Santillan v. Keeney ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
RUBY D. SANTILLAN, Petitioner/Appellee,
v.
RYAN KEENEY, Respondent/Appellant.
No. 1 CA-CV 14-0061
FILED 2-17-2015
Appeal from the Superior Court in Coconino County
No. S0300DO20040602
The Honorable Ted Stuart Reed, Judge
AFFIRMED
COUNSEL
Gary E. Robbins, PC, Flagstaff
By Gary E. Robbins
Counsel for Petitioner/Appellee
Bryon Middlebrook, PC, Flagstaff
By Bryon Middlebrook
Counsel for Respondent/Appellant
SANTILLAN v. KEENEY
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.
C A T T A N I, Judge:
¶1 Ryan Keeney (“Father”) appeals the superior court’s order
dismissing his petition for modification of parenting time and legal
decision-making. Father contends in particular that: (1) the court
improperly applied what Father asserts is a superseded “adequate cause”
standard for determining whether to grant his petition, and (2) the court
erred by dismissing Father’s petition without conducting an evidentiary
hearing. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Ruby D. Santillan (“Mother”) have one child
together, born in 2002. In 2005, the superior court entered default judgment
establishing paternity and ordering Father to pay child support. The
judgment did not provide for parenting time.
¶3 In 2009, Father filed a petition to modify parenting time and
child support, alleging that Mother had refused Father reasonable
parenting time. The parties participated in mediation and, pursuant to Rule
69 of the Arizona Rules of Family Law Procedure, entered into a
Memorandum of Agreement (“2009 Agreement”) that provided Father
parenting time every other weekend.
¶4 Three months after signing the 2009 Agreement, Father filed
a second petition, this time seeking to modify custody to joint custody and
to provide for additional parenting time. Father alleged that the proposed
change was in the best interests of the child because the child was
frequently absent from school under Mother’s care. Mother responded and
provided a medical explanation for the child’s absences. Mother also
alleged that a change in custody was not in the child’s best interests because
Father had committed acts of domestic violence against her and against his
current wife and because Father has a criminal record.
¶5 The parties again participated in mediation and entered into
a Mediation Agreement (“2010 Agreement”). The 2010 Agreement did not
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Decision of the Court
provide for joint custody but did stipulate that Mother and Father would
make all future decisions relating to the child’s education “by agreement
and consensus,” and granted Father two additional weeks of parenting
time each summer. The superior court entered a signed order formalizing
the 2010 Agreement.
¶6 Three years later, the State filed a petition to modify child
support, seeking a significant increase in child support from Father. Shortly
thereafter, Father filed a third petition seeking to modify parenting time,
legal decision-making, and child support. Father’s petition, as well as his
verified amended petition, sought joint legal decision-making and equal
parenting time.
¶7 Following a status conference, the court dismissed Father’s
amended petition without an evidentiary hearing, finding that Father had
failed to show a substantial change in circumstances materially affecting the
welfare of the child, and had thus failed to establish adequate cause for the
requested relief. Father appealed from the order of dismissal,1 and we have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(2).2
DISCUSSION
I. Adequate Cause Under A.R.S. § 25-411.
¶8 Father argues that legislative amendments to A.R.S. § 25-411
are inconsistent with and supersede the threshold “adequate cause”
requirement the superior court applied in determining whether to go
forward with proceedings to address Father’s request to modify parenting
time and legal decision-making.
¶9 The Arizona Legislature amended Title 25, Chapter 4 effective
January 1, 2013. See 2012 Ariz. Sess. Laws, ch. 309, § 4 (2d Reg. Sess.) (S.B.
1127). As part of those amendments, the Legislature replaced the term
1 Father filed his notice of appeal after the court ordered the case
dismissed in open court but prior to entry of the signed order dismissing
his petition. Father’s notice of appeal is nevertheless effective because it
appealed from a final decision that was simply formalized in a subsequent,
consistent signed order, without any intervening substantive motions or
issues. See Baker v. Bradley, 231 Ariz. 475, 481, ¶ 19, 296 P.3d 1011, 1017
(App. 2013).
2 Absent material revisions after the relevant date, we cite a statute’s
current version.
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SANTILLAN v. KEENEY
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“legal custody” with “legal decision-making” and replaced the term
“physical custody” or parental “visitation” with “parenting time.” See S.
Fact Sheet (Final Amended, May 15, 2012), S.B. 1127, 58th Leg., 2d Reg. Sess.
(Ariz. 2012). As amended, § 25-411 provides as follows:
L. To modify any type of legal decision-making or parenting
time order a person shall submit an affidavit or verified
petition setting forth detailed facts supporting the requested
modification and shall give notice, together with a copy of the
affidavit or verified petition, to other parties to the
proceeding, who may file opposing affidavits. The court shall
deny the motion unless it finds that adequate cause for
hearing the motion is established by the pleadings, in which
case it shall set a date for hearing on why the requested
modification should not be granted.
....
