Opinion
No. 2 CA-CV 2018-0065-FC
09-14-2018
IN RE THE MARRIAGE OF ABDOULAYE TAIROU, Petitioner/Appellant, and AYOKO MADJE AYESSOU, Respondent/Appellee.
COUNSEL Law Offices of Lawrence Y. Gee PLLC, Tucson By Lawrence Y. Gee Counsel for Petitioner/Appellant
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NOT FOR PUBLICATION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 Pima County
No. D20170393
The Honorable Paul E. Tang, Judge
VACATED IN PART AND REMANDED
COUNSEL Law Offices of Lawrence Y. Gee PLLC, Tucson
By Lawrence Y. Gee
Counsel for Petitioner/Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Abdoulaye Tairou appeals that portion of the trial court's decree of dissolution of marriage allocating parenting time between him and his former spouse Ayoko Ayessou. Because the court failed to comply with the requirements of A.R.S. § 25-403, we vacate that portion of the ruling and remand for further findings on the record.
Ayessou has not filed an answering brief, which could be construed as a confession of error, but given the subject matter of the appeal involving the minor children, in our discretion we consider the appeal on its merits. See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).
Factual and Procedural Background
¶2 In February 2017, Tairou filed a petition for dissolution of his marriage to Ayessou. The following month, after an initial hearing, the court entered a temporary order establishing that the two would exercise joint legal decision-making as to their two minor children, as they had agreed. Because the parties disagreed as to parenting time, the court conducted an analysis of the eleven factors listed in § 25-403(A), concluding that while "both parties have loving relationships with the children," and "[b]oth parties profess a desire to remain involved in the children's life in the future," Tairou had not seen either child since December 31, 2016. The court noted it had been presented with conflicting information as to why this was the case, with Tairou arguing that he made continuing efforts to see the children and been refused by Ayessou, and Ayessou arguing that Tairou had made such an effort only once in the preceding three months and she had made efforts to accommodate him. The court stated it was "concerned that one, or perhaps both, of the parties are not honoring the oath to provide truthful testimony on the subject," but ultimately decided that "a gradual increase in parenting time would best serve the children's interests." To that end, the court ordered that during the pendency of the litigation Ayessou would remain the primary residential parent and Tairou would have parenting time beginning on Wednesdays at noon and ending on Fridays at 4:00 p.m. The court additionally granted Tairou parenting time from noon to 4:00 p.m. on Saturdays and Sundays when Ayessou was working.
¶3 Following court-ordered mediation, the parties reached a partial agreement on parenting time, agreeing that the regular residential schedule would be suspended during vacation, with each parent to have two weeks of vacation time a year. Pursuant to this agreement, the parties split parenting time evenly for the month of June.
The parties gave conflicting testimony on the duration of this arrangement, with Tairou claiming they split time evenly for both May and June, and Ayessou claiming they did so for only one month.
¶4 In February 2018 the court conducted a trial on the dissolution petition. Tairou requested that he be granted primary residential custody, and Ayessou given eight hours per work week and "essentially every other weekend," or, in the alternative, that the two split parenting time evenly. Ayessou requested that the parenting time established by the court's temporary order be retained. In the subsequent decree of dissolution of the parties' marriage, the court ordered that Ayessou would remain the primary residential parent, and granted Tairou parenting time for three weekends to every one for Ayessou, from the end of school on Friday until 6:00 p.m. Sunday, and each week from noon on Wednesdays until the start of school on Thursday morning.
When the children were not in school Tairou's parenting time would begin at 6:00 p.m. rather than noon on Wednesdays or after school on Fridays.
¶5 Tairou timely appealed this portion of the dissolution decree, arguing that the trial court erred by failing to make the proper findings and determinations required by § 25-403. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Tairou initially filed a motion for reconsideration under Rule 84, Ariz. R. Fam. Law P. The trial court failed to issue a ruling before Tairou filed his notice of appeal, which divested the trial court of jurisdiction to proceed on that motion. See In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 10 (App. 2012).
Discussion
¶6 We will not disturb a trial court's child custody decision absent an abuse of discretion. See Reid v. Reid, 222 Ariz. 204, ¶ 6 (App. 2009). An abuse of discretion includes an error of law. Kohler v. Kohler, 211 Ariz. 106, ¶ 2 (App. 2005).
Although our legislature has replaced the terms "child custody" and "visitation" with "legal decision-making" and "parenting time," respectively, see 2012 Ariz. Sess. Laws, ch. 309, § 1, we use the former language when quoting cases decided prior to the statutory change.
¶7 "In making a custody determination, the [trial] court must consider the factors enumerated in A.R.S. § 25-403(A) regarding the children's best interests." Reid, 222 Ariz. 204, ¶ 11. Further, the court must comply with the requirement of § 25-403(B), that "[i]n a contested legal decision-making or parenting time case, the court shall 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[ren]." Accord Reid, 222 Ariz. 204, ¶¶ 11, 20. In Reid, this court explained "[t]he rationale for this requirement is not simply to aid appellate review . . . but also to provide the family court with a necessary 'baseline' against which to measure any future petitions by either party based on 'changed circumstances,'" and we held that the court's failure to comply with § 25-403(B)'s requirement that it set out the reasons why its decision is in the best interests of the child was "error as a matter of law." Reid, 222 Ariz. 204, ¶¶ 18, 20.
¶8 Just as in Reid, the trial court in the instant case made inadequate findings. Although the court addressed each of the factors set forth in § 25-403(A), the dissolution decree does not contain any explanation of why this new parenting plan, different from what either of the parties requested, was implemented, nor why it is in the best interests of the children. Nor does it explain why the best interests of the children are served by granting Ayessou primary residential custody, or why Tairou's parenting time was reduced from what he was afforded under the temporary order. This failure to comply with the mandate of § 25-403(B) "deprived this court of a meaningful opportunity to assess the family court's best interests finding." Reid, 222 Ariz. 204, ¶ 20.
Temporary orders are transitory in nature and do not require best interest findings. See Gutierrez v. Fox, 242 Ariz. 259, ¶ 34 (App. 2017). Nevertheless, the judge who issued the temporary order in this matter made such findings, which were largely incorporated by reference in the final decree by the trial judge. Although the court was free to depart from the temporary parenting schedule, an explanation for that departure would be particularly helpful under the circumstances.
In particular, we are unable to determine whether, as argued by Tairou, the court failed to maximize each parent's parenting time consistent with the children's best interests, as required by A.R.S. § 25-403.02(B). --------
Disposition
¶9 Because the trial court failed to make adequate findings under § 25-403, we vacate the portion of the decree of dissolution of marriage relating to parenting time and remand the matter for further proceedings consistent with this decision.