Nickel v. Potter ( 2022 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    In re the Matter of
    HEIDI L. NICKEL, Petitioner/Appellee,
    v.
    CHRISTOPHER K. POTTER, Respondent/Appellant.
    No. 1 CA-CV 20-0685 FC
    FILED 1-11-2022
    Appeal from the Superior Court in Maricopa County
    No. FC2010-052126
    The Honorable John Christian Rea, Judge, Retired
    AFFIRMED
    COUNSEL
    Heidi L. Nickel, Cave Creek
    Petitioner/Appellee
    Sullivan Law Office PLLC, Mesa
    By Dianne Nicole Sullivan
    Counsel for Respondent/Appellant
    MEMORANDUM DECISION
    Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
    which Judge Peter B. Swann and Judge D. Steven Williams joined.
    NICKEL v. POTTER
    Decision of the Court
    B A I L E Y, Judge:
    ¶1            Christopher K. Potter (“Father”) appeals the superior court’s
    judgment and orders denying his petition to enforce parenting time with
    his two children and granting Heidi L. Nickel’s (“Mother”) petition to
    modify legal decision making, parenting time, and child support. Father
    argues the court failed to specifically tie its findings to the best-interests
    factors enumerated in Arizona Revised Statutes (“A.R.S.”) section 25-
    403(A) and that the court’s findings were unsupported by the evidence. He
    asks that we remand for the superior court to make more detailed findings
    consistent with § 25-403. We conclude the court’s findings are adequate to
    satisfy the statutory requirements and are supported by the record.
    Accordingly, we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2             Father and Mother were married in 2000 and divorced in
    2010. They have two children—a daughter, who turned eighteen years old
    in 2021, and a son, born in 2007. In 2011, the parties stipulated to joint legal
    decision-making and equal parenting time. In July 2019, the court adopted
    the parties’ stipulation to amend the parenting plan, but to leave in place
    shared decision making and parenting time.
    ¶3            In December 2019, Father petitioned to enforce parenting
    time, alleging that beginning in October 2019, Mother had unilaterally
    stopped all parenting time between him and the children.
    ¶4            Mother also petitioned to modify, seeking sole legal decision-
    making, designation as the primary residential parent (with Father to
    receive limited supervised parenting time), and child support. Mother
    asserted that Father had recently been arrested, remained incarcerated for
    one week, and was out on bail while his case was pending. 1 Mother further
    asserted that multiple orders of protection had been taken out against
    Father.
    1     Based on a June 2017 dispute with a former girlfriend, Father had
    been charged with stalking, in violation of A.R.S. § 13-2923, in Maricopa
    County Superior Court Case No. CR2019-150559. In September 2020, he
    pled guilty to attempted stalking, a class six undesignated felony and
    domestic violence offense, and the court placed him on supervised
    probation for two years.
    2
    NICKEL v. POTTER
    Decision of the Court
    ¶5            The petitions were consolidated, and the parties agreed to the
    appointment of a Court-Appointed Advisor (“CAA”) before trial. The
    CAA prepared a pretrial report based in part on interviews of Mother,
    Father, and the parties’ two children.
    ¶6            In July 2020, the superior court held an evidentiary hearing
    on the petitions. Mother, Father, the CAA, and other witnesses testified.
    After taking the matter under advisement, the court issued a judgment in
    September 2020. In the judgment, the court summarized the evidence
    presented, made findings, then denied Father’s petition to enforce
    parenting time and awarded Mother sole legal decision-making authority.
    The court ordered that Father’s sole contact with the older child be in a
    therapeutic setting, but only after consideration of the child’s desires and
    the opinion of her therapist. The court also reduced Father’s parenting time
    with the younger child to supervised visitation for “at least four hours
    every other Saturday.” Finally, the court ordered Father to pay monthly
    child support for the two children.
    ¶7             Mother moved to amend the judgment, requesting the court
    make specific findings on the record about all relevant factors the court had
    considered and the reasons for which the court’s decisions were in the best
    interests of the children pursuant to A.R.S. § 25-403. Specifically, Mother
    requested the court make its findings “in a format that matches the typical
    A.R.S. § 25-403 format to remove any shadow of uncertainty from this
    judgment.” Father responded that he did not object to Mother’s motion.
    Nonetheless, the court denied the motion.
    ¶8             We have jurisdiction over Father’s timely appeal under
    Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-2101(A)(2)
    and 12-120.21(A)(1).
    DISCUSSION
    ¶9          Father argues the superior court abused its discretion when it
    denied his petition to enforce and granted Mother’s petition to modify.
    Father maintains the court’s findings are both inadequate to satisfy the
    requirements of A.R.S. § 25-403(B) and unsupported by the evidence.
    I.     Standard of Review and Applicable Law
    ¶10            We review the superior court’s legal decision-making and
    parenting time rulings for an abuse of discretion. See In re Marriage of Diezsi,
    
