Opinion
2 CA-CV 2022-0151
07-14-2023
In re the Marriage of Jack Dallas Lee III, Appellee, And Rhianna-Katherine Farm, Appellant.
Jack Dallas Lee III, Fort Huachuca In Propria Persona Rhianna-Katherine Farm, San Clemente, California In Propria Persona
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 NOT FOR PUBLICATION See Ariz.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 Cochise County No. S0200DO201900769 The Honorable David Thorn, Judge. VACATED AND REMANDED
Jack Dallas Lee III, Fort Huachuca In Propria Persona
Rhianna-Katherine Farm, San Clemente, California In Propria Persona
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
Vasquez, Chief Judge
¶1 In this domestic-relations action, Rhianna-Katherine Farm ("Mother") appeals from the trial court's September 2022 post-dissolution ruling modifying parenting time in favor of Jack Lee ("Father"), requiring Mother to pay the airfare associated with transporting the parties' minor child during exchanges, and prohibiting her current partner ("Step-father") from participating in exchanges or facilitating communication between the child and Father. Mother contends the court erred by modifying parenting time and effectively modifying her child support obligation by requiring her to pay airfare without finding a significant change in circumstances. She further contends the court erred by failing to enter specific findings as required by the governing family law statutes. She also argues the court abused its discretion by failing to properly consider her evidence and excluding Step-father's participation without justification. For the following reasons, we vacate the court's September 2022 orders, along with additional orders issued in July 2022.
We explain below why we deem the July order interlocutory and thus address it, despite the trial court referring to it as a final, appealable order.
Factual and Procedural Background
¶2 The parties were divorced in Hawaii in 2018. In 2019, Mother moved to California, and Father, pursuant to military orders, relocated to Arizona. In early 2020, Arizona assumed jurisdiction after Father petitioned to modify legal decision-making and parenting time.
¶3 In August 2020, after a two-day evidentiary hearing, the trial court modified parenting time, awarded the parties joint legal decision-making, designated Father as the primary residential parent, ordered daily "video-chat" calls between the child and the "non-custodial" parent, and detailed how the parties were to facilitate parenting-time exchanges. One month later, Father filed a motion requesting the court to amend the exchange requirements in its August order. In her response, Mother confirmed there was a disagreement between the parties in need of clarification. In its order denying Father's motion, the trial court nevertheless provided its interpretation of the August order and sua sponte amended the exchange requirements. As part of its interpretation, the court ordered that "[a] family member, with the exception of [Mother]'s current significant other, can make the exchange[s]."
The trial court explained the order was necessary to keep conflict between Father and Step-father to a minimum because the two had been "previously involved in a physical altercation."
¶4 In October 2021, Mother filed a motion to amend the August 2020 order, alleging that Father was "negatively affect[ing]" her health and well-being by blocking her calls and requiring her to communicate through his current wife by phone despite a history of conflict between them. She also argued that Step-father should be allowed to participate in exchanges and requested a modification of parenting time. The trial court denied the motion, stating that Mother failed to prove "immediate and irreparable harm to the minor child."
¶5 In January 2022, Mother filed a motion for temporary orders without notice, alleging the child was "in imminent danger of irreparable injury and harm" because Father had relocated to on-base housing, which restricted her access, and had transferred the child to a new school midway through the year without her prior approval. The trial court denied the motion, stating that it was "patently absurd" that this "constitute[d] a threat of imminent and irreparable injury."
¶6 The next day, Mother filed a petition to modify the August 2020 order and hold Father in contempt for violating the order. She also filed an expedited motion for temporary orders. In her petition and motion, which are essentially identical, she realleged the facts from her October 2021 ex-parte motion and her January 2022 motion for temporary orders. The trial court set an evidentiary hearing on the petition to modify in May 2022. During the hearing, however, the court converted it to a resolution management conference. At its conclusion, the court entered temporary orders, including awarding Father sole legal decision-making authority and decreasing the daily video-chat requirement from the August 2020 order to three days a week. The court then took the matter under advisement on the remaining issues "to think about further modification."
