Isom v. Stratton

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN THE MATTER OF: ) ) SPENCER A. ISOM, ) ) Petitioner/Appellant, ) ) v. ) ) TAMMY K. STRATTON, ) ) Respondent/Appellee. ) ) __________________________________) No. 1 CA-CV 09-0653 DIVISION ONE FILED: 10-19-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT T MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Navajo County Cause No. CV D020050428 The Honorable Michala M. Ruechel, Judge AFFIRMED Spencer Isom Petitioner/Appellant In Propria Persona El Mirage Tammy Stratton Respondent/Appellee In Propria Persona Snowflake D O W N I E, Judge ¶1 Spencer Isom ( Father ) appeals from the denial of his petition to modify child custody and parenting time. reasons that follow, we affirm. For the FACTS AND PROCEDURAL HISTORY ¶2 On Father and Tammy Stratton ( Mother ) married in 1999. May 27, 2004, Mother gave birth to a son, S., who was conceived via in vitro fertilization by a donor egg inseminated with Father s sperm. The parties divorced in March 2007. The court awarded them joint legal custody of S., with Mother having primary physical custody. ¶3 In July 2007, Father filed a modification petition seeking, inter alia, primary physical custody or equal parenting time. After an evidentiary Father s requests. hearing, the trial court denied Among other things, the court noted that Father had voluntarily relocated from Snowflake to El Mirage, which rendered his proposed parenting schedule unrealistic. ¶4 In March 2009, Father filed a second petition to, inter alia, modify primary physical custody and parenting time. The court conducted an evidentiary hearing on June 29, 2009. In a written decision dated August 17, 2009, the court ruled that it was in S. s best interests for the parents to retain joint legal custody and for S. to remain in Mother s primary physical custody in Snowflake. ¶5 Father decision. 1 We timely appealed have jurisdiction 1 from the August 17, 2009 pursuant to Arizona Revised Father appears to challenge other rulings made over the course of the protracted family court proceedings. However, the 2 Statute ( A.R.S. ) section 12-2101(B) (2003). DISCUSSION ¶6 We review the denial of a custody modification request for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). A. ¶7 Biology as a Factor Father concedes that Mother is S. s legal parent. He argues, however, that he has superior custody rights because S. is genetically related to him. ¶8 We disagree. 2 Father s reliance on Soos v. Superior Court, 182 Ariz. 470, 897 P.2d 1356 (App. 1994), is unavailing. establish a superior right to custody genetically related to their children. for Soos did not parents who are It merely held that a then-existing statute, A.R.S. § 25-218(C), which was intended to prohibit surrogate parent contracts in Arizona, biological mother s equal protection rights. violated Id. at 474-75, 897 only decision subject to our review is the August ruling, and we confine our discussion to that ruling. 2 a 17, 2009 We assume without deciding that Father may properly raise this issue on appeal. He litigated this same claim in earlier proceedings and did not appeal from the March 2008 determination that it is not the desire of the legislature to limit the birth mother s (as stated on the birth certificate) rights to her child under these medical circumstances. In the August 17, 2009 ruling, the court noted that nothing had changed regarding S. s birth circumstances, that Mother is not and was never intended to be a surrogate parent, that she delivered S., is listed as his mother on the birth certificate, and has developed a committed parent-child relationship. 3 P.2d at 1360-61. Soos is also distinguishable because, unlike Father here, the father in Soos denied that his wife was the child s legal parent. ¶9 Mother is See id. at 472, 897 P.2d at 1358. S. s legal parent. Father has cited no relevant Arizona authority to support his claim that his rights are superior to hers, and we are aware of none. B. ¶10 Best Interests Findings The primary consideration the child s best interests. in determining custody is Downs v. Scheffler, 206 Ariz. 496, 499, ¶ 7, 80 P.3d 775, 778 (App. 2003). In determining best interests, a court is required to consider all relevant factors enumerated in A.R.S. § 25-403(A) (Supp. 2009), including: 1. The wishes of the parents as to custody. 2. The wishes custodian. of the child s child parent as to or the 3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest. 4. The child's adjustment to home, school and community. 5. The mental and physical health of all individuals involved. 6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good 4 faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse. 7. Whether one parent, both parents or neither parent has provided primary care of the child. 8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody. 9. Whether a parent has complied chapter 3, article 5 of this title. with 10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02. 