Fowler v. Fowler ( 2015 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mater of:
ALLEN F. FOWLER, Petitioner/Appellee,
v.
PAMELA D. FOWLER, Respondent/Appellant.
No. 1 CA-CV 14-0361
FILED 1-27-2015
Appeal from the Superior Court in Maricopa County
No. FC2010-000186
The Honorable Susan M. Brnovich, Judge
AFFIRMED
COUNSEL
Daly Law Firm, Scottsdale
By Douglas Daly
Counsel for Petitioner/Appellee
Wilkins Law Firm PLLC, Phoenix
By Amy M. Wilkins and Heather Coe-Smith
Counsel for Respondent/Appellant
FOWLER v. FOWLER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Pamela Fowler (“Mother”) appeals the family court’s order
denying her petition to modify parenting time and relocate her minor
daughter Alexis F. (“Child”) to Arizona. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Allen Fowler (“Father”) divorced in 2006. After
the divorce, Mother moved to Arizona and Father moved to Maryland. In
August 2012, Mother and Father entered a parenting time agreement
regarding Child. Under the agreement, the parties agreed to joint legal
decision-making authority, and Mother was designated as Child’s primary
residential parent.
¶3 In January 2013, Mother emailed the following agreement to
Father:
I, Pamela Fowler, hereby state that from January 7th to March
9th, Allen Fowler is assuming the role of primary residential
parent of [Child]. After this time period, we will reevaluate
the parenting plan for [Child] with our daughters [sic] best
interest.
Pamela Fowler
¶4 Based on the agreement, Child moved to Maryland to live
with Father. However, a few weeks later Mother advised Father she
wanted Child to return to Arizona. In response, Father filed a petition to
enforce Mother’s email as a binding agreement pursuant to Arizona Rule
of Family Procedure 69.
¶5 The family court held an expedited hearing on Father’s
petition and determined that Mother’s email was a binding Rule 69
agreement. Accordingly, the family court ordered Child to remain in
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FOWLER v. FOWLER
Decision of the Court
Maryland with Father. The court advised Mother that if she wanted to
modify the agreement, she would have to file a petition seeking to modify
parenting time.
¶6 Mother subsequently filed a petition to modify parenting time
and relocate Child to Arizona. After an evidentiary hearing, the family
court denied Mother’s petition, finding that it was in the best interests of
Child to remain with Father. Mother timely appealed.
DISCUSSION
¶7 Mother asserts that because she was the primary residential
parent under the August 2012 agreement, the family court erred when it
determined she had the burden of (1) modifying parenting time, and (2)
proving it was in the best interests of Child to relocate to Arizona. Mother’s
argument is based on the premise that the email agreement was a
temporary agreement. Mother concedes that she agreed to make Father the
primary residential parent of Child, but only until March 9, 2013. Mother
asserts that once the temporary, fixed term listed in the agreement ended,
the August 2012 agreement designating her as the primary residential
parent was reinstated.1
¶8 “The appropriate burden of proof is a question of law, which
this court reviews de novo.” American Pepper Supply Co. v. Federal Ins. Co.,
208 Ariz. 307, 309, ¶ 8, 93 P.3d 507, 509 (2004). A family court’s
interpretation of a contract or agreement is a question of law we review de
novo. In re Marriage of Pownall, 197 Ariz. 577, 580, ¶ 7, 5 P.3d 911, 914 (App.
2000). However, we accept the family court’s factual findings as to the
intent of the parties in entering an agreement unless they are clearly
erroneous. McNeil v. Hoskyns, 236 Ariz. 173, 176, ¶ 13, 337 P.3d 46, 49 (App.
2014); Chopin v. Chopin, 224 Ariz. 425, 428, ¶ 7, 232 P.3d 99, 101 (App. 2010).
Additionally, agreements between parties in family court, like other
contracts, “are to be read in light of the parties’ intentions as reflected by
their [contract] language and in view of all circumstances; if the intention
of the parties is clear from such a reading, there is no ambiguity.” Harris v.
