French v. Morin

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN FRENCH, Petitioner/Appellant,

v.

ARIEL MORIN, Respondent/Appellee.

No. 1 CA-CV 16-0688 FC
FILED 10-24-2017

Appeal from the Superior Court in Maricopa County
No. FC 2013-008473
The Honorable Joseph P. Mikitish, Judge
The Honorable Carolyn Passamonte, Judge Pro Tempore

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Law Office of Judith E. Abramsohn, Phoenix
By Judith E. Abramsohn
Co-Counsel for Petitioner/Appellant

Singer Pistiner P.C., Scottsdale
By Jason Pistiner, Robert S. Singer
Co-Counsel for Petitioner/Appellant
Martinez Law Offices, Phoenix
By Elizabeth J. Martinez
Counsel for Respondent/Appellee

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Margaret H. Downie joined.

C A M P B E L L, Judge:

¶1 Justin French (“Father”) appeals the family court’s ruling
denying his request to modify parenting time, child support, and other
rulings regarding Father’s paternal family.1 We affirm the court’s rulings
on all issues except for its modification of child support and vacate and
remand that portion of the ruling.

FACTS AND PROCEDURAL BACKGROUND2

¶2 In 2013, Father petitioned for paternity, legal decision-making
authority, parenting time, and child support regarding his two children in
common with Ariel Morin (“Mother”).3 Father also moved for temporary
orders, including an order barring contact between the children and
paternal grandfather. In a prehearing statement, Father argued that despite
his objections, Mother permitted Paul French, the paternal grandfather and
his wife, Joelle French, the “step-grandmother” (collectively, the
“Grandparents”), to have contact with the children. Father argued it was
not in the best interests of the children for “visitation to continue without
his consent” because of the paternal grandfather’s history of domestic abuse
and alcoholism.

1 Father also appeals the family court’s denial of his motion for a new
trial or to alter or amend the judgment.

2We view the evidence in the light most favorable to upholding the
family court’s decision. Baker v. Meyer, 237 Ariz. 112, 113, ¶ 2 (App. 2015).

3Mother and Father were not married. Pursuant to stipulation, the
court found that Father was the natural father of the children.

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¶3 The family court issued temporary orders. As relevant to this
appeal, the family court made best interests findings, see Ariz. Rev. Stat.
(“A.R.S.”) § 25-403 to –403.05, granted Father and Mother joint legal
decision making, ordered Mother would be the primary residential parent,
and awarded Father weekend parenting time. The family court ordered
Father to pay $595 per month in child support. Additionally, the family
court ordered that neither Father nor Mother “shall allow paternal
grandfather to have contact with the children pending further order of the
court.”

¶4 The family court subsequently entered a stipulated order,
awarding the same legal decision making and child support set forth in the
temporary orders. The stipulated order modified Father’s weekend
parenting time and gave Father the option of an additional midweek hour
and a half visitation, if he met certain conditions. The order also stated
“[n]either party shall allow paternal grandfather to have contact with the
children.”

¶5 A year later, Grandparents petitioned for visitation rights
under A.R.S. § 25-409 (third party rights). Father moved for summary
judgment, which the family court granted. It found Father had established
visitation with Grandparents was not appropriate or in the best interests of
the children. The family court allowed Grandparents to continue as
intervenors for the limited purpose of addressing “any proposed
restriction” on their access to the children.

¶6 Additionally, Father petitioned to modify parenting time and
child support, and asked the court to enter additional restrictions on
paternal family’s access to the children. Father argued Mother continued to
“foster” and “permit[]” contact between step-grandmother and the
children. He asked the court to ban all contact between the children and
step-grandmother or any member of Father’s family, without his consent.
He also requested equal parenting time and a decrease in child support.
Mother filed a response and counter-petition, seeking to lift the order
banning paternal grandfather from contact with the children.

¶7 The family court held an evidentiary hearing. It found no
material change affecting the welfare of the children with the exception of
child support. Specifically, the court stated there was no “substantial or
continuing change of circumstances warranting a change in decision
making, parenting time, or other orders of the court other than child
support.” Accordingly, the court increased Father’s child support. Father

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filed a motion for a new trial or to alter or amend the judgment, see Ariz. R.
Fam. Law P. 83, which the court denied. Father timely appealed.4

DISCUSSION

Material Change Requirement

¶8 Father argues the material change in circumstance
requirement was inapplicable to his request to modify parenting time and
restrict step-grandmother’s access to the children. He argues the family
court “us[ed] an incorrect measure of law” when it found there had been
no material change in circumstances affecting the children and therefore it
need not make best interests findings. Father asks this court to abandon the
requirement of a change in circumstance prior to modification and find that
a best interests analysis is automatically required if a party is only seeking
modification of an existing order and not a change in “custody.”5

