Engstrom v. McCarthy

• Citation: 411 P.3d 653
• Decision Date: 09 January 2018
• Docket Number: No. 1 CA-CV 16-0689 FC,1 CA-CV 16-0689 FC
• Parties: In re the Matter of: Dana Jennifer ENGSTROM, Plaintiff/Appellant/Cross–Appellee, v. James MCCARTHY, Respondent/Appellee/Cross–Appellant.
• Court: Arizona Court of Appeals

411 P.3d 653

In re the Matter of: Dana Jennifer ENGSTROM, Plaintiff/Appellant/Cross–Appellee,

v.James MCCARTHY, Respondent/Appellee/Cross–Appellant.

No. 1 CA-CV 16-0689 FC

Court of Appeals of Arizona, Division 1.

FILED January 9, 2018

Burggraff Tash Levy PLC, Scottsdale, By Randi Burggraff, Justin Tash, Michael Dinn, Jr., Counsel for Plaintiff/Appellant/Cross–Appellee

Ruth Atkinson Lusby PA, Scottsdale, By Ruth A. Lusby, The Murray Law Offices PC, Scottsdale, By Stanley D. Murray, Co–Counsel for Defendant/Appellee/Cross–Appellant

Judge Maurice Portley¹ delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.

PORTLEY, Judge:

¶ 1 Dana Engstrom ("Mother") and James McCarthy ("Father") both challenge the parenting time and legal decision-making terms of the decree dissolving their marriage. Because we find their Arizona Rule of Family Law Procedure ("Rule") 69 agreement binding and no explanation in the record for any modification, we vacate the legal decision-making and parenting time orders and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 The parties married in 2002 and have four children. Mother filed a petition for dissolution of marriage in 2014.

¶ 3 After trial, the family court dissolved the marriage, awarded Mother sole legal decision-making authority, and awarded the parties shared parenting time. We have jurisdiction over the cross-appeals from the July 2016 decree under Arizona Revised Statutes ("A.R.S.") section 12–2101(A)(1).

DISCUSSION

¶ 4 Both parents challenge the award of parenting time and legal decision-making. We will affirm the family court's order of parenting time and legal decision-making absent an abuse of discretion. Nold v. Nold , 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093 (App. 2013). An abuse of discretion results when the record is "devoid of competent evidence to support the decision," or when the court commits an error of law in the process of reaching a discretionary conclusion. Hurd v. Hurd , 223 Ariz. 48, 52, ¶ 19, 219 P.3d 258 (App. 2009). Moreover, we defer to the court's findings of fact unless they are clearly erroneous. See Alvarado v. Thomson , 240 Ariz. 12, 14, ¶ 11, 375 P.3d 77 (App. 2016). But "[c]onclusions of law and the interpretation of statutes and rules are reviewed de novo." Id.

A. Rule 69 Agreement

¶ 5 Father contends that, because he and Mother had entered into a Rule 69 agreement before trial that was approved and adopted by the court as an enforceable order, the court "could not modify [the] final, existing order regarding legal decision-making and parenting time absent a showing of a substantial and continuing change of circumstances." Mother disagrees, and claims "the [family] court had authority to reject the parties' Rule 69 Agreement because it ha[d] discretion" to do so under Rule 69(B) and A.R.S. § 25–317.

¶ 6 In an October 2014 pretrial resolution management conference, the parties entered into a Rule 69 agreement in court. Mother and Father agreed to share joint legal decision-making authority and parenting time. The court found the agreement was "fair and equitable," and "in the best interest of the parties' minor children." Consequently, the court approved the agreement "as an enforceable order of th[e] Court."

¶ 7 At trial, Mother admitted she had voluntarily entered into the Rule 69 agreement in court, and that she did so with her attorney present. She claimed, however, that at the time she entered into the agreement she believed its provisions were only temporary. After reviewing the agreement and the "enforceable order," the court ruled that "the agreement for joint legal decision-making and equal parenting time was not temporary."² Nevertheless, citing A.R.S. § 25–317and Rule 69(B) as legal authority, the court said that "[n]otwithstanding the parties' binding agreement, this [c]ourt can reject an agreement if the [c]ourt, pursuant to its own discretion, finds a basis for rejecting an agreement." The court then modified the portion of the order granting Mother and Father joint legal decision-making authority, and granted Mother sole legal decision-making authority.

