Schritter v. Schritter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TANNER JAY SCHRITTER, Petitioner/Appellee,

v.

LORINDA LYNN SCHRITTER, Respondent/Appellant.

No. 1 CA-CV 23-0550 FC
FILED 10-01-2024

Appeal from the Superior Court in Mohave County
No. S8015DO201700175
The Honorable Megan A. McCoy, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin (argued)
Counsel for Petitioner/Appellee

Silk Law Office, Lake Havasu City
By Melinda Silk
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Lorinda Lynn Schritter (“Mother”) appeals from the
post-decree orders modifying parenting time and child support, denying
her petition to modify legal decision-making authority, and awarding
attorney’s fees to Tanner Jay Schritter (“Father”). We affirm the orders on
parenting time and legal decision-making, but we vacate the child-support
order and remand for reconsideration using a correct parenting time
adjustment. Because we vacate the child-support order, we also vacate the
attorney’s fees award without prejudice.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties divorced in 2018 and have one child, who was
born in 2015. Father lives in Kingman, and Mother lives in Gilbert. As
ordered in the dissolution decree (“2018 Dissolution Decree”), they shared
equal parenting time and joint legal decision-making authority, with Father
having the final say when they could not agree.

¶3 In 2019, both parties petitioned to modify, asking for sole legal
decision-making authority. In May 2020, the court awarded Father sole
legal decision-making authority and primary physical custody (“2020
Modification Order”). Because the child would start attending school, the
court awarded Mother parenting time every other weekend, every
Thanksgiving, on alternating Christmas holidays, and all school breaks
longer than five days. For winter breaks, in odd years, Father had the child
from the last day of school until December 27. During the summer, the child
lived mainly with Mother, with Father having parenting time every other
weekend. Father’s parenting time included one seven-day vacation every
summer. Mother unsuccessfully appealed the order. See Schritter v. Schritter,
1 CA-CV 20-0399 FC, 2021 WL 3089042, at *1, 5–7, ¶ 1 (App. July 22, 2021)
(mem. decision).

¶4 The current appeal follows Father’s November 14, 2022,
petition to modify parenting time in which he asked for a more equal

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allocation of school breaks. He alleged that spending some holidays with
his family was in the child’s best interests. Mother moved to dismiss the
petition, arguing that no substantial and continuing change affected the
child’s welfare. The superior court denied the motion to dismiss.

¶5 In February 2023, Mother responded and counter-petitioned
for joint legal decision-making authority. She again argued that Father had
not shown a change in circumstances warranting a change in parenting
time. Mother argued that the court should order joint legal decision-making
and award her attorney’s fees because Father abused his sole legal
decision-making authority. Alternatively, she requested primary physical
custody and child support.

¶6 As support for his modification request, Father responded
that he and his wife now have a two-year-old son with whom the child
cannot share most holidays, which constitutes a changed circumstance.
Father separately petitioned to modify child support because Mother was
no longer unemployed, and thus her income increased from the 2020
Modification Order.

¶7 After an evidentiary hearing in April 2023, the court denied
Mother’s request for joint legal decision-making authority. It granted Father
alternate Thanksgivings, a ten-day summer vacation instead of the
previous seven-day vacation, and equally divided school breaks longer
than five days. The court did not modify the Christmas break schedule. The
court also issued orders governing communication and parenting time
exchanges, and limiting what the parents could send to the child at the other
parent’s home. Mother’s child support obligation increased from $148 to
$493 monthly starting December 1, 2022.

¶8 The superior court denied Mother’s motion to alter or amend
the ruling. It awarded Father his attorney’s fees and costs related to the
motion to alter or amend, finding Mother merely “rehash[ed] the issues
already addressed.” Mother timely appealed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) §§ 12-2101(A)(2) and -120.21(A)(1).

DISCUSSION

I. Mother Cannot Appeal the Decision to Grant an Evidentiary
Hearing on Father’s Modification Petition.

¶9 A petition to modify legal decision-making or parenting time
requires a two-step analysis in the superior court. Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020). A court must first determine whether

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changed circumstances materially affecting the child’s welfare exist. Id. If
the court finds such a change, it must determine whether the modification
is in the child’s best interests. Id.

¶10 At the first step, the modification petition must set “forth
detailed facts supporting the requested modification.” A.R.S. § 25-411(L).
The superior court will deny the petition unless it finds adequate cause
outlined in the pleadings. Id. Adequate cause for modification requires
“more than mere conclusory allegations that a child’s best interests would
be served by a change of custody.” Pridgeon v. Superior Court, 134 Ariz. 177,
182 (1982).

