Opinion
No. 1 CA-CV 14-0584 FC
07-30-2015
In re the Marriage of: MARK A. SOTO, Petitioner/Appellee, v. KRISTINA L. KEARNS, Respondent/Appellant.
COUNSEL Law Offices of Heather C. Wellborn, P.C., Lake Havasu City By Heather C. Wellborn Counsel for Petitioner/Appellee Law Offices of Paul Lenkowsky, Bullhead City By Paul Lenkowsky, Virginia L. Crews Counsel for Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. L8015DO201007184
The Honorable Randolph A. Bartlett, Retired Judge
AFFIRMED
COUNSEL Law Offices of Heather C. Wellborn, P.C., Lake Havasu City
By Heather C. Wellborn
Counsel for Petitioner/Appellee
Law Offices of Paul Lenkowsky, Bullhead City
By Paul Lenkowsky, Virginia L. Crews
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge Andrew W. Gould joined. SWANN, Judge:
¶1 Kristina Kearns ("Mother") appeals from the trial court's order denying her request to modify parenting time and continuing to grant Mark Soto ("Father") sole legal decision-making authority over their four minor children ("the Children"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2012, the trial court granted Father sole custody of the Children and granted Mother supervised parenting time. In September 2013, the court awarded Father sole legal decision-making authority and permitted Mother to have unsupervised parenting time on alternating weekends with no overnight visits. The court found that Mother "[did] not [have] a stable home life or home." The court advised that if Mother "has stabilized and can provide a safe home environment for overnight visits, the Court will permit her to petition the Court after January 5, 2014 for revision of the parenting time." The court further advised that if Mother "subjects [the C]hildren to some kind of dangerous situation then when she petitions the Court in January [Father] can bring those issues forward."
¶3 In April 2014, Father alleged that Mother had endangered the Children and petitioned the court to modify Mother's parenting time back to supervised status. Mother opposed the petition and requested equal parenting time and sole decision-making authority regarding certain medical and educational issues.
Mother inconsistently requested sole and joint legal decision-making authority. Ultimately, Mother requested sole decision-making authority for medical decisions and school enrollment. --------
¶4 The court held an evidentiary hearing to address the competing requests. At the hearing, Mother testified that she had made "drastic changes" to her life and had been sober for 15 months. Mother admitted to having several different residences in the past few years and to having plans to marry three men in the past five years. Mother stated that she permitted the Children to ride in the back of a pickup truck and that she believed "as long as they're being properly supervised, there is nothing wrong with it." Finally, Mother testified that she had seizures, suffering the most recent seizure four days before the evidentiary hearing, and stated that she had three minor seizures while the Children were in her care.
¶5 The court found that "very little has changed" since the court issued its 2013 order and Mother "failed to carry her burden of proof." The court maintained its 2013 order granting Father sole legal decision-making authority, finding that joint legal decision-making authority was not an option because the parties were unable to communicate. The court also continued to give Mother unsupervised parenting time on alternating weekends, but required safety precautions for the Children. The court also awarded Mother additional parenting time on Mother's Day and alternating holidays. Mother timely appeals.
DISCUSSION
¶6 We review the trial court's orders regarding parenting time and legal decision-making authority for abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). I. PARENTING TIME AND LEGAL DECISION-MAKING
¶7 The "court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child." A.R.S. § 25-411(J). To modify parenting time or legal decision-making, the court must first determine there has been a change in circumstances materially affecting the welfare of the child. See Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15 (App. 2013). The court has broad discretion in determining whether a change in circumstances has occurred. Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982). The party who seeks modification of parenting time or legal decision-making authority has the burden of proving changed circumstances materially affecting the child's welfare. Marley v. Spaulding, 10 Ariz. App. 213, 214 (1969); Hoffman v. Hoffman, 4 Ariz. App. 83, 84 (1966).
¶8 Once a court finds a change in circumstances, it must then determine whether a change in parenting time or legal decision-making authority is in the child's best interests by considering all factors "relevant to the child's physical and emotional well-being," including eleven factors enumerated by statute. A.R.S. § 25-403(A); see Christopher K., 233 Ariz. at 300, ¶ 15. When determining the allocation of decision-making authority that is in the child's best interests, the court must consider additional factors enumerated in A.R.S. § 25-403.01(B). When parenting time or legal decision-making is contested, "the court shall make specific findings on the record about all relevant factors and the reasons [why] the decision is in the best interests of the child." A.R.S. § 25-403(B).
¶9 Mother argues that the court failed to properly analyze all of the factors enumerated in A.R.S. §§ 25-403(A) and -403.01(B). However, because the court found that Mother had not met her burden of proving changed circumstances, it was not required to make comprehensive findings regarding Mother's request for legal decision-making authority and equal parenting time. See Christopher K., 233 Ariz. at 300, ¶ 15. And because Mother does not argue that the court erred in finding that she failed to meet her burden, she waives this issue on appeal. Carrillo v. State, 169 Ariz. 126, 132 (App. 1991) (stating that "[i]ssues not clearly raised and argued on appeal are waived").
