Jorgenson v. Giannecchini ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
OLIVER JORGENSON, Petitioner/Appellee,
v.
DEBORAH GIANNECCHINI, Respondent/Appellant.
No. 1 CA-CV 20-0009 FC
1 CA-CV 20-0208 FC
(Consolidated)
FILED 5-6-2021
Appeal from the Superior Court in Maricopa County
No. FC2017-050317
The Honorable Adam D. Driggs, Judge
VACATED AND REMANDED
COUNSEL
Focused Appeals PLLC, Mesa
By Austin Martineau
Counsel for Respondent/Appellant
JORGENSON v. GIANNECCHINI
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.
B A I L E Y, Judge:
¶1 Appellant Deborah Giannecchini (“Mother”) challenges the
superior court’s order reducing her parenting time and requiring her to
undergo long-term psychotherapy as a condition of exercising parenting
time. For the reasons stated below, we vacate the rulings and remand the
matter to the superior court to redetermine parenting time.
FACTS AND PROCEDURAL HISTORY
¶2 Mother’s marriage to Appellee Oliver Jorgenson (“Father”)
was dissolved in 2014. The parties have one minor child. The superior
court entered a consent decree of dissolution granting joint legal decision-
making authority, designating Mother as the primary residential parent
and granting Father an alternating schedule of 48 hours of parenting time
one weekend and six hours the following weekend.
¶3 Father filed multiple petitions over the next few years to
modify legal decision-making authority and parenting time. At issue here
is the court’s ruling on a petition Father filed in January 2018 to be
designated primary residential parent and be awarded sole legal decision-
making authority.
¶4 At a hearing, the court took testimony from Mother, Father, a
court-appointed advisor, and a psychologist who had evaluated Mother
and concluded she demonstrated patterns of Antisocial Personality
Disorder and Narcissistic Personality Disorder. The court denied Father’s
request for sole legal decision-making but extended his weekend parenting
time. It also ruled that Mother could continue to be the primary residential
parent, but ruled she could have parenting time only for so long as she
participates in psychotherapy that includes Dialectical Behavioral Therapy
(“DBT”).
¶5 At the hearing, Mother argued she already had completed the
DBT therapy the psychologist recommended. Based on the psychologist’s
testimony, however, the court found it “highly unlikely” that Mother
“would be cured in only 3 months of DBT therapy.” The court found
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JORGENSON v. GIANNECCHINI
Decision of the Court
Mother’s “failure to regularly and consistently participate in appropriate
mental health treatment is contrary to the best interests of the parties’ minor
child.” The court ruled:
THE COURT FURTHER FINDS that based on the Court’s
findings made above, and contingent on Mother participating
in long-term psychotherapy, that it is in the child’s best
interest to exercise substantial frequent, meaningful and
continuing parenting time with both parents.
¶6 The court further specified detailed procedures for selecting
both the mental-health provider with whom Mother should treat and a
second professional who would evaluate her need for medication to
address her anxiety. The court ruled that if the parties could not agree on
either professional, it would make the appointment from a list they
provided. The court also set a status conference six months out to
“determine whether Mother is complying with the Court’s orders,” and
awarded Father attorneys’ fees under Arizona Revised Statutes (“A.R.S.”)
§ 25-324(A).
¶7 We have jurisdiction over Mother’s timely appeal pursuant
to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).
DISCUSSION
I. The Court Exceeded Its Statutory Authority in Ordering Mother to
Participate in Long-Term Psychotherapy as a Condition of
Exercising Parenting Time.
¶8 Mother contends the court exceeded its authority by
conditioning her parenting time on participation in long-term
psychotherapy. 1 Arizona Rule of Family Law Procedure 95(b) authorizes
the superior court to “order parties to engage in behavioral or mental health
1 Father did not file an answering brief. While we could treat this as a
confession of reversible error, we choose to address the merits because
Mother’s appeal involves the minor child’s best interests. In re Marriage of
Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002); see also Hoffman v. Hoffman, 4 Ariz.
App. 83, 85 (1966) (“[T]o reverse the decision of the trial court concerning
the custody and well being of two minor children because their mother
failed or was unable to file an answering brief would not, we believe, serve
the ends of justice . . . .”).
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services, including counseling and therapeutic interventions.” Ariz. R.
Fam. Law P. 95(b). But procedural rules “cannot enlarge the court’s
authority beyond that granted by statute.” Paul E. v. Courtney F., 246 Ariz.
388, 398, ¶ 40 (2019) (citing In re Marriage of Waldren, 217 Ariz. 173, 177, ¶¶
20-21 (2007)). As such, “[e]very power that the superior court exercises in
a dissolution proceeding must find its source in the supporting statutory
framework.” Fenn v. Fenn, 174 Ariz. 84, 87 (App. 1993). We review issues
regarding the application and interpretation of court rules de novo.
Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012).
¶9 Under A.R.S. § 25-405(B), the court “may seek the advice of
professional personnel” in determining legal decision-making authority
and parenting time. The court did so in this case, and both a court-
appointed advisor and the psychologist who evaluated Mother testified not
only that long-term therapy could benefit her but that she may need
supervision to ensure she progresses in such treatment. However, § 25-
405(B) does not authorize the court to order a parent to undergo treatment,
including treatment with a specific provider, as a condition of parenting
time. Cf. Paul E., 246 Ariz. at 397, ¶ 38 (stating that § 25-405(B) “nowhere
authorizes the court to order treatment for a child”); id. at 397, ¶ 37
(“[Section] 25-405(B) applies only when an issue regarding legal decision-
making authority or parenting time is pending before the court.”).
¶10 In short, having decided the legal decision-making and
parenting time issues before it, the court had no statutory power to order
Mother to participate in long-term psychotherapy going forward. 2 Because
that order was the premise of the court’s ruling concerning parenting time,
we vacate the parenting-time ruling and all subsequent orders concerning
Mother’s psychotherapy. On remand, the superior court shall hold a
hearing and determine parenting time based on the circumstances now
present.
¶11 Because we are vacating the parenting-time ruling, we also
vacate the attorneys’ fees award.
2While nothing prohibits the superior court from setting “review hearings”
after it issues a final order, A.R.S. § 25-411 precludes the court from
modifying a legal decision-making or parenting time order unless a party
has moved to modify or enforce the current order.
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JORGENSON v. GIANNECCHINI
Decision of the Court
II. Attorneys’ Fees on Appeal
¶12 Mother requests her attorneys’ fees and costs incurred in this
appeal under A.R.S. § 25-324(A). Having considered the financial
information in the record and Mother’s positions on appeal, we decline her
request for fees. As the prevailing party, however, she is entitled to her
costs of appeal contingent upon her compliance with Arizona Rule of Civil
Appellate Procedure 21.
CONCLUSION
¶13 We vacate and remand the superior court’s parenting-time
order, its order requiring Mother to undergo long-term psychotherapy, and
its attorneys’ fees order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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