Opinion
No. 1 CA-CV 13-0650
10-21-2014
In re the Matter of: LISA SETTEL, Petitioner/Appellee, v. DOUGLAS L. SETTEL, Respondent/Appellant.
COUNSEL Ryan Rapp & Underwood, PLC, Phoenix By Polly S. Rapp Counsel for Petitioner/Appellee Berkshire Law Office, PLLC, Phoenix By Keith Berkshire, Maxwell Mahoney Counsel for Respondent/Appellant
NOTICE: NOT FOR PUBLICATION.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. FC2009-003764
The Honorable Susan M. Brnovich, Judge
AFFIRMED
COUNSEL Ryan Rapp & Underwood, PLC, Phoenix
By Polly S. Rapp
Counsel for Petitioner/Appellee
Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire, Maxwell Mahoney
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Michael J. Brown joined. SWANN, Judge:
¶1 This is an appeal from the denial of a petition to modify parenting time. The superior court determined that it was in the child's best interests to maintain a parenting time schedule to which the parties had earlier agreed, because that schedule allowed the child to "grow[ ] as an individual" and "develop as her own person" through participation in activities that Father curtailed during his parenting time. Father contends that by failing to undo his agreement, the court invaded his fundamental rights as a parent. We reject Father's contention that the court's findings violated his fundamental right to make parenting decisions. We discern no abuse of discretion in the court's findings or conclusion, and therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Lisa Settel ("Mother") and Douglas L. Settel ("Father") married in 2001 and had a child ("Child") together in 2004. In 2009, the parties divorced and agreed to share joint legal custody of Child. They also agreed to a parenting time schedule that allowed Mother the majority of parenting time at first, but contemplated increases in Father's parenting time in stages as Child aged.
¶3 More than three years later, in February 2013, Father filed a petition to modify parenting time. Father argued that because both he and Mother were engaged to be married, their parenting time should be equalized in advance of the date set forth in their agreement. Mother objected to Father's request. Mother argued that the parties' remarriages were foreseeable at the time they entered into the agreement and that the agreed-upon schedule had allowed Child to achieve academic success and participate in "necessary and fulfilling" extracurricular activities. Mother resisted an immediate change in parenting time because Father refused to allow Child to participate in extracurricular activities during his parenting time and was inflexible regarding scheduling conflicts.
¶4 At a hearing on the petition, Father testified that the parties' original parenting time agreement was motivated by their desire to provide Child with stability after Father left the marital home. According to Father, Child had adjusted well, Father had lived in a residence close to the marital home for the past three years, and Father had exercised all available parenting time with Child. Father testified that he needed additional parenting time because Child was at a phase of life that provided him the best opportunity to influence her and strengthen the parent-child bond. With respect to extracurricular activities, Father testified that he had never interfered with Mother's choices regarding Child's activities but preferred not to use his parenting time for such activities. Father explained that he and Mother had a "very philosophical difference as to what's valuable in terms of activity," specifically "organized activity [versus] family time." He contended that he did not have enough time with Child to allow her to participate in organized activities, but would be open to allowing participation if he had more parenting time. He acknowledged that he had chosen not to take Child to a Girl Scout event and a teacher-sponsored party for academic accomplishment that occurred during his parenting time. He also acknowledged that he never volunteered at Child's school and never took her to medical appointments.
¶5 Mother testified that she believed the agreed-upon parenting time schedule (with its planned increases for Father) benefited Child and should continue. She explained that Child's extracurricular activities typically occur during her parenting time, that Child is "very, very social," and that Child enjoys her extracurricular activities and wants to fully participate in them. According to Mother, Child felt "[v]ery disappointed" and "left out" on occasions when Father denied her the opportunity to participate in events during his parenting time. As examples, Mother cited Father's refusal to take her to the Girl Scout event and the teacher-sponsored party, and his refusal to take Child to religious-school classes and related events despite a provision in the custody agreement requiring him to "actively encourage and support [Child]'s religious upbringing" in the Jewish faith. Mother also testified that on Child's most recent report card from religious school, her teacher noted that "[i]t would benefit [Child] if she could be present more."
