Thompson v. Thompson

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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: ROGER E. THOMPSON, Petitioner/Appellant, v. TANYA F. THOMPSON, Respondent/Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06/14/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CV 10-0521 DEPARTMENT B MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Apache County Cause No. DO2004-117 The Honorable Kay H. Wilkins, Judge Pro Tempore AFFIRMED Roger Thompson Petitioner/Appellant, In Propria Persona Eagar B A R K E R, Judge ¶1 Petitioner appeals from the trial court s denying his request for a change in parenting time. order We will not disturb the trial court s decision [u]nless it clearly appears that the trial judge has mistaken or ignored the evidence. Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d 818, 823 (1970). Finding no such error in this case, we affirm. Facts and Procedural History ¶2 Petitioner and his former wife have been engaged in litigation 2004. over custody Petitioner s approximately vacations. half of their current of his three minor parenting children s children time weekends since consists and of school Petitioner s most recent request sought to modify the parenting time schedule with the following requests: (1) an extra weekend hunting; (2) alone an with his additional ten-year-old vacation week son with to the take him children during their spring break; (3) an additional weekend with the children every month for a total of three weekends per month; (4) an additional week with each of the three children separately while the mother attended to the other two children in addition to his current five weeks out of the children s nine-week summer break; and (5) custody of the children during the Easter holiday each year. ¶3 The trial court denied Petitioner s request, finding both that circumstances had not changed substantially since the court s last parenting time order and that Petitioner had failed to show that such a modification would be in the children s best 2 Petitioner appealed. 1 interest. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). Discussion Petitioner raises five issues, 2 which we address in ¶4 turn. 1. The Role of the Parenting Coordinator ¶5 Petitioner discretion by asserts refusing that to the trial determine court what abused its constitutes substantial change in parenting time and by not allowing the parenting coordinator to resolve motions. The order appointing the parenting coordinator provides that the Coordinator shall not have the authority to make a recommendation affecting child support, a parenting requests of time. coordinator absent change As stated: custody, to In agreement between made Mr. in the the or a substantial motion at opinion of the parents Thompson s issue, the or the author, order, motion in parenting current court proposed change the involve 1 Respondent chose not to file an answering brief. Although we could treat this as a confession of error, see Arizona Rule of Civil Appellate Procedure 15(c), in our discretion we decline to do so. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994). 2 To the extent other tangential arguments are raised, we decline to address them as not being fully briefed or included within the issues presented. 3 substantial changes to existing orders that are beyond the scope of the parenting coordinator. 3 issues. We see no abuse The court then resolved the of discretion in the trial court addressing the matters without referring them to the parenting coordinator. Indeed, the court has implied authority to do so regardless of the parenting coordinator s order. Fam. Law P. 74(E), (H), (J) (stating See Ariz. R. that parenting coordinator s authority is limited to making recommendations to the court, which the court may reject, modify, or approve and adopt). 2. Accordingly, there is no error on this ground. Timeliness of the Superior Court s Order ¶6 Petitioner next claims that the superior court did not have jurisdiction to rule on his petition because it failed to timely rule on the matter. Under the Arizona Constitution, [e]very matter submitted to a judge of the superior court for [] decision shall be decided within sixty days from the date of submission thereof. Ariz. Const. art. VI, § 21. The sixty-day requirement does not begin to run with the filing of a motion, but rather from the date of submission. Id. This means that a ruling must take place within sixty days of the date that the matter is fully briefed and at 3 issue, or the briefing time We have been unable to locate this order in the record. We utilize Petitioner s rendition of it as quoted in his objection in the trial court. 4 periods have run. See In re Appleton's Estate, 15 Ariz. App. 490, 492, 489 P.2d 864, 866 (1971) (calculating sixty-day time period from date matter was taken under advisement to the date decision was issued); see also Wustrack v. Clark, 18 Ariz. App. 407, 408-09, 502 P.2d 1084, 1085-86 (1972) (finding sixty-day time period would expire on November 27, sixty days from when the court issued order taking matter under advisement on September 27). ¶7 In this case, our review of the motion, response, and time for reply shows that there was no violation of the sixtyday rule. Even if there had been such a failure, the remedy is not a reversal due to lack of jurisdiction, but rather a mandate from this court that the superior court rule. W. Sav. & Loan Ass n v. Diamond Lazy K Guest Ranch, Inc., 18 Ariz. App. 256, 261, 501 P.2d 432, 437 (1972). 3. Thus, there is no error. Sufficiency of Trial Court s Findings of Fact ¶8 Petitioner insufficient weigh the next findings factors Petitioner s request of argues fact listed for because in a that the it trial did court not A.R.S. § 25-403 modification of made explicitly when denying parenting time. Section 25-403 lists all of the relevant factors that the trial court must children analyze when to determine establishing the custody. best interest Petitioner also of the made a request for findings pursuant to Rule 52, Arizona Rules of Civil 5 Procedure. Petitioner asserts the findings were insufficient to satisfy that rule as well. ¶9 It is undisputed that the trial court did not address each issue raised specifically. Rather, the trial court found that the circumstances of its parenting time determination had not substantially parenting time. in detail) changed since its previous order as to In its previous order, the court expressly (and weighed all relevant best interest factors making its custody and parenting time determinations. when As to its findings with regard to the motion at issue, the court noted: [Petitioner] does not present any evidence of a change of circumstance; he merely argues that it is in the best interest of the children to spend more time with [Petitioner]. [Petitioner] does not present any facts specific to this case to support this argument, but makes a general argument regarding all children. This is an argument which [Petitioner] has made at every hearing. ¶10 When timely requested, the trial findings of fact and conclusions of law. court must enter In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 294, ¶ 7, 18 P.3d 85, 88 (App. 2000). The court is only required, however, to make findings on the ultimate facts, not each subsidiary evidentiary fact on which the ultimate facts are based. Id. We have noted that the purpose of requiring the trial court to enter findings 6 of fact and conclusions of law is to enable this examine the bases for the trial court s decision. ¶11 court to Id. Here, the trial court s findings are sufficient. In this matter, as the trial court notes, Petitioner made similar arguments at every hearing. The record discloses that 354 separate documents have been filed in this case from either the parties or the court. referenced by the Examining the portions of the record trial court in conjunction with the trial court s order enable[s] this court to examine the bases for the trial court s decision. Id. Therefore, the trial court was appropriately economical in its findings given the frequency and repetitive nature of the issues presented in Petitioner s motion. 