Ward v. Smith
| Decision Date | 09 March 2021 |
| Docket Number | No. 1 CA-CV 20-0008 FC,1 CA-CV 20-0008 FC |
| Parties | In re the Matter of: LEILANI WARD, Petitioner/Appellee, v. JUSTIN SMITH, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Andrew J. Russell, Judge Pro Tempore
AFFIRMED
Moon Law Firm PLC, Mesa
By Robert J. Moon
Al Arpad Esq., Phoenix
By Alexander R. Arpad
Hayes Esquire PLLC, Phoenix
By Cody L. Hayes
Counsel for Respondent/Appellant
MEMORANDUM DECISIONJudge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.
¶1 Justin Smith ("Father") appeals provisions of the decree dissolving his marriage to Leilani Ward ("Mother") regarding legal decision-making authority, parenting time, property division, and attorneys' fees. Because the superior court reviewed the evidence presented, made all necessary findings, and did not err in deciding any of the issues Father assigns as error, we affirm the decree.
¶2 The parties were married in 2008 and have one minor child. Mother filed a petition to dissolve the marriage in 2018. The parties participated in a settlement conference in March of 2019 that resolved some, but less than all, issues. The remaining issues were resolved following a September 2019 trial, and the court entered the decree of dissolution in November of 2019.
¶3 Father timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1) and -2101(A)(1).
¶4 Father argues that the superior court erred by not awarding him final decision-making authority as to the child and by ordering less than equal parenting time.
¶5 We review the superior court's legal decision-making and parenting time orders for abuse of discretion. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). The court abuses its discretion when it "commits an error of law" in reaching a discretionary decision or "when the record is devoid of competent evidence to support the court's decision." Woyton v. Ward, 247 Ariz. 529, 531, ¶ 5 (App. 2019) (internal citations omitted). Further, the superior court must "determine legal decision-making andparenting time . . . in accordance with the best interests of the child." A.R.S. § 25-403(A). In doing so, the court must consider the non-exhaustive list of factors enumerated in A.R.S. § 25-403(A)(1)-(11) "that are relevant to the child's physical and emotional well-being." We will not disturb the court's factual findings unless they are clearly erroneous. Strait v. Strait, 223 Ariz. 500, 502, ¶ 6 (App. 2010). "A finding of fact is not clearly erroneous if substantial evidence supports it, even if substantial conflicting evidence exists." Kocher v. Dep't of Revenue of State of Ariz., 206 Ariz. 480, 482, ¶ 9 (App. 2003). And we view the evidence in the light most favorable to sustaining the decree. Lehn v. Al-Thanayyan, 246 Ariz. 277, 283, ¶ 14 (App. 2019).
¶6 Father argues that reversal is required on multiple issues because of alleged inconsistency with the parties' agreements reached during a settlement conference, citing ARFLP 69. But the record reflects that the parties had not agreed on the specific issues Father challenges on appeal, and that the superior court properly addressed those unresolved issues during and after trial. See ARFLP 69(b) (). Therefore, Father has not established error in this regard.
¶7 The parties agreed to joint legal decision-making, which the superior court ordered. Relying on Nicaise v. Sundaram, 245 Ariz. 566 (2019), Father assigns error to the court in not granting him "final" legal decision-making authority, or alternatively, in not ordering the parties to make use of co-parenting counseling or similar assistance to resolve legal decision-making issues between them. Nicaise provides that vesting final authority in one parent may be appropriate in instances where "the parents cannot reach a joint agreement in good faith" and such a grant does not constitute "sole legal decision-making." Nicaise, 245 Ariz. at 569, ¶ 14. As such, it describes an additional tool available to the court in resolving issues that concern legal decision-making. It does not, as Father suggests, require that courts grant final authority to one parent. Thus, Nicaise is inapposite.
¶8 Here, the superior court had before it all trial evidence and arguments presented in analyzing the child's best interests and expressly examined the relevant factors enumerated in A.R.S. § 25-403(A)(1)-(11) and A.R.S. § 25-403.01(B). Having done so, the court rejected Father's requestfor "final say." The court explained that it was concerned that Father's insistence on having the final say "stem[med] more from his desire to be in control than from any issues related to the child's best interests." The court further observed that joint legal decision-making was reasonable, given that the parties had made "legal decisions together" during their marriage and found no evidence that they would be unable "to continue making appropriate legal decisions together" moving forward.
¶9 The record contains adequate support for the superior court's decision in this regard. For example, Mother testified that granting Father final authority would not be in their "son's best interest" because she feared Father would use it "as a tool [for] control and manipulation."
¶10 Although Father may not agree with the superior court's decision or the weight the court assigned to certain evidence in arriving at certain conclusions, we will not reweigh evidence on appeal. See Lehn, 246 Ariz. at 284, ¶ 20. Father has shown no error in the joint legal decision-making determination in the decree.
¶11 Father next argues that the regular weekly parenting time plan violates the parties' agreement to share parenting time equally. More specifically, Father argues that the superior court's decree fails to expressly set a custody exchange time during midweek and further errs by requiring the parties to exchange custody of the child at noon on Sundays, including on Sundays that are also holidays.
¶12 Preliminarily, the record reflects that midweek custody exchanges occurred with regularity. Further, the subject of midweek exchange time was neither disclosed as a subject of dispute in Father's pretrial statement, nor was it raised at trial. Parties waive the right to raise an objection if the specific objection is not raised in their pretrial statements. See ARFLP 76.1(f)(5)-(7), (h). Further, we generally do not address arguments raised for the first time on appeal. Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 109, ¶ 17 (App. 2007). Therefore, Father has waived this argument.
¶13 As to Father's other challenge of the decree's fixed Sunday exchange of custody provision, his arguments in that regard are also unpersuasive.
¶14 Presumptively, it is in a child's best interests to have "substantial, frequent, meaningful and continuing parenting time withboth parents." A.R.S. § 25-103(B)(1); see also A.R.S. §§ 25-403.02(B) (), and -411(J) ("[T]he 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 health."). However, none of these statutes guarantee that any parent will have exactly equal parenting time, even in the absence of evidence of "parental unfitness or endangerment." See Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 492, ¶¶ 11-12 (App. 2020). Thus, although equal parenting time is presumed to be in a child's best interests, the superior court has both the authority and the duty to evaluate all evidence before adopting an appropriate parenting time plan, which need not be exactly equal. Id.
¶15 At trial, Father asked the superior court to order the parents to exchange the child pursuant to a variety of different options. As an example, Father proposed that an exchange occur on alternating Saturday and Sunday evenings. Under this proposed plan, Mother would have had the child 182 hours over a two-week period, and Father 154 hours. Under the plan the court ultimately adopted in its decree, Mother will have 188 hours of parenting time every two weeks, and Father 148 hours. Other options proposed by Father presented similar calculations, with correspondingly small deviations when compared to the division of time called for in the decree. Even if Father could demonstrate that the modest differences were material, on the record presented (including evidence of complications introduced by Mother's schedule), he has not shown the court abused its discretion by ordering a consistent Sunday transfer.
¶16 Father also argues that the superior court abused its discretion by ordering that Sunday holidays be treated like any other Sunday. Again, Father fails to show error in the court's findings and conclusions regarding the parenting time plan it adopted. See Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015) (). On this record, Father has not shown the court erred in...
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