¶ 8 Under A.R.S. § 25–317(A), "parties may enter into a written separation agreement containing provisions for ... custody and parenting time" while their dissolution of marriage is pending. The agreement is "presumed to be valid and binding," but a court retains authority to "exercis[e] its independent discretion pursuant to A.R.S. § 25–317." Ariz. R. Fam. Law P. 69(B). Under A.R.S. § 25–317(D), a court has discretion to reject a Rule 69 agreement if it is not "reasonable" as to custody and parenting time. But if the court finds that the agreement "is reasonable as to support, custody and parenting time of children, the separation agreement shall be set forth or incorporated by reference in the decree of dissolution." A.R.S. § 25–317(D) (emphasis added).

¶ 9 The family court erred by concluding that Rule 69 and A.R.S. § 25–317 vested it with authority to modify the agreement after it had previously found the agreement was reasonable, and had approved it "as an enforceable order." Although courts can, in the first instance, reject a Rule 69 agreement, neither the statute nor the rule vest courts with discretion to modify an agreement the court has adopted.³ Once the court determines that the provisions addressing "support, custody and parenting time of children" are reasonable, the statute states that the court "shall" set forth the provisions in the decree of dissolution or incorporate them by reference.

¶ 10 We do not suggest that an agreement that was approved and adopted as an enforceable order cannot be subsequently modified. See A.R.S § 25–317(F) ("Except for terms concerning the maintenance of either party and the support, custody or parenting time of children, entry of the decree shall thereafter preclude the modification of the terms of the decree." (emphasis added)); see also A.R.S. § 25–411(A) (discussing grounds on which legal decision-making or parenting time can be modified); Ariz. R. Fam. Law P. 85(C). But the legal basis giving the court authority to modify the Rule 69 agreement is in other rules and statutes. A party may, for example, request a modification of legal decision-making or parenting time by satisfying the requirements of A.R.S. § 25–411. And "[i]n considering a motion for change of custody, the court must initially determine whether a change of circumstances has occurred since the last custody order." Pridgeon v. Superior Court (LaMarca) , 134 Ariz. 177, 179, 655 P.2d 1 (1982) ; see also A.R.S. § 25–411(L) (explaining that a court shall deny a motion "[t]o modify any type of legal-decision making or parenting time order ... unless it finds that adequate cause for hearing the motion is established by the pleadings"); cf. Burk v. Burk , 68 Ariz. 305, 309, 205 P.2d 583 (1949) (noting that a modification of custody requires "that a change of conditions and circumstances be shown, or new facts presented, which were unknown to the applicant at the time the decree was entered"). Here the parties disagree on whether a change of circumstances occurred, and both parties make reasonable arguments to support their positions. But the court did not consider any alleged change of circumstances after the Rule 69 agreement was adopted as an enforceable order because it relied solely on A.R.S. § 25–317 and Rule 69. And given the fact-intensive nature of the inquiry, this court is not the appropriate forum to first resolve the issue on appeal without the family court having done so.

¶ 11 As a result, we vacate the order changing decision-making authority to the extent it modified the approved Rule 69 agreement. We remand the case to the family court so it can determine in the first instance whether there was a change of circumstances after the court accepted the agreement warranting a modification of the original order, or whether there was another rule or statute allowing the court to modify the Rule 69 agreement.

B. Domestic Violence Findings⁴

¶ 12 The court declined to grant Father's request for an award of joint legal decision-making authority because, among other things, the court concluded Father had engaged in "significant domestic violence." See A.R.S. § 25–403.03(A) ("Notwithstanding subsection D of this section, joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to § 13–3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence."). Father does not attack the factual findings of the court, but argues the "findings do not establish the commission of domestic violence as defined under Arizona law." The court explained its findings by stating the following:

[T]he domestic violence involved in this case is significant. It involves coercive control and using the parties' children to further traumatize Mother. While the court does not find sexual violence occurred, the Court does find Father exerted control over Mother by encouraging Mother to participate in online sexual activity, have sex with prostitutes, threatening to have affairs or leave Mother if Mother failed to gratify Father, and convincing Mother that she was the one who tried to "control" Father. Further, Father's actions in driving by Mother's workplace with the children in the car to ensure Mother was at work, buying clothing for the children with the same-sounding name as Mother's online porn name, exploiting his telephonic contact with the children, and otherwise trying to manipulate the children in order to further control (i.e., victimize) Mother is untenable and intolerable. In the spectrum of domestic violence, the acts in this case are significant.

The factual findings, some of which occurred before the parties entered into their Rule 69 agreement, were supported by the record, and were...