Bosch v. Bosch

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
KYLE DALE VANDEN BOSCH,
Petitioner/Appellee,
v.
LINDSEY PARK VANDEN BOSCH,
Respondent/Appellant.
No. 1 CA-CV 22-0008 FC
FILED 11-10-2022
Appeal from the Superior Court in Maricopa County
No. FC2012-003520
The Honorable Lori Ash, Judge Pro Tempore
AFFIRMED
COUNSEL
The Cavanagh Law Firm, PA, Phoenix
By Helen R. Davis, Nicholas J. Brown
Counsel for Petitioner/Appellee
Dickinson Wright, PLLC, Phoenix
By Marlene A. Pontrelli, Vail Cloar, Alexandra Crandall
Counsel for Respondent/Appellant
BOSCH v. BOSCH
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Randall M. Howe and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Lindsey Park Vanden Bosch (“Mother”) appeals the superior
court’s order granting legal decision-making and attorney fees to Kyle Dale
Vanden Bosch (“Father”). We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father divorced in 2011 and share three minor
children. The dissolution decree, entered in Tennessee, awarded Mother
joint legal decision-making authority over the children and designated her
the primary residential parent. Mother moved to Arizona and
domesticated the Tennessee decree in 2012. Father moved to Arizona in
2013.
June 2016 Order
¶3 A year later, Father was concerned that Mother was abusing
alcohol and petitioned the superior court to modify the legal decision-
making order. The superior court granted Father’s petition in June 2016
(“June 2016 Order”), finding a substantial and continuing change of
circumstances based on Mother’s “actions relating to substance abuse,
including her arrest for driving under the influence and arrest for assault
after drinking, along with the parties’ significant lack of cooperation.”
Given this evidence, the court recognized a rebuttable presumption that
granting sole or joint legal decision-making authority to Mother was not in
the children’s best interests. See A.R.S. 25-403.04(A). Because Mother did
not rebut this presumption, Father was designated the primary residential
parent and awarded sole legal decision-making authority.
¶4 The superior court also reduced Mother’s parenting time, but
explained how she could resume equal parenting time and joint legal
decision-making. Among other things, Mother had to “complete an
intensive inpatient or residential alcohol treatment program,” and submit
to alcohol testing. Once she completed the treatment program, Mother had
“to file a motion with the [superior court] for referral to the FACT court,” a
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Decision of the Court
specialty court devoted to family assessment, counseling and testing.
Mother was then required to “participate in FACT Court’s assessment,
education, and treatment,” and upon her “successful graduation from the
FACT court,” the superior court authorized the “FACT Court judge” to
“resume equal parenting time [and] joint legal decision-making.”
¶5 And last, the court granted Father’s request for attorney fees
because Mother was acting unreasonably and the parties had similar
incomes.
November 2017 Stipulated Order
¶6 Mother petitioned in July 2017 to modify the June 2016 Order. She
argued the court was required to restore her parental rights as a matter of
law because she completed the intensive treatment program outlined in the
June 2016 Order, and because joint legal decision-making was in the
children’s best interests. The superior court held an evidentiary hearing in
November 2017, during which the parties reached a Rule 69 agreement to
share equal parenting time and for Father to have sole legal decision-
making authority. And so, the court entered a stipulated order (“November
2017 Stipulated Order”).
Mother’s 2018 Petition Dismissed
¶7 Thirteen months later, in December 2018, Mother again petitioned
for joint legal decision-making authority, arguing that Father was not
making decisions in one of the children’s best interests. As the substantial
and continuing change in circumstances, Mother pointed to “the
termination of her substance abuse monitoring and her belief that the
parties will now be able to make decisions jointly.”
¶8 The superior court dismissed Mother’s petition on the pleadings
because Mother had not shown adequate cause. See A.R.S. § 25-411(L)
(court shall deny a motion to modify legal decision-making or parenting
time “unless it finds that adequate cause for hearing the motion is
established by the pleadings”). The court “acknowledge[d] that Mother’s
substance abuse monitoring has terminated,” but rejected “her claim that
the parties are now able to make joint decisions.” Any notion of
cooperation, according to the court, was “wholly undermined” by the
record and the aggressive litigation tactics of both parents, which included
“multiple Petitions for Contempt against each other.” Mother did not
appeal that order.
