Eastman v. Eastman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

SUSAN EASTMAN, Petitioner/Appellant,

v.

BRUCE EASTMAN, Respondent/Appellee.

No. 1 CA-CV 14-0286
FILED 3-24-2015

Appeal from the Superior Court in Coconino County
No. S0300DO201000071
The Honorable Elaine Fridlund-Horne, Judge

AFFIRMED

COUNSEL

Catherine Fine, Attorney at Law, Flagstaff
By Catherine Fine
Counsel for Petitioner/Appellant

Bruce Eastman, Flagstaff
Respondent/Appellee
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MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.

T H O M P S O N, Judge:

¶1 Susan Eastman (Mother) appeals from an order designating
Bruce Eastman (Father) as the primary residential parent for their son, G.,
and granting her final decision-making authority only for certain medical
issues. Finding no abuse of discretion or error of law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND1

¶2 The parties married in 2007 and became parents of G. later
that year. The family lived in Flagstaff. Father was the stay-at-home parent
while Mother commuted to her job as an attorney in Tuba City. In 2010,
Mother served Father with a petition for dissolution and moved to Tuba
City, then returned to Flagstaff the following year.

¶3 In the Decree dissolving their marriage, the family court
awarded the parties joint legal decision-making authority and granted
Father final decision-making authority if the parties could not agree. The
Decree adopted the parties’ earlier agreement, which provided that G.
generally would reside with Father from Sunday evening to Thursday
evening and with Mother for the rest of the week. The Decree further
provided that Mother will pay Father $375 in monthly child support.

¶4 In May 2013, a few months before G. started kindergarten,
Mother petitioned to modify the Decree’s legal decision-making, parenting
time, and child support orders. Two months later, Mother moved back to

1 We view the evidence in the light most favorable to sustaining the superior

court’s ruling. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676,
679 (App. 1998). Because both parties violated Arizona Rule of Civil
Appellate Procedure 13(a)(4) by failing to consistently cite the record, we
rely upon our own independent review of the record. Clemens v. Clark, 101
Ariz. 413, 414, 420 P.2d 284, 285 (1966).

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Tuba City. She argued that G. should start attending school full-time in
order to better address his special needs, and continuing to exchange G.
with Father on Thursdays would be “too disruptive.” Under Mother’s
proposed parenting schedule, G. would attend school in Tuba City and
reside with her five days per week, and Father generally would have
parenting time on six weekend days per month and on some holidays.

¶5 In opposing the modification, Father insisted that G. attend a
Flagstaff school and disputed some of Mother’s assertions concerning G.’s
health and educational needs. The family court granted Mother’s request
to hold a hearing on modifying parenting time and legal decision-making.
Neither party disputed that G.’s kindergarten schedule would require a
five/two day parenting time schedule instead of the existing four/three
day schedule, and was a change in circumstances materially affecting the
child’s welfare. See Black v. Black, 114 Ariz. 282, 283, 560 P.2d 800, 801 (1977)
(holding a change in circumstances is a condition precedent to
modification).

¶6 The parties and Dr. Kim Kalas, a court-appointed advisor,
testified at the ensuing hearing, and Dennis Glanzer, a best interest attorney
(BIA), submitted a closing statement. After making findings under Arizona
Revised Statutes (A.R.S.) §§ 25-403 (Supp. 2014), 25-403.01 (Supp. 2014), and
25-408(H) (Supp. 2014), the family court held that Mother’s proposed
modification of parenting time was not in G.’s best interest. The court
reaffirmed joint legal decision-making but provided that neither party
would have the final word, except Mother would have final authority on
all non-emergency medical matters, vaccines, and prescriptions. In order
to accommodate G.’s full-time school attendance, the court modified
parenting time so that he generally would spend five weekdays with Father
in Flagstaff and two weekend days with Mother in Tuba City, but Father
would also have G. for six weekends per year. At the time of the ruling, G.
was already attending a Flagstaff kindergarten.

¶7 This appeal followed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(2) (Supp. 2014).2

2 We deny Father’s motion to dismiss Mother’s appeal based upon her
apparent failure to serve briefs on the BIA. The record indicates that the
family court discharged the BIA prior to the due date of the Answering
Brief. Our decision resolves the merits of the Father’s alternative
arguments.

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DISCUSSION

I. The Family Court Did Not Abuse Its Discretion by Denying
Mother’s Motion to Modify Parenting Time and Legal Decision-
Making.

¶8 We review a family court’s rulings on legal decision-making
and parenting time for abuse of discretion. Owen v. Blackhawk, 206 Ariz.
418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). A court abuses its discretion
when it commits an error of law in reaching a discretionary decision,
reaches a conclusion without considering evidence, commits another
substantial error, or makes findings lacking substantial evidentiary
support. Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27,
156 P.3d 1149, 1155 (App. 2007).

