Goss v. Goss ( 2021 )


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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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
    TERRI LEE GOSS, Petitioner/Appellee,
    v.
    CARROLL WAYNE GOSS, Respondent/Appellant.
    No. 1 CA-CV 20-0565 FC
    FILED 9-14-2021
    Appeal from the Superior Court in Maricopa County
    No. FC2014-091690
    The Honorable Joan M. Sinclair, Judge
    VACATED AND REMANDED
    COUNSEL
    Paul D. Nordini Attorney at Law, Scottsdale
    By Paul D. Nordini
    Counsel for Respondent/Appellant
    Rowley Law Group, PLLC, Mesa
    By Scott R. Rowley
    Counsel for Petitioner/Appellee
    GOSS v. GOSS
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge D. Steven Williams delivered the decision of the Court, in
    which Judge David B. Gass and Judge James B. Morse Jr. joined.
    W I L L I A M S, Judge:
    ¶1           Carroll Goss (“Father”) appeals the superior court’s order
    dismissing his petition to modify legal decision-making, parenting time,
    and child support. For reasons that follow, we vacate the order and remand
    for an evidentiary hearing on Father’s petition.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2           Father and Terri Goss (“Mother”) divorced in 2014. Initially,
    the parents agreed to share joint legal decision-making authority for their
    two minor children. Father pled guilty to a DUI in 2017 and, thereafter, the
    parties agreed to a revised parenting plan restricting Father’s parenting
    time.
    ¶3            In 2018, police found Father intoxicated and passed out while
    the children were in his care. Mother moved to modify legal
    decision-making, parenting time, and child support given Father’s
    continued substance abuse. Mother, who was represented by counsel, and
    Father, representing himself, reached a stipulated agreement. The superior
    court accepted the agreement and entered it as an order. The order granted
    Mother sole legal decision-making authority of the minor children, limited
    Father’s parenting time to two hours of supervised visits every other week,
    and required Father to complete a one-year intensive alcohol abuse
    treatment program before he could seek to modify parenting time going
    forward. Specifically, the order required:
    Father may only request a change to this parenting plan after
    he has successfully completed an uninterrupted one (1) year
    intensive alcohol abuse treatment program under the
    guidance of a certified substance [abuse] counselor and has
    maintained 100% sobriety. Until such time as Father has
    completed an uninterrupted one (1) year intensive alcohol
    abuse program, Father is specifically barred from requesting
    any change to the parenting plan.
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    GOSS v. GOSS
    Decision of the Court
    ¶4            Roughly a year-and-a-half later, Father petitioned the
    superior court to modify legal decision-making, parenting time, and child
    support. With his petition, Father provided character letters from various
    people claiming he had overcome his alcohol addiction, provided evidence
    of his participation and attendance of 24 treatment sessions through The
    Right Step treatment program, and provided multiple supervised
    parenting reports. Later, Father amended his petition claiming that since
    entry of the stipulated order, he maintained sobriety for nearly two years
    and completed an out-patient program. Mother moved to dismiss Father’s
    petition, arguing Father provided no proof of completing a year-long
    intensive alcohol abuse treatment program as required by the order. The
    superior court granted Mother’s motion to dismiss.
    ¶5             Father timely appealed. Because the superior court’s order of
    dismissal lacked finality language as required by Arizona Rule of Family
    Law Procedure 78(c), this court revested jurisdiction to the superior court.
    The superior court issued a second dismissal order, with the certification of
    finality, and this appeal was reinstated. We have jurisdiction under Article
    6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21(A)(1), and
    -2101(A)(1).
    DISCUSSION
    ¶6            A petitioner seeking to modify a legal decision-making or
    parenting time order must provide “adequate cause for [a] hearing” in
    his/her petition, A.R.S. § 25-411(L), including “present[ing] detailed facts
    which are relevant to the statutory grounds for modification,” Pridgeon v.
    Superior Court, 
    134 Ariz. 177
    , 181 (1982). Whether adequate cause exists
    depends on whether the facts alleged by petitioner constitutes a change in
    circumstances. 
    Id. at 180
    .
    ¶7             We review the superior court’s denial of a petition to modify
    a legal decision-making or parenting time order for an abuse of discretion,
    
