Baughman v. Oldham
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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 DANA D LEE HUMPHREYS BAUGHMAN, ) ) Petitioner/Appellant, ) ) v. ) ) CHARLES H. OLDHAM, ) ) Respondent/Appellee. ) ) 1 CA-CV 10-0269 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) FILED 7/19/11 Appeal from the Superior Court in Maricopa County Cause No. FC2004-008097 The Honorable Bruce R. Cohen, Judge AFFIRMED Law Office of Joel L. Brand By Joel L. Brand Attorneys for Petitioner/Appellant Charles H. Oldham, Respondent/Appellant In Propria Persona Defenders of Children By David M. Lujan Attorneys for Amicus Curiae Phoenix Mesa Phoenix P O R T L E Y, Judge ¶1 Dana D Lee Humphreys Baughman ( Mother ) appeals from the denial of her request to modify child custody. following reasons, we affirm. For the FACTUAL AND PROCEDURAL BACKGROUND ¶2 Pursuant to a 2004 consent decree of dissolution, Mother was awarded sole custody of the parties two children. Charles Oldham ( Father ) agreed to defer to Mother s decisions regarding parenting time, which was to be supervised initially. He subsequently requested a modification of the custody and parenting time arrangement because Mother had prevented him from having any parenting time with the children. The family court appointed Dr. Lavit as the custody evaluator. ¶3 moved objected, and Father Mother hearing. to the Pennsylvania family court with held the an children. evidentiary The court denied the request to relocate the children because Mother had failed to demonstrate that relocation would be in their best interests. ¶4 petition, After the a hearing court found on Father s that Mother custody was more modification stable in Pennsylvania and that the children were doing reasonably well in her care. The court allowed the children to remain with Mother in Pennsylvania, but established a parenting time schedule for Father. The court also told Mother that she needed to comply with the parenting time orders or the court would consider that she was acting contrary to the children s best interests. 2 ¶5 Within three months of the March 2006 order, Father had filed three notices that Mother had failed to comply with the court order. Father then filed for custody modification. After an evidentiary hearing, the family court concluded that Mother failed to comply with the March 2006 custody order and that her actions were unreasonable. The court also found that the children, who were then visiting Father, were doing well in his care and that there was no evidence of abuse or neglect. The court potential also for noted domestic custody order. that it had violence in previously considered reaching its March the 2006 The court concluded that even if there was domestic violence in the past between the parties, Father has now rebutted the presumption that he should custody in the best interest of the children. not be awarded As a result, the court found that Mother s mental health was now impacting her ability to allow Father continuing and meaningful contact with the children. custody of the Thus, the court awarded Father primary physical children in Arizona in August 2006 and established a parenting time schedule for Mother. ¶6 Almost three years later, Mother filed a petition to modify the 2006 custody order. She argued that as a result of her improved mental health, she had successfully complied with the custody and parenting time orders for three years. 3 Because she had improved her life, mental health, and had remarried, she should be awarded physical custody of the children. ¶7 After an evidentiary hearing on Mother s petition, the family court denied her petition to modify custody. discussed the statutory factors in Arizona The court Revised Statutes ( A.R.S. ) sections 25-403 and -408(I) (Supp. 2010), and found that Mother failed to establish that a change in custody would be in the children s best interests. ¶8 Mother filed a timely appeal, and we have jurisdiction pursuant to A.R.S. § 12-2101(C) (2003). DISCUSSION ¶9 Mother contends that the court abused its discretion when it denied her modification request in light of her improved mental health and the history of domestic violence. Specifically, she argues that the court abused its discretion by failing to adequately consider the domestic violence in this case. extent of the history of Additionally, she contends that A.R.S. § 25-403.03 (Supp. 2010) required the court to find that the history of domestic violence was contrary to the children s best interests. We review the child custody ruling for an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1191 (App. 2002). 4 ¶10 Although Mother argues that the court did not consider the history of domestic violence, she fails to recognize that the court fully considered that history in August 2006 when it found that Father had rebutted the statutory presumption against awarding him custody. violence history Moreover, after recognizing the domestic in its 2009 minute entry, the court also considered the fact that Father s parenting time prior to the August 2006 order had been monitored; that there was no evidence of domestic violence or abuse; that the children were doing well during their visits with him; and that Father had completed therapy. ¶11 Mother argues that the prior appropriately address the domestic violence. not appeal those orders and cannot now orders did not She, however, did challenge the 2006 findings. ¶12 Mother also argues that she was not given credit for her improved mental health, and following court orders, since 2006. time She also had remarried, and the children enjoy spending with her and their new family in Pennsylvania. Significantly, there was evidence that the children were doing very well under the custody orders, exchanging the children as ordered. 5 and the parties were ¶13 To change a previous custody order, the court must determine whether there has been a material change circumstances affecting the welfare of the child[ren]. in Canty v. Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994) (citing Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982)). The trial court has broad discretion to determine whether a change of circumstances has occurred and on review the trial court s decision will not be reversed absent a clear abuse of discretion, in other words, a clear absence of evidence to support its actions. Hendricks v. Mortensen, 153 Ariz. 241, 243, 735 P.2d 851, 853 (App. 1987) (citing Pridgeon, 134 Ariz. 177, 655 P.2d 1); see Canty, 178 Ariz. at 448, 874 P.2d at 1005 (citing In re Wise, 14 Ariz. App. 125, 126, 481 P.2d 296, 297 (1971)). Based on the record, because there was evidence to support the family court s decision, we cannot say that the ruling was made without factual justification. ¶14 Mother and amicus curiae, Defenders of Children, contend that the family court committed legal error by failing to consider the evidence of past domestic violence as contrary to the children s best interests pursuant to A.R.S. § 25-403.03 as well as the reasons for Mother s noncompliance with court orders in 2006. Father s history of domestic violence, however, was not the reason the court awarded custody to Mother in 2006. 6 Instead, the court found that a change in custody at that time would not be in the children s best interest as it would uproot them from their primary caregiver with whom they are doing reasonably well. ¶15 to The court later found that Mother unreasonably failed comply Father. with the custody order and transferred custody to Because the court made specific findings in the 2006 order, and Mother did not appeal the order, we cannot reconsider the court s alleged failure to give appropriate weight to the domestic violence or reweigh Mother s reasons for failing to comply with court orders. The current language in A.R.S. § 25- 403(A)(6) 1 did not exist in 2006. 1 The following highlighted language was added to § 25-403(A)(6) in 2009: The court shall determine custody, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including: . . . . 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 faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse. 2009 Ariz. Sess. Laws, ch. 57, § 1 (1st Reg. Sess.) (emphasis added). 7 ¶16 August The 2006 violence. children without have been in allegations Father s or evidence custody of since domestic Mother has made remarkable strides in overcoming her post-traumatic stress, which the court recognized. Mother, however, had the burden to demonstrate that a substantial and continuing change of circumstances existed that affected the children s best interests. Andro v. Andro, 97 Ariz. 302, 306, 400 P.2d 105, 108 (1965). She did not meet the burden because she did not demonstrate a significant change in circumstances that would warrant uprooting the children from the successful custody arrangement in place. CONCLUSION ¶17 We affirm the family court s custody order. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ LAWRENCE F. WINTHROP, Judge /s/ ____________________________ SHELDON H. WEISBERG, Judge Pursuant to Article VI, Section 3 of the Arizona Supreme Court designated Weisberg, as appointed to serve as a Arizona Court of Appeals, Division One, 8 the Arizona Constitution, the Honorable Sheldon H. judge pro tempore in the to sit in this matter.
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