Servin v. Servin

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MICHAEL A. SERVIN, JR., Petitioner/Appellant,
v.
CHRISTINA E. SERVIN, Respondent/Appellee.
No. 1 CA-CV 21-0217 FC
FILED 4-12-2022
Appeal from the Superior Court in Maricopa County
No. FC2017-002176
The Honorable Suzanne M. Nicholls, Judge
AFFIRMED AS MODIFIED
COUNSEL
Strong Law, Phoenix
By Marc R. Grant, Jr.
Counsel for Petitioner/Appellant
Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Erica Leavitt
Counsel for Respondent/Appellee
SERVIN v. SERVIN
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.
B R O W N, Judge:
¶1 Michael A. Servin, Jr., (“Father”) challenges the superior
court’s post-decree order addressing a petition to modify legal decision-
making and parenting time filed by Christina E. Servin (“Mother”). He
argues the court erred by restricting his ability to petition to modify and by
awarding Mother excessive attorneys’ fees. We strike the restriction but
affirm the rest of the order.
BACKGROUND
¶2 Father and Mother divorced in January 2018; they have two
minor children in common. Initially, the parents shared joint legal decision-
making and Father, a member of the United States Army, had long-distance
parenting time. In 2020, Mother petitioned to modify legal decision-making
and parenting time, based in part on Father’s acts of domestic violence
against his new wife, Mother’s order of protection against Father due to his
harassing communications, and new information regarding Father’s mental
health. As relevant here, Mother requested sole legal decision-making and
supervised parenting time for Father. Mother also requested an order that
required Father to engage in services for his mental health.
¶3 After an evidentiary hearing, the superior court determined
that the evidence presented a substantial change in circumstances requiring
modification of their parenting plan. The court found that Father did
commit domestic violence, that he suffers from mental health issues that
have not been addressed against medical advice, and that he knowingly
and intentionally presented false and/or misleading information to Mother
and the court to gain a favorable outcome. The court made written findings
on all of the relevant statutory best interest and domestic violence factors.
¶4 The court also noted its concerns over Father’s increasingly
serious acts of domestic violence, finding that he “engaged in ‘significant
domestic violence’ such that the prohibition on awarding joint legal
decision-making authority does apply.” The court determined that Father
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Decision of the Court
failed to rebut the statutory presumptions that sole or joint legal decision-
making to the parent that committed the act of domestic violence is contrary
to the children’s best interests and would endanger the children or
significantly impair their emotional development. See A.R.S.
§§ 25-403.03(D) (legal decision-making), -403.03(F) (parenting time).
¶5 The court awarded Mother sole legal decision-making and
designated her as the primary residential parent. Father was awarded
seven (12-hour) supervised parenting days in Arizona each month. In
section (A)(2)(i) of the order, the court imposed six conditions on Father
before he could file a petition to modify parenting time.
¶6 Addressing attorneys’ fees, the court found that under A.R.S.
§ 25-324(A), Father did not act reasonably in the litigation and a substantial
disparity exists between the financial resources of the parties, with Father
earning significantly more than Mother. The court further found that under
§ 25-324(B), two of Father’s filings were not grounded in fact or based on
law, and were filed for an improper purpose. The court therefore awarded
Mother attorneys’ fees under § 25-324(A) and (B). Father unsuccessfully
moved to alter or amend the judgment and then timely appealed. We have
jurisdiction under A.R.S. § 12-2101(A)(2); see also Yee v. Yee, 251 Ariz. 71, 73,
¶ 1 (App. 2021).
DISCUSSION
A. Restrictions on Future Petitions
¶7 Father argues the superior court exceeded its statutory
authority by restricting his ability to file a petition to modify legal decision-
making and parenting time. We review legal decision-making and
parenting time orders for an abuse of discretion. DeLuna v. Petitto, 247 Ariz.
420, 423, ¶ 9 (App. 2019). We review issues of law, including statutory
interpretation, de novo. Id.¶8 The superior court conditioned Father’s ability to file a
petition to modify. Specifically, the court ordered:
In order to petition and permit the Court to consider an increase
in Father’s court-ordered parenting time and/or to modify
the requirement for supervised parenting time, Father shall: (1)
participate in and complete [] domestic violence counseling;
(2) participate in and complete anger management
counseling/program; (3) participate in and comply with
appropriate mental health services to address his identified
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Decision of the Court
behavioral health diagnosis, including, but not limited to,
medication management as may be deemed appropriate by
qualified mental health professionals; (4) demonstrate that he
has not participated in or been involved in any further
incidents of domestic violence (whether physical, verbal,
mental or emotional) for an extended period of time of no less than
six (6) months; (5) demonstrate that he has achieved and
maintained stable mental health and full compliance with his
mental health and medical providers for an extended period of
time of no less than six (6) months; and (6) consistently exercised
his supervised parenting time with the Children for at least
six (6) months.
