Opinion
1 CA-CV 23-0340
01-30-2024
In re the Matter of: STATE OF ARIZONA, ex rel., DEPARTMENT OF ECONOMIC SECURITY, (BRITTANY LYNN MAYCLIN), Petitioners/Appellees, v. ANTHONY DAIJON GREGORY, Respondent/Appellant.
Law Office of Florence M. Bruemmer, P.C., Anthem By Florence M. Bruemmer Counsel for Petitioners/Appellees The Law Offices of Robert Casey, Phoenix By Robert Casey Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2021-052196, FC2022-001075 The Honorable Michael Valenzuela, Judge
Law Office of Florence M. Bruemmer, P.C., Anthem By Florence M. Bruemmer Counsel for Petitioners/Appellees
The Law Offices of Robert Casey, Phoenix By Robert Casey Counsel for Respondent/Appellant
Judge D. Steven Williams delivered the Court's decision, in which Presiding Judge Daniel J. Kiley and Judge Kent E. Cattani joined.
MEMORANDUM DECISION
WILLIAMS, Judge
¶1 Anthony Gregory ("Father") appeals the superior court's order modifying parenting time, finding him in contempt, and awarding attorney's fees to Brittany Mayclin ("Mother"). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Mother have one child in common, born in 2018. In 2019, Mother moved with the child from South Dakota to Arizona.
¶3 Unable to reach an informal agreement with Father regarding parenting time, Mother petitioned for parenting orders in South Dakota. Specific to this appeal, a South Dakota court entered orders: (1) designating Mother as the primary custodial parent; (2) outlining a progressive parenting time schedule for Father-initially limited to "quarterly visits for up to three [] days for eight [] hours per day" but intended to expand "as the child ages"; (3) requiring Father to pay the child's health, dental, and vision insurance; and (4) providing for an equal division of the child's daycare, medical, dental, and vision expenses (with Mother paying the first $250 of uninsured medical/dental/vision costs).
¶4 In 2021, the superior court notified Father, who had since relocated to Washington, that the South Dakota parenting order had been registered in Arizona. In 2022, Father petitioned the superior court for modified parenting time, requesting both equal parenting time and authorization to travel with the child out of state to Washington for one week each month until the child enrolls in kindergarten. Mother, in turn, cross-petitioned for enforcement of the existing parenting orders, asking the court to find Father in contempt, order him to reimburse her for the child's daycare and insurance expenses, and award her attorney's fees and costs. Mother also asserted that Father's request for substantially increased parenting time "was too much, too soon" and proposed a modified parenting time schedule granting Father "one weekend per month" with the child.
¶5 In 2023, following an evidentiary hearing on the parties' petitions, the superior court found "that modification of the parenting time orders serves the child's best interest[s]." But the court did not adopt either party's proposed parenting time schedule; instead, the court increased Father's "parenting time with the child [to] one week per month" and ordered Father to "exercise his parenting time in Arizona during the school year." The court also determined that Father had "willfully failed to comply" with the South Dakota parenting orders by refusing to reimburse Mother for the child's daycare (50%) and insurance expenses. As a purge for the contempt, the court ordered Father to "pay the amount due to Mother, $2,684.42." Citing Arizona Rule of Family Law Procedure 92, the court also awarded Mother a portion of her attorney fees "as a sanction for Father's contempt."
¶6 Father timely appealed from the superior court's signed, final order.
DISCUSSION
I. Modification of Parenting Time
¶7 Father challenges the superior court's modified parenting time order. According to Father, the court denied his request for equal parenting time based on an erroneous and "speculative" finding that he could not sustain the financial costs of such an arrangement. Father argues the court's modified parenting time schedule-granting him only one week per month with the child-violates Arizona's "well-defined public policy," codified into law, favoring equal parenting time.
¶8 We review an order modifying parenting time for an abuse of discretion but review de novo questions of statutory interpretation. Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 491, ¶ 9 (App. 2020). Under this standard, we accept the superior court's "findings of fact unless clearly erroneous, giving due regard to the opportunity of the court to judge the credibility of witnesses." In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5 (App. 2000).
¶9 "When presented with a request to modify . . . parenting-time provisions, the superior court must engage in a two-stage inquiry." Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020). "First, the court must ascertain whether there has been a change of circumstances materially affecting the welfare of the child." Id. (quotation omitted). Here, neither party disputes the superior court's finding of a material change in circumstances since the South Dakota court entered its parenting time order. Second, upon finding a material change in circumstances, the court must determine whether a change in parenting time will be in the best interests of the child, id., considering "all factors that are relevant to the child's physical and emotional well-being." Id. at 346, ¶ 26; see also A.R.S. § 25-403(A) (providing a non-exhaustive list of factors the court must consider when determining parenting time orders).
¶10 "As a general rule equal or near-equal parenting time is presumed to be in a child's best interests." Woyton v. Ward, 247 Ariz. 529, 531, ¶ 6 (App. 2019). Section 25-403.02(B) states that "[c]onsistent with [a] child's best interests," a "court shall adopt a parenting plan that . . . maximizes [both parents] respective parenting time." And as Father points out, A.R.S. § 25-103(B) provides "that absent evidence to the contrary, it is in a child's best interest . . . [t]o have substantial, frequent, meaningful and continuing parenting time with both parents."