11. Whether there has been domestic violence or child abuse as defined in § 25403.03. ¶11 Father argues that the court failed to make necessary statutory findings. He appears to assign error as follows: (1) there was no interview of S. to determine his wishes; (2) the court did not properly consider S. s relationship with his halfsibling; and (3) the court did not state its reasons for court must continuing Mother as primary residential parent. 1. ¶12 In Camera Interview Pursuant to A.R.S. § 25-403(A)(2), the consider [t]he wishes of the child as to the custodian if it determines that the factor is relevant. Whether a court elects to conduct an in camera interview, though, is left to its sound discretion. See A.R.S. § 25-405(A) 5 (2007) ( The court may interview the child in chambers to ascertain the child s wishes as to the child s custodian and as to parenting time. ) (emphasis added); J.A.R. v. Superior Court, 179 Ariz. 267, 274, 877 P.2d 1323, 1330 (App. 1994) (court not required to conduct an in camera interview to determine custody). ¶13 The trial court here expressly found that it would not be appropriate to conduct an interview with [S.] at the age 5. The court did not abuse its considerable discretion in deciding not to conduct a judicial interview of such a young child. 2. ¶14 Sibling Interaction Pursuant to A.R.S. § 25-403(A)(3), the court may consider [t]he interaction and interrelationship of the child with the child s . . . siblings and any other person who may significantly added.) affect the child s best interest. (Emphasis Although the court did not make an express finding in its 2009 ruling about S. s relationship with his half-sibling, in its December 2007 ruling, the court found that between the two was limited to four times per year. contact And Father testified at the June 2009 hearing that S. s half-sibling, who resides out-of-state, has never visited Arizona. Because the court took judicial notice of its prior findings and rulings, we presume it did not deem S. s relationship with his half-sibling 6 sufficiently relevant to warrant an independent finding. The record supports such a conclusion. 3. Specificity of Findings ¶15 When custody is contested, a 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). Citing Reid v. Reid, 222 Ariz. 204, 213 P.3d 353 (App. 2009), Father argues that the court s findings here were inadequate. ¶16 We conclude otherwise. Unlike the trial court in Reid, the court here made detailed findings and gave explanations for its ruling. It is clear that one of the central factors the court considered was S. s adjustment to home, school and community. 403(A)(4). A.R.S. § 25- Father chose to move from Snowflake to El Mirage, and the court concluded it was in S. s best interest to remain in the only community he has know [sic] as home and because he was soon to enroll in the Snowflake Unified School system. The court also commented on Father s changed position about raising S. in Snowflake, stating: [Father] originally advocated the benefits of Snowflake as an appropriate if not superior environment for [S.] to be raised and educated in when he opposed [Mother s] request to raise [S.] in another environment. 7 ¶17 to The trial court s findings were sufficiently detailed comply with statutory requirements and to allow us to meaningfully review the decision regarding Father s modification request. C. Weight of the Evidence ¶18 Father next argues that the court acted against the weight of the evidence. He asks us to review the circumstances and evidence and reassess the credibility of the witnesses. However, it reweigh is the not facts the or function to of an appellate second-guess the court to credibility determinations of the judge who had the opportunity to evaluate the witnesses' determinations. demeanor and make informed credibility In re Estate of Newman, 219 Ariz. 260, 271, ¶ 40, 196 P.3d 863, 874 (App. 2008). ¶19 The court articulated the circumstances that had changed since the last custody ruling and those that remained unchanged. One important circumstance that had not changed was the fact that both parents remained fit and proper persons to raise their son. And although the court found that it is in S. s best interests to spend as much time with both parents as possible, it concluded from the evidence that Mother is able to spend more time with S. based on her work schedule. ¶20 Father presented evidence the child medically and otherwise. 8 that Mother had neglected Mother presented contrary evidence. S. s religious upbringing, which the court addressed in its ruling. There was also conflicting S. s interests The to parties evidence remain in disagreed about about whether Snowflake or it to was move to in the best Phoenix metropolitan area with Father. ¶21 [T]he duty of a reviewing court begins and ends with the inquiry whether the trial court had before it evidence which might reasonably support its action viewed in the light most favorable to sustaining the findings. O Hair v. O Hair, 109 Ariz. 236, 240, 508 P.2d 66, 70 (1973). In the case at bar, the trial court could reasonably conclude, from the evidence presented, that S. s best interests would be served by remaining in Snowflake, with Mother as his primary residential parent. CONCLUSION ¶22 We affirm the custody and parenting time decisions of the superior court. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 9

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