¶6 After considering the evidence, the superior court denied Father's petition to modify parenting time. The court found that Father had a "loving and bonded relationship" with Child but his "unwillingness to accommodate [Child]'s growth as an individual is not in her best interests." The court explained that "Father has not always focused on [Child]'s needs as an individual [because h]e has significant parenting time with [Child], yet he does not let her participate in extracurricular activities during what he refers to as 'his' time." Balancing all of the A.R.S. § 25-403(A) factors, the court concluded:
[I]t is in [Child]'s best interest for the schedule to remain the same. The Court is convinced that [Child]'s ability to develop as her own
person would be hindered by Father's unwillingness to participate in extracurricular activities, medical and dental appointments, school activities, and social activities. Father has significant parenting time that is substantial, frequent, meaningful and continuing.
DISCUSSION
¶7 We review the superior court's orders regarding parenting time for abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013).
¶8 When considering a petition for modification of parenting time, the court must first determine whether there has been a continuing change of circumstances materially affecting the child's welfare. See Black v. Black, 114 Ariz. 282, 283, 560 P.2d 800, 801 (1977). If the court finds such a change in circumstances, it must then decide whether a change in parenting time would be in the child's best interests. See id. "The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child." A.R.S. § 25-411(J).
¶9 In determining the child's best interests, the court must consider and make specific findings on the record about all factors relevant to the child's physical and emotional well-being, including the factors enumerated in A.R.S. § 25-403(A). A.R.S. § 25-403(B). Absent evidence to the contrary, it is generally in a child's best interests to have "substantial, frequent, meaningful and continuing parenting time with both parents [and t]o have both parents participate in decision-making about the child." A.R.S. § 25-103(B). "Consistent with the child's best interests . . . the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time," A.R.S. § 25-403.02(B), and "shall not restrict a parent's parenting time rights unless it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional health," A.R.S. § 25-411(J). The original parenting plan that the parties themselves created was consistent with these principles.
¶10 Father's appeal is limited to the court's best-interests findings and its finding that he had significant parenting time. On this record, we discern no abuse of discretion in the court's implicit preliminary finding that a change in circumstances occurred. Though the parenting time schedule was based on the parties' agreement, the court had discretion to determine that the passage of several years and the parties' remarriages warranted an inquiry into whether deviation from that plan would serve Child's best interests. But a continuing change in circumstances simply permits the court to conduct a substantive review of a petition to modify -- it does not compel modification.
¶11 Father first contends that the court's denial of his request for additional parenting time was based on "improper[ ] second-guessing [of] his parenting decisions" in violation of his constitutional rights. To be sure, parents have a fundamental right to make decisions regarding the care, custody, and management of their children. E.g., Troxel v. Granville, 530 U.S. 57, 65-66 (2000). But contrary to Father's contention, the court's ruling did not interfere with his right to parent Child.
¶12 Father's appellate briefs rely primarily on Troxel. Troxel held that a visitation statute was unconstitutional as applied because the court, in granting grandparent visitation, had simply substituted its opinion regarding an appropriate visitation schedule for the decision of a fit parent. 530 U.S. at 67-73. Troxel emphasized the primacy of parents' rights over the rights of non-parents -- it did not address a dispute between two fit parents. And the Court did not hold that parenting decisions are immune from judicial review when the allocation of parenting time between two fit parents is at issue. "[T]he child's best interest is paramount in custody [and parenting time] determinations." Hays v. Gama, 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695, 698 (2003); see A.R.S. §§ 25-403, -411(J). When fit parents disagree about their child's upbringing, the court must resolve the conflict between their respective rights by applying the best-interests test. Jordan v. Rea, 221 Ariz. 581, 589-90, ¶¶ 20-22, 212 P.3d 919, 927-28 (App. 2009). Contrary to Father's contention, "strict scrutiny" review of judicial decisions is not required merely because a fundamental right is involved -- that standard applies to the review of the constitutionality of statutes, not to the review of the court's discretionary determination that a parenting time schedule serves a child's best interests.
