Campbell v. Newell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIC CAMPBELL, Petitioner/Appellant,

v.

RACHEL ANN NEWELL, Respondent/Appellee.

No. 1 CA-CV 24-0042 FC
FILED 09-26-2024

Appeal from the Superior Court in Maricopa County
No. FC2016-090785
The Honorable Keith A. Miller, Judge

AFFIRMED

COUNSEL

Scott Patterson PLLC, Tempe
By Scott L. Patterson
Counsel for Petitioner/Appellant

Rachel Ann Newell
Respondent/Appellee.

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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Michael S. Catlett and Judge Jennifer M. Perkins
joined.

H O W E, Judge:

¶1 Eric Campbell (“Father”) appeals from an order modifying
the previous legal decision-making authority order in favor of Rachel
Newell (“Mother”). Finding no abuse of discretion, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties have one child “Leila” (a pseudonym), born in
2013. Leila has significant behavioral issues and has an individualized
education plan (“IEP”) at her school. She does not have any formal medical
diagnosis, but several treating physicians have suggested that she has
ADHD. Because of her behavior, she is in a general education classroom for
approximately 80% of the day, and the remaining time she spends in special
smaller classroom settings. Leila is intelligent but often is unable to regulate
her emotions and physically lashes out at her teachers and peers. She sees
a therapist on a regular basis.

¶3 In 2016, Father filed for divorce. In its judgment dissolving the
marriage, the superior court awarded both parties joint legal decision-
making authority. In 2019, Father petitioned to modify legal decision-
making authority. He sought sole legal decision-making authority over
Leila’s medical and educational decisions because he alleged that Mother
refused to co-parent with him and that the parties disagreed about the
medical and education plans necessary to address Leila’s behavioral issues.
Mother in turn sought joint legal decision-making with final decision-
making authority.

¶4 The court found that a substantial change in circumstances
had occurred because the parties were unable to reach agreements on the
proper medical and educational course necessary to treat Leila’s behavioral
issues. The court awarded Father final decision-making authority because
it found that Father was more open to considering Mother’s input when
making decisions for Leila.

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¶5 After the order, the parties continued to have frequent
disputes about Leila’s education and medical needs. Leila went several
months with untreated cavities because the parties could not agree on a
dentist. Father used his final decision-making authority over Mother’s
objections in many instances, including (1) choosing a dentist,
(2) vaccinating Leila against Covid-19, and (3) continuing to send Leila to a
therapist with whom Mother disagreed. During their disputes, Father often
was dismissive or used disparaging language in his communications. When
Mother objected to vaccinating Leila against Covid-19, Father responded by
implying Mother’s medical views were responsible for the recent death of
her daughter from another relationship who suffered from a childhood
illness. Father also would often not respond within 24 hours despite the
2019 order’s requirement to do so. He scheduled meetings involving Leila
and submitted a school program application without first seeking Mother’s
input.

¶6 In 2023, Mother petitioned to modify the 2019 order. She
sought final authority to make educational and medical decisions for Leila
when the parties could not agree. She alleged that Father “engaged in acts
that discredit any form of decision-making authority to Mother,” including
switching Leila’s dentist and scheduling appointments without her input,
engaging in “verbally abusive” communications, and consistently making
decisions Mother objected to. At trial, the parties principally disputed
whether Leila should continue at her current school or move to a more
restrictive environment and whether Leila should continue seeing her
current therapist.

¶7 The court awarded Mother final decision-making authority
when the parties could not reach an agreement after a “good faith effort.”
The court did not issue stand-alone change-in-circumstances findings.
Rather, the court first found under A.R.S. § 25-403.01(B)(1) as to “[t]he
agreement or lack of an agreement by the parents regarding joint legal
decision-making” that “Father’s utilization of final-say legal decision-
making has been unreasonable.” The court further found under A.R.S. § 25-
403.01(B)(3) as to ability of the parents to cooperate in decision-making that
“[t]he parties have a long history of difficulty in cooperating in legal
decision making.”

¶8 Then in its best-interests findings under A.R.S. § 25-403(A)(1)
for the relationship between parents and child, the court found that
“Father’s derogatory communication is so significant that it justifies this
Court’s modification of legal decision-making.” Specifically, the court
found that “[t]he intervening four years [since the 2019 order] have not

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resulted in any appreciable improvement in the parties’ ability to
communicate. And the evidence presented at trial shows Father repeatedly
degrading Mother and her parenting abilities and giving no degree of
deference to Mother’s opinions on medical care and educational decisions.”
Under the same factor, the court also found that both parties have close
relationships with Leila.

