Bush v. Bush

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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 RE THE MARRIAGE OF: ) ) TRAVIS JUSTIN BUSH, ) ) Petitioner/Appellee, ) ) v. ) ) MIRANDA RAY BUSH, ) ) Respondent/Appellant. ) ) __________________________________) DIVISION ONE FILED: 10-28-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CV 10-0214 A DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellant Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2005-093567 The Honorable James P. Beene, Judge AFFIRMED IN PART AND REMANDED IN PART The Murray Law Offices PC By Stanley David Murray and Ronee Korbin Steiner PC By Ronee Korbin Steiner Attorneys for Respondent/Appellant William R. Wingard LLC By William R. Wingard Attorneys for Petitioner/Appellee O R O Z C O, Judge Scottsdale Scottsdale Tempe ¶1 Miranda Bush (Mother) appeals the family court s order modifying child custody and awarding Travis Bush (Father) joint physical custody. Because the family court failed to make specific findings in accordance with Arizona Revised Statutes (A.R.S.) section 25-403.B. (Supp. 2009),1 we affirm in part and vacate and remand in part for further proceedings consistent with this decision. FACTS AND PROCEDURAL HISTORY ¶2 The parties were divorced on June 22, 2006. The decree made Mother and Father joint legal custodians of their child, named Mother as the primary residential parent and outlined a parenting time schedule. ¶3 On February recommendations from 29, a 2008, February the 6, family 2008 court parenting adopted conference report, and ordered Mother and Father to share physical custody equally. Mother appealed, challenging the trial court s failure to make the requisite findings in compliance with A.R.S. § 25403. This court vacated the family court order because it was an improper modification to the established joint physical custody arrangement and remanded the matter to the family court. Bush v. Bush, 1 CA-CV 08-0146 A, 2008 WL 4763461, at *3, ¶ 16 (Ariz. App. Oct. 28, 2008) (mem. decision). 1 We cite to the current version because the 2009 amendments to this section are immaterial to the decisions in this case. 2 ¶4 Father filed a petition to modify child custody on December 30, 2008 and on December 14, 2009, the family court issued an parties. order that confirmed joint legal custody to the It also ordered Mother and Father to share equally physical custody of their daughter. The order, however, failed to include the necessary findings mandated by A.R.S. § 25-403.B. The order also adjusted the child support obligations and held each party responsible for their respective attorney fees. ¶5 Mother filed a motion for a new trial and requested the court make the statutory findings. the motion. Father successfully opposed Mother filed a timely notice of appeal of the trial court s December 14, 2009 and January 29, 2010 orders. We have jurisdiction in accordance with Article 6, Section 9, of the Arizona Constitution, and A.R.S. sections 12-120.21. (2003), -2101.B., C., and F.1. (2003). DISCUSSION ¶6 In child custody matters there can be no question under all the authorities that the pole star by which [the court] is led to a decision is the child s best interest. Dickason v. Sturdavan, 50 Ariz. 382, 386, 72 P.2d 584, 586-87 (1937). In considering a motion for change of custody, 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, 655 P.2d 1, 3 (1982). 3 Only after the court finds a change has occurred does the court reach the question of whether a change in custody would be in the child s best interest. Id. Motion to Dismiss Petition to Modify Custody ¶7 In her motion to dismiss Father s December 2008 petition, Mother argued that Father s basis for modification is insufficient. discretion However, in determining [t]he [family] court changed has circumstances. broad Canty Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994). v. On review, the [family] court s decision will not be reversed absent a clear abuse of discretion, i.e., a clear absence of evidence to support its actions. ¶8 In his Pridgeon, 134 Ariz. at 179, 655 P.2d at 3. petition, Father alleged that the child adjusted extremely well to the schedule where she shared time equally between the parents. This allowed for more meaningful and frequent contact between the child and both parents and also allowed the child to bond significantly with both