CHAREPOO v. DAHNAD
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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 DIVISION ONE FILED: 07/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) MAMAK CHAREPOO, ) ) Petitioner/Appellee, ) ) v. ) ) SHIDAN DAHNAD, ) ) Respondent/Appellant. _______________________________________ ) In re the Matter of: 1 CA-CV 11-0643 A DEPARTMENT C MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2008-003017 The Honorable Sam J. Myers, Judge VACATED AND REMANDED Burt & Feldman By Elizabeth Feldman and Ellen K. Aiken Attorneys for Petitioner/Appellee Sullivan Law Office PLLC By Dianne Sullivan Attorneys for Respondent/Appellant Scottsdale Tempe N O R R I S, Judge ¶1 Shidan Dahnad ( Father ) timely appeals the family court s order granting Mamak Charepoo s ( Mother ) Petition for Modification of Visitation and Telephone Contact ( Petition ). In its order, the family court found Mother had demonstrated a significant and continuing change of circumstances based upon the increased age of the parenting time orders. children since the entry of the Because the family court did not apply the appropriate standard, we vacate the family court s order and remand for further proceedings. ¶2 Father s First, as argument the an initial family matter, court abused we disagree with its discretion in failing to make specific findings under Arizona Revised Statutes ( A.R.S. ) section 25-403 (Supp. 2011). 1 This statute was inapplicable as Mother was seeking to modify Father s parenting time, not the custodial placement of the children. ¶3 Second, answering brief, in response Father to argues 1 the Mother s family argument court in her incorrectly A.R.S. § 25-403(A) lists non-exclusive factors the family court must utilize when determining custody, either originally or on petition for modification, in accordance with the best interests of the child. 2 applied A.R.S. § 25-411(J) (Supp. 2011). 2 We agree. While the family court considered both changed circumstances and the best interests of continuing parenting would the endanger children, time it with seriously the did not whether as Father consider previously ordered physical, mental, [children s] moral or emotional health as required by § 25-411(J). ¶4 Although findings on the the statute record, the standard in § 25-411(J). incorrectly, appropriate we family court have and presumed then 188, omitted). ¶ 19, 204 Because require did P.3d the that considered facts to support that determination. 183, not specific not apply the Had the court not stated the standard would standard does 441, family it applied the there were whether Hart v. Hart, 220 Ariz. 446 court (App. did 2009) not (citation apply the appropriate standard, we vacate its order and remand for it to reconsider Mother s petition based on the existing record or, at the court s discretion, as supplemented by the parties. 2 A.R.S. § 25-411(J) states the family court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child. The family court, however, may not restrict parenting time unless it finds that the parenting time would endanger seriously the child s physical, mental, moral or emotional health. 3 ¶5 under Finally, we deny Mother s request for attorneys fees A.R.S. § 25-324 (Supp. 2011). 3 We do not have any information regarding the parties financial resources, nor was Father s position unreasonable. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ SAMUEL A. THUMMA, Judge 3 A.R.S. § 25-324 allows the court, upon consideration of the financial resources of the parties and the reasonableness of their positions throughout the proceedings, to order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any marital or domestic relations proceeding. 4
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