Opinion
No. 1 CA-CV 13-0570
12-23-2014
In re the Matter of: BRADLEY DAVID HENDRICKS, Petitioner/Appellee, v. STEPHANIE MICHELLE LOVE, Respondent/Appellant.
COUNSEL Wilson-Goodman Law Group, PLLC, Gilbert By Jill L. Rogers, Alan L. Cochran Counsel for Respondent/Appellant Brad D. Hendricks, Maricopa Petitioner/Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. FC2006-091472
The Honorable John R. Hannah, Judge
AFFIRMED
COUNSEL Wilson-Goodman Law Group, PLLC, Gilbert
By Jill L. Rogers, Alan L. Cochran
Counsel for Respondent/Appellant
Brad D. Hendricks, Maricopa
Petitioner/Appellee
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined. PORTLEY, Judge: ¶1 Stephanie Michelle Love ("Mother") appeals the family court's modification order. She argues the court abused its discretion by granting Bradley David Hendricks ("Father") sole legal decision-making authority, increasing his parenting time, awarding him child support, and ordering her to pay portions of their child's health insurance costs, as well as the Parenting Coordinator and Interventionist costs. For the following reasons, we affirm the court's orders.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father are the unmarried parents of Z. In the original 2006 order arising from a paternity petition, the court gave the parents joint legal custody, ordered that Mother be the primary residential parent and, if the parties could not agree in case of a dispute, gave Mother final decision-making authority. The court also ordered Father to pay child support to Mother. ¶3 Both parents filed numerous petitions for orders of protection, motions to suspend or enforce parenting time, and petitions to modify parenting time and child support. Additionally, Mother alleged Father physically and sexually abused Z resulting in several Child Protective Services ("CPS") investigations. And, despite the court's intervention to help improve their ability to communicate and co-parent, they have been unable to effectively co-parent. As a result, the court appointed a mental health expert, Dr. Brian Yee, in 2012 to conduct a custody evaluation and make recommendations concerning the child's best interests. ¶4 The court held an evidentiary hearing on multiple petitions for modification filed by the parents. In an extensive order which considered the various statutory factors and the child's best interests, the court considered the history of the case, Dr. Yee's evaluations, and the testimony of the parties, and granted Father's petition to modify the custody orders. Specifically, the court gave Father sole legal decisionmaking authority for the child; increased Father's parenting time to a fifty-fifty schedule; and ordered Mother pay Father child support, a portion of the child's healthcare costs, and fees for the court-appointed experts. Mother appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).
Effective January 1, 2013, the term "custody" was replaced with "legal decision-making." See Ariz. Rev. Stat. ("A.R.S.") § 25-402 (2013).
We cite to the current version of the statute unless otherwise noted.
DISCUSSION
I. Standard of Review
¶5 "We review the [family] court's decision regarding child custody for an abuse of discretion." Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11, 219 P.3d 258, 261 (App. 2009) (quoting Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003)). "An abuse of discretion exists when the [trial] record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision." Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) (citation omitted) (internal quotation marks omitted). We, however, do not reweigh the evidence because the superior court, as the trier of fact, has to determine the credibility of witnesses and the facts to make its decision. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004); Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13, 972 P.2d 676, 680-81 (App. 1998).
