Ryder v. Ryder ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
JESSICA RYDER, Petitioner/Appellant,
v.
ERIC RYDER, Respondent/Appellee.
No. 1 CA-CV 13-0202
FILED 5-6-2014
Appeal from the Superior Court in Maricopa County
No. FC2009-090035
The Honorable Benjamin R. Norris, Judge
REMANDED
COUNSEL
Jessica Ryder, San Tan Valley
Petitioner/Appellant In Propria Persona
Eric Ryder, San Tan Valley
Respondent/Appellee In Propria Persona
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
G E M M I L L, Judge:
RYDER v. RYDER
Decision of the Court
¶1 This is an appeal from a family court ruling altering
parenting time and child support. For the following reasons, we vacate
the family court’s parenting time and child support rulings and remand to
the Honorable Benjamin R. Norris for additional findings and further
proceedings as appropriate.
BACKGROUND
¶2 Appellant (“Mother”) and Appellee (“Father”) have one
child. After several years of marriage, Mother filed for divorce in early
2009. In March 2009, the court adopted a parenting plan appointing
Mother as the primary custodial parent. Father was given parenting time
every other weekend and shared holidays. The court ordered Father to
pay $421.07 per month in child support plus $100 per month to satisfy
$15,158.52 in arrears.
¶3 In May 2012, Mother filed a petition to modify child support.
In September 2012, Father filed a petition to modify parenting time and
child support coupled with a request to consolidate his petition for
consideration with Mother’s child support petition. Father claimed that
the current parenting time plan did not provide the kind of parent-child
relationship or meaningful contact that he desired. Father requested a 5-2-
2-5 parenting plan as well as a modification to child support to reflect his
increased time. The family court granted Father’s request to consolidate
the petitions and set an evidentiary hearing for January 2013.
¶4 During the evidentiary hearing, Mother said that although
she was not opposed to allowing Father more time, she either wanted to
keep the current parenting agreement or allow Father only one extra day
per week with daughter. Mother said that she believed the current
schedule was fair and that it provided Father with frequent, meaningful,
and continuing contact. Mother said that Father spent quality time with
their daughter and did not believe he was a bad father for any reason.
Mother also said that Father was not using all of the days available to him
under the current parenting schedule. Mother acknowledged, however,
that Father was consistently exercising parenting time every other
weekend. Father testified that he believed it would be in the child’s best
interest to have a 5-2-2-5 schedule because it would allow them to spend
more time together and have more bonding time. Father did not believe it
would be disruptive for the child to transition to the 5-2-2-5 schedule.
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RYDER v. RYDER
Decision of the Court
¶5 After considering the testimony of Mother, Father, and
Father’s wife, the court ordered parenting time on a 5-2-2-5 schedule as
well as week-on/week-off summer parenting time. The court also
ordered detailed communication requirements. The court incorporated
and adopted the Child Support Worksheet and ordered a reduction in
Father’s child support payments to $229.59 per month starting in June
2012, the month after Mother filed her original petition to modify child
support.
¶6 Mother timely appeals, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and
-2101(A)(1).
ANALYSIS
¶7 Mother raises three arguments on appeal: (1) the family
court failed to make specific findings of fact and reasons for awarding a
change in physical custody as required by A.R.S. § 25-403(B); (2) Father
did not provide sufficient evidence to show a change in circumstances that
would make modification of physical custody in the child’s best interest;
and (3) the family court erred in backdating the modified child support
payments to June 2012 because between that time and the ruling the child
was in her primary care. Because we remand based on Mother’s first
argument, we do not reach her other arguments. 1
I. Mother Did Not Waive Her Right to Appeal by Failing to
Request Specific Findings
1 In regard to Mother’s argument challenging the effective date of a new
child support order, however, we note that A.R.S. § 25-503(E) states in its
relevant part:
Any order for child support may be modified or terminated
on a showing of changed circumstance that is substantial
and continuing . . . Modification and termination are
effective on the first day of the month following notice of the
petition for modification or termination unless the court, for
good cause shown, orders the change to become effective at
a different date, but not earlier than the date of filing the
petition for modification or termination.