Though Father contends that his constitutional liberty interest was violated, he does not argue that A.R.S. § 25-403 is facially unconstitutional. Nor does he propose an interpretation of the statute that would harmonize it with his view of the Fourteenth Amendment. Because custody and parenting time decisions are usually designed to resolve the interests of fit parents with equal constitutional rights, we perceive no constitutional infirmity in the statute.
¶13 Here, the court found that the agreed-upon parenting time schedule allowed Child, who was nine years old at the time of the hearing, to "grow[ ] as an individual" and "develop as her own person" by pursuing activities that Father did not allow her to participate in during his parenting time. Father contends that this consideration of Child's social circumstances and development essentially mandated what he could and could not do with Child during his parenting time and punished him for parenting decisions with which the court did not agree. This argument ignores the record. The court did not dictate the terms of Father's parenting or pass personal judgment on his decisions regarding extracurricular activities (decisions which, we note, Father himself acknowledged would likely be different if he had more time with Child). The court instead considered, consistent with its statutory duty, that Father's request for alteration of the parties' agreement would not serve Child's best interests. The court's findings regarding whether a modification in parenting time would hinder Child's ability to mature as an individual were appropriate under A.R.S. § 25-403(A) as relevant to Child's emotional well-being and her past, present, and potential future relationship with Father. Further, these findings were reasonably supported by the evidence. Contrary to Father's contentions, the court's denial of his request for assistance in modifying his earlier agreement was not an example of judicial micro-management and intrusion. It was instead an example of a straightforward application of § 25-403(A).
¶14 We disagree with Father's argument that the court's application of the best-interests standard was equivalent to a "what makes the child sad" standard requiring the court to "succumb to every whim of the Child." Nor did the court's ruling establish a "slippery slope" authorizing the court to determine the relative utility of various activities and uses of time. The court's findings were based on its independent assessment of Child's emotional well-being and her prospective development and relationships -- not simply on her "whims." These are factors that the legislature has directed courts to consider under § 25-403. The court's analysis was specific to Child and did not exalt any type of activity, extracurricular or not, over another. The court merely determined that for Child, it was in her best interests to continue with the current parenting plan. We cannot say that this constituted an abuse of discretion.
¶15 We also reject Father's contention that the court's ruling violated his rights under A.R.S. §§ 1-602(A)(3) and 25-401(5). These statutes recognize, respectively, that a parent has "[t]he right to direct the upbringing of [his or her] minor child" and "may make routine decisions concerning the child's care" during his or her parenting time. Again, the court's ruling in no way limited Father's right to make parenting decisions, including decisions regarding Child's activities that may displease Child, during his parenting time. Nor did it alter Mother's identical rights.
¶16 Father finally contends that the court erred by finding that his parenting time was "significant[,] . . . substantial, frequent, meaningful and continuing." Under the custody agreement, at the time of the hearing Father had 30% parenting time and was scheduled to assume 43% parenting time in nine months. Arizona statutes provide that, consistent with the child's best interests, each parent's parenting time shall be maximized to allow for substantial, frequent, meaningful, and continuing parenting time. A.R.S. §§ 25-403.02(B), -103(B)(1). But nothing in the statutes requires a specific ratio. See A.R.S. §§ 25-403.02(B), -103(B)(1); see also A.R.S. § 25-403.02(E) ("Shared legal decision-making does not necessarily mean equal parenting time."). On this record, we cannot say that the agreed-upon parenting time schedule failed to maximize Father's parenting time consistent with Child's best interests.
CONCLUSION
¶17 The superior court's denial of Father's petition to modify parenting time did not constitute an abuse of discretion. We therefore affirm. Both parties request an award of attorney's fees on appeal under A.R.S. § 25-324. In exercise of our discretion, we grant Mother's request for a reasonable amount of attorney's fees upon her compliance with ARCAP 21.