Sidoti v. Sidoti

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

SAMANTHA RAE SIDOTI, Petitioner/Appellee,

v.

ADAM SIDOTI, Respondent/Appellant.

No. 1 CA-CV 18-0650 FC
FILED 7-2-2019

Appeal from the Superior Court in Maricopa County
No. FC2012-053071
The Honorable Jennifer C. Ryan-Touhill, Judge

APPEAL SUSPENDED AND STAYED;
REMANDED FOR LIMITED PURPOSE

COUNSEL

Burt Feldman Grenier, Scottsdale
By Sandra Burt
Co-Counsel for Respondent/Appellant

Melinda K. Cekander, Heron, Montana
Co-Counsel for Respondent/Appellant

Provident Law PLLC, Scottsdale
By James P. Mueller
Counsel for Petitioner/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

T H U M M A, Judge:

¶1 Adam Sidoti (Father) appeals from an order modifying
parenting time, arguing the court erred in failing to award him equal
parenting time based on the child’s best interests. Because the court did not
state the reasons it concluded the order was in the child’s best interests, this
appeal is suspended and stayed, and the matter is remanded to allow the
superior court to make findings regarding best interests.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father were divorced in a December 2012 decree.
At that time, the parents’ only child, A.S., was one year old. Both the 2012
decree and a 2014 agreed-to amended parenting plan provided Father
parenting time every other weekend. In 2018, when A.S. was six years old,
Father filed a petition to modify parenting time, seeking “an equal
parenting time schedule using a 5/2/2/5 schedule” and asserting equal
parenting time was in A.S.’s best interests. Following a forensic home study
and a parenting conference, the court held a trial where Mother and Father
testified.

¶3 The resulting order provides that, during the school year, A.S.
will “reside primarily with Mother” and allocating Father parenting time

[e]very other weekend from Friday after school
or 3:00 p.m. if school is not in session to Monday
morning return to school or 8:00 a.m. if school is
not in session. On the weeks in which Father
does not have weekend time with [A.S.] Father
will have the child from Wednesday after
school or 3:00 p.m. until Friday morning return
to school or 8:00 a.m.

This September 2018 order provides Mother and Father equal parenting
time during the summer. The court found the parenting plan was “practical
and also maximizes each parent’s parenting time to the extent it is in [A.S.’s]

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best interests,” noting “[s]hared legal decision-making does not necessarily
mean equal parenting time.” Ariz. Rev. Stat. (A.R.S.) § 25-403.02(E) (2019).1
Father timely appealed, and this court has jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶4 Father concedes the court “used the proper legal framework
for analyzing the evidence related to equal parenting time” and does not
challenge the court’s factual findings. Instead, Father argues the court erred
because its “findings do not support the conclusion that the child’s best
interests are served by not awarding Father equal parenting time.” This
court reviews the superior court’s parenting time decisions for an abuse of
discretion. Nold v. Nold, 232 Ariz. 270, 273 ¶ 11 (App. 2013).

¶5 When determining parenting time, the court’s primary duty
“is to safeguard the best interests and welfare of the children.” In re Marriage
of Gove, 117 Ariz. 324, 328 (App. 1977). The court must determine parenting
time “in accordance with the best interests of the child,” considering “all
factors that are relevant to the child’s physical and emotional well-being,
including” those enumerated in A.R.S. § 25-403(A). A.R.S. § 25-403. In
contested parenting time matters, the court is required to make “specific
findings on the record about all relevant factors and the reasons for which
the decision is in the best interests of the child.” A.R.S. § 25-403(B)
(emphasis added). These requirements exist “not only to aid an appellant
and the reviewing court, but also for a more compelling reason—that of
aiding all parties and the family court in determining the best interests of
the child or children both currently and in the future.” Reid v. Reid, 222 Ariz.
204, 209 ¶ 18 (App. 2009). A failure to make the required findings is error.
Nold, 232 Ariz. at 273 ¶ 11.

¶6 In modifying parenting time, the court recounted in detail the
parents’ testimony relevant to its determination and made thorough factual
findings as to all factors enumerated in Section 25-403(A). The court’s
findings in this regard do not suggest any of the statutory factors weighed
heavily in favor of either parent. When specifying the modified parenting
time schedule, the court did not state why the schedule was in A.S.’s best
interests, finding only that it was “practical and also maximizes each
parent’s parenting time to the extent it is in the child’s best interests.”
Section 25-403(B) requires the court to explain why the parenting time

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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decision is in A.S.’s best interests, and a finding that the decision is practical
or maximizes each parent’s parenting time “to the extent it is in the child’s
best interests” falls short of doing so. Compare A.R.S. § 25-403(B) (directing
the court to make specific findings as to best interests) with A.R.S. § 25-
403.02(B) (directing the court to adopt, “[c]onsistent with the child’s best
interests,” a parenting plan that “maximizes [parents’] respective parenting
time”). Accordingly, the court erred by failing to make the statutorily-
required finding of why, in light of the statutory factors, the parenting time
decision was in A.S.’s best interests.

¶7 “[F]or good cause,” this court may suspend an appeal and
revest jurisdiction in the superior court for the limited purpose of allowing
that court to make required written findings. See Ariz. R. Civ. App. P. 3(b).
Significantly, neither parent argues the record here could not support a
conclusion that the other parent’s alternative is in A.S.’s best interests.
Accordingly, and recognizing A.S.’s school will start again in the near
future, in the exercise of its discretion and for good cause, this court
suspends and stays this appeal for 30 days and revests jurisdiction in the
superior court for that court to either (1) make specific findings, on the
record, for why its allocation of parenting time in the September 2018 order
is in the best interests of A.S. or (2) enter a different parenting time order
with appropriate findings for why that order is in the best interests of A.S.
Within five days of the superior court’s entry of such an order, Father’s
counsel shall provide a copy of that decision to this court.

¶8 Because Father does not request attorneys’ fees or costs on
appeal, none are awarded. Because Mother has not provided support for
her request for attorneys’ fees and costs under A.R.S. § 25-324, that request
is denied.

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CONCLUSION

¶9 The appeal is suspended and stayed for 30 days and
jurisdiction is revested in the superior court for that court to either make
specific findings, on the record, for why its allocation of parenting time in
the September 2018 order is in the best interests of A.S. or, alternatively, to
enter a different parenting time order with appropriate findings for why
that order is in the best interests of A.S. Within five days of the entry of such
an order, Father’s counsel shall provide a copy of that decision to this court.

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

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