Shaw v. Bergeron ( 2021 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    In re the Matter of:
    MATTHEW T. SHAW, Petitioner/Appellant,
    v.
    MERCEDES M. BERGERON, Respondent/Appellee.
    No. 1 CA-CV 21-0094 FC
    FILED 10-26-2021
    Appeal from the Superior Court in Maricopa County
    No. FC 2014-094188
    The Honorable Roderick J. Coffey, Judge
    AFFIRMED
    APPEARANCES
    Thomas M. Shaw, Mesa
    Counsel for Petitioner/Appellant
    Mercedes M. Bergeron, Gilbert
    Respondent/Appellee
    SHAW v. BERGERON
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
    in which Judge Samuel A. Thumma and Judge Maurice Portley1 joined.
    C A M P B E L L, Judge:
    ¶1           Matthew Shaw (Father) challenges various post-decree
    rulings of the family court arising from the parties’ cross-petitions for
    modification. Because the court did not abuse its discretion or err as a
    matter of law in its rulings, we affirm the court’s orders.
    BACKGROUND
    ¶2            Father and Mercedes Bergeron (Mother) have two sons:
    Andrew and Brett.2 Under the decree of dissolution (Decree), Andrew and
    Brett were to go to school near Father’s home in Mesa, unless he moved. In
    2019, Father moved about 15 miles south, and the parties were unable to
    agree on new schools for the boys. After an unsuccessful mediation, Father
    and Mother filed cross-petitions for modification.
    ¶3            After an evidentiary hearing in late July 2020, the family court
    modified legal decision-making, parenting time, and child support. After
    clarifying its parenting-time orders, the court entered judgment on
    November 2, 2020, awarding Father $3,000 in attorney’s fees. The court
    subsequently amended its child support orders and summarily denied
    Father permission to file a new petition. Father timely appealed from the
    November 2nd judgment, the amended child support orders, and the order
    denying him permission to refile.
    1      The Honorable Maurice Portley, Retired Judge of the Court of
    Appeals, Division One, has been authorized to sit in this matter pursuant
    to Article 6, Section 3, of the Arizona Constitution.
    2      We use pseudonyms to protect the identities of the parents’ minor
    children.
    2
    SHAW v. BERGERON
    Decision of the Court
    DISCUSSION
    ¶4             Father contends the family court erred in (1) modifying legal
    decision-making and parenting time, (2) calculating child support, (3)
    clarifying its parenting-time orders, (4) limiting its award of attorney’s fees,
    and (5) denying him permission to refile.
    ¶5            We review the family court’s rulings on legal decision-
    making, parenting time, child support, and attorney’s fees for an abuse of
    discretion. Engstrom v. McCarthy, 
    243 Ariz. 469
    , 471, ¶ 4 (App. 2018); Candia
    v. Soza, 
    251 Ariz. 321
    , 324, ¶ 7 (App. 2021); Quijada v. Quijada, 
    246 Ariz. 217
    ,
    221–22, ¶ 13 (App. 2019). An abuse of discretion occurs when the court
    commits an error of law in drawing a discretionary conclusion or when no
    competent evidence supports the court’s decision. Engstrom, 243 Ariz. at
    471, ¶ 4. We view the record in the light most favorable to sustaining the
    court’s rulings, which we will affirm “if there is any reasonable supporting
    evidence.” Garlan v. Garlan, 
    249 Ariz. 278
    , 280–81, ¶ 4 (App. 2020). We
    review the interpretation and application of statutes and court rules de
    novo, however. State v. Godoy, 
    244 Ariz. 327
    , 328, ¶ 7 (App. 2017).
    I.     Modification of Legal Decision-Making and Parenting Time
    ¶6            In the Decree, the family court awarded the parents joint
    legal decision-making and nearly equal parenting time, assigning most of
    the weekdays to Father and most of the weekends to Mother. In the post-
    Decree proceedings leading up to this appeal, the court modified decision-
    making by giving Mother final authority should the parents be unable to
    reach an agreement but maintained joint legal decision-making. The court
    also switched to a 5-2-2-5 schedule, which gave the parents equal parenting
    time and an equal share of weekdays and weekends.
    ¶7            Father first argues the family court erred by awarding Mother
    “unlimited” final decision-making authority in violation of A.R.S. § 25-
    403.01.3 Under Section 25-403.01(A), the family court may award sole or
    joint legal decision-making. Section 25-403.01(B) specifies the factors the
    court must consider “[i]n determining the level of decision-making that is in
    the child’s best interests.” (emphasis added).
