Mothershed v. Greenen
| Decision Date | 30 December 2014 |
| Docket Number | No. 1 CA-CV 13-0686,1 CA-CV 13-0686 |
| Parties | In re the Matter of: JANINE MARIE MOTHERSHED, Petitioner/Appellant, v. WILLIAM RYAN GREENEN, JR., Respondent/Appellee. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
The Honorable Timothy J. Ryan, Judge
AFFIRMED
S. Alan Cook, PC, Phoenix
By S. Alan Cook
William Ryan Greenen, Jr., Mesa
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.
¶1 Janine Mothershed ("Mother") moved to modify child custody. After an evidentiary hearing, the family court found that Mother had not met her burden of showing a change of circumstances affecting the welfare of the child ("the Child") and dismissed her petition. She appeals that ruling, the court's refusal to admit statements of the paternal grandparents during the hearing, and the award of attorneys' fees to William Ryan Greenen, Jr. ("Father"). For the following reasons, we affirm.
¶2 Mother and Father were the Child's parents. In March 2006, the family court awarded them joint legal custody of Child, but Mother was awarded final decision-making authority on educational matters and Father was awarded final decision-making authority on medical matters. Moreover, if Father lived within fifteen miles of the Child's school, the parents would have equal parenting time; otherwise, Father would have parenting time every other weekend from after school on Friday until before school on Monday.
¶3 Father periodically relocated within and beyond the fifteen-mile range. In May 2012, after having been outside of the fifteen-mile range for at least the school year, Father moved within the fifteen-mile area and began to exercise equal parenting rights.
¶4 On May 7, 2012, Mother moved to modify custody and parenting time, seeking sole custody with supervised parenting time or no parenting time for Father. Mother alleged that Father had multiple drug charges, threatened to assault her, kept little food in his home, lived in an unsafe neighborhood, and would not allow Child to visit friends. Mother also alleged that Child's stepmother yelled at Child for eating too much and that Child was upset she had to carry clothes and books back and forth between the homes. Mother asserted that the Child's grades and mental status would suffer if Mother were not granted emergency custody.
¶5 At trial, Mother had revised her position. Mother sought joint legal custody with the right of final decision making and to be designated primary residential parent, with Father having parenting time alternate weekends. Mother also sought to admit into evidence written statements from the Child's paternal grandparents, but the family court sustained Father's objection on hearsay grounds.
¶6 After Mother rested her case, the court indicated that it did not believe Mother had met her burden of proof. Father moved for a directed verdict and the court granted the motion, dismissed Mother's petition, and ordered Father to submit an application and affidavit for an award of attorneys' fees.
¶7 The family court dismissed Mother's petition and awarded Father $4,710.31 in attorneys' fees and costs. Mother appealed after filing an unsuccessful motion for new trial.1
¶8 Mother argues that the family court abused its discretion in dismissing her petition when she rested her case. Mother argues that her petition was not frivolous and that she presented a reasonable basis for the family court to grant modification.
¶9 The party seeking a change in legal decision-making or parenting time has the burden of proving a change in circumstances materially affecting the welfare of the child. Hendricks v. Mortensen, 153 Ariz. 241, 243, 735 P.2d 851, 853 (App. 1987); Bailey v. Bailey, 3 Ariz. App. 138, 141, 412 P.2d 480, 483 (1966). Changes in activities and environment are not a basis for modification unless shown to be detrimental to the child's welfare. Davis v. Davis, 78 Ariz. 174, 176, 277 P.2d 261, 263 (1954). The family court has broad discretion to determine if a change of circumstances exists and we will not reverse the court's determination absent a clear abuse of discretion. Hendricks, 153 Ariz. at 243, 735 P.2d at 853. In reviewing a directed verdict based on the insufficiency of the evidence in a bench trial, we may treat the ruling as a judgment on partial findings under Arizona Rule of Family Law Procedure ("A.R.F.L.P.") 82(c). Johnson v. Pankratz, 196Ariz. 621, 626 ¶ 19, 2 P.3d 1266, 1271 (App. 2000) (). Reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to upholding the ruling. Id. at 626 ¶ 20, 2 P.3d at 1271.
¶10 Mother had the burden of demonstrating a change in circumstances materially affecting the welfare of the Child such that a modification of custody and parenting time would be in the Child's best interest. Mother argues that she presented sufficient evidence, based on her own testimony, the Conciliation Services' report, and the statements of the Child's paternal grandparents that the family court had excluded.
¶11 Mother testified that the Child was always upset when she went to Father's home. She stated that Father could not financially support the Child so the Child had to take school clothes back and forth between the two homes. Mother testified that Father had limited food, restricted the Child's friends, and did not allow the Child to attend parties and sleepovers. Mother also testified that the Child had asthma and Father had ten German Shepherds, which required the Child to use her inhaler. Mother described the Child as a great student who actively participated in competitive gymnastics. Mother expressed concern that the Child's grades would suffer if Father had equal parenting time. Mother testified that she and the Child did various activities together, but that when at her Father's home, the Child watched movies. Mother claimed that the Child had a poor and distant relationship with her stepmother and was left with her stepmother at night because Father worked.
¶12 Conciliation Services' report of its interview with the Child confirmed that the Child had a strong desire to stay with her Mother during the week and see Father on alternate weekends. The Child explained that she had to pack her things when she went to her Father's and that he did not allow her to attend sleepovers or birthday parties with her friends. The Child stated that yelling occurred at both her Father's and Mother's homes, but more at Father's.
¶13 In the statements from the paternal grandparents that Mother sought to have admitted, the grandparents opined that Mother was better able to provide and care for the Child at that time. They confirmed that the Child had a poor relationship with her stepmother and that Father restricted food in his house and was not financially able to care for the Child.
¶14 Mother's proffered evidence failed to demonstrate that circumstances had changed since the original custody and parenting order. Mother also did not establish that the alleged change of circumstances materially affected the Child's welfare. Mother's interests and the Child's wishes may be considered, but are not dispositive. See Bailey, 3 Ariz. App. at 141, 412 P.2d at 483. Although the Child would prefer to see Father on alternate weekends so that she could pack her clothes less often and could visit with her friends, that preference does not show a material effect on her welfare. Although Mother alleged that Father had limited food at his home, the record does not show that the Child is not being appropriately fed and nourished. Moreover, the Conciliation Services' report does not indicate that the Child is in distress or is negatively affected by halftime visitation. Mother's concern regarding the Child's grades is speculative because Mother presented no evidence that the Child's schoolwork has suffered. In fact, Mother acknowledged that the Child's grades were not adversely affected. Although Child's aggravated asthma from the dogs in Father's home is some evidence of a change in circumstances affecting the Child's welfare, Mother presented no corroborating evidence from a doctor. Moreover, Mother admitted that she had not even mentioned this concern in her petition. Because the family court has broad discretion in determining if a change of circumstances has occurred, we cannot find that the court abused its discretion in concluding that Mother had not met her burden. Hendricks, 153 Ariz. at 243, 735 P.2d at 853.
¶15 Mother argues that the family court abused its discretion in refusing to admit into evidence the statements of the Child's paternal grandparents that supported Mother's request that she be made the primary residential parent.
¶16 Under Rule 2, a party may require strict compliance with the rules of evidence by filing a notice to that effect at least forty-five days before trial. A.R.F.L.P. 2(B)(1). If no notice is filed, all relevant evidence is admissible. A.R.F.L.P. 2(B)(2). The family court may nevertheless exclude certain evidence:
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