French v. Montiel

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN FRENCH, Petitioner/Appellant,

v.

ESTHER MONTIEL, Respondent/Appellee.

No. 1 CA-CV 22-0272 FC
FILED 01-24-2023

Appeal from the Superior Court in Maricopa County
No. FC2015-004790
The Honorable Glenn A. Allen, Judge

AFFIRMED

COUNSEL

Singer Pistiner, P.C., Scottsdale
By Jason Pistiner
Counsel for Petitioner/Appellant

Tiffany & Bosco P.A., Phoenix
By Kelly Mendoza
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Justin French (Father) appeals the superior court’s order
denying his petition seeking to modify parenting time and enforcement of
the existing parenting plan. Because Father has shown no error, we affirm.

BACKGROUND

¶2 Father and Esther Montiel (Mother) have one minor child. In
2016, the superior court entered orders establishing legal decision-making,
parenting time, and child support (the parenting plan). In 2019, after Father
filed a petition to modify parenting time and child support and a petition
to enforce parenting time, those orders were modified by stipulation.

¶3 As set forth in that stipulation, Father and Mother share joint
legal decision-making, and the child lives primarily with Mother. Father’s
parenting time “consist[s] of alternating Mondays and Wednesdays” and
“alternating weekends.” During the summer, defined as “from the last day
of school until the first day of the next school year,” each parent gets two
weeks of uninterrupted parenting time, i.e., “vacation.”

¶4 In April 2020, Father emailed Mother: “My summer vacation
dates are July 3rd – 17th.” The same day, Mother emailed back: “I’ll do May
11–25.” Father then waited until the day before Mother’s chosen dates to
email, raising “a discrepancy” between Mother’s requested vacation dates
and the terms of the parenting plan. The child remained with Mother
throughout the chosen vacation.

¶5 Near the end of Mother’s vacation, on May 20, Father filed a
second “Petition To Modify Parenting Time and Child Support” and a
“Petition To Enforce Parenting Time.”1 As a “substantial and continuing
change,” Father alleged that Mother’s brother (Uncle), who had a criminal

1 Father also filed an “Emergency Motion for Post-Decree Temporary
Orders Re: Parenting Time,” but the parties stipulated to vacate the
temporary orders hearing and proceeded on the main petition.

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history, was living with Mother and the child. Father argued that Uncle
“[wa]s a danger to [the child].” Father sought to suspend Mother’s
parenting time “until such time as she resides in a residence without
[Uncle]” and requested that “parenting time be modified such that the
parties exercise equal parenting time.” Father also alleged that Mother had
violated the parenting plan by using her two-weeks’ uninterrupted
parenting time before the school year had ended.

¶6 The following weekend, Mother and the child were exposed
to COVID-19 at a family event. The child spent the weekend after with
Father, during which time Mother began suffering symptoms and went to
the hospital to be tested but was told not to quarantine. Mother did not
inform Father and picked the child up Monday morning as scheduled.
Later, Mother and the child both tested positive for COVID-19. Due to
delays in re-testing, Father did not have parenting time with the child until
August.

¶7 Dr. D.J. Gaughan, a psychologist, was appointed by the court
as an evaluator. After interviews spanning from December 2020 to May
2021, Dr. Gaughan issued the comprehensive family evaluation (CFE) in
August 2021, recommending equal parenting time and joint decision-
making, with Father having the final say. In the meantime—sometime in
June 2021—Uncle moved out of the home. Trial was then set for January
2022.

¶8 In the pretrial statement, Father “ask[ed] that the Court adopt
the recommendations contained in the CFE,” namely that (1) Father have
the final say in legal decision-making and (2) the parents share equal
parenting time. He also reasserted his position that “Mother violated
Father’s parenting time by improperly taking her ‘summer’ vacation when
school was still in session.” Mother maintained that modification was
unnecessary, she did not violate the parenting plan, and Father’s child
support obligations should increase. Given the parenting time lost by
Father because of the COVID-19 incident, “the parties agree[d] that Father
w[ould] be entitled to an additional two weeks of uninterrupted parenting
time during the Summer of 2022.”

