Goss v. Goss

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TERRI LEE GOSS, Petitioner/Appellee,

v.

CARROLL WAYNE GOSS, Respondent/Appellant.

No. 1 CA-CV 20-0565 FC
FILED 9-14-2021

Appeal from the Superior Court in Maricopa County
No. FC2014-091690
The Honorable Joan M. Sinclair, Judge

VACATED AND REMANDED

COUNSEL

Paul D. Nordini Attorney at Law, Scottsdale
By Paul D. Nordini
Counsel for Respondent/Appellant

Rowley Law Group, PLLC, Mesa
By Scott R. Rowley
Counsel for Petitioner/Appellee
 GOSS v. GOSS
Decision of the Court

MEMORANDUM DECISION

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

W I L L I A M S, Judge:

¶1 Carroll Goss (“Father”) appeals the superior court’s order
dismissing his petition to modify legal decision-making, parenting time,
and child support. For reasons that follow, we vacate the order and remand
for an evidentiary hearing on Father’s petition.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father and Terri Goss (“Mother”) divorced in 2014. Initially,
the parents agreed to share joint legal decision-making authority for their
two minor children. Father pled guilty to a DUI in 2017 and, thereafter, the
parties agreed to a revised parenting plan restricting Father’s parenting
time.

¶3 In 2018, police found Father intoxicated and passed out while
the children were in his care. Mother moved to modify legal
decision-making, parenting time, and child support given Father’s
continued substance abuse. Mother, who was represented by counsel, and
Father, representing himself, reached a stipulated agreement. The superior
court accepted the agreement and entered it as an order. The order granted
Mother sole legal decision-making authority of the minor children, limited
Father’s parenting time to two hours of supervised visits every other week,
and required Father to complete a one-year intensive alcohol abuse
treatment program before he could seek to modify parenting time going
forward. Specifically, the order required:

Father may only request a change to this parenting plan after
he has successfully completed an uninterrupted one (1) year
intensive alcohol abuse treatment program under the
guidance of a certified substance [abuse] counselor and has
maintained 100% sobriety. Until such time as Father has
completed an uninterrupted one (1) year intensive alcohol
abuse program, Father is specifically barred from requesting
any change to the parenting plan.

2
 GOSS v. GOSS
Decision of the Court

¶4 Roughly a year-and-a-half later, Father petitioned the
superior court to modify legal decision-making, parenting time, and child
support. With his petition, Father provided character letters from various
people claiming he had overcome his alcohol addiction, provided evidence
of his participation and attendance of 24 treatment sessions through The
Right Step treatment program, and provided multiple supervised
parenting reports. Later, Father amended his petition claiming that since
entry of the stipulated order, he maintained sobriety for nearly two years
and completed an out-patient program. Mother moved to dismiss Father’s
petition, arguing Father provided no proof of completing a year-long
intensive alcohol abuse treatment program as required by the order. The
superior court granted Mother’s motion to dismiss.

¶5 Father timely appealed. Because the superior court’s order of
dismissal lacked finality language as required by Arizona Rule of Family
Law Procedure 78(c), this court revested jurisdiction to the superior court.
The superior court issued a second dismissal order, with the certification of
finality, and this appeal was reinstated. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21(A)(1), and
-2101(A)(1).

DISCUSSION

¶6 A petitioner seeking to modify a legal decision-making or
parenting time order must provide “adequate cause for [a] hearing” in
his/her petition, A.R.S. § 25-411(L), including “present[ing] detailed facts
which are relevant to the statutory grounds for modification,” Pridgeon v.
Superior Court, 134 Ariz. 177, 181 (1982). Whether adequate cause exists
depends on whether the facts alleged by petitioner constitutes a change in
circumstances. Id. at 180.

¶7 We review the superior court’s denial of a petition to modify
a legal decision-making or parenting time order for an abuse of discretion,
Id. at 179; Baker v. Meyer, 237 Ariz. 112, 116, ¶ 10 (App. 2017), and defer to
the court’s findings of fact unless they are clearly erroneous, Engstrom v.
McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018).

¶8 Father argues the superior court erred in dismissing his
petition outright without holding an evidentiary hearing to consider the
best interests of the children. We agree.

¶9 The superior court based its dismissal of Father’s petition on
a lack of evidence demonstrating Father completed “one full uninterrupted
year of an intensive alcohol abuse program.” The record supports that

3
 GOSS v. GOSS
Decision of the Court

finding. However, the purpose of the stipulated agreement was to aid in
Father’s sobriety, and in turn, to benefit the children and their interaction
with Father. Father alleged he had been sober for nearly two years and
provided letters from others supporting his claim. Father also provided
some evidence that he attended 24 alcohol treatment classes. Although we
cannot discern from the record how long it took Father to complete those
classes, it is some evidence of steps he took to comply with the stipulated
order.

¶10 Mother argues Father should not be allowed to seek
modification until he completes the required one-year intensive program.
If there is “an uninterrupted one (1) year intensive alcohol abuse program”
in Arizona, the record contains no proof of its existence. If such a program
does not exist, under Mother’s argument, Father will never qualify to seek
any change in his legal decision-making authority, parenting time, or child
support obligations.

¶11 We acknowledge the basis for Mother’s argument that a
finding of a change in circumstances is required before the superior court
can reach the question of whether a change in custody would be in the
children’s best interest. See Black v. Black, 114 Ariz. 282, 283 (1977). But
Father has provided evidence of a change in circumstances, even if it is not
the specific change contemplated in the prior agreement. And the law
discourages parties from contracting out of responsibilities that could have
an adverse impact on a child’s best interests. See Albins v. Elovitz, 164 Ariz.
99, 101-02 (App. 1990) (providing that, while a custodial parent can waive
child support payments and surrender visitation rights, “any such
agreement is not binding on the court and will be enforced only so long as
the interest of the child is not adversely affected”). Here, it is unclear from
the record whether Father could comply with the requirement to complete
a one-year intensive alcohol abuse treatment program. And the court is not
bound to enforce an agreement between parties involving custody matters
if the court is not convinced the agreement will advance the best interests
and welfare of the children. Anderson v. Anderson, 14 Ariz. App. 195, 198
(1971). Above all else, the primary consideration in custody determinations
is the best interests of the children, Hays v. Gama, 205 Ariz. 99, 102, ¶ 18
(2003), and any attempt, through agreement or otherwise, which
circumvents this paramount consideration requires a closer look.

¶12 Because Father provided evidence with his petition of
alcohol treatment and evidence of a length of sobriety beyond the time
required for treatment in the stipulated order, the superior court should
have granted Father an evidentiary hearing to further inquire whether a

4
 GOSS v. GOSS
Decision of the Court

substantial and continuing change of circumstances exists, and whether a
modification of Father’s legal decision-making authority, parenting time,
and child support obligation would be in the children’s best interests.
Consequently, we vacate the court’s dismissal order and remand for an
evidentiary hearing on Father’s underlying petition.

¶13 In the exercise of our discretion, we deny Mother’s request for
attorneys’ fees pursuant to A.R.S. § 25-324.

CONCLUSION

¶14 We vacate the superior court’s dismissal order and remand
for an evidentiary hearing on Father’s underlying petition to modify legal
decision-making authority, parenting time, and child support.

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

5