NASH v. NASH

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Marriage of: ) ) STEPHEN JOHN NASH, ) ) Petitioner/Appellee, ) ) v. ) ) ) ALEJANDRA AMARILLA NASH, ) ) Respondent/Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 7/23/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CV 12-0039 1 CA-CV 12-0076 1 CA-CV 12-0077 (Consolidated) DEPARTMENT C O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. FC2010-007378 The Honorable Thomas L. LeClaire, Judge AFFIRMED IN PART; VACATED IN PART; REMANDED Dickinson Wright/Mariscal Weeks PLLC By Robert L. Schwartz Steven D. Wolfson Anne L. Tiffen Attorneys for Petitioner/Appellee Phoenix Hallier & Lawrence, PLC By Angela K. Hallier And Jones, Skelton & Hochuli, P.L.C. By Eileen Dennis GilBride Attorneys for Respondent/Appellant Phoenix J O H N S E N, Chief Judge ¶1 This is an appeal from a child-support order entered in the dissolution of a marriage of two persons of considerable wealth. child We hold the superior court in such a case may not limit support to minimal needs. an amount required to meet the children s To the contrary, child support should permit the children of such a marriage to continue to enjoy the reasonable benefits they had while their parents were married. Because the superior vacate remand court its did not apply child-support this order. principle, Addressing we two and post-decree orders also at issue on appeal, we affirm an order prohibiting the parents from posting disparaging remarks about each other on social media, but vacate a sua sponte order barring the parents from disclosing any document or information in any document Alejandra Amarilla filed in the proceeding. 1 FACTS AND PROCEDURAL HISTORY ¶2 Stephen John Nash ( Father ) Nash ( Mother ) married in 2005. and In 2010, when Father filed for dissolution, the parties had an infant son and two six-year-old daughters. parenting Although the parties resolved issues of custody and time by agreement, they could not agree on child support, and the superior court held a one-day trial on the issue. 1 In a separate memorandum decision, we address another issue arising out of the decree. See ARCAP 28(g). 2 ¶3 The parties jointly asked the court to close the trial to the public, and it did so. Shortly after the court issued its judgment and decree, it reiterated a prior sua sponte order that sealed all proceedings and sua sponte ordered that [d]ocuments, records, and transcripts sealed by the Court, and information contained in the sealed material, may not be disseminated to any third party without an Order of the Court. The court also affirmed a parenting coordinator s report that rebuked Mother for tweeting a negative remark about Father and declared that she must stop using social media to disparage him. ¶4 We consolidated Mother s timely appeals of the decree and the post-trial orders. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2013) and -2101(A)(1), (2) (West 2013). 2 DISCUSSION A. 1. ¶5 support [W]e absent will an not abuse Child Support. Legal principles. disturb of a court s discretion. award of child Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21, 202 P.3d 481, 486 (App. 2 Absent material revision after relevant date, we cite a statute s current version. 3 2008). We will accept the court's findings of fact unless they are clearly erroneous, but we draw our own legal conclusions from facts found or implied in the judgment. McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6, 49 P.3d 300, 302 (App. 2002). ¶6 Pursuant to A.R.S. § 25-320(A) (West 2013), the superior court may order either or both parents owing a duty of support to a child . . . to pay necessary for support of the child. statute, the establish support. legislature guidelines for an amount and In subpart (D) of the same directed the determining A.R.S. § 25-320(D). reasonable supreme the amount court of to child The result is the Arizona Child Support Guidelines ( Guidelines ), Appendix to A.R.S. § 25-320 (West 2013). Id. The amount resulting from the application of [the] guidelines is the amount of child support ordered unless a written finding is supreme court, that made, based application on of criteria the approved guidelines inappropriate or unjust in a particular case. by would the be A.R.S. § 25- 320(D). ¶7 the The Guidelines establish a framework for determining amount needs of of child children Guidelines, § 1. support and the consistent ability of with the parents reasonable to pay. The premise of the Guidelines is the Income Shares Model, which itself is based on two principles: (1) The total child support amount approximates the amount that would 4 have been spent on the children if the parents and children were living together, and (2) Each parent contributes his/her proportionate share of the total child support amount. Id., Background. ¶8 Attached to the Guidelines is a Schedule of Basic Support Obligation amounts of child ( Schedule ), support, which called the sets Basic out presumptive Child Support Obligation, derived from the parents combined gross incomes. 