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October 2021 Order
¶9 In October 2019, Mother again petitioned to modify legal decision-
making. The court held an evidentiary hearing and denied Mother’s
petition in October 2021 (“October 2021 Order”). The court found the
parents still could not make decisions together, and the circumstances had
not changed enough to warrant modification. The court granted Father’s
request for attorney fees because Mother was acting unreasonably and the
parties had similar incomes.
¶10 Mother timely appealed the October 2021 Order. We have
jurisdiction. See Ariz. Const. art. 6, § 9 and A.R.S. §§ 12-120.21(A)(1).
DISCUSSION
¶11 Mother challenges the superior court’s denial of her October 2019
petition to modify and award of attorney fees to Father.
Petition to Modify
¶12 We review the superior court’s ruling on a petition to modify for
an abuse of discretion, which results when the record is “devoid of
competent evidence to support the decision,” or when the court commits an
error of law in reaching a discretionary conclusion. Smith v. Smith, 253 Ariz.
43, 45, ¶ 9 (App. 2022). We will not reweigh the evidence, but instead defer
to the superior court’s “determinations of witness credibility and the
weight given to conflicting evidence.” Lehn v. Al-Thanayyan, 246 Ariz. 277,
284, ¶ 20 (App. 2019).
¶13 Arizona courts conduct a two-part inquiry when resolving
petitions to modify legal decision-making. The court first determines
whether the evidence reflects a substantial and continuing change in
circumstances that materially affects the children’s welfare—as measured
from the most recent decree. Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶¶
14, 18 (App. 2020). This prong is rooted in principles of res judicata.
See Ward v. Ward, 88 Ariz. 130, 134-35 (1960) (“The change of circumstances
rule as a limitation on modification of a divorce decree is one aspect of the
principle of res judicata.”). A change in circumstances is material when it
alters the child’s environment so the last decree no longer responds to and
fits the current circumstances. Backstrand, 250 Ariz. at 344, ¶¶ 17-18; see also
Burk v. Burk, 68 Ariz. 305, 308 (1949) (the moving party has the burden to
satisfy the court that conditions and circumstances have changed to justify
the modification).
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¶14 If the court finds a material change in circumstances, it must then
determine whether the proposed modification is in the children’s best
interests. Backstrand, 250 Ariz. at 345, ¶ 25. Arizona law presumes that a
child’s best interest warrants “substantial, frequent, meaningful and
continuing parenting time with both parents.” See A.R.S. § 25-103(B).
¶15 Mother argues the superior court erred when it found no material
change of circumstances because the parties had cooperated on major
decisions for one child who experienced a rapid decline in mental health,
and because Mother completed substance abuse treatment as directed in
the July 2016 Order. Together, she contends, this evidence represented a
material change of circumstances.
¶16 The superior court did not abuse its discretion. First, although the
parents cooperated to place the child in a behavioral health program,
cooperation had remained a problem between them. They argued about
medical treatments, choice of high school and extracurricular activities.
Second, the record shows that Father had pursued and acted in the
children’s best interests.
¶17 Mother also argues the court erred because she had satisfied the
requirements of the June 2016 Order. But she satisfied those conditions
before she petitioned to modify in November 2017. And because Mother
sought to modify the November 2017 Stipulated Order when she last
petitioned, the superior court was required to compare the circumstances
in November 2017 against the circumstances in October 2021. See
Backstrand, 250 Ariz. at 344, ¶ 18 (“Whether imposed by the court or agreed
to by the parties, the parenting provisions of a decree or other order
represent a snapshot of the child’s best interests when they are entered. In
turn, this snapshot forms the baseline from which future courts assess
whether a material change of circumstances has occurred.”). We affirm.
Attorney Fees
¶18 Mother contests the superior court’s award of attorney fees to
Father. The court may award attorney fees “after considering the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings.” A.R.S. § 25-324(A). We review an
attorney fee award for an abuse of discretion. Democratic Party of Pima Cnty.
v. Ford, 228 Ariz. 545, 547, ¶ 6 (App. 2012).
¶19 The superior court did not abuse its discretion. The record
includes reasonable evidence to support the court’s findings that Mother
had similar financial resources as Father and had acted unreasonably in the
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litigation by continuing to pursue modification without a material change
in circumstances.
CONCLUSION
¶20 We affirm the superior court’s denial of Mother’s petition to
modify. Both parties seek their attorney fees on appeal under A.R.S. § 25-
324. We grant Father’s request in the exercise of our discretion after
considering the parties’ resources and the reasonableness of their positions.
We award Father his costs on appeal upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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