Opinion
No. 1 CA-CV 19-0499 FC
06-23-2020
In re the Matter of: BRIAN CHRISTOPHER HAYDEN, Petitioner/Appellant, v. KEOVONNE KENNA WILSON, Respondent/Appellee.
COUNSEL Brian Christopher Hayden, Phoenix Petitioner/Appellant Brown & Hasiotis PLLC, Scottsdale By Maricela Moffitt-Brown Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. FC2017-092685
The Honorable Adele Ponce, Judge
AFFIRMED
COUNSEL
Brian Christopher Hayden, Phoenix
Petitioner/Appellant
Brown & Hasiotis PLLC, Scottsdale
By Maricela Moffitt-Brown
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Chief Judge Peter B. Swann joined.
HOWE, Judge:
¶1 Brian Hayden ("Father") appeals the denial of his petition to modify parenting time and legal decision-making authority. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Keo'vonne Wilson ("Mother") never married but had one child together in 2016, B.H. In August 2017, the parties stipulated to share joint legal decision-making. The parties further stipulated that Mother was the primary caregiver with Father having reasonable parenting time. In May 2018, Mother moved to clarify the parenting orders to determine where Mother and Father should exchange B.H. In August 2018, Father petitioned to modify legal decision-making and parenting time. He requested sole legal decision-making authority, that he be designated as B.H.'s primary caregiver, and that Mother be awarded reasonable parenting time. In October 2018, Mother responded to the petition and counter-petitioned for sole legal decision-making authority.
¶3 The court held a hearing in March 2019, where Father testified that a change in parenting time was warranted because B.H. was almost two years older than when the original parenting plan was set in 2017. Father also testified that B.H. would have more consistency because Father and Mother drop her off and pick her up at daycare at different times and a change to the parenting time would allow her to be dropped off and picked up at the same time each day. Father also testified that Mother violated the terms of their parenting plan on multiple occasions.
¶4 Father further testified that B.H. suffered several injuries while in Mother's care, including an iron burn, bruising to the face from falling off the bed, a black eye from hitting a tub, and welts on her backside. Father testified Mother reported the injuries to him and that he reported the black eye to the Department of Public Safety. After an investigation, the
Department sent a letter to Mother stating that "the report of suspected child abuse, neglect, or abandonment" was "unsubstantiated" and that the case would be closed.
¶5 Mother admitted that B.H. was burned while in her care but disagreed that B.H. suffered a black eye while in her care. Mother and Father kept a journal that they exchanged so they could communicate about B.H., including any health-related issues. Mother's journal entries noted that in August 2017, B.H. fell out of bed and had bruising on the right side of her face the next morning. Her July 2018 journal entry noted that B.H. was in the bathtub when she "launched her head into the side of the bath tub[,]" which caused an injury to her eye.
¶6 Mother testified that Father also violated the terms of the parenting plan by keeping B.H. longer than he was supposed to without her permission. She also testified that joint legal decision-making was increasingly difficult with Father and that sole legal decision-making would be more appropriate given that Father argued with her about B.H.'s medical needs.
¶7 The family court found that "the one year (even two year at the time of the hearing) increase in the age of [B.H.] is not a significant and continuing circumstance warranting a change in the parenting orders at this time." The court also found that B.H.'s need for consistency "is no different than it was at the time the parenting orders were entered." The court further found that the abuse that Father reported was unsubstantiated, that the injuries were "not atypical in severity or number for a one-year-old or two year old child[,]" and that each injury was "adequately explained." While the court found that B.H.'s iron burn was atypical, it determined that the burn "was due to an unfortunate accident." As a result, the court found that no significant and continuing change in circumstances warranted a modification to the existing parenting orders. With regard to Mother's motion to clarify, the court found that the parenting orders allowed Mother and Father to exchange B.H. in a public place and that Mother could send someone to pick up B.H. on her behalf. Father timely appealed.
DISCUSSION
¶8 Father argues that the family court abused its discretion by determining that the increase in B.H.'s age was not a significant change in circumstances warranting modification of the parties' parenting plan. We review the family court's orders modifying parenting time for an abuse of discretion. Baker v. Meyer, 237 Ariz. 112, 116 ¶ 10 (App. 2015). "When
considering a petition for change of custody, the court must first determine whether there has been a change in circumstances materially affecting the child's welfare." Christopher K. v. Markaa S., 233 Ariz. 297, 300 ¶ 15 (App. 2013).
¶9 The family court did not abuse its discretion by finding that B.H.'s increase in age from one year old to almost three years old was not a significant change in circumstances. Other than the increase in age itself, Father did not explain how that increase materially affected B.H.'s welfare. While Father testified that B.H. needed consistency when being picked up and dropped off at daycare, the same pick-up and drop-off schedule existed when the original parenting plan was made. As a result, the family court did not abuse its discretion by denying Father's petition to modify parenting time.
¶10 Father argues that B.H.'s increase in age is a significant change in circumstances because she can now speak in full sentences, express her needs, feed herself, and use the restroom on her own. Father's argument is waived, however, because he failed to raise it with the family court, see Henderson v. Henderson, 241 Ariz. 580, 586 ¶ 13 (App. 2017), and raised it for the first time in his reply brief, In re Marriage of Johnson and Gravino, 231 Ariz. 228, 235 ¶ 26 (App. 2012).
¶11 Father also argues that the family court erred by not making any findings or orders about his petition to modify legal decision-making authority. A court is not required to use specific language when its ruling indicates that it considered and resolved the issues presented. See State v. Buccini, 167 Ariz. 550, 553 n.4 (1991); see also Paxton v. McDonald, 72 Ariz. 378, 382-83 (1951) (noting that when a judgment is ambiguous, it "must be construed in light of the situation of the court, what was before it, and the accompanying circumstances").
¶12 The family court's ruling reflects that it did address whether a significant change in circumstances warranted modification of Father's legal decision-making authority. While the court's ruling could have used more precise language, the context of its ruling indicates that its reference to "parenting orders" is meant to encompass both parenting time and legal decision-making authority. The court referred to them both separately as "parenting time" and "legal decision-making authority" when summarizing the parties' motions but grouped them together using the phrase "parenting orders" when discussing whether a significant change in circumstances warranted a modification to either parenting time or legal decision-making authority. As a result, the court did make findings about
whether a significant change in circumstances warranted a modification to Father's legal decision-making authority.
CONCLUSION
¶13 For the foregoing reasons, we affirm. In our discretion, we decline to award Mother her attorneys' fees. As the prevailing party, however, Mother is entitled to recover her costs incurred on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.