Opinion
No. 1 CA-CV 14-0653 FC
07-23-2015
In re the Matter of: JOY LAMBSON, Petitioner/Appellant, v. RICHARD WRIGHT, Respondent/Appellee.
COUNSEL Joy Lambson, Prescott Valley Plaintiff/Appellant Richard Wright, Prescott Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300DO20080891
The Honorable Mark M. Moore, Judge
AFFIRMED
COUNSEL Joy Lambson, Prescott Valley
Plaintiff/Appellant
Richard Wright, Prescott
Defendant/Appellee
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge John C. Gemmill joined. HOWE, Judge:
¶1 Joy Lambson ("Mother") appeals the family court's orders modifying the parenting time plan for E.W. and awarding Richard Wright ("Father") attorneys' fees. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2008, Mother petitioned for dissolution of marriage with two minor children, R.W. and E.W. Mother wanted joint custody of the children, but Father wanted sole custody with reasonable parenting time rights for Mother. The family court awarded joint custody because, in the children's best interests, they were "very close to both parents and [the parents] would like them to remain as grounded as possible."
¶3 A year later, Father petitioned for modification of parenting time regarding R.W. and E.W., requesting sole custody with reasonable parenting time to Mother. Father alleged that Mother showed little to no interest in the children and that he had been the children's sole provider since November 2008. After a resolution management conference, the parties agreed that Father would have sole custody of R.W. and E.W.
¶4 Several years later in March 2012, Mother moved for temporary orders regarding the children after filing complaints against Father with the Prescott Police and Child Protective Services ("CPS"). She requested sole custody of both children and for parenting time with Father to stop until "further notice or until findings from investigation [by Prescott Police and CPS] are known to the court." The family court granted the temporary orders, awarding Mother sole custody of the children.
¶5 A few days later, Mother petitioned for modification of custody. She only sought modification of custody regarding R.W. After an evidentiary hearing and considering the best interests of R.W., the family court awarded Mother "sole legal and physical custody" of R.W. with child support of $922.16 per month. The court noted that its previous custody rulings regarding E.W. remained unchanged.
¶6 In 2013, Mother petitioned for modification of legal decision-making for E.W., alleging Father's "emotional, mental and hygienic neglect" of E.W. Mother also alleged that Father allowed E.W. to frequently go to school smelling like urine and that Father exposed E.W. to pornography. As a result of the pornography, Mother alleged that E.W. drew inappropriate pictures of people and wrote down his own lexicon of terminologies, including "peanus" and "Bajina." In response and as relevant here, Father requested that the family court deny Mother's petition, interview E.W. in camera, and award Father reasonable attorneys' fees. Before the evidentiary hearing, the family court interviewed both E.W. and R.W. in camera. After hearing testimony and considering E.W.'s best interests, the court awarded Mother "Sole Legal Decision Making Authority and Primary Physical Custody" over E.W. and ordered supervised visiting time with Father until Father completed anger management counseling. The court also ordered Father to attend joint therapy sessions with E.W. The court noted that Father could petition for modification upon completion of anger management counseling.
¶7 After Father completed his counseling, he moved to modify legal decision-making and parenting time regarding E.W. Father alleged that E.W.'s "present environment may seriously endanger his physical, mental, moral, or emotional health." Specifically and as pertinent here, Father alleged that Mother had been resistant to E.W. attending therapy session with him; Mother attempted to alienate E.W. from Father by not allowing supervised parenting time; and since being in Mother's care, E.W. was failing his classes and refusing to complete his assignments. Father further alleged that Mother coached E.W. before his in camera interview with the family court and that drawings Mother proffered purporting to be by E.W. were not actually by him.
¶8 The family court subsequently ordered the therapist to file a report regarding the counseling sessions she conducted with Father and E.W. In her report, the therapist concluded that E.W. "should not be denied a relationship with his father" and saw no "reason why his contact [needed] to be supervised." The therapist provided that initially she had a difficult time scheduling sessions because Mother "insisted" that E.W. could not and did not want to see Father. However, when the sessions began, the therapist noted that E.W. told her that he "felt comfortable with his father and wanted to spend time with him." E.W. also said that Mother did not want him to see Father. The therapist observed this first-hand when Mother "had an emotional meltdown" and screamed at Father when E.W. attempted to hug Father. E.W. said that he got in trouble for a "nasty picture," even though he did not draw the picture. Finally, E.W. said that he had never been exposed to pornography or seen his father naked.
¶9 After a hearing, the family court found "persuasive the evidence offered by [the therapist]," and considering the child's best interests, ordered sole legal decision-making and primary custody of E.W. to Father. The court issued a ruling with findings of fact and conclusions of law, addressing the relevant factors in A.R.S. § 25-403 regarding the child's best interests. The court also held Mother in contempt for denying Father his court-ordered supervised parenting time. After another hearing, the court resolved the remaining issues—the parties' proposed parenting time plans, child support, and attorneys' fees—and instructed Father to submit his application for fees. Father did so pursuant to A.R.S. § 25-324(B), and the court granted it. The court subsequently adopted Father's parenting time plan, which included Mother's having parenting time every other weekend with overnights every Wednesday. The court also ordered Mother to pay $7 per month of child support, provide E.W. medical insurance, and pay for 50% of medical/dental/vision expenses not insured. Mother timely appealed.
