Opinion
No. 1 CA-CV 11-0056
05-29-2012
In re the Marriage of: KARIN ANTOINE, Petitioner/Appellant, v. KAMONI-KHEM COOK, Respondent/Appellee.
Law Offices of Harry P. Friedlander By Harry P. Friedlander Attorney for Petitioner/Appellant Laura Edwards & Associates By Laura Jane Edwards Attorney for Respondent/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2007-090755
The Honorable James P. Beene, Judge
AFFIRMED
Law Offices of Harry P. Friedlander
By Harry P. Friedlander
Attorney for Petitioner/Appellant
Mesa
Laura Edwards & Associates
By Laura Jane Edwards
Attorney for Respondent/Appellee
Tempe BROWN, Judge
¶1 Karin Antoine ("Mother") appeals from the trial court's order increasing Kamoni-Khem Cook's ("Father") parenting time and maintaining joint legal custody of their daughter ("the child"). For the following reasons, we affirm.
BACKGROUND
¶2 Mother and Father divorced in 2007 and entered into a consent decree of dissolution of marriage that included a parenting plan for joint legal custody. In relevant part, the consent decree provided that Mother would be the "primary custodial parent," and the parenting plan stated that Father would have parenting time on alternating weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. and on additional weekdays by agreement.
¶3 In March 2010, Mother filed a petition for modification of custody and parenting time. Requesting sole custody, Mother alleged that Father's mental health issues had caused him to "become more violent," and he had made threats against Mother and the child. Mother also sought approval to relocate with the child and to require Father to exercise his parenting time at the paternal grandmother's home.
In July 2008, Mother filed a modification petition requesting sole custody and alleging Father had not made an effort to be "informed regarding issues related to [the] child" and that he had failed to meet his financial obligations. Following an evidentiary hearing, the court denied Mother's request for sole custody, finding it was motivated primarily by the financial issue.
¶4 Father filed a response and supplemental counter-petition, denying that he was violent and asserting that his mental health issues were being addressed through medication and doctor visits. Father also asked that his parenting time be increased to include three weekdays in addition to the alternating weekends. He argued that such an arrangement would be in the best interest of the child because it would be better to have a parent rather than a non-family member care for her. In the parties' joint prehearing statement, Mother withdrew her requests for sole custody and relocation.
¶5 Following an evidentiary hearing in August 2010, the court reaffirmed the parties' joint legal custody arrangement, noting that "neither party requested that the Court modify its previous legal custody order." The court designated Mother as the "primary residential parent," but increased Father's parenting time to every Tuesday at 3:00 p.m. to Thursday at 6:00 p.m., as well as alternating weekends from Friday at 3:00 p.m. until Sunday at 6:00 p.m. The court disagreed with Mother's claims that Father's mental health was questionable and that it would not be in the child's best interest to increase Father's parenting time. The court found that Father had provided credible evidence that his psychiatric condition was stable and under control.
¶6 Mother moved for a new trial, or alternatively, reconsideration, arguing the court abused its discretion because it failed to make specific findings under Arizona Revised Statutes ("A.R.S.") section 25-403 (Supp. 2011). Mother further argued that, despite the withdrawal of her request for sole custody, the court abused its discretion in affirming the prior joint custody order in light of evidence presented by Mother of past domestic violence. The court denied the motion and Mother timely appealed.
Absent material revision, we cite the statute's current version.
--------
DISCUSSION
¶7 Mother first argues that the increase in Father's parenting time constitutes a "material change" in physical custody triggering findings under A.R.S. § 25-403(B), which states: "In a contested custody 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." Father argues that custody was not at issue, no modification of custody occurred, and the change of parenting time did not rise to the level of a change in physical or legal custody requiring specific findings. We agree with Father.
¶8 First, neither party requested a change in legal custody. Mother withdrew her request for sole legal custody prior to the hearing, and Father did not make such a request. Thus, under the plain language of A.R.S. § 25-403(B), no findings were required.
¶9 Mother argues nonetheless that "'contested custody' includes modification of parenting time," relying on In re Marriage of Diezsi, 201 Ariz. 524, 38 P.3d 1189 (App. 2002), and Owen v. Blackhawk, 206 Ariz. 418, 79 P.3d 667 (App. 2003). But nothing in either of those cases requires a trial court to make findings for a change in parenting time that does not modify physical custody.
¶10 In Diezsi, the father and mother shared legal custody while the mother had "primary physical custody" and the father had "secondary physical custody." 201 Ariz. at 525, ¶ 1, 38 P.3d at 1190. The court denied the father's request that the court "change physical custody to him" and leave legal custody unchanged. Id. The father appealed, arguing that the court abused its discretion because it failed to make specific findings on the record. Id. at 525, ¶ 2, 38 P.3d at 1190. We determined that findings were necessary because the father's request was for a change in physical custody. Id. at 525-26, ¶¶ 4-5, 38 P.3d at 1191. We concluded that the failure to make such findings rendered the court's order deficient as a matter of law and, therefore, an abuse of discretion. Id. at ¶ 5.