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RYDER v. RYDER
Decision of the Court
¶8 Mother argues that A.R.S. § 25-403(B) requires the family
court to set forth its specific findings on the factors set forth in A.R.S. § 25-
403(A) and its reasons supporting its decisions. Father responds that
Mother waived her right to assert deficient findings on appeal because she
failed to file a written request with the court for formal findings of fact
and conclusions of law. The requirement of specific findings by the court
in this situation, however, arises from A.R.S. § 25-403(B), not from a
litigant’s request for findings of fact and conclusions of law.
¶9 Father additionally cites Trantor v. Fredrickson, 179 Ariz. 299,
878 P.2d 657 (1994), to support his argument that mother waived her right
to appeal on this basis. Trantor, however, did not create an absolute rule
of waiver. See id. at 300, 878 P.2d at 658 (holding “absent extraordinary
circumstances, errors not raised in the trial court cannot be raised on
appeal.”) (emphasis added). We decline to apply Trantor and find no
waiver because the issues in this case turn on the best interests of a child.
See Reid v. Reid, 222 Ariz. 204, 209-10, ¶ 20, 213 P.3d 353, 358-359 (App.
2009) (declining to find waiver because the most important issue in
custody disputes is a child’s best interests).
¶10 The Reid court noted that had the family court “substantially
complied” with the statute, the appellate court would have been able to
perform a reasonable review. Id. at 208, ¶ 16, 213 P.3d at 357
(distinguishing the immediate facts from those in Banales v. Smith, 200
Ariz. 419, 26 P.3d 1190 (App. 2001)). Similarly, had the family court here
made findings addressing the A.R.S. § 25-403 factors and the court’s
consideration of the child’s best interests, as did the family court in
Banales, we would be in a position to reasonably perform an appellate
review. See Banales, 200 Ariz at 420, ¶ 7, 26 P.3d at 1191. No such
discussion by the family court appears on this record, however. As such,
this record is more analogous to Reid and we cannot appropriately discern
either the family court’s analysis or evaluation of the § 25-403 factors,
which precludes reasonable appellate review of the family court’s
decision. See Reid, 222 Ariz. at 207, ¶ 13, 213 P.3d at 356 (noting the
inadequacy of a family court’s conclusion that it was in child’s best
interest that mother retain custody without explaining why or which
factors influenced its decision). For these reasons, we conclude that
Mother did not waive her right on appeal to challenge the sufficiency of
the court’s findings. We proceed then to the merits of Mother’s first claim.
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RYDER v. RYDER
Decision of the Court
II. The Family Court Erred by Not Making Specific Findings of Fact
on the Record Regarding Relevant Factors and the Best Interest
Determination.
¶11 In a contested parenting time case, A.R.S. § 25-403(B)
provides that “the court shall make specific findings on the record about
all relevant factors and the reasons for which the decision is in the best
interests of the child.” This court has previously held that an order failing
to do so is deficient as a matter of law and may constitute reversible error.
In re Marriage of Diezsi, 201 Ariz. 524, 526, ¶ 5, 38 P.3d 1189, 1191 (App.
2002); see also Owen v. Blackhawk, 206 Ariz. 418, 420-421, ¶ 8, 79 P.3d 667,
669-70 (App. 2003) (holding that even though the family court referenced
A.R.S. § 25-403, it erred because it did not elaborate on how it weighed
any of the factors).
¶12 In this case the family court summarized witness testimony
and then “[b]ased on the foregoing” provided its conclusions. The family
court did not, however, reference A.R.S. § 25-403 or any of its listed
factors, and neither did the court explain its reasoning. The family court
erred by not complying with § 25-403, and we are unable to perform an
appropriate appellate review. Accordingly, we will vacate the family
court’s parenting time and related child support rulings and remand to
the Honorable Benjamin R. Norris for additional findings in accordance
with A.R.S. § 25-403(B). The family court also has discretion to determine
whether additional proceedings are necessary.
III. Request for Costs of Appeal
¶13 Although Mother did not retain an attorney, she requests
that her costs be paid by the Appellee. Mother is awarded her taxable
costs on appeal under A.R.S. § 12-342.
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RYDER v. RYDER
Decision of the Court
CONCLUSION
¶14 We vacate the family court’s parenting time and child
support orders and remand to the Honorable Benjamin R. Norris for
additional findings on the record in accordance with A.R.S. § 25-403(B)
and for any further proceedings or rulings as may be appropriate.
:MJT
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