Whisenand v. Whisenand

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL I. WHISENAND, Petitioner/Appellant,

v.

MARIKAY L. WHISENAND, Respondent/Appellee.

No. 1 CA-CV 22-0080 FC
FILED 12-6-2022

Appeal from the Superior Court in Yavapai County
No. P1300DO201600056
The Honorable Michael P. McGill, Judge

VACATED AND REMANDED

COUNSEL

Van Wickler Law PLLC, Scottsdale
By Tracey Van Wickler
Counsel for Petitioner/Appellant

Marikay L. Whisenand, Prescott
Respondent/Appellee
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MEMORANDUM DECISION

Judge Peter B. Swann1 delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Angela K. Paton joined.

S W A N N, Judge:

¶1 Daniel I. Whisenand (“Father”) challenges the superior
court’s order modifying parenting time and child support, contending the
court failed to enforce a parenting time agreement he and Marikay L.
Whisenand (“Mother”) entered in the record at the start of their trial. The
court did not approve and was not bound by the agreement. Nonetheless,
we vacate the modification order and remand for further proceedings
because the parties did not present evidence concerning parenting time at
the hearing.

FACTS AND PROCEDURAL HISTORY

¶2 Father petitioned to dissolve the parties’ marriage in 2016.
The superior court entered a consent decree in April 2016 granting the
parties joint legal decision-making authority and equal parenting time over
their two minor children. The consent decree did not require either party
to pay child support.

¶3 Five years later, Father petitioned to modify parenting time
and child support because he intended to relocate to Washington. Father
requested a long-distance parenting plan that would “maximize[ ] his
parenting time around school breaks, holidays, and the summer.”

¶4 The superior court held a bench trial on Father’s petition. At
the start of the hearing, Father’s counsel told the court the parties had
“reach[ed] some agreements . . . in the hallway” regarding parenting time.

1 Judge Peter B. Swann was a sitting member of this court when the
matter was assigned to this panel of the court. He retired effective
November 28, 2022. In accordance with the authority granted by Article 6,
Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the
Chief Justice of the Arizona Supreme Court has designated Judge Swann as
a judge pro tempore in the Court of Appeals for the purpose of participating
in the resolution of cases assigned to this panel during his term in office.

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The parties agreed, in pertinent part, that Father would receive parenting
time during the children’s fall and spring breaks on alternating years, the
second half of the children’s winter break every year, and the second week
of the winter break in alternating years. The parties did not agree, however,
as to which years—odd or even—each parent would receive parenting time
during the fall and spring breaks.

¶5 The superior court entered these terms as an agreement under
Arizona Rule of Family Law Procedure (“Rule”) 69(a)(2) and directed
Father’s counsel to “submit the proposed order consistent with those
agreements when we get there.” The court then summarized the remaining
issues to be tried, only noting the allocation of the spring and fall breaks in
regard to parenting time.

¶6 The trial went forward. After closing arguments, the court
and counsel again discussed preparing a proposed order. Father’s counsel
informed the court that the hallway agreement made before trial was based
on a proposed order set out in Father’s pretrial statement. The court stated
it would “prepare an order using that proposed order, just so it’s clear, so
that we don’t have to worry about what’s in there and what isn’t.” Mother’s
counsel indicated that he wanted to review Father’s proposed order before
it was submitted “as the final approval.” The court noted that it would
“prepare an under advisement ruling incorporating much of that, what I
think should and shouldn’t be based on the agreements of the parties.”
Father’s counsel asked if she should prepare the order “based upon [the]
under advisement ruling,” and the court assented.

¶7 In its minute entry detailing the trial, the court again directed
Father to “provide a form of order to the Court for signature regarding the
parties’ partial agreement.”

¶8 Father did not provide a proposed order. Approximately two
months later, the superior court issued an under advisement ruling in
which it (1) affirmed joint legal decision-making authority; (2) awarded
Mother monthly child support; and (3) granted Father parenting time, in
relevant part, during spring break and the second part of winter break in
odd years and fall break and the first part of winter break in even years.
This reduced Father’s parenting time during the winter break from the Rule
69 Agreement. The court certified its ruling as final under Rule 78(c).

