Brown v. Smith ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
TARA JANE BROWN, Petitioner/Appellant,
v.
JEFFREY R. SMITH, Respondent/Appellee.
No. 1 CA-CV 20-0069 FC
FILED 12-1-2020
Appeal from the Superior Court in Maricopa County
No. FC2012-090788
The Honorable Suzanne Scheiner Marwil, Judge
AFFIRMED
COUNSEL
Alongi Law Firm PLLC, Phoenix
By Thomas P. Alongi
Counsel for Petitioner/Appellant
Collins & Collins LLP, Phoenix
By Joseph E. Collins
Counsel for Respondent/Appellee
BROWN v. SMITH
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Tara Brown (“Mother”) appeals two aspects of the superior
court’s order: (1) the re-affirmation of joint legal decision-making and (2)
the modification of parenting time. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother filed for dissolution of her marriage to Jeffrey Smith
(“Father”) in 2012. The parties have three minor children. Although the
parties originally agreed to share joint legal decision-making, Mother filed
a petition in September 2015 to modify legal decision-making, parenting
time, and child support. After an evidentiary hearing in March 2016, the
superior court issued an order reflecting the parties’ agreement to maintain
joint legal decision-making. The court also adjusted the parties’ summer
parenting time to clarify scheduling for church camp and vacations.
¶3 Within a six-year period Mother and Father filed more than
eight pleadings seeking court intervention in their disputes regarding
decision-making and parenting time. They often designated these issues as
emergencies. For example, Father contested a prior superior court ruling
pertaining to one child’s baptism, despite previously agreeing to raise the
children in that faith. After Father moved to reconsider, Mother claims he
became “extremely uncooperative.” In response, Mother filed an
emergency petition in March 2015 to enforce the baptism.
¶4 Mother filed another petition in February 2019, giving rise to
this appeal, requesting sole legal decision-making with a duty of reasonable
consultation. Mother also asked to restrict Father’s parenting time. Father
filed a counter-petition, asking for joint legal decision-making with him
designated as the final decision maker. Father also sought clarification on
when either party could schedule summer vacations. The superior court
held an evidentiary hearing in November 2019 and issued an order denying
both parties’ legal decision-making modification requests and re-clarifying
summer parenting time.
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BROWN v. SMITH
Decision of the Court
¶5 The superior court found “a substantial and continuing
change exists because since the entry of [the earlier agreement] the parties
have shown high conflict and an inability to effectively co-parent absent
court intervention.” The court then determined that awarding final
decision-making authority to either parent would go against the children’s
best interests because “appointing a tie-breaker would likely lead to even
less communication between the parties.”
¶6 To improve the parties’ communication, the superior court
ordered the parties to enroll in Co-Parenter, a scheduling and
communication platform. The court also found that Father is “expressly
deemed the primary parent of the children during the time school is not in
session for summer break.” Mother’s summer parenting time includes the
seven days after school breaks for summer and the seven days preceding
the next academic year. The parties have until April 30 each year to pick a
church camp for their children who are at least twelve years old, as the
parties previously agreed. Church camp represents a seven-day exception
to Father’s summer parenting time and all summer vacations must occur
during each party’s assigned parenting time.
¶7 Mother timely appeals, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(1).
DISCUSSION
¶8 We review rulings on legal decision-making and parenting
time for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420,
¶ 7 (App. 2003). We view the evidence in the light most favorable to
sustaining the superior court’s findings and determine whether evidence in
the record reasonably supports those findings. Vincent v. Nelson, 238 Ariz.
150, 155, ¶ 17 (App. 2015).
I. Legal Decision Making
¶9 Mother contends the superior court abused its discretion by
imposing joint legal decision-making with no tie-breaking authority. She
argues the court wrongfully characterizes both parties as “equal offenders”
when it found a substantial and continuing change existed. When
considering a petition for change of legal decision making, the court must
first determine whether there has been a change in circumstances materially
affecting the children’s welfare. Christopher K. v. Markaa S., 233 Ariz. 297,
300, ¶ 15 (App. 2013). If the court finds such a change, it must then
determine whether a change in legal decision making would be in the
children’s best interests. Id. In a contested legal decision-making case, the
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BROWN v. SMITH
Decision of the Court
court must consider eleven factors and then make explicit findings on the
record about any factors it finds relevant. A.R.S. § 25-403(A).
¶10 After explaining the change in circumstances, the superior
court made findings as to each factor. See id. Specifically, the court
highlighted the parties’ escalating inability to communicate. The superior
court also found that the children will “continue to need and benefit from
dialogue between and input from both parents on their major life
decisions.” Although Mother disagrees with the superior court’s order,
arguing it is illogical and inconsistent, she fails to contest any specific factor
from A.R.S. § 25-403, on which the superior court based its best interests
finding. And the extensive pleadings filed by both parties support the
court’s finding of mutual high conflict.
¶11 Mother also argues that joint legal decision-making, under
these circumstances, contradicts Arizona law. See A.R.S. § 25-403.01(B)(3)
(the court must consider the past, present, and future abilities of parents to
cooperate in decision-making). But the superior court found that the parties
avoid communicating and “clearly need the help of co-parenting supports
such as Co-Parenter.” Supporting its findings, the court cited multiple
instances of the parties’ poor communication, including Mother placing a
GPS device on Father’s car, Father failing to notify Mother of their daughter
receiving stitches, and Mother not sharing school schedules with Father.
The superior court did not abuse its discretion in finding the children’s best
interests support no modification of legal decision-making.
II. Parenting Time
¶12 Mother argues the superior court erred by modifying the
parties’ parenting time plan to grant Father an uninterrupted summer
break, except for the seven days designated for church camp. The court
highlighted the parties’ “difficulty interpreting the [c]ourt’s prior orders
about scheduling regarding when they can schedule vacations and whether
Father is intended to have more parenting time than Mother in the summer
because he exercises long distance parenting time during the school year.”
During the hearing, the court mentioned that it used summer parenting
time to compensate Father for not being the primary parent during the
school year. Then the court adjusted the parties’ parenting plan to avoid
Mother receiving up to four weeks of parenting time during summer break.
We find no reason to disrupt the superior court’s finding that the new
summer parenting time is in the children’s best interests.
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BROWN v. SMITH
Decision of the Court
¶13 Mother also seems to argue that the superior court’s
modification to summer parenting time amounts to a restriction, which can
only be implemented if the child’s physical, mental, moral, or emotional
health are endangered. See A.R.S. § 25-411(J). Limiting Mother’s options for
taking summer vacations with the children to her allocated parenting time
does not amount to a restriction under § 25-411(J). Mother did not disagree
with how the court characterized the parties’ parenting situation,
repeatedly describing it as “long-distance.” The court’s parenting time
modification is consistent with other long-distance parenting plans. And
the court found that the modifications to summer parenting time are in the
children’s best interests, as required by § 25-411(J). We find no abuse of
discretion.
III. Attorneys’ Fees and Costs on Appeal
¶14 Mother requests attorneys’ fees and costs incurred in this
appeal under A.R.S. § 25-324(A). We have considered the financial
resources of both parties and the reasonableness of Mother’s arguments on
appeal. We decline to award attorneys’ fees and costs.
CONCLUSION
¶15 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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