Harris, 195 Ariz. 559, 562, ¶ 15, 991 P.2d 262, 265 (App. 1999); see Beaugureau
v. Beaugureau, 11 Ariz. App. 234, 237, 463 P.2d 540, 543 (1970).
1 Mother has not alleged that the email agreement was the product of
fraud or duress, nor has she alleged that the agreement arose by mistake
because she misunderstood the terms of the agreement.
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¶9 Rule 69(A)(1) states, in relevant part, that “[a]n agreement
between the parties shall be valid and binding if . . . the agreement is in
writing.” Ariz. R. Fam. L. P. 69(A)(1). A written “agreement entered into
by the parties” pursuant to Rule 69(A)(1) “shall be presumed to be valid,”
and it is the “burden of the party challenging the validity of the agreement
to prove any defect in the agreement.” Ariz. R. Fam. L. P. 69(B).
¶10 Because Rule 69 was adapted from Arizona Civil Rule of
Procedure 80(d), we look to cases interpreting Rule 80(d) for guidance.
Ariz. R. Fam. L. P. 69, comm. cmt.; see Ariz. R. Fam. L. P. 1, comm. cmt. We
have held that for an agreement to be enforceable under Rule 80(d) the
“manifestation of assent, as well as the terms of the agreement, must be in
writing.” Canyon Contracting Co. v. Tohono O’Odham Hous. Auth., 172 Ariz.
389, 393, 837 P.2d 750, 754 (App. 1992). Thus, an agreement sent by email
is binding and enforceable under Rule 80(d). Cf. Donahoe v. Arpaio, 872
F. Supp. 2d 900, 906 (D. Ariz. 2012).
¶11 Here, the email unambiguously states that Father is
designated as Child’s primary residential parent. The email agreement
does not state, as Mother contends, that it is temporary, or that Mother is to
reassume her role as primary residential parent on March 9, 2013. Rather,
the email agreement provides that on March 9 the parties will jointly
reevaluate what “parenting plan” is in Child’s best interests.
¶12 Although Mother argues that she expected Child to return to
Arizona at the end of the “temporary term,“ her testimony at the
evidentiary hearing was more equivocal. Mother testified that she entered
the email agreement with the intention that Child would stay wherever it
was “in the best interest of my daughter,” and that she would have
supported Child staying with Father “if [things] would have gone
differently between January 7 and March 9.”
¶13 Based on our review of the record, we conclude the email
agreement unambiguously designates Father as the permanent, primary
residential parent of Child. Additionally, the email agreement constitutes
a binding, enforceable agreement under Rule 69(A)(1).
¶14 Mother contends that even if the email agreement was a
binding Rule 69 agreement, the family court erred in accepting the
agreement without making express findings that the modification and
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relocation of Child was in her best interests.2 See A.R.S. § 25-403(B)3
(requiring a court in a contested parenting time case to make express
findings as to all relevant best interests factors listed under A.R.S. § 25-
403(A)); A.R.S. § 25-408(H) (requiring a court to consider all relevant
statutory factors in determining whether relocation of a child is in the
child’s best interests). We disagree.
¶15 Mother correctly notes that the family court was not bound to
approve the email agreement reached by the parties, and that it was
ultimately responsible for determining whether the agreement was in the
best interests of Child. Sharp v. Sharp, 179 Ariz. 205, 208, 877 P.2d 304, 307
(App. 1994). However, a family court is not required to hold a trial or make
express findings when the parties voluntarily enter into an agreement to
modify parenting time. See A.R.S. § 25-403(B) (express findings on
children’s best interests required only if custody contested); see also Lowther
v. Hooker, 129 Ariz. 461, 462, 464, 632 P.2d 271, 272, 274 (App. 1981)
(affirming a custody modification order based upon parents’ stipulation
despite the fact the family court made no express findings regarding
children’s best interests). Moreover, we will assume the family court made
every finding necessary to support its determination if there is any
reasonable evidence to support its decision. Bender v. Bender, 123 Ariz. 90,
92, 597 P.2d 993, 995 (App. 1979).
¶16 Here, the record shows that in approving the email
agreement, the family court determined it was in the best interests of Child
to live with Father. The family court stated that the parties “apparently
agreed it was in the best interests of the [Child] for her to go to Maryland .
