Rosenberg v. Conzoner

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 LEIGH ROSENBERG, Petitioner/Appellant,

v.

JAYSON ROBERT CONZONER, Respondent/Appellee.

No. 1 CA-CV 20-0514 FC
FILED 1-6-2022

Appeal from the Superior Court in Maricopa County
No. FC2006-053796
No. FC2008-005445
The Honorable John Christian Rea, Judge Retired

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

APPEARANCE

Samantha Leigh Rosenberg, Ladysmith, VA
Petitioner/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.

G A S S, Judge:

¶1 Mother appeals the superior court’s parenting-time
modification orders. Because the record does not include express findings
under A.R.S. § 25-403, we vacate the modification and remand for written
findings as to the enumerated § 25-403 best-interests factors.

FACTUAL AND PROCEDURAL HISTORY

¶2 The superior court dissolved mother and father’s marriage by
consent decree in 2009. The parents have one teen-aged child, J.R. The child
lives primarily with father, who has sole legal decision-making authority.
Mother currently resides in Virginia and has had a long-distance parenting
schedule with J.R. for several years.

¶3 In July 2019, J.R. returned to Arizona highly distressed after
visiting mother in Virginia. J.R. produced an audio recording of mother
engaging in a “vicious,” “lengthy, obscenity laced, screaming episode”
aimed at J.R. Father then asked the superior court to modify mother’s
parenting time so J.R. would not need to return to Virginia or have
unsupervised parenting time with mother. In response, mother petitioned
to enforce her parenting time.

¶4 After a temporary-orders hearing in November, the superior
court ordered mother to continue having unsupervised parenting time in
Arizona. But in December, father filed a new petition for modification—this
time without notice under Rule 48 of the Arizona Rules of Family Law
Procedure. The superior court held a status conference, at which mother
objected to any change. The court-appointed advisor reaffirmed her prior
recommendations, saying mother and J.R. needed counseling in
conjunction with their Arizona visits. The superior court entered temporary
orders, changing mother’s in-person visitation in Arizona to supervised
visitation and not requiring J.R. to participate in telephonic or Skype visits.
The superior court then set and held an evidentiary hearing on father’s
petition.

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Decision of the Court

¶5 In June 2020, after the evidentiary hearing, the superior court
denied mother’s petition to enforce, finding unsupervised parenting time
with mother “would seriously endanger [J.R.’s] physical, mental, and
emotional health.” The superior court found father proved a change in
circumstances and—without making specific best-interests findings—
granted father’s petition to modify mother’s parenting time. Accordingly,
the superior court restricted mother to supervised parenting time in
Arizona. Mother timely appealed. This court has jurisdiction under article
VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and
12-2101.A.1.

ANALYSIS

¶6 Mother raises four issues on appeal: (1) the parenting order
lacked a clear parenting plan; (2) the superior court should have transferred
the matter to juvenile court; (3) certain evidence was inadmissible; and (4)
the superior court failed to make best-interests findings in a contested-
custody matter. Though father failed to file an answering brief, we exercise
our discretion and decline to treat his failure as a concession of error. See
Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994). Though we conclude the
lack of best-interests findings dispositive, we discuss the remaining
arguments to avoid disputes on remand.

I. The Statutory Requirements for Parenting Time Modification

¶7 Mother argues the superior court erred by not making specific
findings under A.R.S. § 25-403 before modifying mother’s parenting time.

¶8 This court reviews parenting time orders for an abuse of
discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). An abuse of
discretion occurs when the record is “devoid of competent evidence to
support the decision,” or when the superior court commits an error of law
in reaching a discretionary decision. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19
(App. 2009) (citations omitted). This court accepts the superior court’s
factual findings unless clearly erroneous, but reviews de novo the superior
court’s conclusions of law. Nia v. Nia, 242 Ariz. 419, 422, ¶ 7 (App. 2017).