¶7 Before the trial court issued its under-advisement ruling, Father filed a notice of non-compliance with court orders, alleging Mother had facilitated only twenty-five percent of his scheduled "FaceTime" calls with the child under the May 2022 temporary orders. The court set an order to show cause hearing to address the non-compliance issue and whether sanctions should be imposed. In July 2022, before the order to show cause hearing, the court issued its under-advisement ruling and found that, "[a]fter a review of the file and the evidence and after an opportunity to ruminate on the matter," the parenting plan changes made at the May 2022 proceeding were warranted and converted the temporary orders to permanent orders.
¶8 During the order to show cause hearing, both parties testified and introduced exhibits regarding the video-chat calls scheduled with Father while the child was with Mother. The range of topics covered during the hearing included the continued conflict between the parties, Mother's concern of judicial bias, and Mother's concern regarding Father changing the child's school midway through the year. The trial court stated that it would modify the parenting plan after reviewing the record and that Mother would be "spending less time with [her child] when it's all said and done" because the current plan is "not working out" and it is not in the child's best interests not to spend time or communicate with one parent for a significant period of time. The court stated that before issuing its final ruling, it would give the parties two weeks to file a stipulated parenting plan. It ordered that if an agreement could not be reached, the parties must file separate proposed parenting plans. It also ordered them to submit briefs concerning whether it should order Mother to pay transportation costs associated with the exchanges.
¶9 In September 2022, after the parties were unable to reach an agreement and had filed their proposed parenting plans, the trial court entered its ruling on "[Father]'s Motion to Enforce Court Orders/Motion for Contempt and [Mother]'s Petition to Modify Parenting Time." The court found Mother had "intentionally withheld communications between [Father] and the minor child." Among other things, the court modified the parenting plan, required Mother to pay the airfare associated with exchanges, and prohibited the Step-father from participating in exchanges. Mother appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(2).
Discussion
¶10 Mother argues we should reverse the September 2022 ruling because the trial court erred by modifying parenting time, failing to properly consider her evidence and testimony, and restricting Step-father's involvement with facilitating exchanges and communication between the child and Father. We review an order modifying parenting time for an abuse of discretion, Baker v. Meyer, 237 Ariz. 112, ¶ 10 (App. 2015), and defer to a court's factual findings that are supported by the record and not clearly erroneous, Sholes v. Fernando, 228 Ariz. 455, ¶ 6 (App. 2011). A court abuses its discretion when it errs in applying the law. Engstrom v. McCarthy, 243 Ariz. 469, ¶ 4 (App. 2018).
¶11 Under A.R.S. § 25-411(A), a parent may petition to modify a legal decision-making and parenting time order after it has been in place for one year. In deciding whether to modify the existing order, the trial court "must engage in a two-stage inquiry." Backstrand v. Backstrand, 250 Ariz. 339, ¶ 14 (App. 2020). First, it must determine whether there has been a change of circumstances materially affecting the child's welfare, and, if so, it must decide whether a modification of the existing order is in the child's best interests. Id. Section 25-411(L) requires the court to deny a petition to modify "unless it finds that adequate cause for hearing the motion is established by the pleadings." Adequate cause for modification exists when "the facts alleged to constitute a change in circumstances" materially affect the welfare of the child. Pridgeon v. Superior Court, 134 Ariz. 177, 180 (1982); see Backstrand, 250 Ariz. 339, ¶ 14. The court has wide discretion in assessing adequate cause and its decision will be reversed only if "no reasonable judge would have denied the petition without a hearing." Siegert v. Siegert, 133 Ariz. 31, 33 (App. 1982).
Trial Court's Failure to Make Statutory Findings
¶12 Mother contends the trial court abused its discretion by failing to make required findings under A.R.S. § 25-403(B) when it modified parenting time. In a contested legal decision-making or parenting time matter, the trial court "shall make specific findings on the record about all relevant factors" and shall state the reasons why the decision serves the child's best interests. § 25-403(B). Detailed findings aid appellate review, assist the parties and the trial court in determining the child's best interests, and provide a baseline against which to measure any future petitions for modification. Reid v. Reid, 222 Ariz. 204, ¶ 18 (App. 2009). Failure to make specific findings constitutes an abuse of discretion. See, e.g., Christopher K. v. Markaa S., 233 Ariz. 297, ¶ 18 (App. 2013).