¶11 Mother contends the court erred by granting a hearing
because Father’s petition failed to allege adequate cause. Mother’s request
for relief on appeal is untimely. See In re Marriage of Dorman, 198 Ariz. 298,
302-03, ¶ 11 (App. 2000). The modification procedure in A.R.S. § 25-411(L)
serves as a screening function and is intended to “prevent repeated or
insubstantial” modification petitions. Id. at 302, ¶ 11 (quoting Uniform
Marriage and Divorce Act § 410, cmt. 9A U.L.A. 538 (1998)). Waiting until
after the hearing and final modification decision to argue that the
modification petition was inadequate means the parties have already gone
through the time and expense of discovery and a hearing. At that point, “[i]t
is too late to obtain effective appellate review of alleged noncompliance
with the prehearing procedural requirements of § 25-411.” Id. at 303, ¶ 11;
see also Sundstrom v. Flatt, 244 Ariz. 136, 138, ¶ 8 (App. 2017).

¶12 Moreover, because the hearing already occurred, we may
have evidence that the modification was warranted even if the allegations
in the initial petition were insufficient. Thus, the “appellant will have great
difficulty showing prejudice from an error in the preliminary verification
or screening procedures under § 25-411 after a hearing has occurred.”
Dorman, 198 Ariz. at 303, ¶ 12. The correct way to challenge the superior
court’s decision to allow a hearing on an allegedly deficient modification
petition is by special action. Id.; see also Ariz. R.P. Spec. Act. 1(a) (A special
action is warranted when there is no “equally plain, speedy, and adequate
remedy by appeal.”). For the same reason, we do not address Mother’s
argument that the court erred by denying her motion to dismiss before her
reply was due.

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II. The Superior Court Did Not Abuse Its Discretion by Amending
Parenting Time and Affirming Sole Legal Decision-Making
Authority.

¶13 We review the modification decision for an abuse of
discretion. Backstrand, 250 Ariz. at 343, ¶ 14. An abuse of discretion occurs
“when the record is devoid of competent evidence to support the decision.”
Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018) (quotation
omitted).

A. The Superior Court Had Sufficient Evidence About
Changed Circumstances to Modify Parenting Time.

¶14 Mother contends that Father did not show changed
circumstances or that a modification of parenting time was in the child’s
best interests. A superior court may find a “material change of
circumstances when the change has caused the original decree to serve its
purpose no longer.” Backstrand, 250 Ariz. at 344, ¶ 17. The superior court
found that changed circumstances affecting the child’s welfare existed
because the child had started school since the last parenting time order, and
the passage of time showed the existing schedule did not work or “fully
consider the child’s current living situation.” Father and his wife also had a
baby after the last order. The record supports these findings and justifies a
changed circumstances determination.

¶15 The effect of the holiday schedule at the time of the 2020
Modification Order was unknown because the child had not yet started
school. For example, before the child started school, Mother had four days
for Thanksgiving, but because the Thanksgiving break during school was a
full week, Mother had the child for ten days. The child told Father he
wanted to travel with Father’s extended family during the holidays.
According to Father, the child could not celebrate Thanksgiving or other
holidays with his new brother or extended family because of the limited
holiday schedule.

¶16 While Mother may disagree about the weight the superior
court should give the evidence, “[w]e will not substitute our judgment by
reweighing the evidence underlying the court’s best-interests analysis.”
Backstrand, 250 Ariz. at 346, ¶ 27; see also Vincent v. Nelson, 238 Ariz. 150, 155,
¶ 18 (App. 2015) (Appellate courts defer to the superior court’s credibility
determinations and resolution of conflicting evidence.). Thus, the record
supports the superior court’s finding of changed circumstances.

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B. The Superior Court Correctly Engaged in a Best Interests
Analysis.

¶17 The second step of the modification inquiry requires the
superior court to determine whether a change is in the child’s best interests.
Backstrand, 250 Ariz. at 345, ¶ 25. To determine the child’s best interests, a
court considers the relevant factors from A.R.S. §§ 25-403 through -403.04.

¶18 As for parenting time, the superior court found the child’s
ability to spend time with his half-sibling and Father’s extended family was
in the child’s best interests, which the schedule in place at the time did not
allow. The court also found the parties’ “minimal cooperation” led to an
inability to accommodate changes in parenting time.