A. The A.R.S. § 25-408(H) Factors Apply.

¶9 Mother’s primary argument is that the family court
erroneously applied the relocation factors of A.R.S. § 25-408(H). Whether
A.R.S. § 25-408(H) applies is an issue of statutory interpretation we review
de novo. New Sun Bus. Park, L.L.C. v. Yuma Cnty., 221 Ariz. 43, 45, ¶ 4, 209
P.3d 179, 181 (App. 2009).

¶10 Under A.R.S. § 25-408(A),

[i]f by written agreement or court order both parents are
entitled to joint legal decision making or unsupervised
parenting time and both parents reside in the state, at least
sixty days’ advance written notice shall be provided to the
other parent before a parent may do either of the following:
(1) Relocate the child outside the state. (2) Relocate the child
more than one hundred miles within the state.

Mother contends that A.R.S. § 25-408 cannot apply because neither party
petitioned to relocate, and Mother was not seeking to relocate G. out of state
or more than one hundred miles from Flagstaff as required by A.R.S. § 25-
408(A). See Thompson v. Thompson, 217 Ariz. 524, 527, ¶ 14, 176 P.3d 722,
725 (App. 2008). We disagree.

¶11 At the time Mother filed the modification petition, she had
not yet chosen a home in Tuba City. It was conceivable that Mother’s new
residence could be 100 miles or more from her Flagstaff residence.
Although Mother claims on appeal to have later informed the family court
of the actual distance, she cites no record evidence of that notification.

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Moreover, in light of Mother’s failure to supply this court with a hearing
transcript as required by Arizona Rule of Civil Appellate Procedure
(ARCAP) 11(b)(1), we assume that the record supports the family court’s
conclusion that A.R.S. § 25-408 applies. See Baker v. Baker, 183 Ariz. 70, 73,
900 P.2d 764, 767 (App. 1995); see also Romero v. Sw. Ambulance & Rural/Metro
Corp., 211 Ariz. 200, 203, ¶ 4, 119 P.3d 467, 470 (App. 2005) (holding
unsupported arguments without relevant transcripts “insufficient for us to
meaningfully review the trial court’s rulings or to overcome the
presumption that those rulings are supported by the record”).

¶12 Even assuming that the distance was less than 100 miles, we
would reach the same result. The family court has discretion to apply the
A.R.S. § 25-408(H) factors even if A.R.S. § 25-408(A) does not apply. See
Buencamino v. Noftsinger, 223 Ariz. 162, 164 n.3, ¶ 10, 221 P.3d 41, 43 n.3
(App. 2009) (recognizing the discretion to apply some or all of the A.R.S. §
25-408(H) factors in appropriate cases). In view of the substantial change
involved in reconfiguring parenting time from a four/three day schedule
to a five/two day schedule, the family court’s application of all the A.R.S. §
25-408(H) factors was appropriate. See id.

B. The Court’s Determinations Regarding Parenting Time and
Legal Decision-Making Authority Were Sufficiently
Supported by Its Findings and the Evidence.

¶13 Mother next argues that the evidence and the family court’s
best interest findings fail to support the award of increased parenting time
to Father. The court must determine whether the proposed modification of
parenting time and legal decision-making was in G.’s best interest. Black,
114 Ariz. at 283, 560 P.2d at 801. The family court has broad discretion in
making this determination. Porter v. Porter, 21 Ariz. App. 300, 302, 518 P.2d
1017, 1019 (1974), superseded by statute on other grounds as stated in Anderson
v. Anderson, 121 Ariz. 405, 406-07, 590 P.2d 944, 945-46 (App. 1979). Because
this is a contested case, the family court was required to make specific
findings on the record concerning all relevant best interest factors,
including those in A.R.S. §§ 25-403, -403.01, and -408(H).

¶14 The court’s order contains findings covering all factors in
A.R.S. §§ 25-403, -403.01, and -408(H). Mother argues that these findings do
not support designating Father as the primary residential parent. For
example, the family court found that Father had taken G. to the emergency
room by ambulance “many” times and filed seven unsuccessful petitions
for protective orders against Mother. Attributing these actions to Father’s
hyper vigilance and protective instincts, the court concluded that they were,

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nevertheless, “over the top and abusive.” See A.R.S. § 25-403(A)(6). Father
also seemed to have difficulty in communicating with Mother. See A.R.S. §
25-403.01(B)(2).

¶15 Yet the court also found that both parents have a “wonderful
relationship” with G. and joint parenting is logistically possible. See A.R.S.
§§ 25-403(A)(1); 25-403.01(A)(3). G. was already attending kindergarten in
Flagstaff and “appears to be doing well in school.” See A.R.S. § 25-
403(A)(3). Moreover, “[t]here would be no prospective advantage for [G.]
is [sic] he moved.” See A.R.S. § 25-408(H)(2). Father had raised concerns
about the comparative merits of the Tuba City and Flagstaff school systems,
which the family court deemed one of “the very good reasons” for Father’s
position. See A.R.S. § 25-408(H)(6). The Tuba City school would be “more
culturally diverse” but would also present “different conflicts.” See A.R.S.
§ 25-403(H)(2), (7). Due to Father’s “lack of reliable transportation,” Father
would have “no realistic opportunity” for “substantial parenting time”
with G. if he attended school in Tuba City. See A.R.S. § 25-408(H)(5).