¶11 In Owen, the mother and father shared joint legal custody with the mother designated as primary residential parent and the father having approximately forty-eight hours of visitation each week. 206 Ariz. at 420, ¶ 2, 79 P.3d at 669. The father filed a petition to prevent the mother from relocating out of state with the child. Id. at ¶ 4. The trial court found it would not be in the child's best interest to relocate and therefore continued joint custody, but designated the father as primary residential parent during the school months and gave the mother parenting time during school breaks. Id. at ¶¶ 4-5. The mother appealed, arguing in part that the court was statutorily required to make specific findings. Id. at 420-21, ¶¶ 6-9, 79 P.3d at 669-70. The father argued that the change was one of parenting time, not custody, and thus specific findings were not required. Id. at 421, ¶ 10, 79 P.3d at 670. This court disagreed, holding that an order which changes the designated "primary residential parent constitutes an order regarding physical custody as opposed to an order regarding parenting time." Id. at ¶ 11.
¶12 Both Diezsi and Owen involved attempted or actual modification to the primary residential parent designation. This is not the case here. The trial court's October 2010 order did not modify the primary residential parent designation, as Mother had already been designated the "primary custodial parent" in the consent decree. We recognize that Father requested in his supplemental counter-petition that his parenting time be increased to "three weekdays per week, in addition to every other weekend." However, at the hearing, all parties agreed that the only issue to determine was that of parenting time, and Father testified that his desire was to have the child "Mondays and Tuesdays and every other weekend." Neither Father's request at the hearing nor Father's ultimate parenting time award amounted to a change in the designated primary residential parent. Therefore, no contested custody case was before the court, and specific findings were not required under A.R.S. § 25-403(B).
¶13 The conclusion we reach here is consistent with A.R.S. § 25-411(J) (Supp. 2011), which provides that the family court may modify a parenting time order "whenever modification would serve the best interest of the child." Unlike § 25-403(B), § 25-411(J) does not expressly require the court to make specific findings on the record. Moreover, § 25-411(J) allows the court to modify parenting time "whenever" the court determines it would be in the best interest of the child, whereas § 25-411(A) provides that a court generally may not "modify a custody decree earlier than one year after its date." The legislature has therefore chosen to treat custody orders and parenting time orders differently, and we decline to impose a requirement of written findings which "the legislature has intentionally chosen not to require." Hart v. Hart, 220 Ariz. 183, 187, ¶¶ 16-17, 204 P.3d 441, 445 (App. 2009) (interpreting A.R.S. § 25-411(D) and holding trial court was not required to make specific findings before ordering supervised parenting time because the statute does not contain such a requirement). In sum, although specific findings would have been helpful to our review of the court's decision, the trial court did not err in failing to include them.
¶14 Finally, Mother argues that the court abused its discretion by permitting joint legal custody despite evidence of domestic violence. The court may not award joint custody if it "makes a finding of the existence of significant domestic violence pursuant to § 13-3601 or if [it] finds by a preponderance of the evidence that there has been a significant history of domestic violence." A.R.S. § 25-403.03(A) (Supp. 2011); Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 12, 219 P.3d 258, 261 (App. 2009).
¶15 As Mother acknowledges in her brief on appeal, she withdrew her request for sole custody. Nonetheless, Mother argues that the court should have sua sponte awarded her sole custody because the record contains "clear evidence of domestic violence." Section 25-403.03(A) precludes making an award of joint custody only if the court "makes a finding" of the existence of significant domestic violence or a significant history of domestic violence. The court here made no such finding, and the parties' pretrial statement and the transcript of the hearing demonstrate that Mother did not seek such a finding. Therefore, the court did not abuse its discretion in failing to sua sponte change the prior joint legal custody to sole custody.
¶16 Father seeks an award of attorneys' fees pursuant to A.R.S. § 25-324 (Supp. 2011), which authorizes a court to award attorneys' fees and costs after considering the financial resources of the parties and the reasonableness of the parties' positions. Father argues that Mother has greater financial resources and that her position on appeal was meritless and unreasonable. We agree that Mother has greater financial resources, but Mother's arguments on appeal were not unreasonable. Therefore, in our discretion, we deny Father's request for attorneys' fees. Father is, however, entitled to an award of costs upon compliance with Arizona Rule of Civil Appellate Procedure 21(a).
CONCLUSION
¶17 For the foregoing reasons, we affirm the trial court's order increasing Father's parenting time.
_________________
MICHAEL J. BROWN, JUDGE
CONCURRING:
_________________
PATRICIA K. NORRIS, PRESIDING JUDGE
_________________
MARGARET H. DOWNIE, JUDGE