¶9 Soon after, Father filed an emergency motion asking the court
to “direct Mother to comply with the parties’ Rule 69 Agreement . . . as it
relates to the Winter Break.” He contended the court had approved of that

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agreement on the record at trial and therefore was bound by it. The court
denied the motion, noting that Father had not filed a “proposed form of the
Rule 69 Agreement to be signed by the Court.” The court stated, however,
that it would “review the terms of the agreement and modify its rulings
where necessary and consistent with the agreement” if Father filed an
executed or proposed agreement.

¶10 Father did not do so. He instead filed Rule 83 and Rule 85
motions in which he again contended the court was obligated to implement
the parties’ agreement. The court issued a minute entry the next day stating
that the lack of any written order or agreement was “critical” because
Mother’s counsel had “wanted to review the Rule 69 Agreement before it
[was] submitted as the final approval,” which “suggest[ed] that the
proposed agreement reference[d] on the record was not the final version of
the agreement.” Nonetheless, the court ordered Mother to respond to both
motions.

¶11 Father filed another Rule 85 motion seeking to correct the
court’s orders denying his earlier motions and a notice of appeal. We
stayed the appeal to allow the superior court to consider the pending
matters. ARCAP 3(b).

¶12 The superior court granted Father’s Rule 83 motion in part,
striking its legal decision-making authority rulings, but denied the Rule 85
motions:

As the record demonstrates, the parties discussed a Rule 69
agreement, reaching a partial agreement on some terms with
others left unresolved, the day of trial. The agreed-upon
terms were confusing and incomplete to the parties given
their discussion about the need for modifications. . . . [E]ven
during closing arguments, there were suggestions to modify
the proposed agreements submitted to the Court. The parties
recognized the need to submit a more accurate and clearer
version of any agreements, to include modifications. . . . When
the Court never received an executed Rule 69 agreement, . . .
the Court was left having to enter orders to resolve the
pending petition which included both parenting time and
child support.

¶13 Father filed an amended notice of appeal. We have
jurisdiction under A.R.S. § 12-2101(A)(2). Yee v. Yee, 251 Ariz. 71, 76, ¶ 13
(App. 2021).

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DISCUSSION

I. We Decline to Apply Waiver.

¶14 Father first contends we should disregard Mother’s
answering brief because she did not comply with Arizona Rule of Civil
Appellate Procedure (“ARCAP”) 13. We typically decline to find waiver
where a child’s best interests are at issue. See, e.g., Nold v. Nold, 232 Ariz.
270, 273, ¶ 10 (App. 2013). We decline to do so here and consider the merits
of Father’s appeal.

II. The Superior Court Was Not Bound by the Partial Rule 69
Agreement.

¶15 An agreement between the parties is valid and binding on the
parties if its terms “are stated on the record before a judge, commissioner,
judge pro tempore, or certified reporter.” Ariz. R. Fam. Law P. 69(a)(2). It
is not binding on the court “until it is submitted to and approved by the
court as provided by law.” Ariz. R. Fam. Law P. 69(b).

¶16 The parties’ agreement, stated on the record, was binding on
them. Ariz. R. Fam. Law P. 69(a)(2). But Father also contends the superior
court approved the agreement under Rule 69(b), citing Gallo v. Gallo, 1 CA-
CV 20-0642 FC, 2021 WL 5313445 (Ariz. App. Nov. 16, 2021) (mem.
decision).2 Gallo does not support his position. There, we affirmed the
superior court’s decision not to enforce a Rule 69 parenting time agreement
because the court had not approved the agreement and therefore retained
independent discretion to enter parenting time orders. Id. at *3, ¶¶ 15–17.

¶17 In Gallo, we looked to the court’s actions, not its inaction, to
determine whether it had “indicated its intent to accept the agreement as
an enforceable order of the court.” Gallo, 1 CA-CV 20-0642 FC, at *3, ¶ 16.
Here, as in Gallo, the court never entered any order approving the parties’
Rule 69 agreement. Father contends the court “implicitly approved” the
agreement by proceeding with the trial on other issues. Rule 69(b) does not
permit “implicit approval;” agreements instead must be “submitted to and
approved by the court as provided by law.” Ariz. R. Fam. Law P. 69(b).

¶18 The court’s actions here show that it did not intend to fully
accept the agreement without further action from the parties. As discussed

2 While memorandum decisions are not precedential, we may
consider memorandum decisions issued on or after January 1, 2015 for their
persuasive value. Ariz. R. Sup. Ct. 111(c)(1).