¶19 Mother argues a modification was not warranted because the
evidence showed that the parties could cooperate. Mother presented
evidence that Father took the child on some trips and summer vacations
with extended family and that she agreed to some of Father’s requests to
trade parenting time. But apart from a trip to Hawaii, the trips occurred
during Father’s regularly scheduled parenting time and did not involve
holidays. Mother also denied Father’s request to take the child on a
spring-break trip with his extended family in 2022.

¶20 Mother’s disagreement with the court’s finding that the
parties could not cooperate on parenting time does not establish an abuse
of discretion. We defer to the superior court’s credibility determinations
and resolution of conflicting evidence. Backstrand, 250 Ariz. at 346, ¶ 27.

¶21 Mother also challenges many of the superior court’s findings
about its decision to affirm Father’s sole legal decision-making. Again,
much of Mother’s argument asks this court to view or weigh conflicting
evidence differently. “Even though conflicting evidence may exist, we
affirm the [superior] court’s ruling if substantial evidence supports it.”
Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).

¶22 The superior court declined to modify Father’s sole legal
decision-making authority because the parties struggled to agree on
decisions affecting the child. Mother denies this finding, arguing that she
complied with Father’s request to take the child to a specific doctor, but
Father would not fill the prescription. Father’s evidence showed that the
doctor agreed the prescription was unnecessary after speaking to Father
about the child’s medical history. This event shows an inability to agree on
medical issues that supports the court’s ruling.

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¶23 The superior court also concluded that the parties’ disputes
were disproportionate to the topic. For example, the court mentioned a
dispute over a Halloween costume during Father’s parenting time that
involved Mother’s inability to respect Father “during his parenting time,”
not Father’s abuse of his sole authority. Given the disagreement over
similar issues, the record supports the finding that the parties cannot
cooperate to the degree needed for joint decision-making. See A.R.S.
§ 25-403.01(B)(3) (The level of decision-making is based on “past, present,
and future abilities of parents to cooperate.”). Similarly, the findings about
which parent is more likely to allow frequent, meaningful, and continuing
contact with the other parent are based on the court’s weighing of the
parties’ testimony and resolution of conflicting evidence to which we defer.
A.R.S. § 25-403(A)(6); Backstrand, 250 Ariz. at 346, ¶ 27.

¶24 We also reject Mother’s argument that the superior court
erroneously referred to the prior orders in its best interests findings. The
court cited the orders to highlight the parents’ continued inability to
co-parent or cooperate, which was relevant in determining whether joint
legal decision-making authority was in the child’s best interests. See A.R.S.
§ 25-403.01(B)(2) (The level of legal decision-making is based on whether
the reason for the parents’ disagreement is unreasonable or unrelated to the
child’s best interests.); § 25-403.01(B)(3) (“past, present, and future abilities
of parents to cooperate in decision-making”); § 25-403.01(B)(4) (“[w]hether
[a] joint legal decision-making arrangement is logistically possible”).

¶25 Mother erroneously asserts that the superior court did not
consider the child’s relationship with her two friends, whom she considers
part of her extended family, or their testimony about the child’s adjustment
to home, school, and community. See A.R.S. § 25-403(A)(2) (relationship
with “any other person who may significantly affect the child’s best
interest”); § 25-403(A)(3) (“adjustment to home, school, and community”).
These witnesses merely testified about their observations and what the
child told them, not about their relationships with the child. The court
considered these witnesses and concluded they were not credible.

¶26 We also reject Mother’s contention that the superior court
diminished her role by stating the child was well-adjusted to his “visits”
with Mother. Although “visitation” is no longer part of the statutory
parenting-time language, we do not presume judicial bias or misapplication
of the law because the court referred to Mother’s parenting time as
visitation. See Hart v. Hart, 220 Ariz. 183, 188, ¶ 18 (App. 2009) (We presume
the superior court knows and applies the correct legal standard.); State v.

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Ramsey, 211 Ariz. 529, 541, ¶ 38 (App. 2005) (Judges are “presumed to be
free of bias and prejudice.”).

¶27 Next, Mother argues that the superior court erroneously
found that the lack of domestic violence favored Father when considering
which parent is more likely to allow frequent, meaningful, and continuing
contact with the other parent. See A.R.S. § 25-403(A)(6). We presume the
court referred to the lack of domestic violence here because A.R.S.
§ 25-403(A)(6) does not apply if a parent refuses contact to protect the child
from domestic violence. The order suggests that the court concluded the
A.R.S. § 25-403(A)(6) factor favored Father as the remaining findings
established that Father was more likely to allow contact with Mother.
Again, Mother disputes the court’s view of the evidence, but we will not
reweigh the evidence on appeal. Backstrand, 250 Ariz. at 346, ¶ 27. Because
the court found that no domestic violence occurred, it properly stated that
the domestic violence factor did not apply.

