Troutman v. Troutman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN M. TROUTMAN, Petitioner/Appellant,

v.

BEVERLY G. TROUTMAN, Respondent/Appellee.

No. 1 CA-CV 22-0396 FC
FILED 6-1-2023

Appeal from the Superior Court in Coconino County
No. S0300DO202000183
The Honorable Elaine Fridlund-Horne, Judge

AFFIRMED

COUNSEL

Harris & Winger, P.C., Flagstaff
By Chad Joshua Winger
Counsel for Petitioner/Appellant

Bryon Middlebrook, P.C., Flagstaff
By Bryon Middlebrook
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Vice
Chief Judge David B. Gass and Judge Andrew M. Jacobs joined.

F U R U Y A, Judge:

¶1 John M. Troutman (“Father”) appeals from the superior court
order awarding him less than equal parenting time. Finding no abuse of
discretion, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Beverly G. Troutman (“Mother”) were married for
twenty-one years and have three children. Father petitioned for dissolution
in May 2020. The oldest child turned eighteen before the dissolution trial
and is not involved in this appeal. The two younger children were sixteen
and thirteen at the time of trial.

¶3 Father admitted to having a sex addiction throughout the
marriage. Mother was unaware of this until she discovered evidence of an
extra-marital affair in 2018. The parties saw a marriage counselor who
recommended Father seek treatment for his addiction. After returning from
a three-week intensive treatment program in 2018, Father disclosed his long
history of sexual infidelities. Father continued to work on his recovery but
relapsed in 2020 when he had a relationship with another woman, leading
to the birth of a child. Father states he has been “sober” since August 2020.

¶4 Both parties continued to live in the marital home with the
three children through the trial. They agreed to share joint legal decision-
making authority but did not agree to a parenting plan. Father requested
equal parenting time. Mother asked the court to give Father parenting time
every other weekend and one night per week for ninety days, increasing to
three days on alternate weeks if the children and therapists agreed.

¶5 The superior court appointed David Weinstock, Ph.D., to
address (1) the effect of Father’s addiction on his ability to exercise
parenting time, (2) whether either parent has or tried to influence the
children or engaged in parental alienation, and (3) anything else relevant to
the parenting time determination.

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¶6 After trial, the court considered testimony from both parties,
the marriage counselor, James Hogg, Ph.D., and Dr. Weinstock and issued
two separate rulings detailing the relevant evidence and its parenting time
orders. In its April 29, 2022 under advisement ruling (“April 29 Order”), the
court found it was in the children’s best interests to have parenting time
with Father every other weekend and one overnight every week. The
parenting plan alternated Thanksgiving and Christmas holidays, equally
divided winter and fall school breaks, and gave each parent two
consecutive weeks in the summer. On May 2, 2022, the court made
“[a]dditional parenting time factual findings” in a separate order (“May 2
Order”).

¶7 Father timely appealed from the parenting time orders in the
final decree. We have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) § 12-2101(A)(1).

DISCUSSION

¶8 We review parenting time orders for an abuse of discretion,
Nold v. Nold, 232 Ariz. 270, 273 ¶ 11 (App. 2013), but review questions of
statutory interpretation de novo. Gonzalez-Gunter v. Gunter, 249 Ariz. 489,
491 ¶ 9 (App. 2020). We view the evidence in the light most favorable to
upholding the superior court’s ruling. In re Marriage of Friedman, 244 Ariz.
111, 113 ¶ 2 (2018).

¶9 Father argues the superior court erred because it awarded
him less than equal parenting time without sufficient cause. Though Father
concedes “Arizona law does not have a presumption of equal parenting
time,” Smith v. Smith, 253 Ariz. 43, 46, 47 ¶¶ 15, 19 (App. 2022), he argues
the evidence supports nothing less than equal parenting time.

¶10 According to A.R.S. § 25-103(B), Arizona’s public policy is
that “absent evidence to the contrary, it is in a child’s best interest . . . [t]o
have substantial, frequent, meaningful and continuing parenting with both
parents.” A.R.S. § 25-103(B)(1); see also Smith, 253 Ariz. at 46 ¶ 15. To further
this policy, § 25-403.02(B) requires the court to “‘maximize’ each parent’s
respective parenting time if doing so is ‘consistent with the child’s best interests
in section 25-403 and sections 25-403.03, 25-403.04 and 25-403.05.’” Smith,
253 Ariz. at 47 ¶ 18 (quoting A.R.S. § 25-403.02(B)).

¶11 Father asks this court to provide guidance for when it is
appropriate to depart from the starting point of equal parenting time. The
legislature provided that guidance in § 25-403.02(B), which requires the
court to award parenting time consistent with the child’s best interests. See

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A.R.S. § 25-403.02(B). Courts determine the child’s best interests by
applying §§ 25-403, -403.03, -403.04, and -403.05. Because each family and
child is different, the factors applicable in each case will vary. More
importantly, how the court weighs each factor must be determined on a
case-by-case basis. It is impossible to impose a bright line rule for what
constitutes “maximized” parenting time as Father requests. In some cases,
one day a week might be in the child’s best interests. But other cases may
warrant equal parenting time. The court satisfies its statutory obligation
when it considers the child’s best interests under §§ 25-403, -403.03, -403.04,
and -403.05. See A.R.S. § 25-403.02(B).