¶9 After an evidentiary hearing in January 2022, the court denied
Father’s petition to modify, finding there was no basis for modification
because Uncle had moved out months before trial. The court denied
Father’s petition to enforce because “the parents [were] following the
summer schedule” at the time, and in any case, Father waived any objection

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because “[his] delay in responding to Mother was not reasonable” and “not
made in good faith.” Father timely appealed.2

DISCUSSION

¶10 Father raises three issues on appeal. First, he argues the court
erred in finding that there was no change in circumstances based on Uncle’s
previous co-residence with Mother and child. Second, he argues that the
court erred in not making findings about the COVID-19 incident. Third,
Father argues that Mother violated the existing parenting plan, which
warranted a best-interests analysis even absent any change in
circumstances.

¶11 We review the family court’s rulings on legal decision-
making and parenting time for an abuse of discretion. Engstrom v.
McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018). An abuse of discretion occurs
when the court commits an error of law in drawing a discretionary
conclusion or when no competent evidence supports the court’s decision.
Id. We view the record in the light most favorable to sustaining the court’s
rulings, which we will affirm “if there is any reasonable supporting
evidence.” Garlan v. Garlan, 249 Ariz. 278, 280–81, ¶ 4 (App. 2020). We
review the interpretation and application of statutes and court rules de
novo. State v. Godoy, 244 Ariz. 327, 328, ¶ 7 (App. 2017).

I. The Court Did Not Err in Finding No Change in Circumstances

¶12 Father argues that the court erred in finding no change in
circumstances warranting modification. We disagree.

¶13 In considering a change in parenting time, the trial court must
determine “whether there has been a change in circumstances materially
affecting the welfare of the child,” and if so, whether a change in legal
decision-making is in the child’s best interests. Black v. Black, 114 Ariz. 282,
283 (1977); see also Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982) (“Only
after the court finds a change has occurred does the court reach the question
of whether a change in custody would be in the child’s best interest.”);
A.R.S. § 25-403(A). “[T]he burden is on the moving party to satisfy the court
that conditions and circumstances have so changed after the original decree
as to justify the modification.” Burk v. Burk, 68 Ariz. 305, 308 (1949). The

2 Father does not appeal the portion of the ruling modifying his child
support obligations.

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court has broad discretion to determine whether a change in circumstances
justifies modification. Pridgeon, 134 Ariz. at 179.

¶14 Father relies on two events as a basis for modification: (1)
Uncle’s prior cohabitation with Mother and the child, which ended in June
2021; and (2) the Summer 2020 COVID-19 incident, which Dr. Gaughan
relied on for his August 2021 CFE. We consider each in turn.

A. Mother’s Prior Cohabitation with Uncle

¶15 Father argues that “the change of circumstances only must
exist at the time a petition to modify is filed.” For that reason, he argues the
court erred in finding Father’s “sole reason for his petition to modify was
no longer an issue.”

¶16 As support, Father relies on Black. There, a mother “had
cohabited with a boyfriend for several months” before the father petitioned
for modification, but the mother and boyfriend married before the
modification hearing. 114 Ariz. at 284. Because the Court found that the
cohabitation “did have a material effect upon the welfare of the children,”
id., Father argues “[i]t did not make a difference whether such change of
circumstances continued to exist up and through trial.” His reasoning is
flawed. In Black, the Court considered five circumstances and expressly
declined to find any “one change of circumstance . . . totally sufficient.” Id.
It is also unclear if the Court disregarded the timing of the hearing when it
found a change in circumstances. See id. In Black, the mother’s boyfriend
became her husband before trial, presumably making him a more
permanent fixture in the children’s lives. See id. Here, Uncle relocated before
trial, removing the “circumstance” from which Father, in part, was seeking
to protect the child.

¶17 The modification standard requires that there “has been a
change in circumstances materially affecting the welfare of the child.” Black,
114 Ariz. at 283 (emphasis added). This construction implies at least
ongoing consequence, if not a persisting condition. See, e.g., Backstrand v.
Backstrand, 250 Ariz. 339, 343, ¶ 15 (App. 2020) (noting the relocated child
“has and will continue to engage in new activities, form new relationships,
and face new challenges” (emphasis added)).

¶18 Father argues that requiring the condition to persist “would
be nonsensical[,]” allowing “the opposing party to simply remedy the
alleged change in circumstances the day before trial and render null and
void all that occurred leading up to that point.” Given different facts, there
may very well be lasting consequences that warrant modification. Even so,

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that determination is for the superior court to make based on the
particularized facts. See Pridgeon, 134 Ariz. at 179.

