Triggs v. Triggs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW MICHAEL TRIGGS, Petitioner/Appellee,

v.

EMILY TRIGGS, Respondent/Appellant.

No. 1 CA-CV 22-0543 FC
FILED 5-16-2023

Appeal from the Superior Court in Yavapai County
No. P1300DO202100069
The Honorable Cele Hancock, Judge

REVERSED AND REMANDED

COUNSEL

Mull & Brown, PLLC, Prescott
By John G. Mull
Counsel for Petitioner/Appellee

Community Legal Services, Inc., Prescott
By Martin J. Coleman
Counsel for Respondent/Appellant

TRIGGS v. TRIGGS
Decision of the Court

MEMORANDUM DECISION

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

G A S S, Vice Chief Judge:

¶1 Among other issues, mother appeals the superior court’s final
parenting-time order based on the parents’ mediated agreement. Because
the agreement did not address the situation present at the time of the trial,
the superior court needed to exercise its independent judgment to
determine mother’s parenting time. We, thus, reverse and remand for
further proceedings for the superior court to exercise such judgment.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother, a citizen of the Philippines, and father were divorced
in 2019 in the U.S. Territory of Guam through a consent decree. The consent
decree included a settlement agreement with a separate parenting plan for
their child, E.T.

¶3 The 2019 consent decree provided parenting time would
occur in the Philippines and allocated father up to two, six-week blocks of
uninterrupted vacation time annually. In November 2019, father brought
E.T. to the United States on vacation to visit father’s family. Father never
returned E.T. to the Philippines. Even so, mother and E.T. communicated
regularly by audio and video calls until February 2020, when E.T. stopped
communicating with mother.

¶4 In 2021, father registered the 2019 consent decree in the
Arizona Superior Court in Yavapai County. Father later petitioned to
terminate mother’s parental rights.

¶5 In September 2021, mother petitioned for relocation,
modification of legal decision-making, parenting time, child support, and
other declaratory relief. At the resolution management conference, both
parents requested mediation, which the superior court ordered.

¶6 Mother, father, and their counsel attended the mediation. The
mediation agreement provided E.T. would live with father and established
a reunification plan for mother and E.T. through a licensed counselor

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chosen by both parents. E.T. had an existing counseling relationship with
the chosen counselor. For reunification and subsequent parenting time, the
mediation agreement provided:

The parents agree to utilize Dr. Stacie Brown as a therapist for
mother’s reunification counseling.

Father agrees to pay 100% of the cost for this counseling.

Father agrees to contact the counselor and initiate this
reunification counseling as soon as possible.

The counselor will provide a short summary progress report
to both parents after each reunification session.

At the end of six months of reunification counseling, the
therapist will provide an overall summary of the progress to
date to both parents. If the reunification is complete, the
therapist will document this and if there is a fundamental
reason to continue the sessions, the rationale and timeframe
for that will be documented.

....

Once the reunification counseling is complete, mother will
have two telephone or video chats with the child each week.
Mother and the child will have privacy during these chats.

¶7 The agreement deferred the following to the superior court:
(1) issues of effective parenting; (2) communication between the parents
and periodic review of the parenting plan; (3) date, time, and frequency of
mother’s video or phone calls with E.T.; and (4) the initial appointment with
the agreed upon counselor. The superior court set trial for May 2022.

¶8 In January 2022, Dr. Brown issued her first report. Based on
father’s and E.T.’s allegations of mother’s abuse of E.T., Dr. Brown opined
E.T. was “not therapeutically ready to have contact and/or
communication” with mother. But Dr. Brown anticipated E.T. would be
ready for reunification sessions after six to eight more personal sessions.

¶9 In April 2022, Dr. Brown issued her second report. In that
report, Dr. Brown described her reunification efforts until that point—
including two attempts to connect E.T. with mother through telehealth
video calls. Dr. Brown opined E.T. was not ready for reunification and

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recommended postponing reunification counselling until E.T. turns 12-
years-old, which is not until late 2023. Additionally, Dr. Brown conducted
no reunification counseling sessions after the second report. Mother then
moved to revoke the mediation agreement.