II. Substantial and Continuing Change in Circumstances
¶6 Mother contends that the court erred by finding that there had been a substantial and continuing change of circumstances that warranted modifying the custody order. We disagree. ¶7 To change a previous custody order, the family court must first determine whether there has been a material change in circumstances affecting the welfare of the child. See A.R.S. §§ 25-411 (custody), -503(E) (support); Owen, 206 Ariz. at 422, ¶ 16, 79 P.3d at 671 (citation omitted). Only after the court finds such a change has occurred does the court reach the question of whether a change in custody would be in the child's best interest. Hoffman v. Hoffman, 4 Ariz. App. 83, 417 P.2d 717 (1966). The court has broad discretion to determine whether a change of circumstances has occurred. Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982) (citation omitted). On review, we will not reverse the court's decision absent a clear abuse of discretion, i.e., a clear absence of evidence to support its actions. Smith v. Smith, 117 Ariz. 249, 253, 571 P.2d 1045, 1049 (App. 1977). ¶8 Here, there is sufficient evidence supporting the family court's determination that there was a change in circumstances warranting a modification of custody. Since the issuance of the joint custody (decisionmaking) order, Mother had a history of interpreting the order allowing her to make unilateral decisions and then informing Father after the fact, and accusing Father of physically, sexually and emotionally abusing their son. And as the court noted in its ruling, her allegations recently "escalated into two full-blown sexual abuse investigations by law enforcement and [CPS], neither of which uncovered any misconduct." Despite repeated efforts by the court to facilitate co-parenting, Mother has not abided by the joint custody orders and is unwilling to co-parent with Father. ¶9 Because the efforts to facilitate co-parenting failed, it was a material change in circumstances that supported the court modifying the custody orders. Consequently, the court did not abuse its discretion by finding that there had been a material change of circumstances which warranted examining whether the legal decision-making order should be modified.
III. Statutory Findings
A. Findings pursuant to § 25-403. ¶10 Mother argues that the court abused its discretion because it did not make adequate findings under A.R.S. § 25-403 to justify modifying the orders. We disagree. ¶11 When making a custody determination, the court considers the factors listed in A.R.S. § 25-403(A) regarding the child's best interests. The statute provides in part:
The court shall consider all factors that are relevant to the child's physical and emotional well-being, including:
1. The past, present and potential future relationship between the parent and the child.
2. The 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.A.R.S. § 25-403(A) (emphasis added). In a contested legal decision-making or parenting time 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." Owen, 206 Ariz. at 421, ¶ 9, 79 P.3d at 670 (quoting A.R.S. § 25-403(J)) (emphasis added). ¶12 Mother relies on In re the Marriage of Diezsi to contest the adequacy of the court's statutory findings. 201 Ariz. 524, 38 P.3d 1189, (App. 2002). In Diezsi, this court held that it was an abuse of discretion for the lower court to fail to make the requisite findings pursuant to § 25-403. 201 Ariz. at 526, ¶ 5, 38 P.3d at 1191. In that case, the trial court's order was deficient as a matter of law because it did not contain specific findings required by the statute nor did the transcript or order reflect that the court even considered the § 25-403 factors. Id. ¶13 Here, unlike in Diezsi, the court acknowledged the statutory requirement, and considered and discussed all relevant § 25-403 factors. Moreover, the court made specific findings regarding the relevant statutory factors and the child's best interests and explained its reasons in the order. ¶14 Although the court did not list or title each relevant factor, the court examined and discussed the relevant factors in § 25-403(A). The court specifically examined the first factor, the "past, present and potential future relationship between the parent and the child," and found that Z had "strong, bonded relationships with both parents," see A.R.S. § 25-403(A)(1), but attributed the bond to Father's strong commitment as a parent and his efforts to overcome the fears instilled in the child by Mother. And the court was concerned that Father would not be able to continue to overcome these negative influences as Z grows up. See A.R.S. § 25-403(A)(2), (6) ¶15 In examining the "interaction and interrelationship of the child" with his parents, the court noted that Dr. Yee observed that the child had positive interactions with Father. And in examining the "child's adjustment to home, school and community," the court noted that Z does well in school, is well-adjusted, does not have any overt behavioral problems, but that Dr. Yee was concerned about the "extraordinary and prolonged pressure due to the chronic distrust and conflict between parents." ¶16 The court also considered the "mental and physical health of the individuals" and related factors, and found that Mother had been unable or unwilling to acknowledge that the child was safe with Father, and she latched onto any negative information and disregarded the rest. Not only did Mother's accusations against Father escalate, Mother refused to accept repeated findings that Father posed no risk to the child. See A.R.S. § 25-403(A)(5), (9), (11). For example, Mother made false representation to the court that CPS had "substantiated" her 2011 abuse report against Father, when in reality the investigating case manager ultimately found her allegations unsubstantiated. See A.R.S. § 25-403(A)(7), (11). Moreover, the court relied on Dr. Yee's evaluation that Z had also been "substantially impacted" by his "mother's and maternal grandmother's negative appraisals, suspicions and allegations against father." See A.R.S. § 25-403(A)(2), (5). ¶17 The court also found that Father was "more likely to allow the child frequent, meaningful and continuing contact with the other parent" given that Mother had fallen short of giving the child permission to have an active and positive relationship with both parents. After explaining that the modification orders were "meant to protect [Z] without turning his world upside down," which is also a best interest consideration, see A.R.S. § 25-403(A)(3), (5), the court stated that "when a major decision is required Father shall consult Mother, give good faith consideration to her views, and put forth best efforts to reach a consensus decision." And it is only when they do not agree after consultation "and a mutual good faith effort to reach an agreement" that Father shall have the ability to make the final decision. ¶18 The family court made adequate findings under A.R.S. § 25-403. Therefore, the court did not abuse its discretion when it modified the existing legal decision-making, parenting time orders and child support orders.