¶19 On this record, Father did not substantiate his claim that
“irreparable harm . . . may occur,” or even that Uncle’s co-residence would
materially affect the child’s welfare. As Dr. Gaughan testified, Father could
reasonably prefer that his child not live with Uncle because of Uncle’s
criminal record. But as Dr. Gaughan recognized, none of Uncle’s crimes
involved children, domestic violence, or drugs. Nor was Uncle alone with
the child. Moreover, Uncle lived in the home with Mother and the child for
over a year without any alleged harm. Father concedes that Uncle moved
out before trial.

¶20 Furthermore, the court did not abuse its discretion in finding
that Uncle’s prior co-residence “was no longer an issue,” particularly when
Father failed to allege how Uncle’s presence in the home had negatively
affected the child. In finding no substantial change in circumstances, the
court applied the correct legal standard for modification.

B. The COVID-19 Incident and Dr. Gaughan’s
Recommendations

¶21 Father next argues that the court erred by “not making any
findings and ignoring [the COVID-19 incident], which formed the basis for
Dr. Gaughan to recommend equal parenting time and Father having final
say over legal decision-making.” We disagree.

¶22 To begin, legal decision-making was not at issue because
neither party included this request in their pleadings. Father instead relies
on the fact that “the parties filed a joint pretrial statement that agreed that
modification of legal decision-making authority was an issue in this
matter.” To be clear, Mother did not agree that legal decision-making
authority was at issue. Rather, she included her position that “[t]he parties
should continue to share joint legal decision-making” and “[t]here is no valid
reason for Father to have final authority.” (Emphasis added.)

¶23 Although “[t]he joint pretrial statement supersedes the
pleadings and controls the subsequent course of the litigation,” Reyes v.
Town of Gilbert, 247 Ariz. 151, 159, ¶ 35 (App. 2019) (quotation and citation
omitted), it does so by requiring the parties to disclose witnesses and
evidence, and to identify what claims and defenses remain at issue, see Ariz.
R. Fam. Law P. 76.1(f)–(h). As Father concedes, the pretrial statement serves

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to limit and simplify the scope of the trial.3 See Walters v. First Fed. Sav. &
Loan Ass’n of Phx., 131 Ariz. 321, 325 (1982); Aetna Cas. & Sur. Co. v. Dini, 169
Ariz. 555, 557 (App. 1991) (noting pretrial statement “narrow[s] the scope
of the . . . issues to those which are truly legitimate”).

¶24 Father also argues that legal decision-making was at issue
because Mother stipulated to the CFE, and Dr. Gaughan then
recommended a change to legal decision-making. But the CFE does not
define the scope of litigation; it aids the court and the parties in resolving
the issues. See DePasquale v. Superior Court, 181 Ariz. 333, 336 (App. 1995);
see also A.R.S. § 25-405(B) (“The court may seek the advice of professional
personnel . . . .”). The court may have muddied the waters by issuing a
generic order for “[l]egal decision-making recommendations,” but Father
cannot claim the benefit of this phrasing any more than he can attribute
placing legal decision-making at issue to Mother.

¶25 Nonetheless, Father suggests that trial evidence about the
COVID-19 incident placed legal decision-making at issue. Not so. The
COVID-19 incident was relevant to properly pled issues: namely, parenting
time enforcement, as Father argued Mother wrongfully interfered with his
parenting time. The court also could have considered how the interference
related to the best-interests factors if it moved forward with a modification.
Moreover, Father did not move to amend the pleadings at trial or otherwise
object when the judge repeatedly emphasized that “[w]e’re not here to
change legal decision-making because nobody is asking to do that.”

¶26 Because Father could not raise new legal issues in the pretrial
statement or at trial, nor could Dr. Gaughan place legal decision-making at
issue, the court did not abuse its discretion in declining to consider
modification of legal decision-making.

3 The cases cited by Father support this point. See Norman v. Del Elia, 111 Ariz. 480, 482 (1975) (excluding exhibit at trial that was “not listed in
the pretrial statement”); Calderon v. Calderon, 9 Ariz. App. 538, 539–41 (1969)
(excluding exhibit not produced pursuant to pretrial order, particularly as
no explanation for delay was provided and “counsel [did not] move to have
the pretrial order amended to enlarge the issues”); Wright v. Demeter, 8 Ariz.
App. 65, 68 (1968) (excluding witness testimony “no[t] mention[ed] . . . in
the pre-trial memorandum or pre-trial order”); Loya v. Fong, 1 Ariz. App.
482, 485–86 (1965) (finding error when court allowed testimony on issue
eliminated in pretrial order).