¶9 A petition to modify parenting time requires a two-step
analysis: (1) whether a change in circumstances occurred and whether the
change materially affects the child’s welfare, and, if so, (2) whether the
child’s best interests require a new parenting plan. Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020). The superior court has broad discretion
to determine whether circumstances have changed. Canty v. Canty, 178
Ariz. 443, 448 (App. 1994).

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Decision of the Court

A. J.R.’s Change in Circumstances

¶10 Section 25-411.J does not require the superior court to make
express, written findings about changed circumstances. See Hart v. Hart, 220
Ariz. 183, 187, ¶¶ 16–17 (App. 2009) (recognizing § 25-411.J—formerly § 25-
411.D—only requires the superior court find “certain facts in order to grant
the specified relief” but does not require the “findings be reduced to writing
or stated on the record”). This court views the evidence in the light most
favorable to upholding the superior court’s order and will affirm findings
if reasonable evidence supports them. Vincent v. Nelson, 238 Ariz. 150, 155,
¶ 17 (App. 2015).

¶11 Here, in granting father’s motion, the superior court
impliedly found a change in circumstances. See Gen. Elec. Capital Corp. v.
Osterkamp, 172 Ariz. 191, 193 (App. 1992) (“Implied in every judgment, in
addition to the express findings made by the court, are any additional
findings necessary to sustain the judgment, if reasonably supported by the
evidence and not in conflict with the express findings.”). The superior court
found mother’s actions distressed J.R., who then became resistant to
unsupervised parenting time. The superior court also found this resistance
materially affected J.R.’s welfare because J.R. was “genuinely fearful of
returning to mother.” See Pridgeon v. Super. Ct., 234 Ariz. 177, 180 (App.
1982) (concluding a change in circumstance determination focuses on a
comparison between a “new, previously unconsidered changed
circumstance” and “prior circumstances”). The record supports the
superior court’s finding and its implied determination that a change in
circumstances warranted further analysis under § 25-403 to determine the
child’s best-interests regarding parenting time.

B. The Absence of Best-Interests Findings

¶12 In determining parenting time, the superior court must
consider all relevant factors bearing on the child’s best interests, including
the eleven factors enumerated in § 25-403.A. In a contested-custody matter,
the superior court “shall make specific findings on the record about all
relevant factors” and shall state the reasons why the decision serves the
child’s best interests. A.R.S. § 25-403.B. Ultimately, the child’s best interests
are paramount. Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003). Failure to make
specific findings may constitute an abuse of discretion requiring reversal
and remand. See, e.g., Christopher K. v. Markaa S., 233 Ariz. 297, 301, ¶ 18
(App. 2013).

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Decision of the Court

¶13 Section 25-403.A applies both to initial determinations and
subsequent modifications. And, because mother contested modification,
the superior court needed 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.” See A.R.S. § 25-403.B. Detailed findings aid this court’s
appellate review, assist the parties and the superior court in determining
what is in a child’s best interests, and provide a baseline against which to
measure any future petitions for modification. See Reid v. Reid, 222 Ariz. 204,
209, ¶ 18 (App. 2009).

¶14 The superior court did not reference the § 25-403.A factors
during the hearing or in its order. These statutory requirements cannot be
satisfied by inference from the superior court’s order or waived by a party.
DeLuna v. Petitto, 247 Ariz. 420, 424, ¶ 16 (App. 2019) (ruling an appellate
court will not infer § 25-403.A findings); Francine C. v. Dep’t of Child Safety,
249 Ariz. 289, 297, ¶ 18 (App. 2020) (ruling parties cannot waive the § 25-
403 statutory-findings requirement) (citing Reid, 222 Ariz. at 210, ¶ 20). The
failure to make the requisite legal findings constituted an abuse of
discretion. See, e.g., Owen v. Blackhawk, 206 Ariz. 418, 421–22, ¶ 12 (App.
2003). We vacate and remand for compliant determinations under § 25-403.