3 As the parents combined gross income increases, so does the presumptive Basic Child Support Obligation. The highest combined income in the Schedule is $20,000 per month. If the parents combined gross income exceeds $20,000 per month, the presumptive Basic Child Support Obligation is that identified for a combined income of $20,000 per month. Id. §§ 2(G)(2), 8. A parent may request an upward deviation from the presumptive Basic Child Support Obligation by showing that a higher amount is in the best interests of the child. ¶9 Id. § 8. As applicable here, after determining the Basic Child Support Obligation from the Schedule, the superior court then must add to that figure the cost of the children s medical, dental and/or vision insurance coverage, if any and also may add childcare costs appropriate 3 to the parents financial The Schedule allows for certain deductions in a parent s gross income that are not relevant here. Guidelines, § 7. 5 abilities and reasonable and necessary education expenses when such expenses are incurred by agreement of both parents or ordered by the court. Id. § 9(A), (B)(1), (2). Except in the event of a court-ordered deviation, the resulting sum is the Total Child Support Obligation, for which the parents share responsibility in proportion to their respective gross incomes. Id. § 10. 4 2. ¶10 The court s calculation and division of the Total Child Support Obligation. Pursuant to the Schedule, when, as here, the parents combined monthly gross income is $20,000 a month or more, the Basic Child Support Obligation for three children is $2,795. As noted above, to this amount, the court must add certain medical and dental expenses (and may add childcare and education expenses) to derive the Total Child Support Obligation. ¶11 The decree in this case acknowledges the children s monthly medical education and expenses dental of insurance $1,750, and, according monthly childcare expenses were $2,000. show that the court added those 4 expenses of to $1,314 the and record, But the record does not amounts to the Basic Child When the two parents incomes are not equal, but the children will spend an essentially equal amount of time with each parent, the total child support amount shall be divided equally between the two households and the parent owing the greater amount shall be ordered to pay what is necessary to achieve that equal share in the other parent s household. Id. § 12 & Example. 6 Support Obligation, as the Guidelines require. The child support worksheet the court completed did not take into account any of those expenses. Instead, the worksheet endorsed the presumptive Basic Child Support Obligation amount of $2,795 as the Total Child Support Obligation without recognizing any insurance, education and/or childcare expenses. ¶12 divide parents As noted, the Guidelines also require the court to the Total based on Child their Support Obligation proportionate gross between the two monthly incomes. Although the superior court imputed to Mother a specific income in excess of $20,000 a month, it did not determine Father s monthly gross income; as a result, it could not and did not determine the proportionate relationship between the parties respective gross incomes. ¶13 Without making a finding of each parent s income and then allocating the Total Child Support Obligation in proportion to their respective incomes, as the Guidelines instruct, the decree ordered Father to continue to pay the children s medical and dental insurance expenses and their educational expenses. The decree then continued: Father and Mother will divide all reasonable and necessary non-covered healthrelated expenses for the children, 90%/10%; Father and Mother will divide all mutually agreed-upon extra-curricular activities for the children, 90%/10%; 7 Father and Mother will divide the parenting coordinator s fees, 75%/25%; and As to all other costs and expenses divisible between the parties not specifically addressed herein, [Father] shall pay 72% and [Mother] shall pay 18%. 5 The decree does not clarify the nature of the other costs and expenses divisible between the parties to which the final provision above applies, and at oral argument before this court, neither party expressed a clear understanding of the meaning of the provision. The parties do agree, however, that beyond the responsibility for insurance, education, health-care and parenting-coordinator expenses recited above, the decree imposes no child-support obligations on Father. 3. Failure to follow the process set out in the Guidelines. ¶14 Although court s rejection Mother also of request her takes issue for an with upward the superior deviation in child support (see infra ¶¶ 16-20), she argues the court erred in the first instance by failing process set out in the Guidelines. contends childcare the court costs erred should be by to follow analytical See ¶¶ 8-9 supra. failing added the to the to determine Basic Child Mother whether Support Obligation in calculating the Total Child Support Obligation, by 5 It is not clear from the record whether the court later corrected the 72/18 division of expenses in this provision to another that sums to 100 percent. 