Evans v. Evans
| Decision Date | 27 April 1977 |
| Docket Number | No. 2,CA-CIV,2 |
| Parties | Susan E. EVANS, Appellant, v. James E. EVANS, Appellee. 2258. |
| Court | Arizona Court of Appeals |
A superior court order modifying the child custody provisions of a dissolution decree is the subject of this appeal. Appellant is the natural mother of the minor child and was awarded custody of the child in the dissolution decree filed February 11, 1975. The order from which this appeal is taken changed custody from appellant to appellee, the child's natural father, with reasonable visitation privileges to appellant.
An outline of the procedural chronology of events is necessary for an understanding of the issues. On September 8, 1975, a petition was filed in Pima County Juvenile Court by the paternal grandparents of the minor child. It alleged that the child, residing with the petitioners, was three years old, that the father resided in Las Vegas, Nevada, that the mother was in Minot, North Dakota, that the child had been with petitioners since about August, 12, 1975, that the mother had telephoned petitioners on two occasions but had not indicated when she would return to Arizona, and that the child was a dependent child within the purview of A.R.S. § 8-201 in that there was no parent to exercise proper and effective parental care and control. It further alleged that during the period of time that he was in the custody of his mother, the child was not properly provided with the necessities of life, was abused and neglected by his mother, and that the care she did provide him was such that the child's health, morals and emotional well-being were endangered.
A hearing on the petition was commenced on October 3, 1975, with the petitioners and natural parents present and represented by counsel. Appointed counsel for the minor child was also present. The hearing continued on October 6, and at the conclusion thereof, the child was adjudicated a dependent minor child and the paternal grandparents were appointed co-guardians. The minute entry order recites:
"Court would like to see the child with one of its natural parents soon as possible. Court feels it would be fair to see if the mother and her new husband's marriage succeeds. The father testified he is not able to take the child and went back to Las Vegas; and because of the testimony he heard, Mrs. Grey (sic) has not been able to be an effective parent. Court finds further that the child was a dependent child when the petition was filed and there is no change of circumstances since the petition was filed. The mother is willing and should have a chance to see if she is able to make her marriage go, but, it is only fair in this circumstance to let the child stay where he is until the mother gets her problems worked out and her home is evaluated by the appropriate authorities in North Dakota.
Court will accept the recommendation of Norman Spindler and further find after considering the evidence that A.R.S. § 8-241 also applies and that said minor is a dependent minor child; and
IT IS FURTHER ORDERED that a review of this matter be held not to exceed six (6) months or sooner if counsel feel that one should be held earlier.
THAT Mr. Spindler will cause the appropriate agency in North Dakota to look into the home situation of the natural mother and soon as an evaluation of the natural mother's home is made and the report of those authorities indicate that the mother's home situation is suitable for the child, the Court could then make further determination of this case and place the child without further necessity of the mother and Mr. Guy (sic) coming back for the hearing."
No appeal was taken from the dependency adjudication and therefore it is conclusive. A review hearing was subsequently held on February 17, 18 and 19, 1976. Over appellant's objection, the court on its own motion ordered consolidation of the juvenile cause and cause number D-4057, the divorce case. On February 19, after all the evidence relative to dependency was completed, the child's father filed a petition for modification of the decree as to child custody. Copies of the petition, which had been filed in open court, were furnished to appellant's counsel and the attorney representing the minor child. Extensive arguments were presented to the court and the position of both appellant's attorney and the child's attorney was that the court could rule only on the question of dependency and could not summarily dispose of the modification issue based on evidence presented at the dependency review hearing. At the conclusion of the hearing, the court ordered:
"IT IS THE FINDING OF THE COURT that neither party at this time is ready, able and willing to take care of said child without assistance of the Court, therefore,
IT IS ORDERED that the care, custody and control of said minor be placed with the natural mother, Susan Evans Gray, with Dennis Gray, with the request the Juvenile Court in Minot, North Dakota, exercise courtesy supervision in this matter and that Mr. Blore render a written report to this Court within sixty (60) days from this date as to what progress he finds.
IT IS FURTHER ORDERED that any of the parties may request a review hearing at the end of the sixty (60) days, but in any event that a review hearing be held in this matter not later than one (1) year from this date."
Appellee's attorney thereupon moved for a stay order which was granted and the court directed that the custody and control of the minor child remain with the paternal grandparents. The court further ordered that pending any matter that might be filed, the juvenile case and the divorce case would remain consolidated.
A motion for reconsideration was filed on March 3, 1976, by the grandparents requesting in the alternative that: (1) the dependency continue with the care, custody and control of the child remaining in the grandparents; or (2) the dependency petition be dismissed, a hearing be set on appellee's petition for modification and that a temporary order keeping the child with the grandparents be issued until disposition of the petition for modification; or (3) the dependency action be dismissed and the petition for modification of custody be granted, based upon the evidence adduced at the initial dependency hearing and at the subsequent review hearing. The motion was vigorously opposed by appellant and counsel urged the court to sever the cases and vacate the stay order.
On April 21, 1976, a hearing was held on the motion to reconsider 1 at which time appellee's attorney advised the court that appellee had been reassigned to the State of Arizona, that he was reporting for duty at Luke Air Force Base and had obtained a two-bedroom apartment in Glendale, Arizona, and was ready, willing and able to take care of the child with the assistance of his parents. He argued that the change in circumstances warranted modification of custody, and that the court had certainly heard more than enough evidence: He stated:
"If we were to have another hearing on the modification, I don't think we would hear testimony any different than what the Court has already heard on two previous occasions."
Counsel did suggest that if the court was not satisfied with his representation, the stay order should remain in effect and the motion for modification be set for hearing. Appellant's attorney vigorously opposed the requested modification, pointing out to the court that the purpose of the February review hearing was to see whether the dependency adjudication should continue and that appellant had returned from North Dakota to Arizona in February to prove to the court that she was then able to re-assume custody of the child, her right to custody having been established by the dissolution decree.
The court granted the motion to reconsider, finding that the child was not a dependent child as of that time. It further found that the father was ready, willing and able to regain custody of his child and did not need court assistance or supervision; and that the mother was not ready, able and willing to resume custody of her child without continued assistance of the court on a courtesy supervisory basis with the juvenile court of Minot, North Dakota, thus the child would be a dependent...
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...providing a fit household, not simply on comparative rights to custody as under the domestic relations laws. See Evans v. Evans, 116 Ariz. 302, 306, 569 P.2d 244, 248 (App.1977). The juvenile court is not required to grant custody to a petitioning party. The statute, A.R.S. § 8-241(A), auth......
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Appeal in Pima County Juvenile Action No. S-1182, Matter of
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