¶9 On the other best-interests factors, the court found that either
the evidence did not support the factors or the factors were positive or
neutral as to both parties. As relevant, the court found under A.R.S. § 25-
403(A)(3) that the parties disagreed whether Leila should continue at her
school and that “testimony at trial indicated that she is not improving there
as much as anyone would like.” The court also found under A.R.S. § 25-
403(A)(5) that Leila “has been diagnosed with Generalized Anxiety
Disorder and Attention Deficit Hyper Activity Disorder. Her issues have
contributed to a significant period of time at her school in a special needs
room.” But the court did not find mental or physical health concerns for
either parent under the same factor. The court did not make any findings
about specific educational or medical decisions but found “based upon [all
of] the above, it is in the child’s best interest that [the parties] be awarded
joint legal decision-making authority.”

¶10 The court certified its order as a final judgment pursuant to
Arizona Rule of Family Law Procedure 78(c). Father timely appealed and
we have jurisdiction. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).

DISCUSSION

¶11 When considering a petition to modify legal decision-making
authority, the superior court first considers “whether there has been a
change of circumstances materially affecting the welfare of the child.”
Backstrand v. Backstrand, 250 Ariz. 339, 343 ¶ 14 (App. 2020) (quoting Black
v. Black, 114 Ariz. 282, 283 (1977)). If the court finds a change in
circumstances, it may then consider whether a modification is in the child’s
best interests by applying the factors in A.R.S. § 25-403(A). Id. The party
seeking a modification has the burden of proof. Id. The court has “broad
discretion to decide whether a change of circumstances has occurred.” Id.
We will affirm the court’s legal decision-making order absent an abuse of
discretion. Id. An abuse of discretion exists when the trial court makes an
error of law, State v. Bernstein, 237 Ariz. 226, 228 ¶ 9 (2015), or when “the
record, viewed in the light most favorable to upholding the trial court’s
decision, is ‘devoid of competent evidence to support’ the decision,” Little
v. Little, 193 Ariz. 518, 520 ¶ 5 (1999) (citation omitted).

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I. Change in Circumstances.

¶12 Father argues that circumstances have not changed since the
2019 order to justify the 2023 order. Specifically, Father argues (1) the
parties continue to have disputes regarding parenting decisions and
difficulty communicating, (2) Leila continues to have significant behavioral
issues, and (3) Leila continues to receive the same services.

¶13 Father implies that to find a change in circumstances, the
court must find that all circumstances have changed. But the court need
determine only that “there has been a change of circumstances materially
affecting the welfare of the child.” Backstrand, 250 Ariz. at 343 ¶ 14.

¶14 Evidence supports the court’s finding that Father has
unreasonably failed to take Mother’s input into account when making
decisions about Leila and communicated with Mother derogatorily. See
A.R.S. § 25-403.01(B)(1), (2) (the court must consider whether the parents
agree to joint legal decision-making and whether any lack of agreement is
unreasonable), (3) (the parties’ history and future ability to cooperate).
When Mother expressed concerns about vaccinating Leila against Covid-19,
Father responded by implying she was responsible for the death of her
other daughter who had recently died from medical complications. Father
also scheduled a meeting with Leila’s therapist to create a new treatment
plan on a day Mother could not attend and submitted a school program
application without first notifying Mother. Father would often take over a
day to respond in violation of the 2019 order’s instruction to respond within
24 hours.

¶15 Father’s dismissive and inappropriate communications with
Mother constitute a change in circumstances. When a court orders joint
legal-decision making with one party having final authority, the court
obliges both parties to engage in good-faith consultation. Nicaise v.
Sundaram, 245 Ariz. 566, 568–69 ¶¶ 14–15 (2019). Because of this obligation,
final decision-making authority is not sole legal decision-making authority.
Id.; see Adkisson v. Keith, 1 CA-CV 20-0193 FC, 2021 WL 248168, at *3 ¶ 14
(Ariz. App. Jan. 26, 2021) (mem. decision) (“[G]ranting tie-breaking
authority does not transform a joint decision-making order into a sole
decision-making order.”). Indeed, when the court awarded Father final
decision-making authority in 2019, the court ordered that each party “shall
give good faith consideration to the views of the other and put forth best
efforts to reach a consensus decision” and engage in “reasonable
consultation.” Father implies that if he was not giving good-faith
consideration to Mother’s views before the 2019 order, then his current lack

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of consideration for Mother’s views does not constitute a change in
circumstances. But Father’s contention would effectively eliminate the 2019
order’s good-faith requirement. In other words, the 2019 order presumes as
a baseline that the parties will engage in good-faith discussions or
reasonable consultation.