8 failing to determine Father s monthly gross income, and then by failing to allocate the Total Child Support Obligation between the parties in proportion to their monthly gross incomes. ¶15 As Mother argues, the record does not demonstrate that the superior court followed the analytical process dictated by the Guidelines, and to the extent the court failed to follow that process, it erred. 521, ¶ 6, 975 P.2d See Little v. Little, 193 Ariz. 518, 108, 111 (1999) (Guidelines provide procedural guidance in applying the substantive law ). Father contends that at the end of the day, the court did not abuse its discretion in making the payment orders contained in the decree. It may be that the court would have come to roughly the same same conclusions had it engaged in the analysis the Guidelines require it to discern whether perform. that On is this so. record, however, Therefore, on we remand, cannot after considering whether an upward deviation in Total Child Support Obligation is required, see infra ¶¶ 16-20, and determining what insurance, education and childcare expenses should be added to the Basic Child Support Obligation pursuant to Guidelines, § 9, the superior court then should determine Father s gross monthly income and allocate the Total Child Support Obligation between the parties in proportion to their gross incomes. After performing that division, the court may order the parties to 9 make specific child-support payments consistent with the outcome of its analysis. 4. ¶16 Upward deviation. Mother argues the superior court also erred by failing to grant an upward deviation in child support. The Guidelines provide that a parent seeking more than the presumptive childsupport shall amount bear derived the burden from the of proof Guidelines to and establish the that Schedule a higher amount is in the best interests of the children. Guidelines, § 8. fashion The superior court has broad latitude to an appropriate award of child support, and we will uphold the award unless it is devoid of competent evidence. Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App. 2007) (quotation omitted). ¶17 public At trial, Mother called Michael Miskei, a certified accountant, who testified that based on the family s historical expenditures, Mother was entitled to receive $22,500 in monthly child support. 6 On appeal, Mother argues the superior court erred by holding that because she failed to prove she is entitled to that precise amount 6 of child support, she was There is some confusion in the record whether Miskei s calculated number represented his opinion of the Total Child Support Obligation, to be divided between Mother and Father in proportion to their income, or, as the decree stated, was intended to represent the amount Father should pay in monthly support. 10 entitled to no upward deviation of any amount. She points to a footnote in the decree stating: The Court determines that it is not up to the Court to correct, re-calculate, or otherwise adjust the amount sought in the upward deviation. By statute, the burden of establishing the need for the deviation is on the party seeking the deviation. Thus, if the amount sought is incorrect, it is for the proffering party to correct not the Court. ¶18 As the decree states, Mother had the burden to prove that her request for a higher amount of child support was in the children s best interests. Contrary to the statement in the footnote, in however, nothing the Guidelines or other law provides that a parent who does not prove every penny of a specific requested amount of upward deviation is entitled to no deviation whatsoever. Instead, in asking the court to establish a child-support amount in excess of the amount derived from the Schedule, Mother only had to prove that some upward deviation was in the best interests of the children. For its part, as the trier of fact, the superior court shall grant whatever amount of upward deviation it finds is supported by the evidence under the applicable legal principles. ¶19 Although Father argues that notwithstanding the footnote, the superior court went on to conclude that Mother failed to prove any amount of upward deviation was appropriate, the decree does not so state. 11 To the contrary, the decree supports Mother s assertion that, consistent with the footnote, the court denied any upward deviation because it found she had not proved that the best interests of the children required the specific amount of upward deviation she sought. For example, in analyzing the key factor under the Guidelines, § 8, of the needs of the children in excess of the presumptive amount, the decree concludes, [t]he Court did not find that [Mother] established a need by the children to receive $22,500 in excess of the COURT presumptive FINDS that amount. [Mother] Later, has not the decree demonstrated states, that a THE child support amount of $22,500 is necessary or in the best interest of the children. ¶20 Because we cannot determine that the court gave due consideration to Mother s request for an upward deviation in child support, we vacate the decree s treatment of that issue and remand decision. for further proceedings consistent with this Below, we address certain issues that may arise again on remand. 