4. Sufficiency of Evidence as to Best Interest Finding ¶12 Petitioner also contends that the court based its best interest finding on insufficient evidence. Petitioner argues that the court provided no facts as to why its refusal to modify parenting time was in the best interest of the children. assertion, however, misstates the burden of proof. This In a petition to modify parenting time, the burden is on the party seeking to modify the schedule (here, Petitioner) to show that the modification would be in the children s best interest. See Bailey v. Bailey, 3 Ariz. App. 138, 141, 412 P.2d 480, 483 (1966). 7 ¶13 Here, present[ed] the no trial evidence court that found the that present Petitioner order regarding parenting time is not in the best interests of the children. Thus, the court found that Petitioner did not meet his burden of proof in showing that the modification would be in the children s best interest. ¶14 in Petitioner s attempts to meet this burden as revealed his briefing discretion by to the this court trial do court not in reveal making an abuse this of finding. Petitioner supports his argument by (1) citing portions of the modification hearing where he testified that children in general benefit from one-on-one asserting that Petitioner the and time 72%/28% Respondent Petitioner wish to their parenting unfairly relationship with Petitioner. should with fathers, time restricted and split his (2) between children s As to Petitioner s first point, spend one-on-one time with his children, he may do so under the current parenting time schedule by spending time with one child and procuring child care for the other two (as, presumably, Respondent is required to do when she wishes to spend time alone with one of the children). As to Petitioner s second point, although he has the children 28% of the time, that 28% consists of vacations, weekends, and holidays. A significant portion of Respondent s time consists of and school work time. Petitioner 8 does not request more parenting time during school and work days, but rather believes that his perceived time deficit should consist of additional vacation time. ¶15 Respondent opposed Petitioner s request to take more vacation time at the modification hearing. She testified: I have just as much right to spend time with them, and the request that you re putting in here is taking the time I have allocated in my vacation when they re off. You re requesting the time when they are off from school, and that s the opportunity I look forward to spending time with them, and you have a great bulk of it, and now you are still trying to ask for the time that I finally can have with them. This testimony is representative of the oppositions to Petitioner s requests, and constitutes sufficient evidence upon which to base the trial court s ruling. See Imperial Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 72, 730 P.2d 245, 249 (App. 1986) (holding that testimony of interested party can be sufficient evidence to support trial court s ruling). Therefore, there is no error on this asserted basis. 5. Application of Res Judicata to Change in Visitation Time ¶16 Finally, Petitioner claims that the trial court committed reversible error in requiring Petitioner to show a change of circumstance visitation agreement. in order to modify the existing As quoted in part above, in its minute entry, the trial court stated: 9 [T]he principle of res judicata indicates that the court should not modify an existing order [regarding parenting time] unless there is a change of circumstance to justify modification of the order. [Petitioner] does not present any evidence of a change of circumstance; he merely argues that it is in the best interest of the children to spend more time with [Petitioner]. [Petitioner] does not present any facts specific to this case to support this argument, but makes a general argument regarding all children. This is an argument which [Petitioner] has made at every hearing. [Petitioner] presents no evidence that the present order regarding parenting time is not in the best interests of the children. The Court finds that the present order is in the best interest of the children, and that no modification is warranted at the present time. Petitioner argues that, although a change of circumstance is required to modify a custody arrangement, it is not a entry to requirement for a modification of visitation rights. ¶17 We do not read the trial court s minute suggest a requirement that there be a change in circumstance before one can consider modification of a parenting time order. We view the trial court s statement as expressing the sound guideline that the principle of res judicata indicates that the order should not be modified. To us, this reveals that the trial court applied the general theory that if the facts and the law have not changed the order should not. 10 ¶18 Regardless, we need not decide whether a change in circumstance or the direct application of res judicata would constitute error if applied here. Although the trial court did find that Petitioner s request failed due to lack of change of circumstance, present[ed] the no trial evidence court that also the found that present Petitioner order regarding parenting time is not in the best interests of the children, and that the present order is in the best interest of the children, and [] no modification is warranted. court correctly observed, a modification of As the trial parenting rights must be in the best interest of the children. § 25-411(D). As discussed above, the record time A.R.S. sufficiently supports the trial court s finding that modification was not in the best interest of the children. We therefore affirm the trial court s ruling on this ground. Conclusion ¶19 For the reasons set forth above, we affirm. Some, if not all, of the issues raised by Petitioner may be considered frivolous. We find this particularly troubling as this matter seems to be in a constant state of litigation. Although we decline to order sanctions at this time, we advise Petitioner (because he is the only one who has made a filing in this court), that in the future sanctions may be applied either here 11 or in the trial court pursuant to the applicable court rules or statutes. /s/ ____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PETER B. SWANN, Presiding Judge /s/ ____________________________________ PATRICIA K. NORRIS, Judge 12

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