Barton v. Barton

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEPHEN MICHAEL BARTON, Petitioner/Appellant,

v.

NICHOLE MARIE BARTON, Respondent/Appellee.

No. 1 CA-CV 19-0695 FC
FILED 9-1-2020

Appeal from the Superior Court in Maricopa County
No. FC2017-095786
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

Stephen Michael Barton, Gilbert
Petitioner/Appellant

Nichole Marie Barton, Gilbert
Respondent/Appellee

BARTON v. BARTON
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.

W I N T H R O P, Judge:

¶1 Stephen Michael Barton (“Father”) appeals the superior
court’s ruling specifying a parenting-time schedule. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Following a dissolution decree ordering equal parenting time
with Nichole Marie Barton (“Mother”) in accordance with a jointly
submitted parenting plan, Father petitioned for modification of parenting
time.

¶3 After an evidentiary hearing, the superior court, in a signed
minute entry filed April 30, 2019, ordered “[t]he parties will exercise an
equal parenting time schedule around [Father’s] work schedule. . . . On the
days [Father] is working, [Mother] will exercise parenting time.”

¶4 Father, a firefighter who works three 24-hour shifts every nine
days on a rotating schedule for a total of eleven days per month, interpreted
the order to mean that Mother could only exercise parenting time on the
days Father worked. Mother interpreted the order to mean that, in a nine-
day period, Mother would have the children on Father’s work days, and
the parties would work together to agree on the other days she would have
the children to ensure equal parenting time.

¶5 Mother and Father each filed motions for clarification,
advising the court of their respective interpretations and the ensuing
difficulties implementing the court’s order, and each proposed an
alternative parenting plan. Mother proposed the parties exercise equal
parenting time around Father’s regular work schedule, with each party
exercising five days of parenting time during Father’s nine-day work
rotation in a two-week alternating schedule. Father proposed that Mother
exercise parenting time every first and third Tuesday of each month and
also on the remainder of the eleven days that Father works.

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BARTON v. BARTON
Decision of the Court

¶6 The parties submitted their respective work schedules at the
request of the superior court, which thereafter amended its April 30, 2019
order. In a signed minute entry filed September 18, 2019, the court noted
that it “did not have a full understanding of the complexity of the parties’
work schedules until it received the additional information both parties
later provided.” Ultimately, the court ordered as follows:

The parties’ work schedules are complicated. The Court
wants both parents to exercise equal parenting time. The
parties shall exercise a 5/2/2/5 parenting time schedule with
[Father] exercising parenting time every Monday and
Tuesday, [Mother] exercising parenting time every
Wednesday and Thursday, and the parties alternating
weekends Friday through Monday morning.

¶7 We have jurisdiction over Father’s timely appeal under
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2).

ANALYSIS

¶8 We review the superior court’s orders regarding parenting
time for abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013). We review the record in the light most favorable to upholding the
court’s ruling and will affirm unless the record is “devoid of competent
evidence to support” it. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (quoting
Fought v. Fought, 94 Ariz. 187, 188 (1963)).

¶9 Father argues the superior court had no legal basis under
A.R.S. § 25-411 or otherwise to modify its April 30, 2019 ruling and violated
Arizona Rule of Family Law Procedure (“Rule”) 83 and Rule 84.

¶10 The superior court granted the parties equal parenting time
in both the April 30, 2019 order and the September 18, 2019 minute entry.
The September 18, 2019 minute entry merely amended the April 30, 2019
order by providing—per the parents’ request—greater specificity in the
parenting-time schedule. As such, this was not a modification governed by
A.R.S. § 25-411.

¶11 Even though the superior court issued its September 18, 2019
ruling in response to motions to clarify, we find that the ruling is
procedurally an amendment or alteration to the April 30, 2019 ruling. Rule
83 permits the court to alter or amend a judgment sua sponte and direct entry
of a new judgment. Ariz. R. Fam. Law P. 83(a)-(b). Father himself proposed
an amendment or alteration to the previous order, thus waiving any

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BARTON v. BARTON
Decision of the Court

argument as to any procedural or due process irregularities in the ruling.
Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 44, ¶ 19 n.3 (App. 2008)
(applying waiver to issues relating to “alleged procedural defects” first
raised on appeal); Cecilia A. v. Ariz. Dep’t of Econ. Sec., 229 Ariz. 286, 289,
¶ 11 (App. 2012) (applying waiver to due process argument).

¶12 The superior court did not abuse its discretion in amending
its previous order to provide more specificity in the parenting-time
schedule.

CONCLUSION

¶13 For the foregoing reasons, we affirm the superior court’s
ruling. We award costs to Mother upon compliance with ARCAP 21.

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

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