¶10 Because the court found that Mother had not met her burden of proof, while it also modified parenting time, it implicitly found that Father had met his burden of demonstrating changed circumstances. We will uphold the court's ultimate determination on parenting time unless "the record [is] devoid of competent evidence to support [its] decision." Borg v. Borg, 3 Ariz. App. 274, 277 (1966) (citation omitted).
¶11 After noting that it would adopt a majority of its 2013 order, the court made findings on the record regarding four factors relevant to its decision.
¶12 First, the court considered A.R.S. § 25-403(A)(1), which requires consideration of the "past, present and potential future relationship between the parent and child." The court found that "[M]other is re-establishing her bond with the children," and noted that its 2013 finding that "[F]ather is the parent that has bonded with the children" remains the same. We presume the reasonableness of the order previously entered. Shulze v. Shulze, 79 Ariz. 86, 88 (1955). We agree with Mother that the court's findings could have been more detailed as to this factor, but find that the court substantially addressed it.
¶13 Next, the court considered A.R.S. § 25-403(A)(2), which concerns the interaction and interrelationship of the child with the parents, siblings, and other persons. The court found that Father "has appropriate parenting skills" and noted that it "has some concerns regarding mother's parenting skills." Mother argues the court analyzed A.R.S. § 25-403(A)(2) incorrectly by focusing on parenting skills. We agree with the trial court that parenting skills are a significant component of the parent/child relationship. Mother's argument that the court should have focused instead on Mother's and the children's relationship with her fiancé of six months is essentially a request to reweigh the evidence, and is unavailing. See Andro v. Andro, 97 Ariz. 302, 305-06 (1965) (finding that subsequent remarriage and a new home are not convincing reasons to warrant modification).
¶14 The court also considered A.R.S. § 25-403(A)(3), which addresses "the child's adjustment to home, school and community," finding that "the children remain adjusted to [F]ather's home" because "the children have been primarily with the [F]ather." The court noted that Mother "is expanding and re-establishing another household" and expressed concern that Mother seemed to have "another household every time that we have a hearing." The court found that the lack of stability in Mother's home life was "unsettling." We conclude that the court addressed this factor substantially and find no error in the court's failure to address the children's adjustment to school and the community because—as Mother points out—the children's adjustment "would be the same for each parent."
¶15 Finally, the court considered A.R.S. § 25-403(A)(5), finding that it still had concerns regarding Mother's mental and emotional health and her physical appearance. The court found that Mother was getting "somewhat stabilized" with her treatment and medication for seizures, but the court worried about Mother's overall health and found her thin appearance "disconcerting" compared to her appearance at previous hearings. Mother's argument that the court related her thin appearance improperly to her medical marijuana use is unavailing because the court made no findings regarding Mother's medical marijuana use. Though appearance alone is no basis for a parenting time determination, we conclude in these circumstances that the court addressed this factor substantially.
¶16 Mother argues the court erred when it did not "indicate how it weighed the evidence to reach its conclusion." We do not reweigh the evidence on appeal, and we defer to the superior court's role as fact finder to determine what weight to give the evidence. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). Additionally, the court noted that certain factors set forth in A.R.S. § 25-403(A) were not applicable. But the court is only required to consider "'all factors that are relevant'; not those that are obviously inapplicable." Baker v. Meyer, 237 Ariz. 112, 116, n.9, ¶ 11 (App. 2015). It is evident that the court considered all relevant factors and the record supports the court's best interests findings. II. BIAS
¶17 Mother argues that the court assisted Father, but not Mother, with admitting exhibits into evidence, thereby demonstrating its bias against Mother. We presume that trial court judges are free of prejudice and bias, and to overcome this presumption, a party must show bias or prejudice by a preponderance of the evidence. Cardoso v. Soldo, 230 Ariz. 614, 619-20, ¶ 19 (App. 2012). We find no evidence of bias. Mother only offered four exhibits into evidence, two of which the court admitted. Mother was unable to lay foundation for the admission of a field incident report, which Mother intended to use to rebut Father's claim that Mother had exposed the children to carbon monoxide. Any error in the exclusion of this evidence was harmless because the court did not rescind Mother's unsupervised visitation, as Father had requested, due to this incident. Mother was also unable to lay foundation for the alleged dismissal of Mother's domestic violence and disorderly conduct charges. Any error in the exclusion of this evidence was harmless because the court ultimately found that domestic violence concerns were not applicable.
¶18 Mother further argues that it was error for the court to allow testimony about text messages offered to show that Mother was not telling the truth about the length of her sobriety and her involvement in a "swinger" lifestyle. Any error in the admission of this evidence was harmless because the court gave Mother credit for her change in lifestyle and made no findings about concerns over Mother's substance abuse.
¶19 Finally, Mother argues that the court erred by admitting four exhibits that contained irrelevant hearsay. Because Mother fails to specify how admission of this evidence prejudiced her, we find no basis for reversal. See Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143 (App. 1987) (declining to develop an argument for a party). III. ATTORNEY'S FEES
¶20 Both parties request an award of attorney's fees and costs on appeal. Mother is not entitled to fees or costs because she is not the prevailing party. In our discretion, we deny Father's request for fees. We award Father his costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶21 For the foregoing reasons, we affirm.