¶13 In modifying the parenting plan in its September 2022 ruling, the trial court stated it had made specific § 25-403 findings in its prior order and "[n]o evidence was presented that significantly changes the weight of those factors." However, the court's findings supporting the original petition to modify legal decision-making and parenting time do not explain why the modifications before us on appeal two years later were in the child's best interests. Each time a court modifies legal decision-making or parenting time in a contested action, it is required to make specific findings about all relevant factors and reasons for which the modification is in the child's best interests. See § 25-403(B); see also In re the Marriage of Diezsi, 201 Ariz. 524, ¶ 4 (App. 2002) (§ 25-403 findings required for petition to modify). And we will not infer § 25-403(A) findings. DeLuna v. Petitto, 247 Ariz. 420, ¶ 16 (App. 2019). Because the failure to make the required findings on Mother's petition constituted an abuse of discretion, we vacate the court's September 2022 ruling. See, e.g., Owen v. Blackhawk, 206 Ariz. 418, ¶ 12 (App. 2003). Based on this outcome, we could decline to consider Mother's remaining three arguments concerning the September 2022 ruling. However, in the interest of resolving issues on their merits, DeLong v. Merrill, 233 Ariz. 163, ¶ 9 (App. 2013), we briefly address each in turn.
The trial court stated that these findings were made in July 2020. Because there is no relevant July 2020 order, we assume the court was referring to its August 2020 ruling, which was entered after a July 2020 evidentiary hearing.
Ordering Mother to Pay Transportation Costs
¶14 Mother first argues the trial court denied her due process by ordering her to pay the transportation costs associated with parenting time exchanges. She maintains this amounted to a modification of her child support obligation without providing her adequate notice or an evidentiary hearing on this issue. The court ordered that "[i]n lieu of child support, [Mother] shall be responsible for the costs of airfare for transporting the minor to and from California." However, the "responsibility for transportation" relating to exchanges is part of a parenting plan. A.R.S. § 25-403.02(C)(4). Moreover, because the parties fully briefed this matter pursuant to the court's order, we cannot say she was denied due process.
Trial Court's Bias and Refusal to Consider Evidence
¶15 Mother next challenges the trial court's finding that she "specifically withheld the minor from speaking with his father," arguing that the court's finding is based on a biased view of her and it refused to adequately consider her evidence. As to her claim of judicial bias, the record does not reflect that Mother requested a change of judge for cause under Rule 6.1, Ariz. R. Fam. Law P. Absent a ruling on a properly filed request, the issue is not properly before this court, and an allegation of judicial bias is not one we will address in the first instance on appeal. See Pflum v. Pflum, 135 Ariz. 304, 306-07 (App. 1982); State v. Carpenter, 1 Ariz.App. 522, 527 (App. 1965). In any event, it is unclear what relief Mother is requesting because, although the court found she had withheld communication, she does not point us to anywhere in the record that this resulted in the court holding her in contempt or imposing sanctions. And to the extent she argues the reduction in parenting time was a punishment, the record does not support such a claim. The court expressly stated that its decision to reduce her parenting time was "not punishment."
We are concerned, however, with unwarranted comments the trial court made to Mother during the proceedings. For example, during the order to show cause hearing, the judge stated, "I'm not a person that tells other people how to live. I just don't know why you have three kids under three years old. That doesn't make a lot of sense to me, but maybe it makes sense to her." And when Mother offered screenshots of attempted video-chat calls as evidence rebutting Father's allegation that she was not complying with court orders, the court questioned why she would take screenshots after every video-chat attempt and reasoned it "suspect[ed] [she] manufactured this after the fact." However, as Mother brought to the court's attention, the court previously had addressed what would happen if she failed to comply with its order during the resolution management conference. It stated that Father could notify the court if she was not facilitating the video-chat calls. Mother then asked if she could provide "any evidence to invalidate" that claim if such an allegation were made. The court briefly reviewed the process and stated, "This is all screenshot stuff and whatnot, but you put together whatever evidence you think shows that he's lying, and then you let me decide."
