Van Zilen v. Bouse

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JENNIFER MAY VAN ZILEN, Petitioner/Appellee,
v.
JEFFREY ROBERT BOUSE, Respondent/Appellant.
No. 1 CA-CV 20-0344 FC
FILED 11-16-2021
Appeal from the Superior Court in Yavapai County
No. P1300DO201200859
The Honorable Joseph P. Goldstein, Judge pro tempore
VACATED IN PART AND REMANDED
COUNSEL
Margaret Perlmeter, Phoenix
Counsel for Petitioner/Appellee
Jeffrey R. Bouse
Respondent/Appellant
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.
VAN ZILEN v. BOUSE
Decision of the Court
M c M U R D I E, Judge:
¶1 Respondent Jeffrey Bouse (“Father”) appeals from the
superior court’s order modifying his parenting time. Father argues that
(1) the court failed to make the specific findings required under A.R.S.
§ 25-403, (2) he was prejudiced by Petitioner Jennifer Van Zilen’s
(“Mother”) late filing of her pretrial statement and exhibits, and (3) the
court’s requirement that he exercise his parenting time with the children in
Cottonwood one weekend per month to retain his parenting time in Mesa
one weekend per month presents a financial burden and causes him undue
hardship. We vacate the superior court’s order because the geographical
restrictions are not supported and remand for proceedings consistent with
this decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 The parties were married in 2006 and had two children
together. The marriage was dissolved in 2012. The dissolution decree
included a finding that Father committed an act of domestic violence, and
Mother was awarded sole legal decision-making. The court designated
Mother as the primary residential parent and granted Father parenting time
every other weekend and one weekday per week. From the dissolution of
the marriage through 2015, both parties lived in the Cottonwood area. In
2015, Father moved away from the area, eventually residing in Mesa, while
Mother and the children remained in Cottonwood.
¶3 In 2016, Father petitioned for legal decision-making and
parenting-time modification. The court ordered mediation, and the parties
agreed to joint legal decision-making and parenting time for Father every
other weekend. There were no geographical restrictions in the parenting
plan for Father’s parenting time.
¶4 In 2019, Mother petitioned to modify legal decision-making
and parenting time and requested temporary orders. She asked for sole
legal decision-making and that Father’s parenting time be restricted to only
supervised parenting time. She asserted that Father was awaiting trial on
charges for driving under the influence, a crime for which he had been
convicted on two prior occasions. She also stated that one of the children
had gotten sick during the night during a recent visit, and the children
could not wake Father, who was sleeping in his locked bedroom. She
claimed that the child developed recurrent severe abdominal pain and
vomiting because of anxiety caused by Father’s parenting time. In July 2019,
the court issued temporary orders allowing Father parenting time only on
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VAN ZILEN v. BOUSE
Decision of the Court
occasions agreed to by Mother and restricting Father’s parenting time to
Cottonwood.
¶5 At a trial in January 2020, Mother presented evidence
supporting her allegations, including evidence that Father had recently
refused to speak with a family court advisor and shouted profanities at the
advisor over the phone. Mother also offered text messages Father had sent
to one of the children telling her that if she did not want him in her life, she
should have her stepfather adopt her and would never have to hear from
him again. Mother presented the family court advisor’s report, which stated
that the children did not feel safe at Father’s home and wanted to spend
time with him in Cottonwood.
¶6 Following the trial, the court made best-interests findings as
required by A.R.S. § 25-403. Relevant to this appeal, the court found that:
(1) Father had been accused of felony DUI and was awaiting trial,1 (2) the
children had been unable to get Father’s attention through his locked
bedroom door one night when one of the children was ill, (3) Father
shouted profanities at the family court advisor, (4) the children had not
been to Father’s home since June 2019, and (5) the children, then ages 10
and 12, wished to reside mainly with Mother.
¶7 The court ordered that Mother and Father continue to share
joint legal decision-making authority of the children, finding that Mother
had not shown by a preponderance of the evidence that legal
decision-making should be modified. The court found, however, that
Mother established Father’s parenting time should be modified. As a result,
the court ordered Father’s future parenting time to occur on particular
holidays and every other weekend, with weekend parenting time
alternating in Cottonwood and Mesa. And the court ordered that if Father
did not exercise at least one day of parenting time during a
Cottonwood-designated weekend, he would not be entitled to the next
weekend of parenting time in Mesa.
