BRICKER v. FRANCO

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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: 2/26/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: ) ) CARA ANN BRICKER, ) ) Petitioner/Appellant, ) ) v. ) ) STEPHEN PHILIP FRANCO, ) ) Respondent/Appellee. ) ) __________________________________) No. 1 CA-CV 12-0079 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2005-090862 The Honorable James P. Beene, Judge VACATED Bishop & Martin Law Office P.C. By Kristen A. Martin Attorneys for Petitioner/Appellant Phoenix The Law Offices of John R. Gaertner P.C. By John R. Gaertner, Jr. Attorneys for Respondent/Appellee Scottsdale D O W N I E, Judge ¶1 Cara Ann Bricker ( Mother ) appeals the family court s order modifying child custody. Because custody modification was not properly before the family court, we vacate the modification order. FACTS AND PROCEDURAL HISTORY ¶2 Mother and Stephen Philip Franco ( Father ) were never married but have a daughter in common ( Child ), who was born in 2004. sole After a contested hearing in 2007, Mother was awarded legal custody of Child. Father received supervised parenting time and was ordered to submit to random drug testing; after eight consecutive negative tests, his parenting time would become unsupervised. As of the time of the evidentiary hearing at issue, Father s parenting time remained supervised. ¶3 In December 2010, pursuant to Arizona Revised Statutes ( A.R.S. ) section 25-408, Mother advised Father of her intent to relocate to California with Child. Father filed a petition to prevent the relocation and also filed an ex-parte emergency petition to prevent temporary relocation. the court to modify custody, though he Father did not ask stated an intent to Petition the Court for increased parenting time in the very near future. (Emphasis added.) Mother cross-petitioned for permission to relocate both temporarily and permanently. ¶4 temporary The court relocation held and an evidentiary ruled 2 that hearing Mother could regarding move to California with Child. An evidentiary hearing permanent relocation occurred in October 2011. regarding In the joint pretrial statement prepared for that hearing, the parties listed the following contested issues: Father s drug testing, relocation, parenting time, child support, and attorneys fees. ¶5 The family court issued its ruling in November 2011. It addressed each contested issue identified by the parties. Additionally, the court modified custody, awarding joint legal custody to the parents. The court also ruled that Child could remain in California with Mother. ¶6 regarding orders. Mother filed a timely appeal, challenging the [o]rder an award We of have joint legal jurisdiction custody and pursuant all related to A.R.S. § 12-2101(A)(1). DISCUSSION ¶7 Mother contends the family court erred by modifying custody when that issue was not properly before it. ¶8 We agree. In its ruling, the family court discussed the factors set forth in A.R.S. §§ 25-403(A) and -403.01(B) and stated, in pertinent part: The wishes of the child s parents as to custody. Mother requested that the Court affirm its prior order awarding her sole legal custody of the minor child. Father requested that the Court award the parties joint legal custody. 3 * * * * The agreement or lack of an agreement by the parents regarding joint custody. As previously stated, Mother requested that the Court affirm its prior order granting her sole legal custody of the minor child and Father requested that the Court award the parties joint legal custody of the minor child. ¶9 The record does not support the finding that Father requested custody modification or that Mother asked the court to affirm the sole custody order. The issue was not identified in the joint pretrial statement, no custody modification petition was filed, and neither parent discussed any potential change in custody when testifying. 1 In fact, Father s counsel stated at the outset of the evidentiary hearing: [A]t this point we re not challenging any custody determination. ¶10 Modifying custody without notice to Mother and without giving her an opportunity to present evidence relevant to that issue violated her due process rights. See Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 19, 265 P.3d 384, 388 (App. 2011) (parties are entitled to adequate notice and an opportunity to be heard regarding issues the family court will adjudicate at a hearing). 1 In her opening brief, Mother apparently relied solely on the court s ruling in stating that the parents had testified regarding their custody desires at the October 2011 hearing. Mother clarified in her reply brief that a review of the transcript did not support that statement. We have carefully reviewed the transcript. Neither parent testified regarding legal custody, and neither lawyer raised the issue. 4 Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner. ¶ 18. It also affords a party the opportunity evidence and confront adverse witnesses. he to offer Id. ¶11 Id. at Father does custody modification. not contend that in fact requested Instead, he argues the family court had the inherent power to address issues not listed in the pretrial statement in order to prevent manifest injustice. See, e.g., Carlton v. Emhardt, 138 Ariz. 353, 355, 674 P.2d 907, 909 (App. 1983) ( The pretrial statement controls the subsequent course of the litigation otherwise modified at trial to prevent manifest injustice. ). custody modification injustice. sponte Nothing in this record, though, suggests that was necessary to prevent manifest Nor did the court advise the parties it was sua considering modifying custody introduce evidence relating to custody. or that they could However, in its ruling, the court noted that the parties had not introduced evidence regarding certain statutory custody factors, including whether domestic violence had occurred. 2 2 The parties agreed in the joint pretrial statement that Mother had obtained an order of protection against Father in 2009 that was upheld after a contested hearing. 5 CONCLUSION ¶12 We vacate the orders relating to custody modification. The family court shall reinstate the sole custody order that was in place prior to the October 2011 hearing. ¶13 In the exercise of our discretion, we decline both parents requests for attorneys fees incurred on appeal. Mother, though, is entitled to recover her appellate costs upon compliance with ARCAP 21. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ MAURICE PORTLEY, Judge /s/ PHILIP HALL, Judge 6

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