N. Subsection L of this section does not apply if the
requested relief is for the modification or clarification of
parenting time and not for a change of legal decision-
making.
(Emphasis added.)
¶10 Father argues that § 25-411(L)’s “adequate cause”
requirement has been superseded by the Legislature’s bifurcation of
“custody” into “legal decision-making” and “parenting time,” and by § 25-
411(N)’s mandate that subsection L does not apply to requests for
modification of parenting time alone. Father did not raise this argument
before the superior court, however, and he has thus waived it. See
Woodworth v. Woodworth, 202 Ariz. 179, 184, ¶ 29, 42 P.3d 610, 615 (App.
2002). Furthermore, waiver notwithstanding, § 25-411(N) by its terms does
not apply in this case. Father’s amended petition sought modification of
both parenting time and legal decision-making, whereas § 25-411(N)’s
apparent exclusion of the “adequate cause” standard applies—at most—
only if “requested relief is for the modification or clarification of parenting
time and not for a change of legal decision-making.” (Emphasis added.)
II. Evidentiary Hearing.
¶11 Father also argues that the superior court erred by finding he
had not established adequate cause to warrant an evidentiary hearing on
his modification petition. We disagree.
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¶12 Under A.R.S. § 25-411(L), the superior court “shall deny” a
petition to modify legal decision-making or parenting time “unless it finds
that adequate cause for hearing the motion is established by the pleadings.”
The superior court has wide discretion in assessing adequate cause. Siegert
v. Siegert, 133 Ariz. 31, 33, 648 P.2d 146, 148 (App. 1982). We will reverse
only if “no reasonable judge would have denied the petition without a
hearing.” Id.
¶13 The existence of adequate cause for modification is tied to
“the facts alleged to constitute a change in circumstances” that materially
affects the welfare of the child. Pridgeon v. Superior Court, 134 Ariz. 177, 180,
655 P.2d 1, 4 (1982); Galbraith v. Galbraith, 88 Ariz. 358, 362, 356 P.2d 1023,
1026 (1960). In determining whether adequate cause exists, the superior
court conducts an in-camera screening of the petition and supporting
affidavits; no hearing is required at the screening stage. See DePasquale v.
Superior Court, 181 Ariz. 333, 335, 890 P.2d 628, 630 (App. 1995). The
petitioner has the burden to establish adequate cause through detailed
facts, not simply conclusory allegations. See Pridgeon, 134 Ariz. at 181, 655
P.2d at 5.
¶14 Father’s amended petition alleged in pertinent part: (1) that
since 2009, Father continued to have a parental role with his other two
children, and his ex-wife considered him to be an “amazing father” and saw
consistent parenting time with Father as in her children’s best interests; (2)
Father had “maintained steady employment” as manager of a grocery store
and had purchased a house; (3) Mother had indicated “the meaningfulness
of [child] having a meaningful father figure”; and (4) Mother had
improperly taken the child to visit Mother’s father, who is a convicted sex
offender.
¶15 The superior court did not abuse its discretion by concluding
that these allegations did not constitute a change in circumstances affecting
the welfare of the child. Specifically, as Mother argued, neither the ex-
wife’s opinion of Father’s parenting ability nor Mother’s reflection on the
importance of a father figure constituted a material change in
circumstances. Similarly, because Father was employed by Safeway at the
time of the 2009 Agreement, his continued employment was not a change
in circumstances, regardless of his move to a different residence.
¶16 Mother vehemently disputed Father’s allegation that Mother
had taken the child to see her father, a convicted sex offender. She
characterized the allegation as “an overt lie” and expressly affirmed that
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she wanted no contact with her father, and would never expose the child to
him.
¶17 Generally, when the parties’ affidavits are “directly in
opposition upon any substantial and crucial fact relevant to the grounds for
modification,” the court should hold a hearing. Pridgeon, 134 Ariz. at 181,
655 P.2d at 5. Nevertheless, in this case, the court could reasonably have
concluded that a single supervised visit to the child’s grandfather (even
assuming it did occur) was not “substantial and crucial” to the grounds for
modification and, therefore, did not establish adequate cause for a hearing.
¶18 Finally, Father argues that “A.R.S. § 25-411(L)’s ‘adequate
cause’ requirement is an unconstitutional due process violation if it allows
a trial court to dismiss a petition to modify legal decision-making based on
affidavit alone.” The Arizona Supreme Court rejected a similar argument
in Pridgeon, explaining that because dismissing such a petition without a
hearing simply maintains the status quo (and thus does not deprive the
petitioner of any right), due process is satisfied by “review[ing] the petition
and the affidavits of both parties to make a determination whether a
hearing is required.” 134 Ariz. at 182, 655 P.2d at 6. Accordingly, the
superior court did not abuse its discretion by finding that Father’s petition
failed to show a substantial change in circumstances materially affecting the
welfare of the child and therefore dismissing the petition for want of
adequate cause. See Siegert, 133 Ariz. at 33, 648 P.2d at 148.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
:ama
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