¶8 Father appealed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).
1 We note that Father was acquitted of the charges. See City of Phoenix
v. Superior Court, 110 Ariz. 155, 157 (1973) (We take judicial notice of
superior court records.).
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VAN ZILEN v. BOUSE
Decision of the Court
DISCUSSION
¶9 We review an award of legal decision-making and parenting
time for an abuse of discretion. Olesen v. Daniel, 251 Ariz. 25, 29, ¶ 14 (App.
2021); DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). An abuse of
discretion occurs when the court commits an error of law that underlies its
exercise of discretion, Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App.
2018), or “when the record, viewed in the light most favorable to upholding
the trial court’s decision, is devoid of competent evidence to support the
decision.” Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (quotation omitted).
¶10 Under A.R.S. § 25-411(J), “[t]he court may modify an order
granting or denying parenting time rights whenever modification would
serve the best interest of the child, but the court shall not restrict a parent’s
parenting time rights unless it finds that the parenting time would
endanger seriously the child’s physical, mental, moral or emotional health.”
This subsection applies when the court places conditions or limitations on
the way a parent exercises his or her parenting time, for example, by
imposing supervision requirements or geographical restrictions.
Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 492, ¶ 13 (App. 2020); Cruz v.
Garcia, 240 Ariz. 233, 238, ¶ 18 (App. 2016). A restriction imposed after a
finding of endangerment must relate to the danger found to exist. See Paul
E. v. Courtney F., 246 Ariz. 388, 394, ¶ 20 (2019).
¶11 The geographical restriction imposed here falls within the
purview of A.R.S. § 25-411(J). The court restricted Father’s rights by
affording Father one parenting-time weekend a month that must be
exercised in Cottonwood and allowing the following parenting-time
weekend in Mesa only if Father exercised at least one day of parenting time
in Cottonwood. Neither the parenting time in Cottonwood nor Mesa is
supervised.
¶12 The court made no express finding that the children were
endangered by Father’s unsupervised parenting time in Mesa and
Cottonwood. And we recognize that findings under A.R.S. § 25-411(J) need
not be expressed. Hart v. Hart, 220 Ariz. 183, 187, ¶ 16 (App. 2009); See also
Boyle v. Boyle, 231 Ariz. 63, 67, ¶ 15 (App. 2012) (We may infer additional
findings necessary to sustain a judgment when the evidence reasonably
supports such conclusions and the inferred finding does not conflict with
an express finding.). But the geographical restriction imposed is unrelated
to an endangerment determination supported by the record and is
otherwise inconsistent with the court’s order. It is, therefore, prohibited
under A.R.S. § 25-411(J).
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VAN ZILEN v. BOUSE
Decision of the Court
¶13 The record demonstrates that the children were fearful of
Father’s temper, and the children had once been unable to wake Father,
who was sleeping with his bedroom door locked. At the time of the court’s
order, the children had not visited Father at his Mesa home for almost ten
months and expressed that they were afraid of staying at Father’s home in
the future. When viewed in the light most favorable to upholding the
superior court’s judgment, these facts may support a finding of
endangerment under A.R.S. § 25-411(J). But the court’s restrictions lack a
sufficient nexus with these concerns. Although the record might support
conditions that help ease the children back into Father’s parenting time and
alleviate their fears about spending the night in Mesa, there is insufficient
evidence to support a permanent geographical restriction without a date to
return to unrestricted parenting time. Moreover, allowing Father
unsupervised parenting time in Mesa would undercut any attempt to
address endangerment with a geographical restriction.
CONCLUSION
¶14 We vacate the portion of the superior court’s order imposing
geographical restrictions on Father’s parenting time and remand for a
redetermination of parenting time.2 As a result, upon request by either
party, the court must conduct a hearing to determine the appropriate
parenting time under A.R.S. §§ 25-403 and -411. See Olesen v. Daniel, 251
Ariz. at 31, ¶ 25.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 Because we remand for a new hearing, we decline to address
Father’s remaining arguments.
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