(Emphasis added.) Father argues these conditions modify the statutory
right to file a petition whenever “there is reason to believe the child’s
present environment may seriously endanger the child’s physical, mental,
moral or emotional health.” A.R.S. § 25-411(A). We agree.
¶9 A petitioner seeking to modify a legal decision-making or
parenting time order must provide “adequate cause for [a] hearing” and
“present detailed facts which are relevant to the statutory grounds for
modification.” A.R.S. § 25-411(L); Pridgeon v. Superior Court, 134 Ariz. 177,
181 (1982). Adequate cause is determined by “whether there has been a
material change in circumstances affecting the welfare of the child.” Canty
v. Canty, 178 Ariz. 443, 448 (App. 1994). If adequate cause is determined,
the court “shall set a date for hearing.” § 25-411(L).
¶10 “[A]ccess to courts is a fundamental right.” Madison v.
Groseth, 230 Ariz. 8, 14, ¶ 17 (App. 2012). Section 25-411 provides the time
frames and a cause requirement. A.R.S. § 25-411(A); see also In re Marriage
of Dorman, 198 Ariz. 298, 302, ¶ 9 (App. 2000). Although the superior court
may have had just cause to be concerned for the children, it cannot create
time frames and conditions that conflict with the statutory ability of a party
to file a petition. See A.R.S. § 25-411; Vera v. Rogers, 246 Ariz. 30, 35, ¶ 20
(App. 2018).
¶11 Accordingly, the restrictive language in paragraph eight
listed above is vacated. See Acuna v. Kroak, 212 Ariz. 104, 115, ¶ 42 n.15
(App. 2006) (noting the court of appeals is authorized under A.R.S.
§ 12-2103(A) to modify a judgment).
¶12 Finally, we note that after this appeal was filed, the superior
court issued a nunc pro tunc order changing the disputed language to
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address the issues discussed here. We do not address the change because
the superior court lacked jurisdiction to make such a modification of the
order being challenged in the appeal. See Moreno v. Beltran, 250 Ariz. 379,
382, ¶ 14 (App. 2020).
B. Attorneys’ Fees
¶13 Father argues the superior court erred by awarding Mother
$50,000 in attorneys’ fees. We review an award of attorneys’ fees for an
abuse of discretion. Medlin v. Medlin, 194 Ariz. 306, 309, ¶ 17 (App. 1999).
We will not disturb a fee award if there is any reasonable basis supporting
it. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265, ¶ 18 (App. 2004).
¶14 The superior court explained that its decision to award
attorneys’ fees to Mother was supported by both § 25-324(A) (consideration
of financial resources and reasonable of positions) and § 25-324(B) (filing
not made in good faith, not grounded in fact or law, or done for an improper
purpose). After considering these statutory provisions, the court granted
Mother’s request for attorneys’ fees. The court explained that Father failed
to comply with discovery orders, lied to the court, failed to provide support
for numerous claims raised, and failed to pay for his portion of childcare,
requiring Mother to seek court intervention. The court also found that two
of Father’s filings were filed to harass Mother, drive up her litigation costs,
and continue his efforts to control Mother’s actions pertaining to the
children.
¶15 Father does not challenge the court’s decision to award
attorneys’ fees to Mother or the related findings. Instead, he contends the
fees Mother requested were “so grossly unreasonable and overreaching”
that “no fees should be awarded.” Father’s contention overlooks the fact
that Mother requested $92,662 in attorneys’ fees, but the court awarded her
$50,000. Given the court’s uncontested findings that Father increased the
cost of the litigation, and the court’s decision to award Mother significantly
less than the amount she requested, Father has shown no abuse of
discretion.
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SERVIN v. SERVIN
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CONCLUSION
¶16 We strike the portion of the order restricting Father’s ability
to petition for modification of legal decision-making and parenting time.
The remaining portions of the order are affirmed. Both parties request
attorneys’ fees on appeal pursuant to § 25-324. In our discretion, we deny
both requests. As the more successful party, Father is awarded taxable costs
on appeal upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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