¶28 Lastly, Mother argues that the superior court violated A.R.S.
§ 25-411(J) by restricting her parenting time without a finding of serious
endangerment. But reducing parenting time does not constitute a
restriction under A.R.S. § 25-411(J). Gonzalez-Gunter v. Gunter, 249 Ariz. 489,
492, ¶ 13 (App. 2020). Thus, the statute does not apply.

III. The Superior Court Did Not Violate Mother’s Due Process Rights.

¶29 The superior court ordered (1) the parties not to communicate
with each other during parenting time exchanges, (2) the party dropping
off the child must remain in the car, and (3) “[n]either parent may send
anything with the child or to the other parent’s home without permission.”
According to Mother, these orders violate due process and are not in the
child’s best interests.

¶30 We review allegations of due process violations de novo. Jeff D.
v. Dep’t of Child Safety, 239 Ariz. 205, 207, ¶ 6 (App. 2016). The superior court
has the authority to include procedures for parenting time exchanges,
parental communications, and to establish other procedures to protect the
child’s emotional and physical health under A.R.S. § 25-403.02(C)(4), (C)(7),
and (D). These orders fall within that authority, and the record supports
them.

¶31 Father provided evidence that Mother engaged in “long
goodbyes,” entered his car, and discussed parenting issues at the
exchanges, which upset the child. Father also testified that Mother often
sent cards and gifts to the child, which caused conflict between the child

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and the other children in Father’s home. He asked that Mother only send
gifts on special occasions, but she refused. Although Mother disputed
Father’s report and noted that Father once sent a gift to the child, we do not
reweigh the evidence. Backstrand, 250 Ariz. at 346, ¶ 27. The evidence
supports the superior court’s orders for parenting time procedures as they
are in the child’s best interests. Thus, Mother’s due process rights were not
violated.

IV. The Superior Court Correctly Modified Child Support but
Erroneously Applied the Parenting Time Adjustment.

¶32 The superior court modified the child-support order from
$148 monthly to $493, starting December 1, 2022. This increase reflected
Mother’s increased income, Father’s new child, increased health insurance
costs, and a reduction in Mother’s parenting time. Mother argues the court
erred by starting the support order before Father filed the petition to modify
child support (February 6, 2023) and that the retroactive child-support
order applied an incorrect parenting time adjustment before May 1, 2023.
She also argues the court lacked sufficient evidence of Father’s income.

¶33 We review child support awards for an abuse of discretion.
Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018). “A court abuses its
discretion when the record lacks competent evidence to support its
findings.” Brucklier v. Brucklier, 253 Ariz. 579, 582, ¶ 10 (App. 2022). “We
‘accept the [superior] court’s findings of fact unless they are clearly
erroneous,’ but ‘draw our own legal conclusions from facts found or
implied in the judgment.’” McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6 (App.
2002) (citation omitted).

¶34 A modification order is “effective on the first day of the month
following notice of the petition for modification,” absent good cause for a
different date, but no earlier than the date the petition was filed. A.R.S.
§ 25-327(A). The court did not err by basing the start date on Father’s
petition to modify parenting time instead of the later petition to modify
child support because a court must determine the amount of child support
whenever it enters a parenting time order. A.R.S. § 25-403.09(A); see also
Heidbreder v. Heidbreder, 230 Ariz. 377, 379, ¶ 7 (App. 2012) (The obligation
to modify child support arises upon granting a petition to modify parenting
time under A.R.S. § 25-403.09(A).). Because Father’s November 14, 2022,
petition necessarily raised the issue of child support, the court did not abuse
its discretion by ordering a modification effective December 1, 2022.

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¶35 Even so, the superior court erred by using Mother’s reduced
parenting time to calculate the modified support order when the matter was
being litigated. The applicable 100-day parenting time adjustment did not
take effect until the court entered the modified order in April 2023. Before
that date, Mother exercised 130 days of parenting time. The court should
have applied that amount of time to the child support calculation from
December 1, 2022, until the modification was effective in April 2023. See
A.R.S. § 25-320 app. (“Guidelines”) § V(C) (A court calculates parenting
time costs by looking at the total yearly parenting time awarded to each
parent.). The court should have then entered a separate child-support order
reflecting the parenting time adjustment effective May 1, 2023. See Amadore
v. Lifgren, 245 Ariz. 509, 516, ¶ 19 (App. 2018) (A modification cannot take
effect before “the circumstances in a particular case became substantial and
continuing.”). Thus, the court erred by retroactively applying the 100-day
parenting time adjustment.