    ¶8           Father argues the reference to “level of decision-making”
    limits an award of final decision-making authority to “a specific purpose”
    3      We note that Father had sought either sole or final decision-making
    “on all issues of schooling, physical and mental health issue regarding the
    children.”
    3
    SHAW v. BERGERON
    Decision of the Court
    and “a specific duration.” Under a plain reading of the statute, however,
    the phrase, “level of decision making,” is a reference to the two options for
    legal decision-making given in A.R.S. § 25-403.01(A). Father cites no legal
    authority in support of a more limited application of the family court’s
    discretion regarding legal decision-making orders. Moreover, Father’s
    argument is inconsistent with Nicaise v. Sundaram, where our supreme court
    upheld orders granting final decision-making authority to one parent on
    medical, dental, and mental health issues. 
    245 Ariz. 566
    , 567, 569, ¶¶ 3, 17
    (2019). Calling these “tie-breaking” arrangements “common and
    commendable,” the court did not impose any limit on their duration or
    scope. 
    Id.
     at 568–69, ¶¶ 13–14.
    ¶9            Father also contends the family court’s findings were
    inadequate to justify the modification.4 In order to modify legal decision-
    making or parenting time, the family court must determine whether a
    modification is in the child’s best interests. Pridgeon v. Superior Ct., 
    134 Ariz. 177
    , 179 (1982). The court must consider “all factors that are relevant to the
    child’s physical and emotional well-being, including” 11 statutorily defined
    best interest factors. A.R.S. § 25-403(A). If legal decision-making or
    parenting time are contested issues, 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). The court
    has broad discretion to determine if a change in circumstances justifies
    modification and to decide what orders are in a child’s best interests.
    Pridgeon, 
    134 Ariz. at 179
    ; Ward v. Ward, 
    88 Ariz. 130
    , 135 (1960).
    ¶10           In this case, the family court found modification to be in the
    children’s best interests because (1) Mother and Father could not agree on
    schools, (2) Brett had severe behavioral problems, (3) Father had been
    uncooperative in getting Brett professional help for those problems, (4)
    Mother’s preferred schools were higher ranking than Father’s and less
    likely to aggravate Brett’s behavioral problems, (5) giving Mother more
    weekdays would permit her to get Brett assessed and treated, and (6) the
    children would benefit from a more consistent schedule. The court made
    4      The family court may only modify legal decision-making or
    parenting-time if it makes the threshold determination that “there has been
    a change of circumstances materially affecting the welfare of the child.”
    Black v. Black, 
    114 Ariz. 282
    , 283 (1977). By virtue of petitioning to modify
    legal decision-making and parenting time, Father is judicially estopped
    from challenging the family court’s finding that a change of circumstances
    warranted modification. See State v. Towery, 
    186 Ariz. 168
    , 182 (1996).
    4
    SHAW v. BERGERON
    Decision of the Court
    findings on each of the 11 factors listed in A.R.S. § 25-403(A) and the four
    factors listed in A.R.S. § 25-403.01(B). These findings support the court’s
    decision to grant Mother final decision-making authority and to adopt a
    simpler schedule that gave her more weekday parenting time.5
    ¶11           Father also challenges the sufficiency of the evidence
    supporting a host of the family court’s findings. The record—in particular
    Mother’s testimony, the children’s school records, and school rankings
    from the Arizona Department of Education—reasonably supports all but
    one of the challenged findings. Father cites contrary evidence, including his
    own testimony, but we will not reweigh conflicting evidence or second-
    guess the court’s credibility determinations.6 See Lehn v. Al-Thanayyan, 
    246 Ariz. 277
    , 284, ¶ 20 (App. 2019). The lone exception is the court’s finding
    that Father criticized Mother for refusing to let Brett go to Cub Scouts after
    he got in trouble at school. Although we find no support in the record for
    that finding, on the record presented, any such error on the point is
    harmless. See generally Creach v. Angulo, 
    189 Ariz. 212
    , 214–15 (1997) (error
    reversible only if prejudicial). In sum, the court did not reversibly err in
    modifying legal decision-making or parenting-time.
    II.    Calculation of Child Support
    ¶12            Father next contends the family court erred in calculating
    child support by failing to attribute the difference between Mother’s actual
    rent and fair market rent as gross income. Mother paid $800 a month to rent
    a house that her mother (Grandmother) purchased about 14 months before
    the trial. Mother made about $15,000 in improvements to the home and paid
    the homeowners’ association fees, property taxes, and insurance, which
    5      Father also faults the family court for failing to make specific
    findings as to Andrew to justify modification “for him.” Contrary to
    Father’s assertion, however, the court did make findings as to Andrew,
    considering his interests separately and in conjunction with his brother’s
    where appropriate.