¶16 Last, she argues the trial court abused its discretion by hindering Step-father's participation in exchanges and communication. However, the court's restriction on Step-father's involvement has been in place since May 2020. These boundaries were further clarified in the court's August 2020 ruling. Because Mother did not appeal that ruling, we lack jurisdiction to review it. See Ariz. R. Civ. App. P. 9(a) (appeal from judgment must be filed no later than thirty days after its entry).
Trial Court's July 2022 Order
¶17 We now turn to the trial court's July 2022 order that, among other things, awarded Father sole legal decision-making. In issuing the signed order, the court stated it was final and appealable under Rule 78, Ariz. R. Fam. Law P., and that "no matters remain undecided." But in the next sentence, the court also stated it had "set the Petition to Enforce Parenting Time and Motion for Contempt at a future date and will consider that Motion and [Mother's] Response at that time." Mother did not file an appeal from the July 2022 order. Moreover, we note that Mother did not list the July 2022 order in her notice of appeal and mentioned in her opening brief that she had failed to appeal from this order because she was "unaware of the option to appeal."
¶18 Generally, an aggrieved party may only appeal from a final judgment, Ghadimi v. Soraya, 230 Ariz. 621, ¶ 7 (App. 2012), and notice of such appeal must be filed no later than thirty days after entry of judgment, Ariz. R. Civ. App. P. 9(a). A notice of appeal must list the orders from which the appellant seeks to appeal. Ariz. R. Civ. App. P. 8(c). However, a party need not list all interlocutory orders "involving the merits of the action and necessarily affecting the judgment . . . and all orders and rulings assigned as error." A.R.S. § 12-2102(A); see Dowling v. Stapley, 221 Ariz. 251, n.12 (App. 2009) ("[A]ppeal from the final judgment would include appeals from otherwise non-appealable interlocutory orders."). A judgment under the Arizona Rules of Family Law Procedure includes, among other things, a decision resolving a petition to modify parenting time, but it does not include temporary orders. Ariz. R. Fam. Law P. 78(a)(1). Here, because further claims were pending and the court ultimately ruled on Mother's petition to modify parenting time in its September 2022 ruling, we address the merits of Mother's claims concerning the July 2022 order.
¶19 In challenging the July 2022 order, Mother directs us to several instances that she argues demonstrated the trial court had a "continued pattern of abuse of discretion" and a "biased view against" her. For the reasons already stated in relation to the September 2022 order, we will not address Mother's arguments concerning judicial bias. See Pflum, 135 Ariz. at 306-07; Carpenter, 1 Ariz.App. at 527. Mother also contends the court's orders modifying legal decision-making and parenting time were not supported by a "substantial and meaningful change of circumstance" or evidence demonstrating the child's physical, mental, moral, or emotional health was seriously endangered. We agree. In fact, no evidence was presented because the court did not conduct an evidentiary hearing but instead converted the proceeding to a resolution management conference. Rule 47(c)(1), Ariz. R. Fam. Law P., provides that unless the parties agree, "[n]o evidence will be taken at a resolution management conference." Here, the parties did not have such an agreement and no evidence, testimonial or otherwise, was presented.
¶20 Furthermore, the purpose of a resolution management conference is to "facilitate agreements between the parties that permit the entry of temporary orders." Id.; accord. Ariz. R. Fam. Law P. 76(a). A court, however, "may not resolve disputed issues of fact at a . . . resolution management conference without the parties' agreement," and the court must schedule an evidentiary hearing for contested issues. Ariz. R. Fam. Law P. 47(c)(1)(A), (B). Because the trial court's July 2022 orders were contested and therefore required an evidentiary hearing for their resolution, the court erred by modifying legal decision-making and parenting time absent an agreement by the parties to do so. We therefore vacate the court's July 2022 order.
Disposition
¶21 For the foregoing reasons, we vacate the trial court's July and September 2022 orders, and remand for proceedings consistent with this decision.