Balboa v. Greenway

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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 Matter of: ) ) EDWARDO BALBOA, ) ) Petitioner/Appellant,) ) v. ) ) KIMBERLY GREENWAY, ) ) Respondent/Appellee. ) ________________________________) DIVISION ONE FILED: 02/15/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CV 10-0524 A DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2007-009255 The Honorable Pamela S. Gates, Judge AFFIRMED The Murray Law Offices, P.C. By Stanley David Murray Attorneys for Petitioner/Appellant Phoenix Kimberly Greenway Respondent/Appellee In Propria Persona McLeansville, NC D O W N I E, Judge ¶1 Edwardo Balboa ( Father ) appeals from the family court s order modifying primary residential parent status. the following reasons, we affirm. For FACTS AND PROCEDURAL HISTORY 1 ¶2 Father and Kimberly Greenway ( Mother ) were never married, but they have a daughter in common ( Child ), who was born in 2005. In December 2007, Mother moved with Child to North without Carolina notifying Father. Father filed a petition to establish paternity, custody, and parenting time. Pursuant to Father s request for temporary orders, the court ordered Mother to return Child to Arizona and granted Father temporary sole legal custody. 2 After a trial on Father s petition, the court entered a June 2008 order, awarding joint legal custody and designating Father as the primary residential parent. ¶3 In October 2009, Mother filed a petition to modify custody. She alleged that Child s home environment was unsafe and that Father had refused to about who was caring for Child. provide her with information After a trial in December 2009, the family court modified physical custody, designating Mother as the primary residential parent. 1 Father timely appealed. 3 We We disregard Mother s statement of facts because she fails to cite to the record as required. See ARCAP 13(a)(4); and State Farm Mut. Auto Ins. Co. v. Arrington, 192 Ariz. 255, 257 n.1, 963 P.2d 334, 336 n.1 (App. 1998). 2 Mother was given ten days of parenting time every month in North Carolina. 3 Contrary to Mother s claim, Father s notice of appeal was timely. The custody modification and parenting plan orders were not appealable because they were not signed and did not resolve all pending issues. The court subsequently issued a formal 2 have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(C). DISCUSSION 4 ¶4 We review a decision modifying custody for an abuse of discretion. Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982); Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). A court abuses its discretion when it misapplies the law or when there is no competent evidence supporting the decision. Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668 (1963); Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004). We accept the family court s factual findings unless they are clearly erroneous or unsupported by any credible evidence. Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App. 1995). ¶5 material According change to in Father, Mother circumstances failed to warranting establish a modification. Before a court can modify a custody order, there must be a signed child support order pursuant to Arizona Rule of Family Law Procedure 81, resolving the final issue. Father filed his notice of appeal within thirty days after entry of that order. See ARCAP 9(a). 4 Father asks us to strike Mother s brief in its entirety because she presents information not in the record, fails to cite authority in support of her arguments, and does not address the issues raised in the opening brief. See ARCAP 11(a)(1), 13(a)(6) & (b). We decline to strike Mother s brief, but we disregard those portions that reference information not in the record or that are unrelated to the issues identified in the opening brief. 3 substantial and continuing change affecting the welfare of the child. in circumstances materially Hendricks v. Mortensen, 153 Ariz. 241, 243, 735 P.2d 851, 853 (App. 1987). As the party seeking modification, Mother had the burden of establishing a change in circumstances. Pridgeon, 134 Ariz. at 181, 655 P.2d at 5. ¶6 changes The family court found that there had been material in circumstances warranting residential parent status. specific findings modification of primary The court was not required to make regarding changed circumstances because neither party requested findings of fact or conclusions of law pursuant to Arizona Rule of Family Law Procedure 82(A). See Stevenson v. Stevenson, 132 Ariz. 44, 46, 643 P.2d 1014, 1016 (1982). We assume that the court found every fact necessary to support its judgment and must affirm if any construction of the evidence justifies the decision. reasonable Id.; see also Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998) ( [W]e may infer additional findings of fact and conclusions of law sufficient to sustain the trial court's order as long as those findings are reasonably supported by the evidence, and not in conflict with any express findings. ). ¶7 The record reflects sufficient changed circumstances. Mother presented evidence that Father is reluctant to provide information about Child, that Father s mother speaks negatively 4 about Mother to Child, and that the environment in Arizona is generally hostile toward Mother. Additionally, because Father s mother will not initiate telephone calls to Mother, Mother s conversations with Child occur through enabling Father to monitor those calls. a three-way process, Since the prior custody order, Mother has graduated from school, obtained a full-time job, and moved. Mother s work schedule is flexible and will allow her to work while Child is attending school, maximizing their time together. Mother has enrolled Child in dance and gymnastics, but could not enroll her in preschool because she was not in North Carolina long enough. Mother also presented evidence of Father driving with Child while drinking, sending Child outside while sick with wet hair and no socks, and failing to promptly bring Child to the doctor. 