    6      Most notably, Father contends that Mother’s counseling records,
    which the family court admitted as an exhibit after trial, undermine the
    court’s finding that Mother “appear[ed] to be in adequate mental . . .
    health.” Father presented no evidence on the counseling records at trial,
    however. Without expert testimony explaining how the information
    contained in the counseling records bears on Mother’s fitness as a parent,
    the counseling records do not undermine the court’s mental-health finding.
    See Ariz. R. Evid. 701 and 702.
    5
    SHAW v. BERGERON
    Decision of the Court
    totaled about $203 a month. Father’s expert estimated that the home’s fair
    market rental value was $1,778 a month; Grandmother testified that it was
    between $1,300 and $1,400. The court declined to attribute income to
    Mother based on her reduced rent, finding no “valid basis for doing so.”
    ¶13           Arizona’s Child Support Guidelines define gross income
    broadly to include “income from any source,” including “recurring gifts.”
    A.R.S. § 25-320 app. § 5(A). The family court may treat “the free use of a
    home” as income from recurring gifts if the benefit is “substantial” as well
    as “regular and continuous.” Cummings v. Cummings, 
    182 Ariz. 383
    , 384–85
    (App. 1994) (affirming attribution of homeowners’ mortgage payments as
    income for mother living in house rent-free).
    ¶14           Here, there was no evidence Mother was receiving a net
    benefit, much less a substantial one. Her monthly housing costs averaged
    $800 in rent, about $1,070 in improvements (prorating the $15,000 in
    improvements over the course of her tenancy), and $203 in fees, taxes, and
    insurance. In total she paid about $2,073 a month, which exceeds Father’s
    estimate of the fair market rent. Thus, the family court did not abuse its
    discretion in declining to attribute income to Mother for her alleged
    reduced rent.
    III.   Clarification of Parenting-Time Orders
    ¶15            In modifying parenting time to follow a 5-2-2-5 schedule, the
    family court originally ordered that parenting “start times” were to be “at
    6:00 p.m.” Father moved for clarification about when exchanges were to
    take place. Before entering the judgment that awarded Father attorney’s
    fees and finalized the modification, the court issued an unsigned minute
    entry, stating that it “intended for exchanges to occur after school when
    school is in session or at 3:00 p.m. rather than 6:00 p.m. when school is not
    in session.”
    ¶16            Father argues the court violated Rule 84(d) of the Rules of
    Family Law Procedure (Rules) by changing the exchange time from 6 p.m.
    to 3 p.m. In relevant part, Rule 84(d) provides, “[o]n a motion for
    clarification, the court may not open the judgment.” Under the Rules,
    however, a “judgment” means “a decree or an order from which an appeal
    lies.” Ariz. R. Fam. Law P. 78(a)(1). And generally, an appeal may only be
    taken from a post-decree order once the family court has “fully resolved all
    issues raised in a post-decree motion or petition.” Yee v. Yee, 
    251 Ariz. 71
    ,
    76, ¶ 14 (App. 2021); see also A.R.S. § 12-2101(A)(2) (jurisdiction for appeals
    from “any special order made after final judgment”). Thus, a post-decree
    6
    SHAW v. BERGERON
    Decision of the Court
    order is not a “judgment” and remains modifiable until the family court
    fully resolves all issues contained in the relevant petition.
    ¶17          The parenting-time order here was not an appealable
    judgment when the family court issued its minute entry clarification, as the
    court had not yet finally resolved the parents’ petitions. See Natale v. Natale,
    
    234 Ariz. 507
    , 510–11, ¶¶ 11–12 (App. 2014) (order not appealable until
    court resolved request for attorneys’ fees). Thus, the court did not violate
    Rule 84(d) by modifying that order.
    IV.    Family Court’s Award of Attorney’s Fees
    ¶18            Father next contends the family court abused its discretion by
    limiting its award of attorney’s fees to him.7 The family court has discretion
    to award attorney’s fees and costs after considering the parents’ financial
    resources and the reasonableness of their positions throughout the
    proceedings. A.R.S. § 25-324(A).
    ¶19           The family court limited its award of attorney’s fees to Father
    after finding Father and Mother had similar financial resources and had
    both taken unreasonable positions in the proceedings. The court found
    Father had acted unreasonably by insisting the court wait to rule until it
    had received and considered Mother’s counseling records. It found Father’s
    insistence unreasonable because (1) “[t]here was no factual basis to believe”
    Mother had “any significant mental health issues,” (2) Father “should have
    been more proactive” in obtaining the records before trial, and (3) the
    resulting delay had prevented the court from ruling before the new school
    year began.
