Smith v. Smith, 1 CA-CV 21-0317 FC

CourtCourt of Appeals of Arizona
Writing for the CourtGASS, Vice Chief Judge
Citation67 Arizona Cases Digest 40,508 P.3d 793
Parties In re the Marriage of: Shane D. SMITH, Petitioner/Appellee, v. Kaitlyn SMITH, Respondent/Appellant.
Docket Number1 CA-CV 21-0317 FC
Decision Date05 April 2022

67 Arizona Cases Digest 40
508 P.3d 793

In re the Marriage of: Shane D. SMITH, Petitioner/Appellee,
Kaitlyn SMITH, Respondent/Appellant.

No. 1 CA-CV 21-0317 FC

Court of Appeals of Arizona, Division 1.

FILED April 5, 2022

The Hogle Firm, Mesa, By Nathan J. Hogle, Counsel for Appellant

Scoresby Family Law, Mesa, By J. Kyle Scoresby, Lyndsey Fibus, Counsel for Appellee

Vice Chief Judge David B. Gass delivered the opinion of the court, in which Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.

GASS, Vice Chief Judge:

¶1 This case is about whether the superior court had sufficient evidence to order a reduction of a parent's parenting time and require such time to be supervised based on an endangerment finding. Because we conclude the superior court did not modify parenting time and relied on sufficient evidence, we affirm.


¶2 Shortly after the parents married, they had a child and moved from Idaho to Arizona. The child, now two, has a genetic disorder requiring regular medical visits. The parents were married for just under one year before mother "unilaterally took the child to Idaho without notice to [f]ather." Mother now lives in Idaho, where her family resides. Father lives in Arizona.

¶3 Mother filed for divorce in Idaho, while father filed for divorce in Arizona. Idaho later deferred jurisdiction to Arizona under the Uniform Child Custody Jurisdiction and Enforcement Act. See A.R.S. § 25-1002(7) (defining home state for jurisdictional purposes).

¶4 After the superior court resolved the jurisdiction issue, it entered temporary orders.

508 P.3d 795

To begin, father had six weeks of make-up parenting time. The temporary orders then gave mother and father equal parenting time with two weeks on and two weeks off. Mother and father abided by the temporary orders.

¶5 As the trial approached, father was concerned mother's mental health would interfere with her parenting. Father asked the superior court to order mother to undergo a psychological evaluation. The superior court granted father's request and appointed Doctor Stacy LaMorgese to evaluate mother. The evaluation showed mother performed poorly in tests designed to test mother's intellectual capabilities. As part of the evaluation, LaMorgese diagnosed mother with several mental health disorders and expressed concerns about mother's ability to complete regular adult tasks associated with child rearing, such as filing paperwork. LaMorgese also recommended therapy to help mother better parent the child.

¶6 At trial, father sought sole legal decision-making authority and to limit mother's parenting time to one weekend a month. Mother sought joint legal decision-making and equal parenting time. In its decree of dissolution, the superior court ordered joint legal decision-making but gave father final decision-making authority.

¶7 Based on mother's examination and diagnoses, the superior court found mother's mental health issues, taken together with the child's special needs, "would endanger the physical, emotional, or mental wellbeing of the child" if mother had unsupervised parenting time. The superior court then awarded mother one week of parenting time per month, but it ordered mother's parenting time to be supervised.

¶8 The superior court said it might consider lifting the restrictions if mother complied with LaMorgese's therapeutic recommendations and submitted paperwork showing she complied, could care for her own needs, and had reasonable expectations for how the child should behave. Mother timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and 12-2101.A.1.


¶9 This court reviews orders establishing or modifying parenting time for an abuse of discretion but reviews de novo questions of statutory interpretation. Nold v. Nold , 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013) (establishing orders reviewed for an abuse of discretion); Gonzalez-Gunter v. Gunter , 249 Ariz. 489, 491, ¶ 9, 471 P.3d 1024, 1026 (App. 2020) (modifying orders reviewed for an abuse of discretion and statutory interpretation reviewed de novo ). This court views the evidence in the light most favorable to upholding the superior court's orders and will affirm findings if reasonable evidence supports them. Vincent v. Nelson , 238 Ariz. 150, 155, ¶ 17, 357 P.3d 834, 839 (App. 2015). Under the abuse of discretion standard, this court will reverse the superior court's finding when the record is "devoid of competent evidence to support the decision." Little v. Little , 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) ; see also Bishop v. Law Enf't Merit Sys. Council , 119 Ariz. 417, 421, 581 P.2d 262, 266 (App. 1978) (this court will reverse the superior court's finding when "no evidence exists to support the decision").

I. The Superior Court Did Not Modify Mother's Parenting Time.

¶10 Mother argues the superior court erred under § 25-411.J when it entered a final order reducing her parenting time from the temporary orders.

¶11 The parenting-time-modification statute, however, applies only to final orders, such as dissolution decrees, not to temporary orders. See A.R.S. § 25-411.A ("A person shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe" the child is endangered. (emphasis added)), .J ("The court may modify an order granting or denying parenting time rights ... but the court shall not restrict a parent's parenting time rights unless it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional

508 P.3d 796

health."). Temporary orders are cut from an entirely different cloth than permanent orders, especially in the context of parenting time. See Gutierrez v. Fox , 242 Ariz. 259, 267–68, ¶¶ 27–34, 394 P.3d 1096, 1104-05 (App. 2017) (unlike final orders, temporary orders setting parenting time do not require best-interests findings under § 25-403). Temporary orders do not "requir[e] detailed findings" because of their "transitory nature." Id. at 268, ¶ 34, 394 P.3d at 1005. Temporary orders also do "not prejudice the rights of the parties or of any child" in family law proceedings because they become ineffective and unenforceable after dismissal of an action and are displaced entirely following entry of a final decree. Id. (quoting A.R.S. § 25-315.F.1; citing Ariz. R. Fam. P. 47(M)). And § 25-411.J does not apply to § 25-403's best-interests findings or parenting-time orders.

¶12 Here, the superior court's first ruling subject to § 25-411 was the decree of dissolution. Accordingly, the temporary order mother references was not subject to § 25-411's modification requirements.

II. Arizona Law Does Not Have A Presumption For Equal Parenting Time.

¶13 Mother argues the superior court erred in awarding her only twenty-five percent of the parenting time because Arizona law has a presumption for equal parenting time.

¶14 This court has said, "equal or near-equal parenting time is presumed to be in a child's best interests." See Woyton v. Ward , 247 Ariz. 529, 531, ¶ 6, 453 P.3d 808, 810 (App. 2019). But that statement was a short-hand explanation of a more comprehensive constitutional and statutory analysis.

¶15 Without a court order, every parent has the right to co-equal custody of their child. Gutierrez , 242 Ariz. at 269, ¶ 42, 394 P.3d at 1106 (citing Maricopa Cnty. Juv. Action No. JD-4974 , 163 Ariz. 60, 62, 785 P.2d 1248, 1250 (App. 1990) ). By statute, Arizona's public policy is "absent evidence to the contrary, it is in the best interests of a child ... [t]o have substantial, frequent, meaningful and continuing parenting time with both parents [and t]o have both parents participate in decision-making about the child." A.R.S. § 25-103.B. Though § 25-103.B expressly sets "the declared public policy" of Arizona, it does not create a presumption a parent must overcome.

¶16 Legal presumptions come in various forms and are generally tied to a burden of...

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