. . because of whatever problems she was having in Arizona.” The court
further stated “that absent some danger in Maryland . . . [Child] should
absolutely stay there,” and “cannot be ping ponging back and forth
between Maryland and Arizona.”
¶17 Additionally, the best interest factors concerning relocation
did not apply to the email agreement. Section 25-408 applies when both
parents are entitled to joint legal decision-making or unsupervised
2 We note that following the lengthy evidentiary hearing on Mother’s
petition to relocate/modify parenting time, the family court made detailed
findings as to all of the statutory factors enumerated under both Arizona
Revised Statutes (“A.R.S.”) sections 25-403 (2014) and 25-408 (2014).
3 We cite the current version of the applicable statute because no
revisions material to this decision have since occurred.
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parenting time pursuant to a written agreement or court order and both
parents reside in Arizona. See A.R.S. § 25-408(A); Buencamino v. Noftsinger,
223 Ariz. 162, 164, ¶ 8, 221 P.3d 41, 43 (2009). At no time prior to the entry
of the family court’s decree were both parents residing in Arizona. Father
never resided in Arizona after the divorce in 2006. Because one of the two
requirements of § 25-408(A) was not met, the relocation statute did not
apply. Buencamino, 223 Ariz. at 164, ¶¶ 8–9, 221 P.3d at 43 (holding that
where the statutory prerequisites of § 25-408(A) are not met, the relocation
statute does not apply).
¶18 Accordingly, the family court did not err in determining that
Father was permanently designated as the primary residential parent under
the email agreement, and that the agreement was in the best interests of
Child. As a result, the family court correctly determined that Mother bore
the burden of modifying parenting time and proving it was in the best
interests of Child to relocate to Arizona.
¶19 Mother also contends the family court’s approval of the email
agreement violated A.R.S. § 25-411(A). Section 25-411(A) provides that “[a]
person shall not make a motion to modify a legal decision-making or
parenting time decree earlier than one year after its date.” Mother argues
that because the subject modification occurred less than a year after the
August 2012 parenting time agreement, the family court lacked jurisdiction
to modify parenting time.
¶20 We review de novo whether the family court had jurisdiction
to issue an order modifying a prior custody order. In re Marriage of Dorman,
198 Ariz. 298, 301, ¶ 6, 9 P.3d 329, 332 (App. 2000).
¶21 Section 25-411 does not preclude a family court from
modifying custody when the parties voluntarily agree to modify custody.
“[A] trial court is vested with subject matter jurisdiction over domestic
relations matters, including child custody determinations . . . [a]nd . . . has
continuing jurisdiction to modify a custody decree it has entered.” Dorman,
198 Ariz. at 301, ¶ 7, 9 P.3d at 332 (citations omitted). Section 25-411 is not,
as Mother contends, a jurisdictional statute; it is a procedural statute
designed to resolve disputed custody matters. Id.; see Lowther, 129 Ariz. at
462–63, 632 P.2d at 273–74 (stating that compliance with former A.R.S. § 25-
339, the predecessor statute to A.R.S. § 25-411, is not a “jurisdictional
prerequisite” to modify custody, but rather is “clearly designed to apply to
an adversary situation,” establishing a “prescribed procedure” for the court
to resolve such disputes).
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FOWLER v. FOWLER
Decision of the Court
¶22 Indeed, Mother concedes that § 25-411 did not prevent the
parties from modifying the August 2012 agreement. In Mother’s reply brief
she states, “after all, parents should be allowed to stipulate to changes in
the parenting plan without waiting a full year if they both agree.” Mother
contends, however, that because there was no agreement to permanently
modify parenting time, the adversarial procedures contained in § 25-411
apply in this case.
¶23 We disagree. We have already determined that Mother
voluntarily entered the email agreement to permanently modify parenting
time. Supra, at ¶¶ 11, 13. As a result, the adversary procedures outlined in
§ 25-411 did not apply.
CONCLUSION
¶24 For the foregoing reasons, we affirm.
:ama
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