¶36 Next, Mother argues that the court erred by modifying child
support because Father violated Arizona Rule of Family Law Procedure
49(e)(2), which requires disclosure of tax returns for the past three years and
current income records. Father did not provide these documents. But rather
than moving to compel the information or requesting a continuance so she
could obtain them, Mother asked the court not to modify the child-support
order at the evidentiary hearing. See Ariz. R. Fam. Law P. 49(b)(3) (“A party
prejudiced by a failure to disclose . . . may seek the remedies identified in
Rule 65.”).

¶37 Mother does not dispute that she now earns twice the amount
reflected in the 2020 Modification Order or that Father has another child.
These are changed circumstances supporting the modification. See A.R.S.
§ 25-327(A). Mother asked the court to deny the modification. The court
cannot dismiss an action based on a party’s disclosure violation if dismissal
would go against the child’s best interests. See Ariz. R. Fam. Law P.
65(b)(1)(E).

¶38 Finally, Mother argues that the superior court relied on
incomplete financial information. The child-support order reflects Father’s
financial affidavit. The superior court considered Father’s explanation that
his 2022 financial records were unavailable. Father also denied having any
business tax returns to disclose related to the K-1 forms. Although this did
not explain his failure to disclose his 2019-2021 personal tax returns, Mother
did not seek appropriate relief, and we defer to the court’s evaluation of
Father’s testimony. Backstrand, 250 Ariz. at 346, ¶ 27.

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¶39 Even if the K-1s showed partnership income, the court has the
discretion to exclude non-continuing or non-recurring income when
calculating child support. See Guidelines § II(A)(1)(d). We presume the
court considered the K-1s as evidence and found it appropriate to exclude
any related income. See Rinegar v. Rinegar, 231 Ariz. 85, 90, ¶ 20 (App. 2012)
(Absent a request for written findings of fact and conclusions of law, “we
presume that the superior court found every fact necessary to support its
ruling.”).

¶40 We vacate the child-support order and remand for
recalculation to reflect the correct parenting time adjustment before the
court modified the parenting time. On remand, when entering a
child-support order with the correct parenting time adjustment, the
superior court should require the parties to supplement the record with
evidence of their income for the relevant period. Mother can request an
order compelling Father’s financial information to supplement the record
on remand if he fails to disclose the information.

V. While the Superior Court Acted Within Its Discretion to Award
Attorney’s Fees Related to Mother’s Motion to Alter or Amend, We
Vacate the Award Without Prejudice to Reconsider After Remand.

¶41 The superior court awarded Father $1,536.70 in attorney’s fees
and costs related to Mother’s motion to alter or amend, finding that the
motion rehashed Mother’s arguments at the trial. The court has the
discretion to award attorney’s fees, and we will affirm “if there is any
reasonable basis for [the award].” In re Marriage of Gibbs, 227 Ariz. 403, 410,
¶ 20 (App. 2011) (quotations omitted).

¶42 The record shows that Mother’s motion repeated her
arguments from the hearing about child support and parenting time
exchanges and asked the court to reweigh evidence supporting its best
interests findings. Alternatively, Mother contends that summary dismissal
was appropriate if her motion merely “rehashed” trial arguments, which
would have prevented Father from incurring fees to respond. The court’s
discretionary decision to order a response before summarily denying the
motion did not necessarily preclude an award of attorney’s fees. See Ariz.
R. Fam. Law P. 83(c)(2). We find no abuse of discretion. Because we are
vacating the child-support order for the error identified above, we also
vacate the attorney’s fees award without prejudice to reconsideration on
remand.

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ATTORNEY’S FEES AND COSTS ON APPEAL

¶43 Both parties request attorney’s fees and costs on appeal under
A.R.S. § 25-324. After considering the reasonableness of their positions and
financial resources, we order the parties to pay their own attorney’s fees
and costs.

CONCLUSION

¶44 We affirm the parenting time and legal decision-making
orders. We vacate the child-support order and remand for recalculation
consistent with this decision. We vacate the attorney’s fees order without
prejudice to reconsider on remand.

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

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