¶12 Father argues that because he requested written findings of
fact and conclusions of law, the court must clearly state how it arrived at its
decision to award Father less than equal parenting time. See Ariz. R. Fam.
Law P. 82(a). He contends the best-interests findings do not support an
award of less than equal parenting time. However, Father argues we must
limit our review to the court’s specific statutory best-interests findings
without considering the other findings of fact in the court’s under
advisement ruling. We disagree.

¶13 The court’s April 29 Order included nine pages of evidentiary
findings of fact, with several pages of findings directly related to the
children’s best interests. After making these evidentiary findings of fact, the
court stated:

THIS COURT FINDS AS FACTS THE EVIDENCE
RECEIVED THROUGH TESTIMONY AND THROUGH THE
ADMISSION OF THE EXHIBITS AS REFERENCED HEREIN,
AND THIS COURT APPLIES THESE FACTUAL FINDINGS
TO THE STATUTORY FACTORS FOR BEST INTEREST FOR
PARENTING TIME . . . .

A few pages later, the court made “best interests findings” that complied
with § 25-403(B). A few days later, the court issued its May 2 Order making
additional parenting time factual findings. Thus, the whole of the court’s
findings consists of the “evidentiary findings of fact” and “best interests
findings” in the April 29 Order and the “additional parenting time factual
findings” in the May 2 Order. We consider this set of findings in totality in
assessing the superior court’s compliance with Rule 82 and § 25-403(B).

¶14 Thus, when considered and viewed in the light most
favorable to affirming the court’s orders, these findings support the ruling
of less than equal parenting time. See Friedman, 244 Ariz. at 113 ¶ 2. For

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example, the court found Dr. Weinstock had concerns about Father’s ability
to parent without supervision based on the potential for relapse. It cited Dr.
Weinstock’s explanation of how Father’s addictive behaviors placed the
children at risk. Dr. Weinstock acknowledged Father was active in his
recovery but still had work to do. And Dr. Weinstock expressed concerns
about Father’s “lack of presence with the children, and his inability to be
emotionally present with the children.”

¶15 The court also found Father was emotionally and physically
distant for a long time before he went into treatment in 2018. And, even
after his treatment, Father was again self-isolating and leaving Mother to
explain his frequent absences while he traveled to Phoenix to see his
sponsor and spend time with his other child. Mother confirmed this. The
court further found the youngest child did not want equal parenting time
with Father. Moreover, Father himself acknowledged a long history of
manipulation and deceit.

¶16 Even so, the court noted Dr. Hogg’s testimony that Father was
a good parent and the parties co-parented well. Both psychologists testified
Father was actively working on his sobriety. Father now has a good
relationship with the middle child but not the youngest.

¶17 In determining that equal parenting time was not in the
children’s best interests, the court weighed this conflicting evidence and
considered the witnesses’ credibility in balancing the statutory factors. “On
appeal, we do not reweigh the evidence but defer to the family court’s
determinations of witness credibility and the weight given to conflicting
evidence.” Lehn v. Al-Thanayyan, 246 Ariz. 277, 284 ¶ 20 (App. 2019).

¶18 The court’s findings are sufficient because, taken as a whole,
they “are ‘pertinent to the issues and comprehensive enough to provide a
basis for the decision.’” Miller v. Bd. of Supervisors of Pinal Cnty., 175 Ariz.
296, 299 (1993) (quoting Gilliland v. Rodriquez, 77 Ariz. 163, 167 (1954)). The
findings comply with Rule 82(a) because they explain how the court
reached its conclusion and allow us “‘to test the validity of the judgment.’”
Id.

¶19 Father additionally argues the court erred by awarding
Mother more parenting time than Father because she had been the primary
caregiver during the marriage. He contends this finding strays from Barron
v. Barron, 246 Ariz. 580, 586 ¶ 16 (App. 2018), vacated on other grounds, 246
Ariz. 449 (2019), which held it is error to presume a child’s best interests are
necessarily served by awarding more parenting time to the former stay-at-

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home parent. The court here made no such finding or presumption, and
Father points to nothing suggesting it was the basis for the parenting time
order.

ATTORNEYS’ FEES

¶20 Mother requested an award of attorneys’ fees on appeal
under A.R.S. § 25-324. Father did not respond. In the exercise of our
discretion, after considering the financial resources1 and reasonableness of
the parties’ positions, we award Mother her reasonable attorneys’ fees on
appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21.

CONCLUSION

¶21 We affirm the parenting time orders.

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

1 We note that we will not address on appeal items not considered by
the superior court, including Father’s Notice of Objection filed with this
court on May 3, 2023. See Premier Fin. Serv. v. Citibank, 185 Ariz. 80, 87 (App.
1995), GM Dev. Corp. v. Cnty. Am. Mortg. Corp., 165 Ariz. 1, 4–5 (App. 1990)
(stating evidence not considered by superior court may not be newly
considered on appeal).

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