Wild v. Wild ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
AMANDA THEON POTTS WILD, Petitioner/Appellant,
v.
ALEXANDER PETER DAYER WILD, Respondent/Appellee.
No. 1 CA-CV 15-0366 FC
FILED 4-21-2016
Appeal from the Superior Court in Maricopa County
No. FC2012-000286
The Honorable Timothy J. Thomason, Judge
AFFIRMED
COUNSEL
Burt Feldman Grenier, Scottsdale
By Sandra Burt
Co-Counsel for Petitioner/Appellant
Melinda K. Cekander PLLC, Heron, Montana
By Melinda K. Cekander
Co-Counsel for Petitioner/Appellant
Amicus Law PLLC, Mesa
By Marisa Kotalik
Counsel for Respondent/Appellee
WILD v. WILD
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.
P O R T L E Y, Judge:
¶1 Amanda Theon Potts Wild (“Mother”) appeals the denial of
her post-decree petition to modify legal decision-making and parenting
time. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mother and Alexander Peter Dayer Wild (“Father”) were
divorced in 2013. They resolved the issues related to their two minor
children by entering into a parenting agreement providing for joint legal
decision-making, equal parenting time for their older child, and more
limited parenting time for Father with the younger child. The agreement
required Father to submit to an independent psychological evaluation and
participate in counseling. And Father’s parenting time with the younger
child would automatically increase upon completion of a “successful”
psychological evaluation as determined by the parenting coordinator.1 The
family court expressly found the parenting agreement to be in the children’s
best interest and it was merged into the decree.
¶3 Fourteen months later, Mother filed a petition to modify legal
decision-making and parenting time and to enforce the terms of the decree.
She sought sole legal decision-making and a reduction in Father’s parenting
time.
¶4 Following an evidentiary hearing, the family court denied
Mother’s petition, finding there was no substantial and continuing change
in circumstances warranting modification. Moreover, and following the
recommendation of the parenting coordinator, the court increased Father’s
1 As part of the parenting agreement, the parties stipulated to the
appointment of Dr. David Weinstock as a parenting coordinator.
Thereafter, the court entered an order appointing Dr. Weinstock.
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Decision of the Court
parenting time with the younger child pursuant to the terms of the decree.2
The order also enforced the terms of the decree by ordering Father to
continue both individual and family counseling and follow all
recommendations of the counselors. Mother filed a timely appeal and we
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(2).3
DISCUSSION
¶5 The family court has continuing jurisdiction to modify
provisions of a decree relating to legal decision-making and parenting time.
See LaPrade v. LaPrade, 189 Ariz. 243, 246, 941 P.2d 1268, 1271 (1997). When
a party requests modification, “it must be shown that the welfare of the
child will be advanced by the change.” Andro v. Andro, 97 Ariz. 302, 305,
400 P.2d 105, 107 (1965). The family court is in the best position to
determine whether modification is in the child’s best interest, and we will
not disturb its decision absent an abuse of discretion. See id. at 305, 400 P.2d
at 107-08.
I. Mother’s Petition
¶6 The first issue on appeal is whether the family court abused
its discretion “in failing to realize that there was a continuing change in
circumstances.” Mother acknowledges that a court must find a “material
change in circumstances affecting the welfare of the child” before it can
modify legal decision-making or parenting time. See Canty v. Canty, 178
Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994). The “change of
circumstances rule” is an application of the principle of res judicata. See
Ward v. Ward, 88 Ariz. 130, 134-35, 353 P.2d 895, 898 (1960). As our supreme
court explained in Ward:
The court, in issuing the original decree, found that the
arrangement, therein set out was for the best interests of the
child. No appeal having been taken, this decision became
final, upon the facts then before the court, and no alteration
will be made without a showing that the factual situation has
2 Dr. Weinstock recommended in March 2015 that Father’s parenting time
with the younger child be increased, pursuant to the terms of the decree,
because Father had completed a successful psychological evaluation.
Mother objected to the recommendation.
3 We cite the current version of the applicable statutes absent changes
material to this decision.
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changed to such an extent that the original decree can no
longer reasonably be expected to serve the purpose.
Id. at 135, 353 P.2d at 898 (emphasis omitted). And the family court has
broad discretion to determine whether a change of circumstances has
occurred, and we will not disturb its decision absent a clear abuse of
discretion. Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982).
¶7 As the party seeking modification, Mother had the burden of
establishing a change in circumstances. See Galbraith v. Galbraith, 88 Ariz.
358, 364, 356 P.2d 1023, 1027 (1960). She argued that Father’s failure to
comply with the terms of the decree constituted a change in circumstances.
Specifically, she argued that Father had: (1) lied about his participation in
anger management classes, (2) failed to participate in therapy, (3) failed to
submit to a psychological evaluation, and (4) failed to follow the family
counselor’s recommendations.
¶8 In response to the petition, the family court held an
evidentiary hearing, took testimony from both parents and the family
counselor, and reviewed the deposition of the psychologist who evaluated
Father. Following the hearing, the court determined there was no
substantial and continuing change in circumstances.