parents. Father also alleged that he has the ability to properly care for the child and has the ability to do so for extended periods of time. ¶9 The family court agreed and found that Father s change in employment, which resulted in an increased income and flexible work schedule, was sufficient evidence of a substantial and continuing change of circumstances warranting a modification of 4 Father s parenting time. Because the family court has broad discretion in this matter, we find there was a sufficient basis for the petition to modify custody. Specific Statutory Findings ¶10 When determining custody, initially or on request for modification, a trial court must comply with § 25-403(A). In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 4, 38 P.3d 1189, 1191 (App. 2002) (enumerating A.R.S. § 25-403.A. s factors). In a contested custody case, the court shall 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. (emphasis added). ¶11 In this case, the parties do not dispute that the order modifies child custody. Nor do they dispute that the family court failed to make the required findings pursuant to A.R.S. § 25-403; rather, the dispute concerns the proper remedy. Mother argues that the decision should be vacated and that we should dismiss Father s petition outright, or in the alternative, that we should grant a new trial. ¶12 We review the We decline to do either. [family] court s child custody for an abuse of discretion. decision regarding Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003) (citing Diezsi, 201 Ariz. at 526, ¶ 3, 38 P.3d at 1191). make the requisite findings pursuant 5 to A.R.S. Failure to § 25-403 can constitute remand. an abuse of discretion requiring reversal and a Hart v. Hart, 220 Ariz. 183, 186, ¶ 9, 204 P.3d 441, 444 (App. 2009). The grant or denial of the motion for a new trial is within the sound discretion of the [family] court and we will not upset its ruling absent a clear showing of abuse of discretion. Adroit Supply Co. v. Elec. Mut. Liability Ins. Co., 112 Ariz. 385, 389, 542 P.2d 810, 814 (1975). ¶13 Failure to make the required statutory findings calls for remand with instructions that the family court perform the analysis required by A.R.S. § 25-403. For example, in Reid v. Reid, after finding that the court provided no explanation why this [child interest, custody] we chose arrangement to vacate was the in the family children s court s order best and remand the matter for that court s reconsideration and for the court to make findings supporting its decision as required by A.R.S. § 25-403(B). 222 Ariz. 204, 207-10, ¶¶ 13 and 20, 213 P.3d 353, 356-59 (App. 2009); accord Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 19, 80 P.3d 775, 780 (App. 2003) (finding that none of the factors were addressed and choosing to remand to allow the trial court to make the findings required under A.R.S. § 25-403(A) and (J) ); Diezsi, 201 Ariz. at 527, ¶ 11, 38 P.3d at 1192 (remanding with directions to make the required statutory findings after determining that the trial court did not consider any of the requisite factors). 6 ¶14 Likewise, in Hart v. Hart, after finding that [t]here was evidence regarding many of the foregoing factors, we chose to vacate the custody order and remand to allow the family court to make additional findings and conclusions in accordance with A.R.S. § 25-403. 444-45. 220 Ariz. at 186-87, ¶¶ 12 and 14, 204 P.3d at We chose to vacate the custody order, rather than simply remand for additional findings, because of the significant number of factors not addressed. 204 P.3d at 445. outcome on Hart, 220 Ariz. at 187, ¶ 14, However, we declined to suggest a particular remand and chose not to require additional evidentiary proceedings, unless the court determine[d] that they would be appropriate. Id.; accord Owen v. Blackhawk, 206 Ariz. at 422, ¶ 12, 79 P.3d at 671 ( We reverse and remand to allow the trial court to state on the record its findings in compliance with A.R.S. § 25-403(J). ). ¶15 Without further explanation from the [family] court regarding its consideration of the applicable factors, we cannot say that the [family] court did not focus too much attention on [one factor] to the exclusion of other relevant considerations. Reid, 222 Ariz. at 207, ¶ 13, 213 P.3d at 356 (quoting Owen, 206 Ariz. at 421, ¶ 12, 79 P.3d at 670). As such, we find an abuse of discretion and without suggesting a particular outcome, remand with instructions that the family court articulate its findings pursuant to A.R.S. § 25-403. 