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When a Court in Arizona Does Not Have to Make Findings of Fact After a Child Custody Trial in Arizona

Posted on : March 8, 2018, By:  Christopher Hildebrand
When a Court in Arizona Does Not Have to Make Findings of Fact After a Child Custody Trial.

When a Court in Arizona Does Not Have to Make Findings of Fact After a Child Custody Trial in Arizona

The Arizona Court of Appeals in a memorandum decision in the case of Ervin vs. Mills had to address whether an Arizona court is required to make findings of fact after a child custody hearing when the judge concluded there was no substantial and continuing change in circumstances since the last child custody order was issued. The following is that Court of Appeals ruling

When a Court in Arizona Does Not Have to Make Findings of Fact After a Child Custody Trial in Arizona.

When a Court in Arizona Does Not Have to Make Findings of Fact After a Child Custody Trial in Arizona.

Ms. Ervin (“Mother”) challenges the family court’s orders restoring unsupervised parenting time of the parties’ child (“the child”) to Mr. Mills (“Father”) and awarding Father attorneys’ fees. For the following reasons, we affirm. The parties married in October 2009 and divorced in November 2010. After divorcing, they briefly reconciled, and Mother gave birth to the child in September 2012. In June 2013, Mother petitioned for a paternity order and child support. Father admitted paternity, agreed to pay child support and sought joint legal decision-making authority. In November 2013, the family court approved the parties’ agreement that Mother would have sole legal decision-making authority and be the primary residential parent, and Father would have parenting time two weekends per month with seventy-two hours’ notice to Mother. During visits, Father would stay at Mother’s home and be allowed to take the child on outings, provided he and the child returned by 7:00 p.m.

The parties’ relationship deteriorated, however, and Mother began denying Father access to her residence and the child. In December 2015, Father petitioned for modification of parenting time, alleging that Mother “has a control issue.” In response, Mother filed a petition to modify parenting time and child support, seeking only supervised parenting time for Father. Mother also obtained an order of protection against Father, although the judicial officer who issued the order of protection denied Mother’s request to add the child as a protected person. Alleging Father had threatened and harassed her, engaged in domestic violence against her and the child, and had substance abuse issues, Mother moved for temporary orders denying Father any parenting time before trial. In June, the parties entered a temporary agreement to allow Father supervised parenting time pending trial.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
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20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
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21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
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I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
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Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
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I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
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I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
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22:09 12 Sep 13

Following a September 2016 trial, the family court affirmed Mother’s sole legal decision-making authority and entered child support orders, but granted Father unsupervised parenting time despite Mother’s various allegations against Father, including “anger issues, substance abuse, a criminal history, and lack of parenting skills.” The court noted “conflict between the parties,” but concluded, “the evidence does not establish a safety issue for the child while in Father’s care.” The court made best interest findings, including finding that Father is randomly drug tested by his employer and his tests have been clean, and finding Mother’s claims of domestic violence not credible, and granted Father parenting time of at least six days each month with FaceTime communication at least once per week.

The court also found Mother acted unreasonably in failing to comply with its earlier orders regarding Father’s contacts with the child and awarded Father attorneys’ fees. Less than a month later, Mother moved for emergency temporary orders and petitioned to modify parenting time and child support, alleging that Father had burned the child with a lighter during his parenting time. Mother asked the court to suspend Father’s parenting time pending completion of local police and Department of Child Safety investigations. The court ordered supervised parenting time for Father pending a hearing. Following the hearing, the court denied Mother’s petition and reinstated Father’s unsupervised parenting time. The court found the child’s health was not seriously endangered while he was in Father’s care and found “no credible evidence that Father burned the child intentionally or accidentally during the . . . visit.” The court also found Mother’s testimony that the child did not want to see Father and that Father neglected the child by ignoring his food allergies to be not credible. The court determined Mother’s positions were “grossly unreasonable” and awarded Father his attorneys’ fees incurred in addressing Mother’s petition to modify. The court also expressed “significant concerns” regarding Mother’s mental stability and ordered her to undergo a mental health evaluation. Mother timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (2016).

Findings of Fact in an Arizona Child Custody Case.

Findings of Fact in an Arizona Child Custody Case.

Mother contends the family court failed to make findings supporting its parenting time ruling as required by § 25-403(B). When parenting time is at issue, the family court must make “specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.” A.R.S. § 25–403(B). Before addressing best interests, however, “the court must initially determine whether a change of circumstances has occurred since the last custody order.” Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982). Only after the court finds a change has occurred does it consider whether a change in parenting time would be in the child’s best interest. Id. Here, the court found no material change in the child’s circumstances that would have justified a parenting time modification. In accordance with the purpose of best interest findings, if a parent cannot show a “material change” in circumstance has occurred, the prior best interest findings remain the law of the case. See generally Gutierrez v. Fox, 242 Ariz. 259, 267-68 (App. 2017) (stating that § 25-403’s requirement of specific best interest findings exists to aid appellate review and the parties and the family court in determining the best interest of a child “both currently and in the future” (quoting Reid v. Reid, 222 Ariz. 204, 209, ¶ 18 (App. 2009))). The court, therefore, did not need to make new best interest findings.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Mother next contends the family court did not give proper weight to her testimony regarding the burn incident. We will not disturb the court’s parenting time order absent an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273 (App. 2013); see also Pridgeon, 134 Ariz. at 179 (“The trial court has broad discretion to determine whether a change of circumstances has occurred.” (citation omitted)). The family court found Mother’s testimony not credible, and the record supports this finding. Mother testified she did not initially notice the burn mark on the child’s arm until he was home, awoke from a nap, and told her about the injury because the child was wearing a long-sleeved shirt. But a photograph of the shirt the child was wearing at the time shows the shirt had short sleeves. The police report also indicated Mother noticed the burn right away and asked the child, “[D]id daddy hurt you?” Mother also admitted she told the police, the emergency room physician, and the counselor the child saw after the incident that Father had a history of domestic abuse, which is not substantiated in the record before us.