¶9 We review an order regarding modification of parenting time
for an abuse of discretion, but review de novo issues of law. See Baker v.
Meyer, 237 Ariz. 112, 116, ¶ 10 (App. 2015). To modify a custody or
parenting time order, the family court must determine that there has been
a “material change in circumstances affecting the welfare of the child.”
Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015) (court did not err in
finding no material change warranting modification of legal decision
making or parenting time) (citing Canty v. Canty, 178 Ariz. 443, 448 (App.
1994)); see also Pridgeon v. Super. Ct., 134 Ariz. 177, 179 (1982). Only if the
family court has found that there has been a material change in
circumstances does it then proceed to analyze best interests. See Christopher

4Mother argues that Father has waived any arguments not raised in
his motion for a new trial or to alter or amend the ruling. Mother is
incorrect. The family court entered its ruling on July 14, 2016. Father filed a
timely time extending “Motion For New Trial or Altered/Amended
Judgment Regarding Under Advisement Ruling Filed 07/14/2016.” See
ARCAP 9(e)(1)(C). The family court issued a signed ruling denying the
motion filed on September 29, 2016. Father filed a timely notice of appeal
on October 26, 2016, in which he appealed from the family court’s ruling
and the denial of his motion for a new trial or amendment of the judgment.
See id.

5The Legislature amended Title 25 in 2012 and changed the term
“custody” to “legal decision-making and parenting time.” 2012 Ariz. Sess.
Laws, ch. 309, §§ 4, 5 (2nd Reg. Sess.); see also Baker, 237 Ariz. at 114 n.2, ¶ 7.

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K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15 (App. 2013) (“If the court finds [a
material] change in circumstances, it must then determine whether a
change in custody would be in the child’s best interests.”). The family court
has broad discretion to determine whether there has been a material change
in circumstance. Canty, 178 Ariz. at 448.

¶10 After a hearing, the family court found there had been no
material changes in circumstances affecting the welfare of the children
“since the time of the [prior] existing [o]rders.” This included the children
having access to step-grandmother. Specifically, the court found that step-
grandmother had never been identified as a threat to the children, and
“there is no assertion that [she] is a threat to the children.” Father argues
that A.R.S. § 25-411(L) (court shall deny motion to modify legal decision
making or parenting time unless it finds adequate cause for hearing) does
not apply and therefore the court should have proceeded directly to a best
interests analysis. While we agree that A.R.S. § 25-411(L) requires an
“adequate cause” showing before the court will set a hearing on a petition
to modify parenting time, see Pridgeon, 134 Ariz. at 180-82 (interpreting
predecessor statute to A.R.S. § 25-411(L)), once a court holds a hearing, that
provision has been satisfied and does not apply to the court’s analysis or
findings following the hearing. Instead the court must decide whether there
has been a change in circumstance such that a new best interests of the child
analysis is necessary. Father is therefore incorrect in concluding that the
material change requirement does not apply in modification proceedings.

¶11 The requirement that the family court make a finding of
material change before modifying its prior orders is required by case law,
not statute. Hendricks v. Mortensen, 153 Ariz. 241, 243 (App. 1987)
(“Although our statutes do not require that there be a showing of change in
circumstances materially affecting the welfare of the child in order to
modify a custody decree, our case law does require such a showing.” (citing
Johnson v. Johnson, 13 Ariz. App. 574 (1971))); see also Owen v. Blackhawk, 206
Ariz. 418, 422 (App. 2003) (court required to find material change before
modifying custody order and parenting time but erred in finding evidence
of material change based on mother’s intent to move out of state only if
court permitted child to move). This is because the court has already
conducted a best interests analysis and entered findings in the original
order.

¶12 Here, the family court previously undertook a best interests
analysis and entered findings. See supra ¶ 3. If a parent cannot show a
“material change” in circumstance, the prior best interests findings remain
the law of the case. This is in accordance with the purpose of specific best

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interests findings. See Gutierrez v. Fox, 242 Ariz. 259, 267-68, ¶ 34 (App. 2017)
(section 25-403 requirement of specific best interests findings, including
court’s reasoning, “exists” to aid appellate review and to aid parties and
family court in determining best interests of a child “both currently and in
the future”) (citation omitted).

¶13 Accordingly, the family court did not err in applying the
material change standard to Father’s requested modifications. 6 Because
Father does not challenge its findings of no material change, we affirm its
rulings as to parenting time and the denial of the restriction on step-
grandmother’s visitation.

