Kaye v. Kaye

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CECIL KAYE, Petitioner/Appellant,

v.

TREVA KAYE, Respondent/Appellee.

No. 1 CA-CV 16-0779 FC
FILED 8-3-2017

Appeal from the Superior Court in Maricopa County
No. FC 2015-001012
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

The Harrian Law Firm PLC, Glendale
By Daniel Seth Riley
Counsel for Petitioner/Appellant

Treva Kaye, El Mirage
Respondent/Appellee

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Randall M. Howe joined.
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Decision of the Court

C A M P B E L L, Judge:

¶1 Petitioner/Appellant Cecil Kaye (“Father”) appeals from a
family court order apportioning parenting time with his daughter (“S.K.”).
The dispositive issue in this appeal is whether the family court abused its
discretion when it declined to order a specific timetable designating
Father’s parenting time. See Ariz. Rev. Stat. (“A.R.S.”) § 25-403.02(C)(3)
(parenting plan shall include a “practical schedule of parenting time”). We
conclude the family’s court order complies with A.R.S. § 25-403.02(C)(3)
and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In August 2015, Father petitioned for a dissolution of
marriage and submitted a proposed parenting plan. Father sought
temporary orders for joint legal decision making and equal parenting time
with the couple’s minor daughter S.K.1 The family court subsequently
entered a temporary order directing “Father’s parenting time shall take
place as deemed appropriate by the minor child’s counselor and
psychiatrist.” The court also appointed a best interests attorney for S.K.

¶3 The family court later held an evidentiary hearing. Both
Father and Respondent/Appellee Treva Kay (“Mother”) testified that S.K.,
who was 15 at that time, suffered from mental health issues. Father
acknowledged that S.K. was angry with him and that she had been the most
symptomatic, with respect to her mental health issues, since he disclosed
he had a child from an extramarital relationship. He also testified that,
although he attempted to participate in counseling services with S.K.,
following the temporary order, her counselor advised him he should not
participate until S.K. was ready and willing to participate. S.K. had told her
counselor she “didn’t want to do counseling with [Father].”

¶4 At the evidentiary hearing, Mother requested that daughter
continue to reside at her residence and to have parenting time with Father
as S.K. chose. Her best interests attorney testified that S.K. maintained that
she did not want any contact with Father at that time. The best interests
attorney acknowledged that S.K. “could work out [her] relationship [with
Father] therapeutically because she was close with her father in the past”
and it “[is] a necessary relationship for her moving forward.” She advised

1 Father also requested parenting time with two other children, but
parenting time regarding the other children is not at issue in this appeal.

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that Father should be introduced into the child’s therapy when
“therapeutically advisable.”

¶5 Following the evidentiary hearing, the family court entered
the decree of dissolution of marriage, which included a parenting plan.
Before entering the parenting plan, the family court made the statutorily
required best interests findings. See A.R.S. § 25-403(A) (enumerating best
interests factors court is required to consider in addition to all relevant
factors in determining whether parenting time is in best interests of child);
see also A.R.S. § 25-403.02(B) (court shall adopt parenting plan consistent
with child’s best interests). As relevant here, the family court found S.K.
had significant mental health issues. It also found S.K. was “very angry
with Father” and her anger “primarily stem[med] from learning that Father
has a 16-year old child in California from an affair while Mother and Father
were married.” The family court further found “Mother has a bonded
relationship with [S.K.], but Father’s relationship likely will require
therapeutic reunification.” As to the child’s wishes, it found S.K. currently
did not want any contact with Father or to participate in counseling with
him.

¶6 The family court then entered the parenting plan and granted
Father joint legal decision making authority and ordered that “[t]he child
shall reside with Mother at all times except as expressly provided below:”

Father shall have parenting time as agreed by the child. At the
discretion of the child’s counselor, Father may participate in
the child’s counseling in order to restore his relationship with
the child. Father also may seek the appointment of a
Therapeutic Interventionist to assist with the reunification of
Father and the child. The Court will retain jurisdiction
following entry of this Decree to appoint a Therapeutic
Interventionist, if requested, and to monitor the progress of
any such therapeutic intervention and to enter orders as
appropriate.