    Id. at 179
    ; Baker v. Meyer, 
    237 Ariz. 112
    , 116, ¶ 10 (App. 2017), and defer to
    the court’s findings of fact unless they are clearly erroneous, Engstrom v.
    McCarthy, 
    243 Ariz. 469
    , 471, ¶ 4 (App. 2018).
    ¶8             Father argues the superior court erred in dismissing his
    petition outright without holding an evidentiary hearing to consider the
    best interests of the children. We agree.
    ¶9            The superior court based its dismissal of Father’s petition on
    a lack of evidence demonstrating Father completed “one full uninterrupted
    year of an intensive alcohol abuse program.” The record supports that
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    GOSS v. GOSS
    Decision of the Court
    finding. However, the purpose of the stipulated agreement was to aid in
    Father’s sobriety, and in turn, to benefit the children and their interaction
    with Father. Father alleged he had been sober for nearly two years and
    provided letters from others supporting his claim. Father also provided
    some evidence that he attended 24 alcohol treatment classes. Although we
    cannot discern from the record how long it took Father to complete those
    classes, it is some evidence of steps he took to comply with the stipulated
    order.
    ¶10            Mother argues Father should not be allowed to seek
    modification until he completes the required one-year intensive program.
    If there is “an uninterrupted one (1) year intensive alcohol abuse program”
    in Arizona, the record contains no proof of its existence. If such a program
    does not exist, under Mother’s argument, Father will never qualify to seek
    any change in his legal decision-making authority, parenting time, or child
    support obligations.
    ¶11            We acknowledge the basis for Mother’s argument that a
    finding of a change in circumstances is required before the superior court
    can reach the question of whether a change in custody would be in the
    children’s best interest. See Black v. Black, 
    114 Ariz. 282
    , 283 (1977). But
    Father has provided evidence of a change in circumstances, even if it is not
    the specific change contemplated in the prior agreement. And the law
    discourages parties from contracting out of responsibilities that could have
    an adverse impact on a child’s best interests. See Albins v. Elovitz, 
    164 Ariz. 99
    , 101-02 (App. 1990) (providing that, while a custodial parent can waive
    child support payments and surrender visitation rights, “any such
    agreement is not binding on the court and will be enforced only so long as
    the interest of the child is not adversely affected”). Here, it is unclear from
    the record whether Father could comply with the requirement to complete
    a one-year intensive alcohol abuse treatment program. And the court is not
    bound to enforce an agreement between parties involving custody matters
    if the court is not convinced the agreement will advance the best interests
    and welfare of the children. Anderson v. Anderson, 
    14 Ariz. App. 195
    , 198
    (1971). Above all else, the primary consideration in custody determinations
    is the best interests of the children, Hays v. Gama, 
    205 Ariz. 99
    , 102, ¶ 18
    (2003), and any attempt, through agreement or otherwise, which
    circumvents this paramount consideration requires a closer look.
    ¶12           Because Father provided evidence with his petition of
    alcohol treatment and evidence of a length of sobriety beyond the time
    required for treatment in the stipulated order, the superior court should
    have granted Father an evidentiary hearing to further inquire whether a
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    GOSS v. GOSS
    Decision of the Court
    substantial and continuing change of circumstances exists, and whether a
    modification of Father’s legal decision-making authority, parenting time,
    and child support obligation would be in the children’s best interests.
    Consequently, we vacate the court’s dismissal order and remand for an
    evidentiary hearing on Father’s underlying petition.
    ¶13           In the exercise of our discretion, we deny Mother’s request for
    attorneys’ fees pursuant to A.R.S. § 25-324.
    CONCLUSION
    ¶14          We vacate the superior court’s dismissal order and remand
    for an evidentiary hearing on Father’s underlying petition to modify legal
    decision-making authority, parenting time, and child support.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CV 20-0565-FC

Filed Date: 9/14/2021

Precedential Status: Non-Precedential

Modified Date: 9/14/2021