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¶27 We now consider Father’s argument that he was entitled to
findings on the COVID-19 incident to the extent that it related to his petition
to modify parenting time. As Father notes, the COVID-19 incident occurred
after he filed his petition to modify parenting time, so he could not have
included it in the original petition. But Father could have sought leave to
amend or moved to amend the pleadings at trial, and he did neither. See
Ariz. R. Fam. Law P. 28 (a), (b).

¶28 In the pretrial statement, Father quoted Dr. Gaughan’s
findings relating to the COVID-19 incident. He did not contend that the
incident—which occurred in the Summer of 2020—was a change in
circumstances. Nor did Father argue, as he does for the first time on appeal,
that Dr. Gaughan’s findings based on the incident were “in and of
[them]sel[ves]” a change in circumstances. See Van Loan v. Van Loan, 116
Ariz. 272, 274 (1977) (noting that an issue not raised “at the trial level” has
been waived). At trial, Father’s counsel argued that “the COVID issue could
be both from an enforcement standpoint, but also as a substantial
continuing change of circumstances [standpoint], being a medical decision
that Mother (indiscernible) did not take into account the best interest of the
child.” (Emphasis added.) In addition, when the court observed that “if [it]
d[id]n’t get evidence on a substantial and continuing change, you don’t
pass go,” Father did not argue that the COVID-19 incident was a change in
circumstances warranting modification. In context, the court could have
reasonably interpreted Father’s argument as going to best interests under
A.R.S. § 25-403. And because the court found no change in circumstance, it
could not proceed to a best-interests analysis. See Pridgeon, 134 Ariz. at 180.

¶29 For these reasons, the court was within its discretion not to
address the COVID-19 incident within the context of Father’s petition to
modify.4 The court, therefore, did not err in terminating its analysis once it
found Father had failed to show there had been a material change in
circumstances.

II. The Court Did Not Err in Denying Father’s Petition to Enforce

¶30 Alternatively, Father argues that Mother violated the existing
parenting plan by taking her vacation time with the child prior to the

4 Although the court also did not address the COVID-19 incident
within the context of its enforcement findings, we note that Father waived
any such argument by failing to raise it on appeal.

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conclusion of the school year. Citing A.R.S. § 25-411(A), he argues the court
erred by not conducting a best-interests analysis. We disagree.

¶31 In its order, the court found that “[t]he parties acknowledged
that the child’s normal school year was impacted by COVID-19, and that
the regular school session ended in March 2020. It was not clear at trial if
the child had mandatory classes . . . at home, but the parties did agree that
they were exercising their parenting time under the summer schedule
during the vacation in question.” In any case, because Father did not object
until the day before Mother’s planned vacation was to begin, and 30 days
after receiving notice of the planned dates, the court found Father had
waived any contest.

¶32 Father argues that “informing Mother her intended vacation
dates violated the parties’ orders” was “clear evidence that Father
intentionally did not wish to abandon his right and instead wished to assert
his rights under . . . the [parenting plan].” By emphasizing his objection, he
altogether disregards the timing of that objection and his delay in raising it.
As he conceded at trial, any earlier objection was “voiced to [Father’s]
attorney” and “[n]ot to Mother.” Twenty-nine days of silence can be
reasonably interpreted as acquiescence. See Compass Bank v. Bennett, 240
Ariz. 58, 60, ¶ 11 (App. 2016) (noting that waiver includes “such conduct as
warrants an inference of . . . an intentional relinquishment [of a known
right]” (citation and quotation omitted)). And even if Father’s objection
were reasonable, raising it the day before her scheduled vacation was not.

¶33 Therefore, the court did not abuse its discretion in finding
Father had waived his enforcement claim because Father’s objection to
Mother’s vacation dates was untimely and “not made in good faith.”5

5 Given this conclusion, we need not reach Father’s arguments that (1)
Mother violated the parenting plan, and (2) a best-interests analysis was
necessary. See A.R.S. § 25-411(A).

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CONCLUSION

¶34 For the reasons above, we affirm. Both parties request their
attorney’s fees incurred on appeal under A.R.S. § 25-324. Father’s position
on legal decision-making—i.e., that an issue first disputed in a pretrial
statement is properly before the court—was unreasonable. In addition,
Father’s income is almost four times greater than Mother’s. We, therefore,
award Mother reasonable attorney’s fees and costs on appeal subject to
compliance with ARCAP 21.

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

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