    201 Ariz. 524
    , 525, ¶ 3 (App. 2002). In making such determinations, whether
    originally or on petition for modification, the court must consider the best
    3
    NICKEL v. POTTER
    Decision of the Court
    interests of the children, and in doing so, “shall consider all factors that are
    relevant to the child[ren]’s physical and emotional well-being, including”
    those factors found in A.R.S. § 25-403(A). Further, A.R.S. § 25-403(B)
    requires that, “[i]n a contested legal decision-making or parenting time
    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[ren].”
    II.    The Merits
    ¶11           As the parties recognize, this court has previously found
    findings inadequate and held that the superior court abused its discretion
    when it failed to make findings pursuant to § 25-403. See Reid v. Reid, 
    222 Ariz. 204
    , 207, ¶¶ 12-13 (App. 2009); Diezsi, 
    201 Ariz. at 526, ¶ 5
    ; see also
    Owen v. Blackhawk, 
    206 Ariz. 418
    , 421-22, ¶¶ 9-12 (App. 2003) (holding that
    the court abused its discretion in changing the primary residential parent
    and altering the parenting time schedule without making required findings
    on the record in a contested custody case brought under the relocation
    statute, A.R.S. § 25-408); Downs v. Scheffler, 
    206 Ariz. 496
    , 501, ¶ 19 (App.
    2003) (holding that the court’s findings were insufficient as a matter of law
    and remanding for findings under A.R.S. § 25-403).
    ¶12             However, “[n]o principles are better settled in Arizona than,
    first, that the duty of a reviewing court begins and ends with the inquiry
    whether the trial court had before it evidence which might reasonably
    support its action viewed in the light most favorable to sustaining the
    findings, and, second, that the reviewing court will not weigh conflicting
    evidence on appeal.” O’Hair v. O’Hair, 
    109 Ariz. 236
    , 240 (1973) (citations
    omitted).
    ¶13          Here, Father concedes that the court’s judgment “arguably
    contained an [unenumerated] analysis of the [§ 25-]403 factors,” and we
    conclude the court’s findings, although not individually referenced in
    conjunction with A.R.S. § 25-403, nonetheless satisfy the statutory
    requirement of making specific findings regarding the reasons why its
    decision was in the children’s best interests. See Owen, 
    206 Ariz. at 421-22, ¶¶ 11-12
    .
    ¶14            Unlike the courts in the aforementioned cases, the court here
    made a series of detailed findings and gave explanations for its judgment.
    It is clear from the record that several subsections of A.R.S. § 25-403 were
    inapplicable to the court’s analysis, including subsections (A)(9) through
    (A)(11), and that the court found the evidence did not support a finding of
    4
    NICKEL v. POTTER
    Decision of the Court
    domestic violence or child abuse or that either parent had intentionally
    misled the court, see A.R.S. § 25-403(A)(7)-(8). Further, where the evidence
    regarding a particular factor was disputed or not clearly neutral, the
    findings detail how the factor was considered. The court acknowledged
    “evidence that Mother has contributed to the children’s estrangement from
    Father,” which supports a finding in favor of Father as to subsection (A)(6)
    (“[w]hich parent is more likely to allow the child[ren] frequent, meaningful
    and continuing contact with the other parent”), but the court expressly
    considered that factor “minor.”
    ¶15           Finally, the court’s findings make clear the central factors it
    considered were subsections (A)(1) through (A)(5), and that it heavily
    weighted subsection (A)(4) (“the wishes of the child[ren]”). 2 Moreover,
