Opinion
No. 1 CA-CV 17-0336 FC
03-27-2018
In re the Matter of: GABRIEL JESUS DIAZ, Petitioner/Appellee, v. FAITH ANN DUTSON, Respondent/Appellant.
APPEARANCES Faith A. Dutson, Chandler Respondent/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2014-005334
The Honorable Ronee Korbin Steiner, Judge
AFFIRMED
APPEARANCES Faith A. Dutson, Chandler
Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Peter B. Swann and Judge James P. Beene joined. THOMPSON, Judge:
¶1 Faith Ann Dutson (Mother) appeals from the superior court's order modifying final decision-making authority and parenting time. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Gabriel Jesus Diaz (Father) are parents of a minor child. Mother and Father divorced in 2014. In the summer of 2016, Mother and Father agreed to a parenting plan sharing joint legal decision-making with Mother having final decision-making authority. The agreement also provided Father with parenting time on alternating weekends.
¶3 In September 2016, Father filed a petition to enforce a physical child custody order, alleging that Mother violated the parenting order by moving to Colorado with their child. The superior court set a hearing on Father's petition and ordered Mother return to Arizona. Mother did so, and, at the hearing, the court ordered Mother to keep the child in Arizona until further order or agreement by the parties.
The superior court treated the petition to enforce physical custody order as a petition to enforce parenting time at the evidentiary hearing.
¶4 Less than a month later, Father filed another petition to enforce parenting time, alleging Mother violated the superior court's previous order and moved to Colorado. The court again ordered Mother to immediately return with the child to Arizona. At a status conference the following month, the superior court noted that Father currently had care and custody of the child and ordered the child remain with Father until further court order.
¶5 In March 2017, Mother filed a petition for relocation to move the child to Colorado, along with a parenting plan requesting modifications to parenting time and legal decision-making authority. Specifically, Mother requested she have sole legal decision-making (custody) and for Father to have the child one weekend a month, plus extended summer, winter, and spring break visits. Mother also filed a pre-trial statement in which she indicated the action was for legal decision-making and parenting time. Additionally, Mother specifically requested modifications of legal decision-making and parenting time schedules in her separate pre-hearing statement.
¶6 The superior court held an evidentiary hearing on Father's petitions to enforce parenting time and Mother's petition to relocate. The court, after analyzing the best interests of the child, affirmed the previous order of joint legal decision-making, but awarded final decision-making authority to Father. The court also modified parenting time to provide Mother with parenting time on alternating weekends, and, if Mother moved within twenty miles of Father, every Wednesday overnight.
¶7 Mother timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(2) (2017).
DISCUSSION
¶8 We review the superior court's decision regarding legal decision-making authority and parenting time for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003); Hurd v. Hurd, 223 Ariz. 48, ¶ 11, 219 P.3d 258, 261 (App. 2009); Hart v. Hart, 220 Ariz. 183, 185, ¶ 8 (App. 2009).
¶9 Mother argues that her due process rights were violated because Father did not file a petition for modification prior to the court modifying parenting time and final legal decision-making authority pursuant to A.R.S. § 25-411(L) (2017).
Mother also argues that Father committed acts of domestic violence that the superior court failed to consider in violation of A.R.S. § 25-403.03 (2017). The court originally found in 2014 that while Father committed acts of domestic violence, they did not rise to the level of significant domestic violence that would affect Father's ability to maintain joint legal decision-making. Additionally, the court made a finding in the appealed order that "there is no credible evidence of domestic violence since the date of the last order." The court properly considered Mother's domestic violence allegations.