Paternal Family

¶14 Father argues that the family court erred when it denied his
request for an order that “other” members of his family be permitted access
to the children only with Father’s consent. Reviewing the family court’s
ruling for an abuse of discretion, Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013) we reject this argument.

¶15 Father asked the court to enter a restriction on contact
between the children and his extended family. Other than the paternal
grandfather, the family court found no basis for expanding the contact
restrictions to include all paternal family members. Father argues the court
erred as a matter of law because it had the “authority” (a “basis”) to enter
such a ruling. A.R.S. § 25-403.02(D). Again, the court found Father failed to
demonstrate a material change since its prior order regarding the children’s
access to extended family. See supra ¶ 10. Thus, Father failed to demonstrate
that there had been a material change warranting modification of its prior
order. Father additionally argues the family court’s ruling on this issue was
not in the best interests of the children. For the reasons discussed, the family
court was not required to make best interests findings.

Grandparents’ Intervenor Status

¶16 After the family court granted Father’s motion for summary
judgment on Grandparents’ petition for grandparent visitation, the court
ordered that Grandparents would retain intervenor status in relation to any

6 Because we conclude the family court properly applied the material
change requirement, we do not address Father’s argument that, in addition
to making best interests findings, the family court was required to evaluate
Father’s request to restrict step-grandmother’s access through A.R.S. § 25-
409(F) (court-ordered visitation by grandparent or great-grandparent).

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proposed restrictions on access to the children by the Grandparents. Father
argues the family court later erred when it permitted Grandparents to
participate as parties in the modification hearing, despite having granted
his motion for summary judgment. He asserts that their participation as
parties was an “irregularity in the proceeding” that deprived him of a fair
trial. Father did not raise this issue in the family court. Accordingly, it is
waived and we do not address it. Hahn v. Pima Cty., 200 Ariz. 167, 172, ¶ 13
(App. 2001) (failure to raise an issue at the trial level constitutes a waiver of
the issue).

Child Support Modification

¶17 Next Father argues the family court erred when it increased
his child support obligation because the court used an incorrect income
figure for Mother. We agree.

¶18 We review the family court’s ruling modifying child support
for an abuse of discretion. Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 7 (App.
2015). The family court is required to determine child support in accordance
with the Arizona Child Support Guidelines. A.R.S. § 25-320 app.
(“Guidelines”). When applying the Guidelines, the family court is first
required to determine the parties’ gross income. Milinovich, 236 Ariz. at 615,
¶ 11. Here, the family court stated it had incorporated and adopted the
findings set forth in the child support worksheet and found “[n]o deviation
[was] appropriate.” It attributed $1,395.33 to Mother and increased Father’s
child support to $835. The $1,395.33 attributed to Mother, however, is not
supported by the record. Mother testified that her gross monthly income
was $3,126. Mother additionally submitted a child support worksheet
listing her gross monthly income as $3,126. The court’s order does not
explain how it determined that despite the evidence, Mother had only
$1,395.33 in adjusted gross income.

¶19 Accordingly, we vacate the family court’s child support order
and remand for additional findings and calculation of child support.

Rule 83 Motion

¶20 Father argues the family court erred in denying his Rule 83
motion for a new trial or to alter or amend the judgment. We review the
court’s ruling on a Rule 83 motion for an abuse of discretion. See Kent v.
Carter-Kent, 235 Ariz. 309, 312, ¶ 13 (App. 2014).

¶21 In his motion for a new trial, Father argued the family court
should have granted relief under Rule 83 so it could consider “new

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evidence” consisting of a ruling in another dissolution proceeding
regarding a child that Father had with another parent.7 In that matter the
family court prohibited contact between that child and Grandparents based
on a best interests analysis. Although Grandparents’ access to the children
was at issue in both cases, the family court’s ruling involves a different child
and mother and different evidence. Thus, the rulings are not
“contradictory” nor do they contain “identical” issues. Accordingly, the
family court did not abuse its discretion in denying Father’s Rule 83 motion.

CONCLUSION

¶22 For the foregoing reasons, we affirm the orders of the family
court, with the exception of the court’s modification of child support. We
remand for the family court to calculate child support consistent with this
decision. We deny both parties’ requests for attorney fees. We grant Father
his costs on appeal contingent upon his compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

7 Father also argued the family court erred in calculating child
support and in using the material change standard in denying his request
to restrict step-grandmother’s access to the children. Because we have
already addressed those issues, see supra ¶¶ 8-13, 17-19, we do not address
them here.

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