5. ¶21 Although the Mother s expert witness. superior court concluded that Miskei s qualifications and testimony did not satisfy Arizona Rule of Evidence 702, it nevertheless considered Miskei s testimony, but ultimately declined to accept his opinions because it found they 12 were neither reliable nor correct. 7 Mother argues the superior court erred in ruling that Miskei was not qualified. She argues Miskei has testified hundreds of times in courts in several states, using the same Setting aside whether type Miskei of information qualified as he an used expert here. witness pursuant to Rule 702, the court did not abuse its discretion in declining to accept his analysis. Without recounting the particulars, numerous analytical flaws revealed during Miskei s cross-examination support the court s decision to reject his testimony. 6. ¶22 In The children s needs. considering Mother s request for an upward deviation in child support pursuant to § 8 of the Guidelines, the superior court heard testimony by Mother and Father relating to the standard of living the children would have enjoyed if the parents and children were living together [and] the needs of the children in excess of the presumptive amount. Guidelines, § because 8. On appeal, Mother argues the court erred it considered only whether the presumptive child-support amount was sufficient to satisfy the children s basic needs. to the conclusion in the decree that, given She points both parents resources, the basic needs of the children will be more than 7 Trial in this matter occurred before the effective date of the 2012 amendments to the Arizona Rules of Evidence. 13 adequately met without an upward deviation. As Mother argues, in explaining its analysis, the court described this factor as whether additional money is needed to provide for the basic standard of living for the minor children. 8 ¶23 Under the circumstances presented here, to the extent the court rejected an upward deviation in child support because it concluded basic the needs, superior presumptive amount it erred. determining court must In consider the satisfied the child reasonable children in light of the parents resources. children s support, needs of the the In determining whether an upward deviation in child support is appropriate in a case such as this, the court must give considerable regard to the reasonable benefits, beyond their basic needs, accorded to the children during the marriage. See Guidelines, Background ( The total child support amount approximates the amount that would have been spent on the children if the parents and children were living together. ); id. ¶ 8. 8 The record reflects that Father had offered to pay a specific amount of upward deviation in child support, and in considering Mother s request for an upward deviation, the court assumed that she would accept Father s offer: It is especially concerning to the Court that [Mother] did not offer any evidence that the children will have any reasonable monthly financial needs in excess of the child support amount being offered by [Father] or why the best interests of the children mandate more child support than offered by [Father]. But the court did not order Father to make the payments he offered, and according to the record, in the absence of Mother s acceptance of that amount in settlement, he has not done so. 14 ¶24 Even though the court in this case rejected the opinions of Mother s expert witness, it received considerable other evidence of the expenses of the households in Arizona and elsewhere. parents respective Both parties agreed they wanted to continue to expose their children to diverse cultures and cultural events. contention, continue Father to While travel expenses were a point of did enjoy not dispute regular that extensive the children international should travel, including regular visits with their maternal relatives in South America and Australia; and other travel, including ski vacations; the dispute was only about the nature and style of that travel. Although the family may have spared few expenses in the manner in which it traveled during the marriage, Mother testified that coach airplane tickets to South America are $1,500 apiece. The superior court seemed to accept that the children be should able to continue to travel extensively, noting the Court understood Father s objection to be the manner of travel . . . not the destination. and the other evidence in the In spite of this finding record, however, the court apparently did not consider the family s demonstrated travel, entertainment and housing expenses in determining grant an upward deviation in child support. whether to See Guidelines § 8 (court should take into account such factors as the needs of the children in excess of the presumptive amount . . . and any 15 other factors which, on a case by case basis, demonstrate that the increased amount is appropriate. ) ¶25 Expenses households such associated as those with of these international parties travel usually and are not relevant to the child-support needs of children in less affluent households. But in deciding child support after the dissolution of marriages such as this one, involving significant wealth, the superior court must consider the expense of allowing children who have enjoyed such