Hart v. Hart

• Decision Date: 03 March 2009
• Docket Number: No. 1 CA-CV 07-0794.,1 CA-CV 07-0794.
• Citation: 204 P.3d 441
• Parties: In re the Marriage of Michael Robert HART, Petitioner/Appellee, v. Kari Rose HART, Respondent/Appellant.
• Court: Arizona Court of Appeals

204 P.3d 441

In re the Marriage of Michael Robert HART, Petitioner/Appellee, v. Kari Rose HART, Respondent/Appellant.

No. 1 CA-CV 07-0794.

Court of Appeals of Arizona, Division 1, Department A.

March 3, 2009.

Law Offices of Dennis G. Bassi PLLC By Dennis G. Bassi, Phoenix, Attorney for Petitioner/Appellee.

Law Offices of John R. Zarzynski By John R. Zarzynski, Phoenix, Attorney for Respondent/Appellant.

OPINION

BARKER, Judge.

¶ 1 Kari Rose Hart ("Mother") appeals from a modification order granting Michael Robert Hart ("Father") sole legal and primary physical custody of the parties' two minor children and ordering that Mother's parenting time be supervised. For the reasons that follow, we vacate the custody order and the parenting time order and remand for further proceedings.¹

Facts and Procedural Background

¶ 2 When the parties divorced in 2003, Mother was awarded sole legal custody and primary physical custody of their two children. At that time both parents lived in Arizona. In 2005 Mother had remarried and, after an evidentiary hearing and custody evaluation, was permitted to relocate with the children to Texas.

¶ 3 Father briefly moved to Texas to be near the children. However, he returned to Arizona approximately six months later after being unable to find steady employment. Around the same time, Mother separated from her husband and moved with the children to an apartment. This required that the children change schools.

¶ 4 In June 2007 Father filed a petition for mediation seeking physical custody of the children.² Mother did not appear for the mediation conference on July 12, 2007. Father then filed a petition to modify custody. He also filed a petition for temporary orders to allow the children to remain in Arizona and start school.³ Mother was served with notice and the petitions. The court also entered an order to appear regarding the petition to modify child custody, parenting time and support, and the motion for temporary orders. The order to appear set a "hearing" for July 27, 2007.

¶ 5 Mother filed her response on July 26, 2007. Mother appeared telephonically, but her attorney was present. The court stated that it was holding a "resolution management conference." After determining that it had jurisdiction, the court proceeded to hear the merits of the petition. Mother objected that she was not prepared for an evidentiary hearing because the court's order to appear stated that it would not hear testimony at this hearing. The court overruled her objections and allowed Father to testify.

¶ 6 The court continued the hearing until August 14, 2007, and denied Father's request that the children remain with him in Arizona pending the court's ruling. The children returned to Texas to be with Mother in August.

¶ 7 Subsequently, the court concluded that it would be in the children's best interests to live with Father in Arizona and for Mother to have only supervised parenting time in the summer or on school breaks. Mother filed a motion for reconsideration arguing that there was no evidence of a substantial and material change in circumstances and that the court failed to make findings regarding several relevant factors relating to the children's best interests. The court denied the motion without comment. Mother filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(C) (2003).

Discussion

1. Adequacy of the Court's Findings of Fact and Conclusions of Law as to the Custody Order

¶ 8 Mother argues that the court abused its discretion by failing to make detailed findings of fact in compliance with A.R.S. § 25-403(B) (2007). Father contends that this court must presume that the family court made every finding necessary to support its judgment and sustain the judgment if there is sufficient evidence in the record to support the court's conclusion. "We review the [family] court's decision regarding child custody for an abuse of discretion." Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App.2003).

¶ 9 In making a custody determination, the family court must consider the factors enumerated in A.R.S. § 25-403(A) regarding the children's best interests. In a contested custody case, the court must make specific findings regarding all relevant factors and the reasons the decision is in the best interests of the children. Section 25-403(B) provides: "In a contested custody case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child." Failure to make the requisite findings pursuant to A.R.S. § 25-403 can constitute an abuse of discretion requiring reversal and a remand. See Owen, 206 Ariz, at 421-22, ¶ 12, 79 P.3d at 670-71 (holding that the family court abused its discretion in its custody award by not making findings on the record, and subsequently reversing and remanding for additional findings); Downs v. Scheffler, 206 Ariz. 496, 501, 503, ¶¶ 19, 34, 80 P.3d 775, 780, 782 (App. 2003) (holding the same but also ordering further cross-examination); In re Marriage of Diezsi, 201 Ariz. 524, 526, 527, ¶¶ 5, 11, 38 P.3d 1189, 1191, 1192 (App.2002) (vacating a custody award based on the lack of findings and remanding for findings).