    unlike in Reid, the court’s findings in this case are not cursory, nor do they
    accept or reject an evaluator’s recommendation without explanation. See
    222 Ariz. at 207, ¶ 13. Instead, the court’s findings are sufficiently detailed
    to comply with the statutory requirements and to allow us to meaningfully
    review its decisions regarding the parties’ petitions. It is possible here to
    determine which facts and findings apply to which factors, and unlike Hart
    v. Hart, 
    220 Ariz. 183
    , 186-87, ¶ 13 (App. 2009), this is not a case where a
    detailed weighing of the statutory factors “may have yielded a different
    outcome.” Accordingly, it would serve no purpose to remand for further
    findings here because the court has already recited the findings on which
    its judgment is based.
    ¶16           Father nonetheless argues that the court’s findings were
    unsupported by the record, in part because the court found Mother to be
    generally “credible” despite that Father pointed out instances in which she
    previously had recanted statements made to the police or otherwise
    provided false statements, and in part because Father provided
    controverting evidence, including evidence showing the CAA had
    concluded that at least some of Father’s anger toward Mother was
    “justified.” Read as a whole, Father’s arguments constitute a request that
    we reweigh the evidence, something we will not do. See O’Hair, 
    109 Ariz. 2
          Subsections (A)(1) through (A)(5) include: (1) “The past, present and
    potential future relationship between the parent and the child”; (2) “The
    interaction and interrelationship of the child with the child’s parent or
    parents, the child’s siblings and any other person who may significantly
    affect the child’s best interest”; (3) “The child’s adjustment to home, school
    and community”; (4) “If the child is of suitable age and maturity, the wishes
    of the child as to legal decision-making and parenting time”; and (5) “The
    mental and physical health of all individuals involved.”
    5
    NICKEL v. POTTER
    Decision of the Court
    at 240. Further, we disagree with Father that the court abdicated its
    responsibility to use its independent judgment, in contravention of In re
    Nold v. Nold, 
    232 Ariz. 270
    , 273-74, ¶ 14 (App. 2013), and DePasquale v.
    Superior Court (Thrasher), 
    181 Ariz. 333
    , 336 (App. 1995), by quoting the
    older child’s counselor when making its findings.
    ¶17           Although the better practice would be to follow the general
    template provided by § 25-403, the superior court’s findings here are
    adequate to provide a baseline on which Father (or Mother) might file a
    future petition for modification, and on which the court could assess the
    merits of such a petition. On this record, the court did not abuse its
    discretion when it denied Father’s petition to enforce and granted Mother’s
    petition to modify.
    III.   Attorneys’ Fees and Costs
    ¶18           Both parties request an award of attorneys’ fees. Mother,
    however, is not represented by an attorney. Father requests fees under
    A.R.S. § 25-324, but neither side has been unreasonable in its positions on
    appeal and the parties appear to have relatively equivalent financial
    resources. Thus, in our discretion, we decline to award attorneys’ fees on
    appeal to either party. We award taxable costs on appeal to Mother upon
    compliance with Arizona Rule of Civil Appellate Procedure 21.
    CONCLUSION
    ¶19          The superior court’s judgment is affirmed.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6
    

Document Info

Docket Number: 1 CA-CV 20-0685-FC

Filed Date: 1/11/2022

Precedential Status: Non-Precedential

Modified Date: 1/11/2022