¶16 Although the family court should not “focus too much
attention on the impact on the child’s relationship with [a parent] to the
exclusion of other relevant considerations,” not all of the statutory factors
may apply or weigh equally in a given case. Owen, 206 Ariz. at 421, ¶ 12,
79 P.3d at 670. The court acknowledged and addressed Father’s concerning
behaviors regarding G.’s health care by giving Mother the final word on all
non-emergency medical matters, vaccines, and prescriptions. It did not
choose, however, to award Mother the majority of parenting time based
upon that factor. These rulings were within the family court’s discretion
and sufficiently supported. See Miller v. Bd. of Supervisors of Pinal Cnty., 175
Ariz. 296, 300, 855 P.2d 1357, 1361 (1993) (explaining that sufficient factual
findings contain “the essential and determinative facts on which the
conclusion was reached”).

¶17 We likewise reject Mother’s argument that the family court
failed to explain its reasoning. The family court emphasized that the child’s
interests come first, not the parents’ preferences. The court considered the
statutory factors, many of which were neutral or non-applicable, and
concluded that “[t]here would be no prospective advantage for [G.]” if he
moved to Tuba City and Father would have “no realistic opportunity” for
“substantial parenting time” if G. resided there. The family court’s decision
appropriately prioritized G.’s stability and access to both parents.

¶18 Furthermore, we cannot agree that the family court’s findings
lacked evidentiary support. In challenging these findings, Mother cites

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evidence she finds inconsistent with the court’s analysis and criticizes the
weight given to certain findings. This court will not re-weigh the evidence.
Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009) (appellate
court’s duty “does not include re-weighing conflicting evidence” but does
include affirming the decision if substantial evidentiary support exists);
Hamilton v. Municipal Ct., 163 Ariz. 374, 378, 788 P.2d 107, 111 (App. 1989).
As an appellate court, we must give due regard to the family court’s ability
to assess witnesses’ credibility and weigh the conflicting evidence.
Gutierrez, 193 Ariz. at 347, ¶ 13, 972 P.2d at 680 (deferring to the family
court’s assessments); Ariz. R. Family L.P. 82(A) (appellate court will give
due regard “to the opportunity of the trial court to judge the credibility of
witnesses”). The family court was not bound to accept even the
uncontradicted evidence of an interested party. Estate of Reinen v. N. Ariz.
Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12, 9 P.3d 314, 318 (2000).

¶19 Without a transcript, we must assume that the trial testimony
supported the family court’s findings. Baker, 183 Ariz. at 73, 900 P.2d at 767;
see also Romero, 211 Ariz. at 203, ¶ 4, 119 P.3d at 470. In any event, the
available record contains reasonable support for the family court’s ruling.
The BIA opined that changing G.’s school “would cause concern” and
Mother’s proposed schedule did not provide Father with sufficient
parenting time. Acknowledging Father’s numerous doctor appointments
for G., the BIA recommended a change in final authority with respect to
medical issues but did not suggest an increase in Mother’s parenting time.
The modification order is consistent with the BIA’s recommendations.

¶20 Mother nevertheless emphasizes that Karas’s report, filed
before Mother petitioned for modification, supports Mother’s request for
five days of parenting time in Tuba City. That report found that both
parents were bonded to G., were able to set aside differences to devise an
educational plan, and were able to meet G.’s daily needs. G. appears
“comfortable and affectionate” with both parents. Karas expressed
concern, however, about G.’s sporadic pre-school attendance, his
inconsistent medical care, the lack of follow-up on cognitive and emotional
testing recommended for him, and the lack of opportunities for G. to
socialize and exercise. She accordingly recommended either mediation for
the parties on medical issues, or granting Mother final decision-making
authority.

¶21 The weight given to this expert’s report is a matter within the
family court’s discretion. See DePasquale v. Super. Ct., 181 Ariz. 333, 336, 890
P.2d 628, 631 (App. 1995) (holding the court can consider expert opinion
but must exercise independent judgment – “[t]he best interests of the child

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. . . are for the court alone to decide”). The family court granted Mother
final decision-making authority on some medical issues but not increased
parenting time. Viewing the evidence available in the light most favorable
to sustaining the court’s ruling, we affirm its modification of parenting time
and legal decision-making.

CONCLUSION

¶22 Based on the foregoing analysis, we affirm the family court’s
order. Father is entitled to recover his taxable costs on appeal contingent
upon his compliance with ARCAP 21.

:ama

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