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above, the court stated at the close of trial that it intended to “prepare an
under advisement ruling incorporating much of . . . what I think should and
shouldn’t be based on the agreements of the parties.” It also directed Father
to submit a proposed order documenting the parties’ agreement, which
Father did not do. Additionally, when Father first contended the court
should have enforced the agreement, the court invited him to submit “the
exact terms of the agreement the parties entered into.” Father did not do
that either. Finally, the court expressly stated in its ruling denying Father’s
Rule 85 motions that it did not fully approve the agreement; it instead
indicated it would consider the terms recited at trial and that it might accept
or reject some of them in its parenting time rulings. On this record, we
cannot say the superior court approved the parties’ agreement. It therefore
was not binding on the court. Ariz. R. Fam. Law P. 69(b).

III. The Superior Court Made Parenting Time Findings Without
Adequate Evidence.

¶19 We next consider Father’s contention that the court entered
parenting time rulings “on a record devoid of competent evidence.” We
review an order modifying parenting time for an abuse of discretion.
Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 491, ¶ 9 (App. 2020). A court
abuses its discretion if it commits an error of law in reaching a discretionary
conclusion, it reaches a conclusion without considering the evidence, it
commits some other substantial error of law, or the record lacks substantial
evidence to support the trial court’s finding. Flying Diamond Airpark, LLC
v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007).

¶20 Father contends the parties only presented evidence on “the
contested issues identified by the trial court.” Mother does not contend
otherwise; she only argued the court’s parenting time orders “were just and
fair and in the best interests of the minor children based upon the testimony
presented.”

¶21 The record shows that neither the parties nor the court
intended to proceed with parenting time testimony and evidence.
Immediately after reciting the terms of the parties’ agreement, Father’s
counsel summarized as follows:

MS. VAN WICKLER: So that’s just the basic parenting time
schedule. I don’t –

THE COURT: Sure.

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MS. VAN WICKLER: We haven’t had a chance to go into the
nitty-gritty on any of the other provisions –

THE COURT: Okay.

MS. VAN WICKLER: -- in there, but I thought that might save
a bunch of time.

After a brief discussion about whether to convert the trial into a settlement
conference, the court stated that the only parenting time issue left to be tried
was the odd/even year allocation of the children’s spring and fall breaks.

¶22 The court must allow the parties to present evidence if the
question of a child’s best interests raises disputed fact issues. Murray v.
Murray, 239 Ariz. 174, 179, ¶ 18 (App. 2016); see also Cruz v. Garcia, 240 Ariz.
233, 236, ¶ 12 (App. 2016) (“A family law judgment rendered without notice
and a meaningful opportunity to be heard cannot stand.”). And we have
previously held in the child support context that it is error to enter
modifications without “allowing the parties to gather and present their
evidence.” Heidbreder v. Heidbreder, 230 Ariz. 377, 381, ¶ 14 (App. 2012); see
also Cook v. Losnegard, 228 Ariz. 202, 205–06, ¶¶ 17–19 (App. 2011) (vacating
child support modification because court “specifically advised that it
would not be considering child support” at trial). We see no reason to treat
parenting time differently. We therefore vacate the modification order and
remand for further proceedings on Father’s petition.

CONCLUSION

¶23 We vacate the court’s modification order and remand for
further proceedings on Father’s petition.

¶24 Both parties request attorney fees and taxable costs incurred
in this appeal. Father requested fees under Rule 69(c) and A.R.S. § 25-
324(A) in his opening brief, contending that Mother “ha[d] taken an
unreasonable position on appeal.” Mother had not yet taken any positions
on appeal when Father filed his opening brief. We do not find her positions
on appeal to be unreasonable. We therefore deny Father’s fee request. We
deny Mother’s fee request because she did not retain counsel on appeal.

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¶25 Our decision to vacate the modification order renders Father
partially successful in this appeal. He may recover his taxable costs upon
compliance with ARCAP 21. See Henry v. Cook, 189 Ariz. 42, 44 (App. 1996)
(“[I]n the absence of a statute or rule authorizing apportionment, the party
who obtains partial success is entitled to recover all taxable costs.”).

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

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