Nickel v. Potter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HEIDI L. NICKEL, Petitioner/Appellee,

v.

CHRISTOPHER K. POTTER, Respondent/Appellant.

No. 1 CA-CV 20-0685 FC
FILED 1-11-2022

Appeal from the Superior Court in Maricopa County
No. FC2010-052126
The Honorable John Christian Rea, Judge, Retired

AFFIRMED

COUNSEL

Heidi L. Nickel, Cave Creek
Petitioner/Appellee

Sullivan Law Office PLLC, Mesa
By Dianne Nicole Sullivan
Counsel for Respondent/Appellant

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.
 NICKEL v. POTTER
Decision of the Court

B A I L E Y, Judge:

¶1 Christopher K. Potter (“Father”) appeals the superior court’s
judgment and orders denying his petition to enforce parenting time with
his two children and granting Heidi L. Nickel’s (“Mother”) petition to
modify legal decision making, parenting time, and child support. Father
argues the court failed to specifically tie its findings to the best-interests
factors enumerated in Arizona Revised Statutes (“A.R.S.”) section 25-
403(A) and that the court’s findings were unsupported by the evidence. He
asks that we remand for the superior court to make more detailed findings
consistent with § 25-403. We conclude the court’s findings are adequate to
satisfy the statutory requirements and are supported by the record.
Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother were married in 2000 and divorced in
2010. They have two children—a daughter, who turned eighteen years old
in 2021, and a son, born in 2007. In 2011, the parties stipulated to joint legal
decision-making and equal parenting time. In July 2019, the court adopted
the parties’ stipulation to amend the parenting plan, but to leave in place
shared decision making and parenting time.

¶3 In December 2019, Father petitioned to enforce parenting
time, alleging that beginning in October 2019, Mother had unilaterally
stopped all parenting time between him and the children.

¶4 Mother also petitioned to modify, seeking sole legal decision-
making, designation as the primary residential parent (with Father to
receive limited supervised parenting time), and child support. Mother
asserted that Father had recently been arrested, remained incarcerated for
one week, and was out on bail while his case was pending. 1 Mother further
asserted that multiple orders of protection had been taken out against
Father.

1 Based on a June 2017 dispute with a former girlfriend, Father had
been charged with stalking, in violation of A.R.S. § 13-2923, in Maricopa
County Superior Court Case No. CR2019-150559. In September 2020, he
pled guilty to attempted stalking, a class six undesignated felony and
domestic violence offense, and the court placed him on supervised
probation for two years.

2
 NICKEL v. POTTER
Decision of the Court

¶5 The petitions were consolidated, and the parties agreed to the
appointment of a Court-Appointed Advisor (“CAA”) before trial. The
CAA prepared a pretrial report based in part on interviews of Mother,
Father, and the parties’ two children.

¶6 In July 2020, the superior court held an evidentiary hearing
on the petitions. Mother, Father, the CAA, and other witnesses testified.
After taking the matter under advisement, the court issued a judgment in
September 2020. In the judgment, the court summarized the evidence
presented, made findings, then denied Father’s petition to enforce
parenting time and awarded Mother sole legal decision-making authority.
The court ordered that Father’s sole contact with the older child be in a
therapeutic setting, but only after consideration of the child’s desires and
the opinion of her therapist. The court also reduced Father’s parenting time
with the younger child to supervised visitation for “at least four hours
every other Saturday.” Finally, the court ordered Father to pay monthly
child support for the two children.

¶7 Mother moved to amend the judgment, requesting the court
make specific findings on the record about all relevant factors the court had
considered and the reasons for which the court’s decisions were in the best
interests of the children pursuant to A.R.S. § 25-403. Specifically, Mother
requested the court make its findings “in a format that matches the typical
A.R.S. § 25-403 format to remove any shadow of uncertainty from this
judgment.” Father responded that he did not object to Mother’s motion.
Nonetheless, the court denied the motion.

¶8 We have jurisdiction over Father’s timely appeal under
Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-2101(A)(2)
and 12-120.21(A)(1).

DISCUSSION

¶9 Father argues the superior court abused its discretion when it
denied his petition to enforce and granted Mother’s petition to modify.
Father maintains the court’s findings are both inadequate to satisfy the
requirements of A.R.S. § 25-403(B) and unsupported by the evidence.

I. Standard of Review and Applicable Law

¶10 We review the superior court’s legal decision-making and
parenting time rulings for an abuse of discretion. See In re Marriage of Diezsi,
201 Ariz. 524, 525, ¶ 3 (App. 2002). In making such determinations, whether
originally or on petition for modification, the court must consider the best

3
 NICKEL v. POTTER
Decision of the Court

interests of the children, and in doing so, “shall consider all factors that are
relevant to the child[ren]’s physical and emotional well-being, including”
those factors found in A.R.S. § 25-403(A). Further, A.R.S. § 25-403(B)
requires that, “[i]n a contested legal decision-making or parenting time
case, the court shall 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[ren].”

