Burton v. Groeneveld ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 the Matter of:
BRIAN SCOTT BURTON, Petitioner/Appellant,
v.
LORENA GROENEVELD, Respondent/Appellee.
No. 1 CA-CV 21-0072 FC
FILED 12-16-2021
Appeal from the Superior Court in Maricopa County
No. FC2008-002113
The Honorable Gregory Como, Judge
AFFIRMED
APPEARANCES
Brian Burton, Gilbert
Petitioner/Appellant
Lorena Groeneveld, Phoenix
Respondent/Appellee
BURTON v. GROENEVELD
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 Brian Burton (“Father”) appeals the superior court’s denial of
his petition to modify parenting time. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Lorena Groeneveld (“Mother”) have one minor
child together. In 2008, the superior court awarded Mother sole legal
decision-making authority for their young child and issued a parenting
time order. Since then, the parenting time order has been modified, most
recently in 2017 as part of an Arizona Rules of Family Law Procedure Rule
69 agreement reached between the parents. In essence, the 2017 order
awarded both parents equal parenting time in summer months and gave
Father parenting time every Wednesday, as well as every other weekend,
during the child’s school year. The Rule 69 agreement stated, “The parents
agree one year from this date parents will communicate with the child
together his wishes of legal decision-making and parenting time which
parents agree to follow based upon the child’s wishes.”
¶3 In 2020, Father petitioned the superior court to modify
parenting time, saying the child desired more parenting time with Father.
Mother moved to have the court’s conciliation services interview the child,
then age twelve, to determine the child’s wishes. Over Father’s objection,
the court granted Mother’s motion and ordered the child be interviewed by
a court conciliator. The court conciliator provided a written report of the
interview, stating, in part, the child “wishe[d] for the schedule during the
school year to stay as it is currently.”
¶4 Following an evidentiary hearing, the superior court declined
to modify parenting time stating, “Father has failed to show a material
change in circumstances that warrants a change in the parenting time
schedule.” Father timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1).
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BURTON v. GROENEVELD
Decision of the Court
DISCUSSION
¶5 Father challenges the superior court’s denial of his petition to
modify parenting time, arguing the court failed to make “best interests”
findings under A.R.S. § 25-403. And though Father is correct the court did
not make those findings under that statute, the court was not required to
unless it first found a “material change in circumstances affecting the
welfare of the child” to warrant a change in parenting time. See Vincent v.
Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015) (quoting Canty v. Canty, 178 Ariz.
443, 448 (App. 1994)).
¶6 The superior court has broad discretion in determining
whether a material change in circumstances exists. Canty, 178 Ariz. at 448.
This court will affirm that decision absent a clear abuse of discretion.
Vincent, 238 Ariz. at 155, ¶ 17. An abuse of discretion occurs either “when
the record does not support the court’s decision” or “when the court
commits an error of law in reaching a discretionary decision.” DeLuna v.
Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). This court also accepts the
superior court’s findings of fact “unless they are clearly erroneous” but
reviews conclusions of law and the interpretation of statutes de novo. Id.¶7 Here, Father’s primary argument for a material change in
circumstances was his belief the child preferred to spend more time with
him. The child, however, informed the court conciliator he wanted the
schedule during the school year to stay as it was. The superior court found
the child was “content with the current parenting time schedule and [did]
not wish for it to change.” The record supports that finding, as well as the
court’s conclusion that no material changes in circumstances existed.
Because the court acted within its discretion to find no material change in
circumstances, the court was not then required to make the best interests
findings otherwise required under A.R.S. § 25-403. On this record, Father
has shown no error.
CONCLUSION
¶8 For the foregoing reasons, we affirm the superior court’s
denial of Father’s petition to modify the parenting time order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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