¶9 Although acknowledging that Father had initially “fallen
short on agreed upon therapies and counseling,” the family court
concluded that Father was now “working in good faith.” Specifically, the
court found that Father had completed an independent psychological
evaluation indicating no significant psychological problems, and that
Father, by the time of the hearing, was participating in both individual and
family counseling. The court also considered how Mother’s proposed
modification would affect the children, and concluded that “reducing
Father’s parenting time would unnecessarily damage [h]is relationship
with his Children.”4
4It is “the declared public policy of this state . . . that absent evidence to the
contrary, it is in a child’s best interest: 1. To have substantial, frequent,
meaningful and continuing parenting time with both parents [and] 2. To
have both parents participate in decision-making about the child.” A.R.S.
§ 25-103(B).
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¶10 The record supports the family court’s conclusion that there
was no material change in circumstances affecting the welfare of the
children. Accordingly, we affirm the denial of Mother’s petition.5
II. Increased Parenting Time for Younger Child
¶11 Mother also argues that the family court abused its discretion
by “implementing the next step of parenting time for Father” with the
younger child pursuant to the terms of the decree. We disagree.
¶12 The decree provided that:
Upon receipt of Father’s psychological evaluation and
confirmation from the parties’ Parenting Coordinator that the
psychological evaluation does not present any concerns for
increased parenting time for Father (i.e. a “successful”
evaluation), Father’s parenting time shall increase . . . .
The decree established a schedule by which Father’s parenting time with
the younger child would gradually increase over time.
¶13 Dr. John Beck completed a psychological evaluation of Father.
As part of the evaluation, Dr. Beck spoke with and reviewed the progress
notes of the family counselor. Dr. Beck’s evaluation concluded that Father’s
prognosis is good “once he completes a true course of anger management
therapy which he has now started.” In his deposition, Dr. Beck stated that
“[a]s a professional and evaluator, I don’t feel there’s really any significant
5 In her opening brief, Mother argues for a “good faith extension of the law
regarding change in circumstances and best interests of the children.” She
argues that “[b]y focusing on Father’s words and short-term action, the trial
court . . . did not focus on Father’s pattern of behavior or whether that
pattern of behavior was in the best interests of the children.” We decline
her invitation. In determining whether there was a material change in
circumstances, the family court properly focused on events occurring after
the entry of the decree. See Chaney v. Chaney, 145 Ariz. 23, 25, 699 P.2d 398,
400 (App. 1985) (noting that the “change of circumstances must occur after
the entry of the original decree in order to be material”); Richards v. Richards,
137 Ariz. 225, 226, 669 P.2d 1002, 1003 (App. 1983) (“The changed
circumstances alleged must be proved by a comparison with the
circumstances existing at dissolution.”).
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. . . psychological problems.” The parenting coordinator reviewed Dr.
Beck’s evaluation and recommended an increase in Father’s parenting time.
¶14 The court adopted the recommendation over Mother’s
objection, and increased Father’s parenting time with the younger child
consistent with the schedule in the decree.6 Because the court had authority
to enforce the terms of the decree, we affirm. See Ariz. R. Fam. L. Proc. 91;
Daley v. Earven, 166 Ariz. 461, 463, 803 P.2d 454, 456 (App. 1990) (“Courts
have inherent power to enforce their own judgments and should see to it
that such judgments are enforced when they are called upon to do so.”)
(citation omitted).
III. Attorneys’ Fees
¶15 Although the family court denied Mother’s petition, the court
awarded her $2,592.50 in attorneys’ fees pursuant to A.R.S. § 25-324. On
appeal, Mother argues “[t]he fee award was too low.”
¶16 Section 25-324 authorizes the family court to award attorneys’
fees after considering “the financial resources of both parties and the
reasonableness of the positions each party has taken throughout the
proceedings.” A.R.S. § 25-324(A). We review an award of fees under § 25–
324 for an abuse of discretion. See MacMillan v. Schwartz, 226 Ariz. 584, 592,
¶ 36, 250 P.3d 1213, 1221 (App. 2011).
¶17 Applying § 25-324, the family court found that Mother had
greater financial resources and both parties acted unreasonably:
Father acted unreasonably in the litigation and steps before
the litigation. . . . While the [c]ourt does not believe that
Father’s actions merit a change in legal decision-making or
parenting time, an award of fees is in order. At the same time,
however, the [c]ourt believes that Mother’s positions have
been extreme and motivated by self-interest. This factor will
be considered in determining the amount of fees to award.
In light of the court’s assessment, we find no abuse of discretion. See
MacMillan, 226 Ariz. at 592, ¶ 38, 250 P.3d at 1221 (“[T]he trial court is in the
6The court found that “[b]oth parents appear to have good relationships
with both Children” and there was “no evidence that Father presents a
danger to his Children.”
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Decision of the Court
best position to observe and assess the conduct of the parties before it.”).
Accordingly, we affirm the family court’s award of attorneys’ fees.
¶18 Both parents seek an award of attorneys’ fees on appeal
pursuant to § 25-324. In the exercise of our discretion, we decline to award
fees. As the prevailing party on appeal, Father is entitled to his appellate
costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶19 Based on the foregoing, we affirm the decision of the family
court.
:ama
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