    ¶20           Our review of the record discloses ample support for the
    family court’s findings. At the evidentiary hearing, Father did not present
    evidence about or cross-examine Mother about her mental health. Father
    did not seek formal discovery of Mother’s counseling records, but instead,
    two weeks before trial, moved for a mental health evaluation. And contrary
    to Father’s assertion, he did insist the court delay its ruling, even though
    the start of the school year was imminent. Although this delay was
    exacerbated by an error in transmission outside of Father’s control, the
    7       Father also argues the family court abused its discretion by
    considering facts not in evidence. Because he fails to develop and support
    this argument with citations to the record and legal authority, he has
    waived it. See ARCAP 13(a)(7)(A); see also Boswell v. Fintelmann, 
    242 Ariz. 52
    , 54, ¶ 7 n.3 (App. 2017).
    7
    SHAW v. BERGERON
    Decision of the Court
    court did not abuse its discretion by holding Father responsible for his role
    in unnecessarily delaying its disposition.
    V.     Denial of Permission to File Early Petition for Modification
    ¶21           Father argues the family court abused its discretion by
    denying him permission to file another petition for modification. About
    two months after the court fully resolved the parents’ petitions, Father
    moved for permission to file a new petition for modification. He claimed
    that Mother, a certified nursing assistant (CNA), had endangered the
    children by giving them flu vaccinations at home. He alleged that Mother
    had “ma[de] medical decisions . . . without a supervising physician,”
    violated Arizona laws and regulations governing CNAs, and rendered the
    efficacy of the children’s vaccines “questionable” by foregoing necessary
    cold-storage procedures. Father also alleged that Mother violated the
    court’s legal decision-making orders by failing to consult with him
    beforehand. The court summarily denied his motion.
    ¶22            Under A.R.S. § 25-411(A), a parent must wait one year before
    petitioning to modify decision-making or parenting-time orders, unless the
    family court permits otherwise on the basis that the child’s environment
    may “seriously endanger” the child’s health. A.R.S. § 25-411(A). We review
    the denial of permission to file a new petition for modification for an abuse
    of discretion. Murray v. Murray, 
    239 Ariz. 174
    , 176, ¶ 5 (App. 2016).
    ¶23            Here, Father does not allege any serious harm to the children
    actually occurred or could have occurred. Cf. State ex rel. Hollingsworth v.
    Ferrill, 1 CA-CV 19-0373 FC, 
    2020 WL 2394861
    , at *2, ¶ 10 (Ariz. App. May
    12, 2020) (mem. decision) (child having self-harm thoughts and “afraid
    about what’s going to happen at Father[’s] home”). Mother may have
    violated nursing laws and medical norms, but Father has not shown how
    this seriously endangered the children. At most, he claims the children’s
    protection against the flu may have been “negate[d] or seriously
    diminish[ed].” But in this context, speculation about reduced protection
    against an illness the children may or may not contract does not amount to
    serious endangerment. Because Father has shown no abuse of discretion,
    we affirm the family court’s denial of permission to file an early petition.8
    8     Additionally, the issue appears to be moot. A parent may petition
    for modification after only six months “based on the failure of the other
    parent to comply with the provisions of the order” if the order provides for
    8
    SHAW v. BERGERON
    Decision of the Court
    VI.   Request for Attorney’s Fees on Appeal
    ¶24          Father requests attorney’s fees pursuant to A.R.S. § 25-324.
    We have discretion to award either parent their reasonable costs and
    attorney’s fees after considering their financial resources and the
    reasonableness of their positions on appeal. A.R.S. § 25-324(A). The family
    court found the parents have similar financial resources. The record shows
    Father earns nearly three times as much as Mother, however.
    ¶25          In addition, Father has taken unreasonable positions on
    appeal. He failed to support and develop several of his arguments as
    required by ARCAP 13. And he provided a disingenuous account of his role
    in unreasonably delaying the proceedings in the family court. Accordingly,
    we deny his request for fees on appeal. Mother is representing herself on
    appeal, so we therefore award Mother her taxable costs on appeal in an
    amount to be determined pending her compliance with ARCAP 21.
    CONCLUSION
    ¶26          For the reasons above, we affirm the family court’s rulings.
    AMY M. WOOD • Clerk of the Court
    FILED:    JT
    joint decision-making. A.R.S. § 25-411(A). As more than six months have
    elapsed since the family court finalized its orders awarding joint decision-
    making, no obstacle remains to Father seeking modification based on
    Mother’s alleged noncompliance.
    9