¶10 As an initial matter, Mother's argument regarding parenting time is moot. Mother entered into a stipulated order regarding parenting time after the order was entered but prior to filing her opening brief. The stipulated order contains the same parenting time terms as the order Mother is appealing. By signing the stipulated order, Mother has rendered any argument regarding parenting time moot. See Arpaio v. Maricopa Cty. Bd. of Supervisors, 225 Ariz. 358, 361, ¶ 7 (App. 2010) (quoting Sedona Private Prop. Owners Ass'n v. City of Sedona, 192 Ariz. 126, 127, ¶ 5 (App. 1998) ("A case becomes moot when an event occurs which would cause the outcome of the appeal to have no practical effect on the parties"); Hall v. World Sav. & Loan Ass'n, 189 Ariz. 495, 504 (App. 1997) (stating that a case becomes moot if, "as a result of a change of circumstances before the appellate decision, action by the reviewing court would have no effect on the parties."). Thus, we will only consider Mother's argument regarding the superior court's modification of final legal decision-making authority.
Father did not file an answering brief. When debatable issues exist and an appellee fails to file an answering brief, we may consider such failure a confession of reversible error. Savord v. Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014) (citation omitted). However, we are not required to do so, and we address the substance of Mother's appeal in the exercise of our discretion. Id. (citing Nydam v. Crawford, 181 Ariz. 101 (App. 1994)).
¶11 Father did not file a petition to modify final legal decision-making authority. However, Mother brought the issue of final legal-decision making authority before the superior court. In conjunction with her petition to relocate, Mother filed a parenting plan and a separate pre-trial statement both containing a request to award her sole legal decision-making authority. In Sundstrom v. Flatt, 776 Ariz. Adv. Rep. 23, ¶7 (App. Oct. 17, 2017), we determined that the superior court did not err in awarding former husband legal decision-making authority, despite his failing to file his own petition to modify, where former wife did petition to modify legal decision-making authority. The Sundstorm court noted that when a party "has petitioned to modify legal decision-making and the court has found adequate cause for a hearing, the petitioning party must be prepared for the possibility that the court will not view the evidence favorably to the petitioner." Id. at ¶7. Like the former wife in Sundstorm, Mother in this case requested a modification to legal decision-making via her petition to relocate, parenting plan, and separate pre-trial statement. Thus, Mother should have been "prepared for the possibility" that the court would rule against her. Id.
¶12 Additionally, we "will not reverse for alleged noncompliance with [A.R.S.] § 25-411 on appeal absent a showing of prejudice." In re Marriage of Dorman, 198 Ariz. 298, 303, ¶ 12 (App. 2000). Notably, "[e]rrors in preliminary procedures, such as those in § 25-411, must be addressed prior to a resolution on the merits." Id. at 302, ¶ 11. We find Mother has not demonstrated prejudice. As the party who originally petitioned the court to address the issue of legal decision-making authority in her petition to relocate, parenting plan, and pre-trial statement, Mother had notice the issue would be resolved. Sundstrom, 776 Ariz. Adv. Rep. 23 at ¶7; see also Dorman, 198 Ariz. at 303, ¶ 12. Given Mother's request for a modification to final legal decision-making, the issue was properly considered by the superior court.
¶13 Next, we must determine whether the superior court abused its discretion in awarding Father final decision-making authority. Pursuant to A.R.S. § 25-403(A), the superior court "shall determine legal decision-making . . . in accordance with the best interests of the child." See also Hays v. Gama, 205 Ariz. 99, 102, ¶18 (2003). The court analyzed all eleven § 25-403(A) best interest factors in its ruling.
¶14 After consideration, the superior court determined that the child appears to be adjusted to his current situation with Father. A.R.S. § 25-403(A)(3). He is in day care and Department of Child Safety (DCS) has been providing services, including coaching on parenting skills several days per week. The court determined that the child's current stability will be undermined with Mother. The court also determined that Father is more likely to allow the child frequent, meaningful, and continuing contact with the other parent. A.R.S. § 25-403(A)(6). Mother has threatened to take the child away from Father in text messages and has removed the child from Arizona twice in violation of the court's orders, while Father offered additional time to Mother when an ill family member visited. We conclude the court did not abuse its discretion in determining a modification of final decision-making authority to Father would be in the child's best interest.
The court noted that DCS has been involved because Mother made false claims. --------
CONCLUSION
¶15 For the foregoing reasons, we affirm the superior court's order modifying final legal decision-making authority to Father.