II. The Merits

¶11 As the parties recognize, this court has previously found
findings inadequate and held that the superior court abused its discretion
when it failed to make findings pursuant to § 25-403. See Reid v. Reid, 222
Ariz. 204, 207, ¶¶ 12-13 (App. 2009); Diezsi, 201 Ariz. at 526, ¶ 5; see also
Owen v. Blackhawk, 206 Ariz. 418, 421-22, ¶¶ 9-12 (App. 2003) (holding that
the court abused its discretion in changing the primary residential parent
and altering the parenting time schedule without making required findings
on the record in a contested custody case brought under the relocation
statute, A.R.S. § 25-408); Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 19 (App.
2003) (holding that the court’s findings were insufficient as a matter of law
and remanding for findings under A.R.S. § 25-403).

¶12 However, “[n]o principles are better settled in Arizona than,
first, that the duty of a reviewing court begins and ends with the inquiry
whether the trial court had before it evidence which might reasonably
support its action viewed in the light most favorable to sustaining the
findings, and, second, that the reviewing court will not weigh conflicting
evidence on appeal.” O’Hair v. O’Hair, 109 Ariz. 236, 240 (1973) (citations
omitted).

¶13 Here, Father concedes that the court’s judgment “arguably
contained an [unenumerated] analysis of the [§ 25-]403 factors,” and we
conclude the court’s findings, although not individually referenced in
conjunction with A.R.S. § 25-403, nonetheless satisfy the statutory
requirement of making specific findings regarding the reasons why its
decision was in the children’s best interests. See Owen, 206 Ariz. at 421-22,
¶¶ 11-12.

¶14 Unlike the courts in the aforementioned cases, the court here
made a series of detailed findings and gave explanations for its judgment.
It is clear from the record that several subsections of A.R.S. § 25-403 were
inapplicable to the court’s analysis, including subsections (A)(9) through
(A)(11), and that the court found the evidence did not support a finding of

4
 NICKEL v. POTTER
Decision of the Court

domestic violence or child abuse or that either parent had intentionally
misled the court, see A.R.S. § 25-403(A)(7)-(8). Further, where the evidence
regarding a particular factor was disputed or not clearly neutral, the
findings detail how the factor was considered. The court acknowledged
“evidence that Mother has contributed to the children’s estrangement from
Father,” which supports a finding in favor of Father as to subsection (A)(6)
(“[w]hich parent is more likely to allow the child[ren] frequent, meaningful
and continuing contact with the other parent”), but the court expressly
considered that factor “minor.”

¶15 Finally, the court’s findings make clear the central factors it
considered were subsections (A)(1) through (A)(5), and that it heavily
weighted subsection (A)(4) (“the wishes of the child[ren]”). 2 Moreover,
unlike in Reid, the court’s findings in this case are not cursory, nor do they
accept or reject an evaluator’s recommendation without explanation. See
222 Ariz. at 207, ¶ 13. Instead, the court’s findings are sufficiently detailed
to comply with the statutory requirements and to allow us to meaningfully
review its decisions regarding the parties’ petitions. It is possible here to
determine which facts and findings apply to which factors, and unlike Hart
v. Hart, 220 Ariz. 183, 186-87, ¶ 13 (App. 2009), this is not a case where a
detailed weighing of the statutory factors “may have yielded a different
outcome.” Accordingly, it would serve no purpose to remand for further
findings here because the court has already recited the findings on which
its judgment is based.

¶16 Father nonetheless argues that the court’s findings were
unsupported by the record, in part because the court found Mother to be
generally “credible” despite that Father pointed out instances in which she
previously had recanted statements made to the police or otherwise
provided false statements, and in part because Father provided
controverting evidence, including evidence showing the CAA had
concluded that at least some of Father’s anger toward Mother was
“justified.” Read as a whole, Father’s arguments constitute a request that
we reweigh the evidence, something we will not do. See O’Hair, 109 Ariz.

2 Subsections (A)(1) through (A)(5) include: (1) “The past, present and
potential future relationship between the parent and the child”; (2) “The
interaction and interrelationship of the child with the child’s parent or
parents, the child’s siblings and any other person who may significantly
affect the child’s best interest”; (3) “The child’s adjustment to home, school
and community”; (4) “If the child is of suitable age and maturity, the wishes
of the child as to legal decision-making and parenting time”; and (5) “The
mental and physical health of all individuals involved.”

5
 NICKEL v. POTTER
Decision of the Court

at 240. Further, we disagree with Father that the court abdicated its
responsibility to use its independent judgment, in contravention of In re
Nold v. Nold, 232 Ariz. 270, 273-74, ¶ 14 (App. 2013), and DePasquale v.
Superior Court (Thrasher), 181 Ariz. 333, 336 (App. 1995), by quoting the
older child’s counselor when making its findings.

¶17 Although the better practice would be to follow the general
template provided by § 25-403, the superior court’s findings here are
adequate to provide a baseline on which Father (or Mother) might file a
future petition for modification, and on which the court could assess the
merits of such a petition. On this record, the court did not abuse its
discretion when it denied Father’s petition to enforce and granted Mother’s
petition to modify.

III. Attorneys’ Fees and Costs

¶18 Both parties request an award of attorneys’ fees. Mother,
however, is not represented by an attorney. Father requests fees under
A.R.S. § 25-324, but neither side has been unreasonable in its positions on
appeal and the parties appear to have relatively equivalent financial
resources. Thus, in our discretion, we decline to award attorneys’ fees on
appeal to either party. We award taxable costs on appeal to Mother upon
compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶19 The superior court’s judgment is affirmed.

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

6