¶ 10 The family court's findings do not refer to the absence or presence of any of the ten enumerated statutory factors listed in A.R.S. § 25-403(A). The court stated that it was "abundantly clear" that it was in the children's best interests to relocate from Texas back to Arizona and that Mother only have supervised parenting time. The court found that Mother left the children alone after school on weekdays and "at other times when Mother [was] with her new boyfriend." Father, conversely, had his mother watch the children when he worked. The court also noted that Mother no longer lived with her husband but had moved the children into a "small apartment," which required a change of schools. Finally, the court was concerned that Mother posed nude with her boyfriend on an adult website.

¶ 11 Although these are all relevant facts, there are no findings as to the following statutory factors: (1) the wishes of the children and parents as to custody; (2) the interaction and relationships between the children and parents and, in this case, the children and Father's mother, with whom he lives; (3) the children's adjustment to home, school, and community; (4) the physical and mental health of the children and parents; (5) which parent is more likely to allow frequent and meaningful contact with the other parent; (6) which parent has provided primary care; (7) whether any coercion or duress was used in obtaining a custody agreement; and (8) whether there was any false reporting of child abuse or neglect. See A.R.S. § 25-403(A).

¶ 12 There was evidence regarding many of the foregoing factors. For example, the children, ages nine and twelve at the time, apparently told Father they wanted to move to Arizona. Father and his mother testified about their neighborhood and the local school. Mother also testified about her community, the children's school, and their activities in Texas. Mother testified that her oldest child was doing well in school and about how she had dealt with her child's learning disabilities. Both parents testified positively about their ability to co-parent when both were living in Texas. Mother testified that she had been the primary caregiver since 2005. Mother also testified that she could find a babysitter for afterschool hours but that there had never been any problems with the children. Mother testified that she did not expose the children to the adult website; however, Father claimed they knew the name of the website.

¶ 13 Father argues that this court must presume that the family court made the necessary findings to support its judgment. However, the cases Father cites predate A.R.S. § 25-403(B), which was in effect here and specifically requires that "[i]n a contested custody case, the court shall make specific findings on the record about all relevant factors ...." (Emphasis added.) See also Downs, 206 Ariz. at 501, ¶ 19, 80 P.3d at 780; Owen, 206 Ariz. at 421-22, ¶ 12, 79 P.3d at 670-71; and Diezsi, 201 Ariz. at 526, ¶ 5, 38 P.3d at 1191. Compare Stanberry v. Stanberry, 81 Ariz. 215, 216-17, 303 P.2d 706, 706 (1956) (holding in a custody decision prior to the adoption of A.R.S. § 25-403(B) that when "no findings of fact appear in the record, the presumption is that the court found every fact necessary to support the judgment"). The findings here did not comply with the statute. In this case, a weighing of the statutory factors—which the family court was statutorily required to document with findings but did not—may have yielded a different outcome. See Owen, 206 Ariz. at 421, ¶ 12, 79 P.3d at 670.

¶ 14 Accordingly, we vacate the custody order and remand to allow the family court to make additional findings and conclusions in accordance with A.R.S. § 25-403. We vacate the custody order, rather than simply remand for additional findings, because of the significant number of factors not addressed. See Diezsi, 201 Ariz. at 527, ¶ 11, 38 P.3d at 1192 (vacating custody award based on lack of findings). By doing so, we do not suggest a particular outcome on remand nor do we require additional evidentiary proceedings, unless the court determines that they would be appropriate.

2. Supervised Parenting Time

¶ 15 Mother also contends that the family court abused its discretion by ordering that her parenting time be supervised because (1) Father never requested such a restriction and (2) the court failed to make findings to support this restriction pursuant to A.R.S. § 25-410(B) (2007) or A.R.S. § 25-411(D) (Supp.2008).

¶ 16 In his petition to modify custody, Father did not request sole custody or supervised parenting time. Both §§ 25-410(B) and 25-411(D) allow the court to order...