5 there were sufficient changed Considered together, circumstances affecting Child s welfare to warrant modification proceedings. 6 ¶8 Father next argues that the court erred by failing to state why custody modification was in Child s best interests. 5 Although Father disputed these allegations, Mother s testimony was corroborated by other witnesses. Even if these incidents were isolated and non-recurring, as Father argues, the record demonstrates other changed circumstances. 6 Father argues the trial evidence showed the petition allegations were unfounded. Regardless of whether Mother proved the specific allegations of her petition, the record is replete with evidence of changed circumstances. The petition s allegations were merely a procedural condition for a modification hearing, not a condition for modifying custody. A.R.S. § 25-411(F) (Supp. 2010). 5 In determining whether modification is appropriate, a court must consider the statutory factors enumerated in A.R.S. § 25-403(A). In a contested custody case, the court must make specific findings on the record about the relevant factors and state why its decision is in the child s best interests. A.R.S. § 25-403(B); Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11, 219 P.3d 258, 261 (App. 2009). ¶9 Here, the findings regarding family all of court the § made specific, 25-403(A) findings are supported by the record. detailed factors. Those Additionally, even though it was not required to do so, the court made specific findings regarding the relocation. factors listed in § 25-408(I) pertaining to See Buencamino v. Noftsinger, 223 Ariz. 162, 164 n.3, ¶ 10, 221 P.3d 41, 43 n.3 (App. 2009) (relocation factors are inapplicable however, the if family both parents court has do not reside discretion to in Arizona; consider such factors if appropriate). ¶10 The family court should have stated how its factual findings support the decision to modify physical custody. 7 We will we not hesitate to remand for 7 additional findings when Father failed to advise the family court that he believed its findings were inadequate, which would have allowed it to readily cure any omissions. We discourage the practice of waiting until appeal to raise such objections. See, e.g., Reid v. Reid, 224 Ariz. 204, 210-12, ¶¶ 27-31, 213 P.3d 353, 359-61 (App. 2009) (Hall, J., dissenting). 6 cannot readily ascertain the court s rationale in this regard. In the case at bar, though, the family court s findings are exceptionally detailed. They allow us to understand the court s logic and to meaningfully review whether the modification order was in Child s best interest. ¶11 The family court identified the long-distance parenting plan, which required extensive travel between Arizona and North Carolina, as a central area of concern. It noted that Child was approaching school age and stated: The parties need to be diligent in taking into consideration the child s ongoing relationship between Mother and Father and how this long distance parenting arrangement will provide for her emotional, physical, and psychological development and wellbeing. The Court finds that Father and [Child s] paternal grandmother are less sensitive to [Child s] emotional and psychological development as a result to [sic] the separation between Father and Mother. The court also discussed Father s reluctance to provide information about Child and Father s mother s hostility toward Mother. Obviously, a home environment that is hostile toward one parent is not in a child s best interest. On the other hand, the court praised the maternal grandmother s nurturance of Child s relationship with Father, stating: [Child s] maternal grandmother testified that she loves Father and is focused on ensuring that [Child] has a positive relationship with both parents. [Child s] 7 maternal grandmother presented compelling testimony regarding her commitment to ensuring a positive relationship between [Child], Mother, and Father. As we discussed circumstances, believed supra the weighed photos he sent in family court against to connection cited Father, Mother, and with other including Mother s work allowed her to work when Child is in school. the changes factors the that in it pornographic schedule, which It is apparent that the family court weighed the statutory factors more heavily in favor of Mother, and its rationale for doing so is clear from the record. ¶12 Father requests attorneys fees on appeal pursuant to A.R.S. § 25-324. the parties and After considering the financial resources of Father s positions on appeal, we deny request. CONCLUSION ¶13 We affirm the judgment of the family court. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ DANIEL A. BARKER, Presiding Judge /s/ MICHAEL J. BROWN, Judge 8 his

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