The family court also found, “[g]iven the lack of current relationship
between Father and the child, [it would] not order specific holiday and
summer parenting time. Father’s holiday and summer parenting time shall
be as agreed by the child.” It found that the parenting time as ordered was
“practical” and “maximize[d]” Mother and Father’s parenting time to the
extent it was in the child’s best interests. A.R.S. § 25-403.02(B) (consistent
with child’s best interests court shall enter parenting plan that “maximizes”
parents’ parenting time).

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DISCUSSION

¶7 Father argues that the family court committed legal error
under A.R.S. § 25-403.02(C)(3) by failing to order a “timetable” with dates
and times designating each parent’s access to their daughter and, instead,
the family court deferred Father’s parenting time to S.K. on an “ad hoc”
basis. Father does not challenge the family court’s best interests findings.
Instead, he argues that because the family court erred as a matter of law,
we should remand the issue of parenting time and order the family court to
enter a timetable.2 We disagree.

¶8 First, reviewing the family court’s order for an abuse of
discretion, we reject Father’s argument that the family court deferred
parenting time to the child on an ad hoc basis. Nold v. Nold, 232 Ariz. 270,
273, ¶ 11 (App. 2013) (appellate court will not disturb family court’s
parenting time order absent abuse of discretion) (citation omitted). Here,
before ordering parenting time, the family court made the statutorily
required best interests findings. See A.R.S. § 25-403(A)-(B) (when parenting
time “contested,” court shall make best interests findings on record and
provide reasons its decision is in best interests of the child). As relevant
here, the court found Father’s relationship with S.K. would require
therapeutic reunification because S.K. did not wish to have a relationship
with Father.

¶9 The family court then granted Mother regular parenting time,
stating the child would “reside with Mother at all times” and similarly
stating it would not order “specific” holiday and summer parenting time
for Father, as it found there was no “current” relationship between S.K. and
Father. However, the family court “expressly provided” it would retain
jurisdiction to appoint a therapeutic interventionist, should Father request.

¶10 Importantly, the family court also “expressly provided” it
would retain jurisdiction to monitor and modify regular parenting time as
it deemed appropriate, contingent upon: the child’s preferences;
therapeutic intervention to reunify Father and daughter; and the family
court’s determination as to the success of the therapeutic intervention. See
supra ¶ 6. Accordingly, the court granted Father the opportunity to modify

2 Father contends that to determine whether the parenting plan
violated A.R.S. § 25-403.02(C)(3) this court should apply de novo review
and conclude that “practical schedule of parenting time” means “a
timetable for each parent’s access to the child.” For the reasons discussed,
see infra ¶¶ 10-11, we need not decide this issue to resolve this appeal.

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the parenting time order, contingent upon its specified factors, prior to the
one year statutory waiting period. See A.R.S. § 25-411(A) (requiring parent
to wait at least one year to modify parenting time absent evidence child’s
environment seriously endangers child, domestic violence, or failure of
other parent to comply with order). The family court, therefore provided
Father four separate mechanisms for future modification, his daughter’s
preferences being only one factor.

¶11 Second, we reject Father’s argument that as a matter of law,
A.R.S. § 25-403.02(C)(3) required the family court to enter a timetable
designating Mother’s and Father’s parenting time with the child. As Father
points out, A.R.S. § 25-401 defines “parenting time” as “the schedule of time
during which each parent has access to a child at specified times.” We need
not address whether, under principles of statutory interpretation, this
means a timetable with dates and times. Father asks this court to give
deference to one portion of the statute without considering another. Section
25-403.02(C) sets forth what parenting plans should include, but that
requirement is qualified in subsection (D). The family court based the
parenting plan on the “emotional and physical health of the child,” as is
also required. A.R.S. § 25-403.02(D). Given the child’s well documented
decline in mental health, we conclude that parenting time as ordered by the
family court complied with A.R.S. § 25-403.02(C)(3) and (D)’s parenting
plan requirements and, on this record, was consistent with S.K.’s best
interests.

¶12 Accordingly, the family court did not abuse its discretion
under A.R.S. § 25-403.02(C), when it ordered parenting time, but did not
include a more specific timetable designating Father’s parenting time with
S.K.

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CONCLUSION

¶13 For the foregoing reasons, we affirm the family court’s
parenting time order.

AMY M. WOOD • Clerk of the Court
FILED: AA

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