¶16 Further, to award both parties joint legal decision-making
authority, the court must consider whether the parties agree and, if they do
not, whether the lack of an agreement is unreasonable. See A.R.S. § 25-
403.01(B)(1), (2). The court must also take into account the parties’ ability to
cooperate. See A.R.S. § 25-403.01(B)(3). Here the court found both that
Father’s lack of agreement on decisions about Leila was unreasonable and
that Father and Mother have a history of difficult cooperation. Thus,
notwithstanding Father’s long history of conflict with Mother, A.R.S. § 25-
403.01(B) affords the court discretion to find that a party’s unreasonableness
and difficulty in cooperating on legal decision-making constitute a change
in circumstances.

¶17 Finally, a failure to engage in good-faith discussions or
reasonable consultation is a circumstance materially affecting Leila’s
welfare. When a court determines legal decision-making authority, the
court can order either joint legal decision-making or sole legal decision-
making. A.R.S. § 25-403.01(A). By disregarding Mother’s opinions, Father
has effectively converted his final decision-making authority into sole
decision-making authority. As discussed, Father and Mother disagree on
important aspects of Leila’s educational and medical needs, see supra ¶ 6.
Father has exercised his final authority to choose Leila’s dentist and
therapist as well as vaccinate her. These are all decisions that materially
affect her welfare.

¶18 The court did not abuse its discretion in finding a change in
circumstances materially affecting the welfare of Leila.

II. Best Interests.

¶19 Father argues the superior court did not make sufficient best-
interests findings to change the parties’ legal decision-making authority.
“In a contested legal decision-making . . . case, the court shall make specific
findings on the record about all relevant factors and the reasons for which
the decision is in the best interests of the child.” A.R.S. § 25-403(B). Father
argues that the court did not (1) sufficiently describe Leila’s relationship
with her parents under A.R.S. § 25-403(A)(1); (2) make findings on Leila’s
relationships with siblings and other significant persons under A.R.S. § 25-

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403(A)(2); (3) include any findings about Leila’s adjustment to either party’s
home, her school, or either party’s community under A.R.S. § 25-403(A)(3);
and (4) fully appreciate the extent of her “emotional disabilities” under
A.R.S. § 25-403(A)(5).

¶20 Father further argues that the court did not consider all the
evidence but focused on a handful of disrespectful messages he sent to
Mother to the exclusion both of hundreds of other non-disrespectful
messages he sent. He argues that the court erred in focusing on his
degrading messages because Mother has the burden of proof and the court
must deny the petition if it did not consider all the factors or was not
presented with evidence on a statutory factor. He contends that the court
did not explain how its findings concerning his inappropriate
communications with Mother relate to Leila’s best interests. Finally, Father
argues the court’s findings were insufficient because Owen v. Blackhawk, 206
Ariz. 418 (App. 2003) required the court to issue detailed findings about
each statutory factor. Taken together, Father implies that the court was
required to, but did not, issue findings and orders on what educational and
medical interventions are in Leila’s best interests.

¶21 But the parties did not ask the court to determine Leila’s best
interests as to particular decisions. Mother petitioned to change legal
decision-making authority; she did not come to court to challenge a
particular decision that Father made. Further, Mother did not seek sole legal
decision-making authority but rather joint but final decision-making
authority. Thus, the parties sought that the court determine which party is
more capable of exercising legal decision-making authority in a way that
serves Leila’s best interests.

