Douros v. Douros

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MICHELLE DAWN DOUROS,
Petitioner/Appellee,
v.
NEAL ANTHONY DOUROS,
Respondent/Appellant.
No. 1 CA-CV 20-0198 FC
FILED 2-16-2021
Appeal from the Superior Court in Maricopa County
No. FC2012-001355
The Honorable Justin Beresky, Judge
AFFIRMED
COUNSEL
Joseph M. Huey, PLC, Scottsdale
By Joseph M. Huey
Counsel for Petitioner/Appellee
Katz & Bloom, Phoenix
By Norman M. Katz
Counsel for Respondent/Appellant
DOUROS v. DOUROS
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.
W E I N Z W E I G, Judge:
¶1 Neal Douros (“Father”) appeals the superior court’s legal
decision-making and parenting time orders and the denial of his motion for
reconsideration. Because Father has shown no abuse of discretion, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Michelle Douros (“Mother”) married in 2007 and
divorced in 2013. They share two children who were minors at the time of
divorce. A bench trial was needed to resolve several contested issues in the
dissolution proceeding, including the issues presented here: parenting time
and legal decision-making authority. Both parties presented evidence and
argument. Mother accused Father of child abuse and offered an expert who
testified that Father’s parenting time should not be increased until he
attends therapy and domestic violence classes. Based on the evidence
presented, the court ordered the children to live with Mother in June 2013
and granted her sole legal decision-making authority. Father’s parenting
time was limited to two afternoons per week and one weekend day every
other week, all without overnight parenting. The court ordered Father to
attend and complete domestic violence counseling, parenting classes and
individual counseling before the court would consider modifications.
¶3 Seven years later, in April 2019, Father petitioned to modify
the legal decision-making and parenting time order, alleging he had
complied with the superior court’s prior order. Father wanted equal
parenting time and joint legal decision-making authority.
¶4 The superior court held an evidentiary hearing on Father’s
petition in November 2019. Father testified on his own behalf. Asked about
his compliance with the court’s 2013 order, Father conceded he first sought
individual counseling in August 2018—five years after the court ordered
him to attend and complete such counseling—and just started attending
domestic violence classes about three months earlier, completing only 10 of
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Decision of the Court
28 sessions. Father also emphasized that no child abuse accusations had
been substantiated against him and complained that Mother had not
consulted him about major decisions. He agreed that a gradual increase in
his parenting time would be appropriate. Mother also testified. She told
the court that “Father is not capable of coparenting because his
communications are aggressive, manipulative and controlling.” She also
feared that Father might be inappropriate with the children.
¶5 The court ordered the children to be interviewed by
Conciliation Services. Neither child asked for more parenting time with
Father. One child requested more time with Mother, and the other child
said the schedule was “good the way it is.”
¶6 Based on the record accumulated before it, the superior court
found a substantial and continuing change to increase Father’s parenting
time based on Father’s substantial compliance with the court’s June 2013
order. The court thus increased Father’s parenting time to include
overnight visits. The court, however, left Mother as the sole legal decision-
maker. The order included the required best-interests findings under
A.R.S. § 25-403.
¶7 Father unsuccessfully moved for reconsideration, arguing,
among other things, that Arizona law required he receive equal or near-
equal parenting time under A.R.S. § 25-403.02. The court reiterated that
Father’s parenting time had been increased, adding that Father’s proposed
modifications were not in the children’s best interests and Arizona law does
not require equal parenting time. Father timely appealed. We have
jurisdiction. See A.R.S. § 12-2101(A)(1), (B).
DISCUSSION
¶8 We first stress our standard of review. This court reviews the
superior court’s legal decision-making and parenting time orders for an
abuse of discretion, Kent v. Carter-Kent, 235 Ariz. 309, 312, ¶ 13 (App. 2014),
which occurs when the record, “viewed in the light most favorable” to
affirming the orders, “is devoid of competent evidence to support the[m].”
Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (quoting Fought v. Fought, 94
Ariz. 187, 188 (1963)). This court does not reweigh the evidence presented
to the superior court, but instead defers to the court’s “determinations of
witness credibility and the weight given to conflicting evidence.” Lehn v.
Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019).
¶9 Arizona law directs the superior court to “determine legal
decision-making and parenting time, either originally or on petition for
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Decision of the Court
modification, in accordance with the best interests of the child.” A.R.S. § 25-
403(A). “The court shall consider all factors that are relevant to the child’s
physical and emotional well-being,” id., including the legislature’s non-
exhaustive list of factors enumerated in sections 25-403(A) and 25-403.01(B).
The superior court must include “specific findings on the record” about
how its “decision is in the best interests of the child,” A.R.S. § 25-403(B), and
consider the “past, present and future abilities of the parents to cooperate
in decision-making about the child to the extent required by the order of
joint legal decision-making,” A.R.S. § 25-403.01(B)(3).
¶10 Father contends the superior court abused its discretion by
modifying his parenting time and legal decision-making authority
“because the evidence supports the unrebutted presumption that such an
order is in the children’s best interests.” He also contends that courts must
grant equal parenting time under Arizona law “unless there is evidence that
such is not in the children’s best interests.” For these arguments, Father
relies on A.R.S. § 25-103(B)(1), which directs that “absent evidence to the
contrary, it is in a child’s best interest [t]o have substantial, frequent,
meaningful and continuing parenting time with both parents.” This court
has held, however, that A.R.S. § 25-103(B)(1) “does not require equal
parenting time,” and the superior court still may “determine parenting time
based on all the evidence before it.” Gonzalez-Gunter v. Gunter, 249 Ariz.
489, 492, ¶¶ 11-12 (App. 2020).
¶11 Furthermore, the “record is not devoid of evidence” to
support the court’s orders, and the court included all required findings
under A.R.S. §§ 25-403(A) and 25-403.01(B). Among other evidence, the
court heard testimony that the children were bonded more closely with
Mother and doing well with her. The children did not ask that Father
receive more parenting time. One child wanted more parenting time with
Mother. This evidence supports the superior court’s conclusion that equal
parenting time and joint legal decision-making would be contrary to the
children’s best interests. See A.R.S. § 25-103(B).1
CONCLUSION
¶12 We affirm. Mother and Father seek an award of their attorney
fees and costs on appeal under A.R.S. § 25-324 and ARCAP 21. Because
neither party developed their argument, we exercise our discretion to deny
1 Nor did the superior court abuse its discretion when it denied
Father’s motion to amend or reconsider, which mostly reiterated his earlier
arguments. See Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009).
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both requests. Mother is entitled to her reasonable costs on appeal upon
compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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