¶11 But these statutes do not mandate equal parenting time, "remove the requirement that the [superior] court adopt a parenting plan consistent with [the] child's best interests," or otherwise encroach on the court's "discretion to determine parenting time based on all the evidence before it." Gonzalez-Gunter, 249 Ariz. at 492, ¶¶ 11, 12. Indeed, equal parenting time "may not always be possible, particularly when the parties live in different states or are separated by a considerable distance." Woyton, 247 Ariz. at 531, ¶ 6.
¶12 With these principles in mind, we consider the evidence presented at the evidentiary hearing. Father testified that as of the hearing date, he had maintained a permanent residence in Arizona, with dedicated space for the child's bed and belongings, for at least eight months. Father also testified that he and the child have strongly bonded and that he has consistently exercised parenting time to the extent permitted under the existing parenting time order. Addressing his request for regular out-ofstate travel to Washington with the child (where Father spends half of his time), Father explained that it would allow the child to bond with Father's two older children. When asked about the financial hardship of traveling extensively and maintaining dual residences in both states, Father acknowledged that he had "rack[ed] up credit card debt" and had "take[n] out a second [$100,000] mortgage" to finance the additional costs, but stated that he could manage the additional expense, noting that his girlfriend had offered to help him financially.
¶13 Mother, for her part, testified that Father's proposed out-of state travel with the child would cause instability and undermine the child's established activities and routine. Pointing to a prior incident in which Father acknowledged leaving the child with a third party in Arizona while he traveled out-of-state during his parenting time, Mother expressed concern that given the parties' poor communication, she would not know the child's whereabouts if the court permitted Father to travel with him out-of-state.
¶14 In evaluating the parties' proposed parenting time schedules, the superior court analyzed the factors under A.R.S. § 25-403(A), making specific findings for each and expressly noting, among other things: (1) both parties have a strong relationship with the child, (2) the child has good relationships with Father's girlfriend and with Father's older children (although having "only recently begun contact" with one of them), (3) Father "consistently exercised parenting time," and (4) the parties have been unable to negotiate disagreements informally. While commending Father's "commitment," the court expressed two concerns with his proposed equal parenting time schedule:
First, Father testified that he has incurred great expense in traveling between Arizona and Washington to exercise his parenting time.... [T]he Court is concerned that an increase in the frequency that Father needs to travel to Arizona would cause a situation in which he could no longer afford to travel to Arizona for parenting time. This in turn could negatively impact the child's stability and best interests. Second, the child is about to enter school. The Court must therefore adopt a parenting time plan that works now and when the child begins school. Father's proposed plan could interfere with the child's stability as he begins his education. Weighing all the statutory factors, the court found that increased parenting time of one week per month with Father would serve the child's best interests, but equal parenting time-"split[] between Washington and Arizona"-would undermine the child's best interests.
¶15 Reasonable evidence supports the court's best-interests findings. Though Father takes issue with the court's concern that increased parenting time split between two states could place a financial burden on him and negatively impact the child's best interests, the court also found that Father's proposed plan would interfere with the child's stability as he begins his education.
¶16 On appeal, we consider only whether the evidence reasonably supports the court's findings, not whether the evidence also might reasonably support other findings. See Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5 (App. 1998). Because the superior court adequately considered each factor relating to the child's best interests and the record reasonably supports its findings that Father's proposed plan would interfere with the child's educational stability (something Father does not challenge on appeal), the court did not abuse its discretion in ordering the modified parenting time schedule.
II. Finding of Contempt and Award of Attorney's Fees
¶17 Father also challenges the superior court's contempt finding and its corresponding award of attorney's fees to Mother on that basis.
¶18 We have an independent duty "to determine whether we have appellate jurisdiction and must dismiss those matters over which we lack jurisdiction." Gish v. Greyson, 253 Ariz. 437, 442, ¶ 19 (App. 2022). "Whether this court has appellate jurisdiction turns on compliance with (1) the applicable statute on which appellate jurisdiction is based and (2) any applicable procedural rules." Id. (quotation omitted).
¶19 It is a "well-established rule" that this court lacks jurisdiction over a civil contempt adjudication on direct review. In re Marriage of Chapman, 251 Ariz. 40, 42, ¶ 8 (App. 2021); Henderson v. Henderson, 241 Ariz. 580, 585, ¶ 7 (App. 2017). Thus, while we have jurisdiction over the superior court's modified parenting time ruling, we lack jurisdiction to review its finding of contempt and award of attorney's fees to Mother as a sanction for Father's failure to abide by the South Dakota parenting orders. Accordingly, we decline to review the court's contempt finding and its corresponding imposition of sanctions. Gish, 253 Ariz. at 442-43, ¶ 20 (declining to review a superior court's imposition of sanctions for a parent's violation of a parenting order because the underlying contempt finding was not reviewable on direct appeal).
CONCLUSION
¶20 We affirm. Mother requests an award of attorney's fees under A.R.S. § 25-324, which authorizes an award of attorney's fees after considering both parties' financial resources and the reasonableness of their positions throughout the proceedings. In our discretion, we deny her request but award Mother her taxable costs upon compliance with ARCAP 21.