benefits to continue to receive them after the dissolution. ¶26 As other state courts have concluded, in such a situation, the court must look beyond the basic necessities of survival because children are entitled to share reasonably in their parents economic good fortune. See Miller v. Schou, 616 So. 2d 436, 438-39 (Fla. 1993); accord Hansel v. Hansel, 802 So. 2d 875, 882-83 (La. App. 2001) (correct standard is pre-divorce standard, not basic needs ); Isaacson v. Isaacson, 792 A.2d 525, 537, 539 (N.J. App. 2002) (beyond bare necessities, a wealthy parent must share with the children the benefit of his financial achievement, including reasonable but non-essential items such as tutoring, summer camps, sports clinics, music or art lessons, vacations [and] study abroad ) (quotation omitted); Montgomery v. Montgomery, 481 N.W.2d 234, 236 (N.D. 1992) ( needs of a child in a family with substantial income are more 16 expansive because of the standard of living the family has enjoyed ) (quotation omitted); Branch v. Jackson, 629 A.2d 170, 171 (Pa. 1993) ( reasonable needs of a child whose parent or parents are wealthy may well include items which would be considered frivolous to parents who are less well off ); Harris v. Harris, 714 A.2d 626, 633 (Vt. 1998) (needs of affluent children grow along with their parents good fortune). ¶27 In declining to grant Mother s request for an upward deviation, the superior court stated it accepted Father s contention that overindulging the children is not in their best interest. We do not mean to say that the court must provide child support that matches historical spending patterns, dollarfor-dollar. See In re Patterson, 920 P.2d 450, 455 (Kan. App. 1996) ( no child, no matter how wealthy the parents, needs to be provided more than three ponies ). Because the touchstone always is the best interests of the child, a child s share in the good fortune of his or her parents must be subject to the limitation that the award be consistent with an appropriate lifestyle. Miller, 616 So. 2d at 439; see also Isaacson, 792 A.2d at 539 (supporting parent has the right to participate in the development of an appropriate value system for a child by limiting expenses to those that are reasonable). Under circumstances such as these, the court may conclude that the pre-dissolution lifestyle of the children need not be precisely 17 replicated, particularly when, as here, one parent persuasively argues in favor of more modest conditions. ¶28 Finally, the superior court may not avoid this analysis by simply concluding that the parent seeking the upward deviation has sufficient resources by herself to provide the children the lifestyle they enjoyed during the marriage. The issue is not whether the parent who seeks the upward deviation can afford to provide the children with their pre-dissolution lifestyle without assistance from the other. unusual circumstances present here, when Particularly the Father s income and wealth may significantly exceed Mother s, the court may not fail to perform the analysis the Guidelines require. See Guidelines, ¶ 8. 9 B. ¶29 The Order Prohibiting the Parents from Posting Disparaging Remarks About Each Other on Social Media. The parties joint custody agreement, which the court approved, included the following language: All communications between the parents shall be respectful. The parents agree that neither parent shall disparage the other party to the children, and that each parent 9 Mother also argues the superior court erred when it considered what she received in the property settlement in determining whether to grant an upward deviation in child support. See Walsh v. Walsh, 230 Ariz. 486, 496, ¶ 32, 286 P.3d 1095, 1105 (App. 2012); Guidelines, ¶ 5(G). We reject Mother s argument because nothing in the Guidelines or in Walsh precludes the court from considering the income a parent will receive from an asset awarded in the dissolution when it is determining gross income for purposes of a child-support award. 18 shall model respect for the other parent in their interactions with the children. Neither parent shall do or say anything to the children that would negatively impact the child s opinion or respect for the other parent. ¶30 The day the decree issued, Mother used her Twitter account to tweet a biting criticism of Father s integrity, the specifics of which are not relevant here. Father s request, the court-approved A few days later, at parenting coordinator issued the following recommendation: Mother is cautioned against communicating about Father in a negative and pejorative way, especially using social media. Most recently, it has been brought to the [Parenting Coordinator] s attention that Mother has tweeted about Father in an unflattering way. Mother is entitled to her own feelings about Father. However, using social media to tell the world how she views Father is insensitive to Father s role in relationship to his children. If parents of the children s friends, for example, were to view Mother s comments, it could negatively influence the parents and their children regarding the Nash children. The [Parenting Coordinator] s concern is the collateral effect to the children. Mother