¶22 Here, the court made specific findings on the record about all
the relevant statutory factors. See A.R.S. § 25-403(B). Although Father
argues the court did not make sufficient findings because it failed to
consider various evidence, we presume the court considered all admitted
evidence before issuing a decision. Fuentes v. Fuentes, 209 Ariz. 51, 55 ¶ 18
(App. 2004). The court does not have to refer to each piece of evidence that
supports its ruling. Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 451–
52 ¶ 19 (App. 2007). It must include “the ‘ultimate’ facts—that is, those
necessary to resolve the disputed issues.” Elliott v. Elliott, 165 Ariz. 128, 132
(App. 1990). But the court need not detail the evidentiary basis on which
the ultimate fact was based. Christy C., 214 Ariz. at 451–52 ¶ 19. Thus, the
court did not need to make best-interests findings on each educational and
medical decision. The court needed to determine only if both parents are

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capable of exercising legal decision-making authority and who, if either,
should exercise final decision-making authority.

¶23 The court found that both parties have a close relationship
with Leila and that neither party has any mental or physical health issues,
neither of which Father disputes. See A.R.S. § 25-403(A)(1), (5). Thus, the
court could conclude that both parties are capable of legal decision-making.
See A.R.S. § 25-103(B)(2)25-103(B)(2) (“[A]bsent evidence to the contrary, it
is in a child’s best interest: [t]o have both parents participate in decision-
making about the child.”). Although the parties disputed many aspects of
Leila’s upbringing, the court heard Mother testify about all issues,
including Father’s lack of consideration for her views. See Lehn v. Al-
Thanayyan, 246 Ariz. 277, 284 ¶ 20 (App. 2019) (noting we do not reweigh
the evidence or judge witness credibility on appeal); Hurd v. Hurd, 223 Ariz.
48, 52 ¶ 16 (App. 2009) (noting the appellate court will affirm the superior
court’s ruling if substantial evidence supports it, even if conflicting
evidence exists). The court then found under A.R.S. § 25-403.01(B)(1) and
(3) that the parties have a long history of difficult cooperation on legal
decision-making and that Father’s lack of agreement has been
unreasonable. The court also found under A.R.S. § 25-403(A) that Father is
incapable of respectfully considering Mother’s views. The court’s findings
about Father’s unreasonableness and lack of respect for Mother’s views
directly relate to A.R.S. § 25-403.01(B)(2), (3). Thus, although the superior
court should have placed its findings about the nature of the parents’
relationship under -403.01(B)(2) and (B)(3) instead of under -25-403(A)(1),
those findings support modification.

¶24 Finally, Owen is distinguishable from this case. In Owen, the
court did not make findings on all the factors, and the factors the court did
make findings on did not weigh in favor of either parent. 206 Ariz. at 421
¶ 12. Here, the court’s findings made clear that, while some factors were
neutral, A.R.S. §§ 25-403(A)(1), 25-403.01(B) strongly weighed in Mother’s
favor because Mother, but not Father, is more likely to take the other party’s
input into account. The court’s factual findings were sufficient.

III. Constructive Sanction.

¶25 Father also argues that the court improperly modified the
legal decision-making order as a sanction against Father because it found
that Father had “degraded Mother and her parenting abilities and had
given no degree of deference to Mother’s opinions on medical care and
educational decisions.” Specifically, Father argues the order “violates Hays

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v. Gama because the court imposed a constructed sanction on Father that
will have a significant impact on the child.”

¶26 But Hays v. Gama, 205 Ariz. 99 (2003) is not relevant because
the court did not sanction Father. Hays addressed a dissolution proceeding
in which the father moved for sanctions against the mother for violating a
court order and the court granted sanctions against the mother under its
inherent contempt power. Id. at 99, 100–102 ¶¶ 1, 7–8, 17. Those sanctions
included an award of attorney fees and the exclusion of a witness, among
others. Id. at 101 ¶¶ 9–10. Here, neither Mother requested nor did the court
sua sponte order sanctions against Father. Father does not cite any caselaw
supporting the existence of a “constructed sanction.” Essentially, Father
does not believe the court acted in Leila’s best interests by finding that his
“derogatory communication is so significant that it justifies [the
modification].” But Father’s disagreement with the court’s analysis and
attempt to divine its intent does not convert its order into a sanction. The
court did not err.

IV. Costs on Appeal.

¶27 As the successful party on appeal, Mother is entitled to an
award of her costs under A.R.S. § 12-342 upon compliance with Arizona
Rule of Civil Appellate Procedure 21.

CONCLUSION

¶28 We affirm.

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

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