3. The child's adjustment to home, school and community.
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. []
7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
. . .
11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under § 13-2907.02.
Renumbered to A.R.S. § 25-403(B). See Laws 2012, ch. 57, § 1.
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B. Findings Pursuant to § 25-403.01(B). ¶19 Mother also contends that the court abused its discretion because it failed to consider the A.R.S. § 25-403.01(B) factors. We disagree. ¶20 Section 25-403.01 allows the court to order either sole legal decision-making or joint legal decision-making, but requires the court to consider the child's best interests. A.R.S. § 25-403.01(B). When a court decides the level of decision-making that is in the child's best interests, it must consider not only the § 25-403 factors, but also the factors provided in § 25-403.01(B). The factors include:
1. The agreement or lack of an agreement by the parents regarding joint legal decisionmaking.
2. Whether a parent's lack of an agreement is unreasonable or is influenced by an issue not related to the child's best interests.
3. The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint legal decision-making.
4. Whether the joint legal decision-making arrangement is logistically possible.A.R.S. § 25-403.01(B). ¶21 Here, the court stated in its ruling that it had considered all factors under § 25-403.01(B). The ruling implicitly noted that there was no agreement about joint legal decision-making, see A.R.S. § 25-403.01(B)(1), and found that despite the repeated efforts to facilitate co-parenting, "Mother's view of the child's best interest continues to exclude Father." See A.R.S. § 25-403.01(B)(2). The court concluded that the "prospect of future cooperative decision-making is bleak." See A.R.S. § 25-403.01(B)(3). Therefore, the court sufficiently considered the statutory factors, and we find no abuse of discretion.
C. Factors Pursuant to § 25-408 ¶22 Mother also argues that the court abused its discretion in failing to consider the A.R.S. § 25-408 factors. We review de novo whether the relocation provisions of § 25-408 are applicable because it is an issue of statutory interpretation. Buencamino v. Noftsinger, 223 Ariz. 162, 163, ¶ 7, 221 P.3d 41, 43 (App. 2009). The statute provides in relevant part:
If by written agreement or court order both parents are entitled to joint legal decisionmaking or unsupervised parenting time and both parents reside in the state, at least sixty days' advance written notice shall be provided to the other parent before a parent may do either of the following:A.R.S. § 25-408(A) (emphasis added). ¶23 Here, § 25-408 does not apply. It is undisputed that Father's current residence is less than one hundred miles from Mother's residence and the change in legal decision-making authority does not require the child to move "more than one hundred miles within the state." A.R.S. § 25-408(A); see Buencamino, 223 Ariz. at 164, ¶ 7, 221 P.3d at 43 ("If the statutory language is clear and unambiguous, there is usually no occasion for resorting to the rules of statutory interpretation."). Moreover, the court's modification order was not the result of a relocation request. A.R.S. § 25-408(A). Therefore, the court was not required to consider or make specific findings regarding the factors in A.R.S. § 25-408.
1. Relocate the child outside the state.
2. Relocate the child more than one hundred miles within the state.
IV. Attorney's Fees
¶24 Finally, Mother requests appellate attorney's fees under A.R.S. § 25-324. In exercising our discretion, we decline her request for attorney's fees on appeal. However, because Father has prevailed, we award him his costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶25 For the above reasons, we affirm the family court's July 2013 modification orders.