Additionally, Father testified the child was not fearful of him and never mentioned the burn except when talking via FaceTime from Mother’s home. Father also testified that Mother refused to bring the child to multiple supervised visits. We defer to the family court’s credibility determinations. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347 (App. 1998); see also Hurd v. Hurd, 223 Ariz. 48, 52 (App. 2009) (“Our duty on review does not include re-weighing conflicting evidence or redetermining the preponderance of the evidence.” (citation omitted)). Mother also attempts to equate this case with Christopher K. v. Markaa S., 233 Ariz. 297 (App. 2013). In Christopher K., we held “that when the physical discipline of a child is at issue in a custody proceeding, the court must determine expressly whether the discipline rises to the level of domestic violence” and, if it does, the court must give that evidence “primary importance.” Id. at 298. Here, however, the court found no credible evidence of any “imminent risk of harm to the child while in Father’s care,” and the record supports that finding.

Mother also challenges the court’s order requiring her to undergo a mental health evaluation, contending Father did not request such an evaluation in his pretrial statement. The family court ordered Mother to undergo a psychological evaluation based on the court’s “significant concerns regarding Mother’s mental stability” and belief “that the child may be at risk for physical and psychological harm by Mother.” We review the family court’s ruling for an abuse of discretion and resulting prejudice. See Kosidlo v. Kosidlo, 125 Ariz. 32, 35 (App. 1979) (holding the court’s wrongful failure to exclude witnesses did not require reversal unless prejudice was demonstrated), disapproved in part on other grounds, 125 Ariz. 18, 18 (1979). In general, pretrial statements govern the subsequent course of the litigation. Leathers v. Leathers, 216 Ariz. 374, 378 (App. 2007) (citation omitted). Arizona Rule of Family Law Procedure (“Rule”) 76(C), however, does not expressly limit the court to considering only the relief set forth therein. Accordingly, Mother’s argument on this basis does not afford her relief.

Findings Not Required When There is No Substantial and Continuing Change in Circumstances.

Findings Not Required When There is No Substantial and Continuing Change in Circumstances.

Mother challenges the family court’s fee award, which we review for an abuse of discretion. Magee v. Magee, 206 Ariz. 589, 590 (App. 2004). Mother first contends “Father did not plead a statutory or rule basis for his request for fees.” Rule 78(D)(1) only requires that parties state their fee claims “in the pleadings, pretrial statement, or by motion filed prior to trial or post-decree evidentiary hearing.” Although neither party cited any specific statutory authority, both parties identified attorneys’ fees as an issue to be addressed in their pretrial statements—Mother by noting that an award of fees and costs would be appropriate if the court found a party had taken an unreasonable position, and Father by asserting that an award of attorneys’ fees and costs to him was appropriate because Mother’s claim was fabricated and brought in bad faith. We thus reject Mother’s contention.

Mother also contends Father did not comply with Rule 91, which requires parties to file an affidavit of financial information when asserting an attorneys’ fees claim. See Ariz. R. Fam. Law P. 91(S). Mother did not raise this objection below and has waived it on appeal. See Hannosh v. Segal, 235 Ariz. 108, 115 (App. 2014). In any event, the court had substantial information before it—including the parties’ previously filed affidavits of financial information and testimony taken during the hearing—to consider the parties’ financial resources. Moreover, the court based its award on the unreasonableness of Mother’s positions, not any financial disparity. See Magee, 206 Ariz. at 591 n.1. (“[A]n applicant need not show both a financial disparity and an unreasonable opponent in order to qualify for consideration for an award.”). We, therefore, find no abuse of discretion.

Father requests his attorneys’ fees incurred on appeal pursuant to A.R.S. § 25-324(A) and (B) (2017). Subsection (A) authorizes an award of attorneys’ fees and costs upon considering “the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings.” Subsection (B) mandates an award of reasonable costs and attorneys’ fees if the court finds (1) the petition was not filed in good faith, (2) the petition was not grounded in fact or based on law, or (3) the petition was filed for an improper purpose, such as to harass the other party, to cause an unnecessary delay, or to increase the cost of litigation to the other party.

The record does not suggest that a significant financial disparity exists between the parties, but we agree with the family court that Mother took unreasonable positions below. Mother has continued to assert those same positions in this appeal. We, therefore, award Father reasonable attorneys’ fees pursuant to § 25-324(A) upon compliance with Arizona Rule of Civil Appellate Procedure 21. Father also may recover his taxable costs as the successful party on appeal. We decline to award attorneys’ fees or costs under § 25-324(B). We affirm the family court’s orders.

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