must stop these activities. ¶31 The superior court issued the following order adopting the parenting coordinator s recommendations: With respect to the allegations [about the tweet], the parties are reminded that the [joint custody agreement] is an Order of the Court. Violation of the terms of the [joint custody agreement] is not solely a matter resolved by the Parenting Coordinator, but is enforceable by the Court. The life span 19 of social media is indefinite. Distribution of social media postings cannot be effectively controlled or contained. Disparaging comments made by either party regarding the other party violates the [joint custody agreement] and is likely, over time, to be viewed by the minor children. The parties are reminded that such conduct is prohibited. Mother argues the order violates her First Amendment right to free speech. novo. We review alleged constitutional violations de State v. McGill, 213 Ariz. 147, 159, ¶ 53, 140 P.3d 930, 942 (2006). 10 ¶32 The order prohibits the parties from posting disparaging comments about each other in social media. Prior restraints on speech are the most serious and least tolerable infringement on First Amendment rights. Stuart, 427 restraints U.S. are 539, invalid, 559 (1976). they come against constitutional validity. Neb. Press Ass n v. Although with a not heavy all prior presumption Near v. Minnesota, 283 U.S. 697, 716 (1931); State v. Book-Cellar, Inc., 139 Ariz. 525, 530, 679 P.2d 548, 553 (App. 1984). The presumption of invalidity can be overcome if the restriction . . . serves a compelling 10 Father argues Mother waived her right to complain about the order because she failed to object to it within 10 days as required by Arizona Rule of Family Law Procedure 74(J). Mother filed her objection 21 days after the order issued, but argues she did not receive the order promptly because of delays caused by the court s determination to seal all orders entered in the case. Under the circumstances, we exercise our discretion to consider Mother s argument. 20 governmental interest, is necessary [compelling] interest, is precisely to serve tailored the to asserted serve that interest, and is the least restrictive means readily available for that purpose. Hobbs v. County of Westchester, 397 F.3d 133, 149 (2d Cir. 2005) (quotation omitted); see Sable Commc ns of Cal. v. Fed. Commc ns Comm n, 492 U.S. 115, 126 (1989) (protection of children s psychological well-being is compelling interest; regulation restraining indecent sexual expression may be upheld if narrowly tailored to serve that interest). ¶33 Orders barring a parent from disparaging the other in front of the children are common in dissolution matters. See, e.g., In re Marriage of Hartmann, 111 Cal. Rptr. 3d 242, 245 (Cal. App. 2010); In re Marriage of Olson, 850 P.2d 527, 532 (Wash. App. 1993). Nevertheless, general concern for the best interests of the children will not necessarily allow a court to broadly restrain a parent from making disparaging comments about the other to third parties. See, e.g., In re K.D., 929 N.E.2d 863, 871-72 (Ind. App. 2010) (reversing as overbroad an order barring mother from talking to any media source or others about allegations in custody case, citing lack of evidence that child would suffer if Mother continued to talk to the media ); In re T.T., 779 N.W.2d 602, 621 (Neb. App. 2009) (vacating order barring parents from disclosing information about their child for lack of evidence to satisfy the State s heavy burden to 21 justify this prior restraint on free speech ); see generally Brown v. Entm t Merchs. Ass n, 131 S. Ct. 2729, 2736 (2011) (although children government from harm, possesses that does legitimate not power include a to protect free-floating power to restrict the ideas to which children may be exposed ). ¶34 Mother argues the order at issue here cannot survive constitutional scrutiny. But in the joint custody agreement that the court entered as an order upon their request, she and Father pledging agreed to to certain model restrictions respect for the on their other speech parent in by their interactions with the children and not to disparage the other party to the children. Mother argues the order at issue goes beyond her agreement not to disparage Father in comments made directly to the children. As she argues, the order encompasses comments she might make to others outside the presence of the children, by way of Twitter or any other social medium. ¶35 We take judicial notice, however, of the fact that, depending on the circumstances, comments Mother posts on social media about Father may not remain private but may make their way to the children, perhaps in very 11 short order. 11 This is See Comment, 161 Penn. L. Rev. 1081, 1119 (2013) ( Writing nasty, disparaging comments on a blog where the children, ages ten and twelve, could easily find them is practically the same as saying it to them; it may also humiliate the children if their peers discover the blog and question them about it. ); see also Ariz. R. Evid. 201(b). 