the court "did not fully appreciate or consider the grave danger the minor child is being placed in every time she is with [Father]," but she cites little concrete evidence of such danger. Indeed, she speculates that Father could suffer a seizure "in a vehicle driven by him, in a swimming pool, or during a hike on a remote trail." But the superior court's ruling reflects its attempt to strike a reasonable balance between allowing Father some unsupervised parenting time and minimizing the risk imposed by Father's seizures and his unwillingness to take medications. The court did not abuse its discretion in striking that balance.
III. Testimony Regarding Paternal Grandfather
¶16 Mother also challenges the court's ruling precluding Dr. Branton from testifying about his concerns regarding the child's paternal grandfather. We review evidentiary rulings for an abuse of discretion and will affirm absent a showing of clear abuse or legal error and resulting prejudice. Davis v. Davis, 246 Ariz. 63, 65 ¶ 6 (App. 2018).
¶17 Mother contends the court should have allowed Dr. Branton's testimony because whether the paternal grandfather poses a risk to the child is relevant to the child's best interests. See A.R.S. § 25-403(A)(2) (court may consider child's interaction and interrelationship with "any other person who may significantly affect the child's best interest."). Dr. Branton first stated his concerns in the 2019 CFE in connection with his recommendations regarding supervised visits for the paternal grandparents. The parental grandparents are not parties to this case, and Mother does not contend they sought visitation rights. The superior court, therefore, did not err in excluding the proffered testimony as irrelevant, given Father's testimony that he was no longer living with his parents.
¶18 Mother also made no offer of proof to show how Dr. Branton's anticipated testimony on this issue would have been relevant to the modifications Father sought in 2021. See Ariz. R. Evid. 103(a)(2); Ariz. R. Fam. Law P. 2(b)(2) (Rule of Evidence 103, among others, applies regardless of whether either party files a notice requiring compliance with the Rules of Evidence).
¶19 Mother also notes that the court mentioned Dr. Branton's concerns in its February 2020 order. But Father lived with his parents at that time; he testified that he no longer does so. We find no abuse of discretion in the court's conclusion regarding the relevancy of testimony about the paternal grandfather.
IV. Child Exchange Procedures
¶20 Mother correctly points out that the superior court omitted procedures for exchanging the child as required under A.R.S. § 25-403.02(C)(4). The parenting plan statute requires that each listed element, including child exchange procedures, be determined and included in a plan. A.R.S. § 25-403.02(C). We therefore remand for the superior court to establish appropriate procedures for exchanging the child.
V. Denial of Mother's Attorney Fee Claim
¶21 Mother also challenges the denial of her attorney fee claim. We review the court's ruling for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, 494 ¶ 6 (App. 2014).
¶22 The superior court may award reasonable attorney fees after considering the financial resources of both parties and the reasonableness of each party's positions throughout the proceedings. A.R.S. § 25-809(G). Mother does not address these issues on appeal. She claims instead that she was entitled to fees because the court abused its discretion in various ways. We find no statutory support for Mother's contention, and, in any event, we have concluded that Mother's arguments are mostly unavailing. We affirm the denial of Mother's attorney fee claim.
VI. Attorney Fees and Costs on Appeal
¶23 Mother also requests her attorney fees incurred in this appeal. She does not show any financial disparity, and neither party took unreasonable positions in this appeal. We, therefore, deny her request. Father is the successful party on balance and may recover his taxable costs incurred in this appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶24 We affirm the modification order and remand to allow the superior court to establish appropriate procedures for exchanging the child as required under A.R.S. § 25-403.02(C)(4).