DISCUSSION
1. Modification of Parenting Time Plan
¶10 Mother first argues that the family court abused its discretion by modifying E.W.'s parenting time plan and adopting Father's plan, which did not allow for E.W. to alternate weeks with his parents. We review an order modifying parenting time for an abuse of discretion. Baker v. Meyer, 237 Ariz. 112, 126 ¶ 10, 346 P.3d 998, 1002 (App. 2015). Because the family court made the appropriate findings of fact and considered the relevant statutory factors in determining which proposed parenting time plan would serve the child's best interests, and adopted a plan in accordance with its findings and conclusions of law, the court did not abuse its discretion.
Mother also argues that the family court erred by not including child support for R.W. in its latest child support order. But this issue is not properly before us because Mother did not appeal a final judgment that addressed R.W.'s child support. See Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991) ("This court has a duty to review its jurisdiction and, if jurisdiction is lacking, to dismiss the appeal."). Regardless, the record indicates that the family court has the issue of R.W.'s child support before it. --------
¶11 In determining parenting time, either originally or on petition for modification, the family court "shall consider all factors that are relevant to the child's physical and emotional well-being." A.R.S. § 25-403(A). The court may modify a parenting time order whenever modification would serve the child's best interests. A.R.S. § 25-411(J). 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." A.R.S. § 25-403(B). Absent evidence to the contrary, "it is in a child's best interest . . . [t]o have substantial, frequent, meaningful and continuing parenting time with both parents." A.R.S. § 25-103(B). Failure to make the requisite findings in an order or on the record constitutes an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273 ¶ 11, 304 P.3d 1093, 1096 (App. 2013).
¶12 Here, the family court did not abuse its discretion in modifying E.W.'s parenting time. The court included a comprehensive twelve-page ruling with its findings of fact that addressed the statutory factors relevant in resolving the dispute. Specifically, the court first considered the past, present, and potential future relationship between E.W. and his parents and E.W.'s interactions and interrelationships with his parents. The court then examined E.W.'s adjustment to his home, school, and community and his wishes about parenting time with Father. The court addressed Mother's and Father's mental and physical health and then determined which parent was more likely to allow E.W. frequent, meaningful, and continuing contact with the other parent. The court finally considered whether one parent intentionally misled it to cause unnecessary delay, increase the litigation cost, or persuade it to give a legal decision-making or parenting time preference to that parent; and whether a parent has complied with A.R.S. § 25-351 et seq. The family court then accordingly adopted Father's proposed parenting time plan because that plan would serve the child's best interests.
¶13 But Mother counters that the family court should have adopted a plan permitting E.W. to alternate weeks between his parents, instead of spending time with Mother every other weekend with overnights every Wednesday. "If the parents are unable to agree on any element to be included in a parenting plan, the court must determine that element" consistent with the child's best interests. A.R.S. § 25-403.02(B), (D). In resolving this conflict, the family court stated that its goal was to "develop a schedule that sets forth as much uninterrupted time during the school week, and that may require that there be more . . . play time with the other parent." The court noted that this type of arrangement was particularly important "when a child [like E.W.] is getting into the areas of middle school and he needs a place to call home; right or wrong. And he needs a place to bring home his homework and set down his backpack and all those kinds of things." Consequently, the family court adopted Father's parenting time plan because, in E.W.'s best interests, the plan would provide the child with the most uninterrupted time during the school week.
2. Attorneys' Fees
¶14 Mother next argues that the family court erred in awarding attorneys' fees under A.R.S. § 25-324(B). We review an award of attorneys' fees pursuant to A.R.S. § 25-324 for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, 494 ¶ 6, 333 P.3d 818, 821 (App. 2014). Pursuant to A.R.S. § 25-324, a family court may award reasonable attorneys' fees to the party opposing a petition when the court determines that the petition was not filed in good faith, not grounded in fact or based on law, or was filed for an improper purpose, including to harass the other party, cause unnecessary delay, or increase the other party's litigation cost. A.R.S. § 25-324(B)(1)-(3). The appellant has the burden of showing that the family court erred, and upon failure to do so, we have no alternative but to affirm. Guard v. Maricopa Cnty., 14 Ariz. App. 187, 188-89, 481 P.2d 873, 874-75 (1971).
¶15 Here, the record supports the family court's order awarding Father reasonable attorneys' fees. The record shows that Mother misled the family court to obtain sole legal decision-making of E.W., which included offering pictures purportedly drawn by E.W. and alleging that Father exposed the child to pornography. The record also shows that Mother acted unreasonably in the proceedings by filing petitions not based in fact or on law and denying Father his court-ordered parenting time, which the court held her in contempt for doing so. Mother presents no evidence to support her position that the court abused its discretion, and instead only argues, as she did before the family court, that she was on disability and that Father's previous attorney withdrew from the case for financial reasons. These arguments, however, are not relevant under A.R.S. § 25-324(B) for awarding attorneys' fees. Consequently, on the record before us and given the arguments presented on appeal, we have no basis to conclude that the court abused its discretion by granting fees under A.R.S. § 25-324(B).
CONCLUSION
¶16 For the foregoing reasons, we affirm.