22 particularly true because Father has a highly visible profile as a professional athlete. Accordingly, we cannot accept Mother s argument that the order is invalid simply because it goes beyond the letter of the parties disparaging remarks about children. To contrary, the agreement the other to to in the refrain the extent from making presence that of the the order prohibits Mother and Father from disparaging the other by way of public remarks children, the agreement. 447 (N.Y. comments that order are is likely true to to make the their spirit of way the to the parties See generally Adams v. Tersillo, 245 A.D. 2d 446, App. made Div. in the 1997) (limiting presence of scope the of children restraint or in to the presence of those who have contact with the children ). 12 ¶36 not For these reasons, we conclude the superior court did abuse its discretion in entering the order barring both parties from disparaging the other by way of social media. C. ¶37 The Order Precluding Dissemination of Documents and Information in the Court Record. Mother also challenges the court s sua sponte order that [d]ocuments, records, and transcripts sealed by the Court, 12 Mother does not argue with the premise of the order, namely, that posts on social media by definition are public such that, if she posts a disparaging comment on social media, that comment may make its way to the children. Nor on appeal does she argue that the order is overbroad in that it precludes all disparaging comments. 23 and information contained in the sealed material, may not be disseminated to any third party without an Order of the Court. Not only does the order bar either party from disclosing copies of any court filing, it also prevents them from discussing the outcome of contained the in documents, court approval. without proceeding regard or records disclosing or any transcripts information without prior It broadly applies to all such information, to its source and without identifying any significant interest sought to be protected. ¶38 Because the order preemptively forbids speech concerning a public proceeding, it is a classic prior restraint on speech. See, e.g., Alexander v. United States, 509 U.S. 544, 550 (1993). Father does not argue the order is required to protect his interest in a fair trial. U.S. at 570 (order prohibiting Cf. Neb. Press Ass n, 427 media accounts proceeding invalid on First Amendment grounds). of criminal Instead, Father argues the order is a logical extension of stipulations the parties entered prior to trial asking the superior court to seal particular filings. ¶39 But the order at issue bars disclosure of any matter in the court s record, not just documents the parties agreed would be sealed or kept confidential. Moreover, Father does not point to any stipulation by which the parties agreed not to disclose the outcome of the dissolution 24 proceeding or, more broadly, any information contained in any filing they made in the proceeding. Nor does Father identify any specific information contained in the court s file whose disclosure would threaten the best interests of the children or any factual finding by the court that would justify the order. ¶40 Pursuant to Arizona Rule of Family Law Procedure 13(D), the records relating to a dissolution proceeding shall be maintained and disclosed in accordance with Rule 123(c)(1) of the Rules of the Arizona Supreme Court, which in turn provides that court records are presumed to be open to any member of the public for inspection. 13 While Arizona Rule of Family Law Procedure 13(D) allows the superior court to make any record of a family court matter closed or confidential or otherwise limit access to such records, the court may issue such an order only upon a finding that the confidentiality or privacy interests of the parties [or] their minor children . . . outweighs the public interest in disclosure. Ariz. R. Fam. L. P. 13(D). ¶41 To the extent the order at issue bars the parties from disclosing the decree or any other filings made in the case, it fails because it is unsupported by the findings that Rule 13(D) or Rule 123(c)(1) of the Arizona 13 Supreme Court requires. Arizona Rule of Family Law Procedure 43(G) allows for the confidential treatment of documents containing sensitive data, meaning Social Security numbers and the like. 25 Moreover, to the extent the order bars the parties from disclosing any information contained in any court filing, it cannot withstand principles. scrutiny under applicable First Amendment We therefore vacate the order. CONCLUSION ¶42 For the reasons stated above, we vacate the decree insofar as it addresses child support. We affirm the order the superior court entered restricting the parties comments about the other on social media, but vacate its order barring the parties from court s file. fees incurred disclosing any information or document in the We deny both parties requests for attorney s in this appeal pursuant to A.R.S. § 25-324(A) (West 2013), but grant Mother her costs on appeal, pursuant to Arizona Rule of Civil Appellate Procedure 21. _______________/s/_______________ DIANE M. JOHNSEN, Chief Judge CONCURRING: _______________/s/_________________ SAMUEL A. THUMMA, Presiding Judge _______________/s/_________________ MICHAEL J. BROWN, Judge 26

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