¶15 Our ruling suggests neither whether the superior court
should hold a new evidentiary hearing nor what findings the superior court
should make on remand. We require only the superior court make the
statutorily-required findings based upon record evidence. We defer to the
superior court to address parenting time orders for the parents until it does
so.

II. Mother’s Remaining Arguments

¶16 Mother also argues: (1) the parenting order lacked a clear
parenting plan; (2) the superior court should have transferred the case to
juvenile court; and (3) the superior court erred by admitting a therapist’s
email. Though the absence of best-interests findings resolves mother’s
appeal, we address her remaining arguments to provide further clarity
upon remand.

¶17 First, mother argues the superior court erred when it did not
enter a clearly delineated parenting plan. The superior court has discretion
to create a parenting plan in the child’s best interests. See A.R.S. § 25-
403.02.B; Armer v. Armer, 105 Ariz. 284, 289 (1970). Under § 25-411.J, the
superior court may place “conditions on the exercise of parenting time,
such as supervision or geographical restrictions.” Cruz v. Garcia, 240 Ariz.

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234, 238, ¶ 18 (App. 2016). Though mother asserts, without support, the lack
of a concrete plan improperly delegates the judicial function to father, the
record supports the superior court’s exercise of discretion to formulate a
parenting plan to meet J.R.’s needs while allowing mother and J.R. to
rebuild their relationship. The superior court allowed mother to have
supervised parenting time in Arizona. And the superior court ensured the
lack of specificity was only temporary until mother made more specific
requests for parenting time given any travel or financial difficulties. Upon
remand, mother may provide such information for the superior court’s
consideration.

¶18 Second, according to mother, the superior court should have
transferred this matter to juvenile court because “the family has an
extensive history with DCS [Department of Child Safety] and was unable
to resolve the family problems.” Mother waived this argument by
providing no legal support for her assertions. See In re Aubuchon, 233 Ariz.
62, 64–65, ¶ 6 (2013) (ruling arguments unsupported by legal authority are
waived). And Arizona law does not support her assertion. Under title 25,
the superior court here had continuing jurisdiction over the parents’ family
matter, including their modification request. See A.R.S. § 25-1032. Juvenile
matters are separate matters under title 8, chapter 4. See A.R.S. §§ 8-451 to -
892. The legislature granted DCS—an executive agency—authority to
investigate reports of child abuse under title 8. Mother fails to identify any
authority suggesting the superior court can force DCS to initiate an
investigation to avoid resolving a parent’s modification request. See A.R.S.
§§ 8-451.B, -453. The superior court, therefore, was not required to transfer
this matter to the juvenile court.

¶19 Third, mother contends the superior court violated her due
process rights when it admitted a therapist’s email into evidence over her
objection. But the email is “not inadmissible hearsay because hearsay is not
barred in family court proceedings unless a party requests strict compliance
with the Rules of Evidence.” See Woyton v. Ward, 247 Ariz. 529, 533, ¶ 16
(App. 2019) (citing Ariz. R. Fam. Law P. 2(b)(1)). Mother never requested
strict compliance. And, though mother contends she reserved the right to
object to the email’s admission in her pretrial statement, she did not object
to its admission at the hearing. Failure to raise an issue before the superior
court constitutes waiver on appeal. Englert v. Carondelet Health Network, 199
Ariz. 21, 26, ¶ 13 (App. 2000). The superior court did not err by admitting
the therapist’s email.

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Decision of the Court

ATTORNEY FEES

¶20 Mother requests her attorney fees on appeal under § 25-324.
Because mother is a self-represented litigant, she is not entitled to attorney
fees. See Munger Chadwick, P.L.C. v. Farwest Dev. and Constr. of the Sw., LLC,
235 Ariz. 125, 126, ¶ 5 (App. 2014). We award mother her costs on appeal
upon compliance with ARCAP 21. See A.R.S. § 12-341.

CONCLUSION

¶21 We vacate and remand the parenting order for § 25-403
compliant findings.

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

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