7 Attorney Fees ¶16 Mother also appeals from the denial of her request for attorney fees. We review the family court s decision [w]hether to award attorneys fees and the amount thereof for an abuse of discretion. Roden v. Roden, 190 Ariz. 407, 412, 949 P.2d 67, 72 (App. 1997). ¶17 A.R.S. § 25-324 (Supp. 2009) directs the court, when considering the matter of attorney fees, to consider the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings. [A]n applicant need not show both a financial disparity and an unreasonable opponent in order to qualify for consideration for an award. Magee v. Magee, 206 Ariz. 589, 591 n.1, ¶ 8, 81 P.3d 1048, 1050 n.1 (App. 2004). ¶18 With respect to financial resources, [i]t is an abuse of discretion to deny attorneys fees to the spouse who has substantially fewer resources, unless those resources are clearly ample to pay the fees. Roden, 190 Ariz. at 412, 949 P.2d at 72. However, inability to pay attorney fees is not a prerequisite; rather, relative financial disparity between the parties is the benchmark for eligibility. P.3d at 1052. then Magee, 206 Ariz. at 593, ¶ 18, 81 If the trial court finds such a disparity, it is authorized to undertake its discretionary determining whether an award is appropriate. 8 Id. function of ¶19 Here, there is a clear earning disparity between the parties. The family court found that Mother s monthly income is $1,600 and that Father s is $4,501. an award of attorney fees. Thus, Mother is eligible for However, the fact that she eligible does not make her entitled to attorney fees. is When considering the matter of attorney fees, the [family] judge can draw upon his knowledge of the case and upon his own experience. Baum v. Baum, 120 Ariz. 140, 146, 584 P.2d 604, 610 (App. 1978) (citing Johnson v. Johnson, 12 Ariz. App. 208, 469 P.2d 100 (1970)). A review of Mother s financial affidavit indicates that her expenses do not exceed her income; therefore, she is capable of paying her attorney fees. ¶20 With respect to the reasonableness of the parties positions, we hold that it was not unreasonable for Father to pursue equal parenting time with his daughter. Given the family court s finding that Father s change in employment was a change in circumstances sufficient to reopen the matter of physical custody, see supra at ¶ 9, Father s desire to play a larger role in his daughter s life was reasonable. order denying Mother s fee request Thus, the family court s is affirmed. See In re Marriage of Pownall, 197 Ariz. 577, 584, ¶ 35, 5 P.3d 911, 918 (App. 2000). 9 Attorney Fees on Appeal ¶21 Finally, Mother requests attorney fees on appeal. Again, A.R.S. § 25-324 requires that we consider the financial resources of the parties and the reasonableness of the positions they have taken. As previously stated, a financial disparity and an opponent unreasonable are not both required to qualify. Magee, 206 Ariz. at 591 n.1, ¶ 8, 81 P.3d at 1050 n.1. ¶22 In this case, Father opposed Mother s motion for a new trial despite the absence of factual findings required by A.R.S. § 25-403. Father s response to Mother s motion argued that the family court made the findings necessary to . . . justify its ruling that an equal time-sharing arrangement was in the best interests of the child. Had Father conceded in his response to Mother s motion for a new trial, as he does now, that the family court failed to make the requisite statutory appeal would not have been necessary. findings, this Because Father opposed mother s motion for a new trial despite the absence of factual findings as unreasonable. required by A.R.S. Accordingly, we § 25-403, grant his position was Mother s request for attorney fees on appeal. CONCLUSION ¶23 Because the family court failed to comply with A.R.S. § 25-403, we vacate modification of the child custody order and remand with instructions to make factual findings in accordance 10 with the statute. We also award Mother her reasonable appellate attorney fees and costs, upon compliance with Arizona Rule of Civil Appellate Procedure 21. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ MAURICE PORTLEY, Presiding Judge /S/ ____________________________________ MARGARET H. DOWNIE, Judge 11

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