Hindsley v. Hindsley

• Decision Date: 12 June 1985
• Docket Number: CA-CIV,No. 2,2
• Citation: 701 P.2d 1236,145 Ariz. 428
• Parties: Christina M. HINDSLEY, Petitioner/Appellant, v. Stephen M. HINDSLEY, Respondent/Appellee. 5350.
• Court: Arizona Court of Appeals

Page 1236

701 P.2d 1236

145 Ariz. 428

Christina M. HINDSLEY, Petitioner/Appellant, v. Stephen M. HINDSLEY, Respondent/Appellee.

No. 2 CA-CIV 5350.

Court of Appeals of Arizona Division 2, Department A.

June 12, 1985.

As Corrected Sept. 23, 1985.

Scott L. Taylor, Tucson, for petitioner/appellant

Barton & Halladay, P.C. by Michael Barton, Tucson, for respondent/appellee.

OPINION

FERNANDEZ, Judge.

The question in this case is whether the trial court had authority to order a change in the primary physical residence of the minor child of the parties over whom the parties have joint custody although it has been less than one year since the original custody order was entered and although the requirements of A.R.S. § 25-339 and Rule 8.4(f), Pima County Superior Court Local Rules, 17A A.R.S., were not met. We hold the order was not a modification of custody and affirm.

The marriage of the parties was dissolved pursuant to a decree entered May 9, 1984. A bifurcated custody hearing was held July 30, and the parties agreed to joint custody of their then 22-month-old son with primary physical custody in the mother and secondary custody in the father. The parties also agreed to a visitation schedule suggested by the Conciliation Court whereby the father would have the child the first seven days and third weekend of each month plus three weeks in the summer and seven days after Christmas.

The mother had had temporary sole custody pursuant to agreement since the filing of the petition for dissolution. During that period the father had twice filed petitions to hold the mother in contempt because of problems with visitation. After the hearing on the first petition, the court had ordered the parties to follow a specific visitation schedule and had denied the contempt petition. The hearing on the second petition was held together with the trial on the dissolution petition. The mother was found to be in contempt of the prior order and was admonished to obey it. The court also ordered the father to have reasonable visitation at all times.

In November 1984 a third petition for contempt was filed listing problems the father had had with visitation since the entry of the final decree in August. After a hearing an order was entered in February 1985 that the father would have primary physical custody and the mother would have the same visitation schedule as the father had previously had. The court stated the schedule was to be the minimum amount of visitation and strongly urged the parties to cooperate in more liberal visitation. Neither party was held in contempt of court.

The wife objected to the form of judgment, on the same grounds as are presented to us, and this expedited appeal followed the court's refusal to change the order.

The primary contention on appeal is that the court's order was in reality an order modifying custody and thus was in violation of A.R.S. § 25-332(B) which prohibits such motions within one year of entry of the custody decree. There is no question that the order was entered only seven months after the custody decree.

The record shows the parties and the court were cognizant of § 25-332(B). When the father filed his petition for contempt, the mother cross-petitioned seeking sole custody and the father's response stated that result was not yet available. At the hearing the court noted there could be no order awarding sole custody because the statute prevented it. When the mother objected to the form of judgment, the court found the statute was not applicable because custody had not been changed. The court noted the parties still had joint custody and only the primary residence of the child had been changed.

We find no error in the court's ruling. Pursuant to agreement the parties held joint custody of the minor child prior to the order, and they continue to hold joint custody. The order did not effect any change from joint custody to sole custody in one parent. As was stated in the recent case of Ingram v. Heath, (No. 2 CA-CIV 5320, unpublished opinion filed May 15, 1985), "Custody of a child involves more than the right to be with the child." Slip op. at 6. This court in that opinion adopted the definition of custody in A.R.S. § 8-101(4):

" 'Custody' means a status embodying the following rights and responsibilities:

(a) The right to have physical possession of the child.

(b) The right and the duty to protect, train and discipline the child, and

(c) The responsibility to provide the child with food, shelter, education and ordinary medical care, and the authority to consent to surgery or other extraordinary medical care in an emergency."

Joint custody does not mean a fifty-fifty sharing of time. "Each case will depend on the child's age, the parents' availability and desires, and other factors." Plemer v. Plemer, 436 So.2d 1348 at 1350 (La.App.1983); see also Carroway v. Carroway, 441 So.2d 494 (La.App.1983). "The essence of custody is the companionship of the child and the right to make decisions regarding his care and control, education, health, and religion." Lerner v. Superior Court, 38 Cal.2d 676 at 680, 242 P.2d 321 at 323 (1952). That essence has not been modified in this case; all that has changed is that the child will spend somewhat differing amounts of time with each parent than he did before.

Although joint custody is a relatively new concept in Arizona, and there are no appellate decisions governing it, joint custody has been awarded for some time at the trial level. Again, we find the case of Ingram v. Heath, supra, to be persuasive. This court there quoted a definition...