¶10 After the May trial, the superior court denied mother’s
motion to revoke, finding the mediation agreement was binding and the
superior court lacked any authority to modify it. The superior court then
addressed some issues the parents deferred to the superior court in the
mediation agreement, specifically guidelines for effective parenting and
communication between the parents. The superior court did not establish
the frequency and duration of mother’s contact with E.T., saying the parents
already agreed to those details once E.T. completed reunification
counseling. The superior court also did not establish a periodic review for
the parenting plan.

¶11 This court has jurisdiction over mother’s timely appeal under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21.A.1, and -2101.A.1.

ANALYSIS

¶12 An Arizona court has jurisdiction to make an initial child
custody determination if Arizona “is the home state of the child on the date
of the commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding . . . .” A.R.S.
§ 25-1031.A. Arizona has been E.T.’s home state for more than six months
before mother or father filed anything in Arizona because since December
2019, father and E.T. resided in Arizona and neither mother, father, nor E.T.
resided in Guam. The superior court, thus, properly exercised jurisdiction
over this case. See id.

¶13 On appeal, mother argues the superior court improperly
delegated the authority to determine parenting time to Dr. Brown when it
upheld the mediation agreement’s parenting time provision, even though
Dr. Brown had abandoned all reunification efforts with mother. As such,
mother argues the exception allowing the superior court to delegate
decisions to a reunification counselor set out in Gish v. Greyson, 253 Ariz.
437, 447 ¶ 45 (App. 2022) does not apply here.

¶14 As Gish recognized, the superior court generally “can neither
delegate a judicial decision” to a reunification counselor “nor abdicate its
responsibility to exercise independent judgment.” See 253 Ariz. at 447 ¶ 46
(citation omitted). But the superior court may delegate the determination of

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parenting time to a reunification counselor under an express agreement
between the parents. See id. at 447 ¶ 49. The superior court, in its order,
noted the parents here entered into such an express agreement delegating
the determination of parenting time to Dr. Brown during the reunification
process. Additionally, because the superior court adopted the mediation
agreement as an enforceable order, it concluded it lacked discretion to
modify the mediation agreement’s terms. See R. Fam. L. P. 69(a); see also
Engstrom v. McCarthy, 243 Ariz. 469, 472 ¶¶ 8, 9 (App. 2018).

¶15 The superior court’s conclusion is accurate, but only to the
extent of the mediation agreement’s terms. In that regard, the mediation
agreement’s reunification plan expressly governs everything the parents
explicitly agreed to in it. Under the mediation agreement, Dr. Brown would
provide a summary to the parents after each counseling session and a
summary of counseling after six months. Once Dr. Brown completed
reunification counseling, she was to document it. Alternatively, if there was
a “fundamental reason” to continue counseling after six months, Dr. Brown
would document the rationale and timeframe for the continued counseling
sessions.

¶16 The mediation agreement, however, did not say what was to
occur if, as here, Dr. Brown suspended reunification counseling before six
months and provided no timeframe for reengaging in reunification
counseling beyond postponing it for more than 18 months. For that reason,
the mediation agreement does not govern this circumstance. The superior
court, thus, cannot “abdicate its responsibility to exercise independent
judgment[,]” and must determine mother’s parenting time. See Gish, 253
Ariz. at 447 ¶ 46 (citation omitted).

¶17 We decline to consider the other issues mother raises because
this decision renders them moot and they are unlikely to recur on remand.

ATTORNEY FEES AND COSTS

¶18 Mother requests attorney fees and costs on appeals under
A.R.S. § 25-324 and ARCAP 21. Father requests attorney fees and costs
under A.R.S. § 25-324, ARCAP 21, and Rule 69(c) of the Arizona Rules of
Family Law Procedure. This court may award attorney fees after
considering the financial resources and reasonableness of the parents’ legal
positions. A.R.S. § 25-324.A. After considering the relevant factors, we
exercise our discretion and decline to award attorney fees.

¶19 As the successful party on appeal, we award mother her
reasonable costs upon compliance with ARCAP 21.

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CONCLUSION

¶20 We reverse and remand for further proceedings consistent
with this decision.

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

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