Lazzara v. Parker

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LAWRENCE LAZZARA, Petitioner/Appellee,

v.

JOY PARKER, Respondent/Appellant.

No. 1 CA-CV 24-0159 FC
FILED 10-31-2024

Appeal from the Superior Court in Maricopa County
No. FC2017-005506
The Honorable Melissa Zabor, Judge

AFFIRMED

COUNSEL

Reardon House Colton PLC, Scottsdale
By Kristi A. Reardon, Taylor S. House
Co-Counsel for Petitioner/Appellee

Law Office of Carissa K. Seidl PLLC, Phoenix
By Carissa Seidl
Co-Counsel for Petitioner/Appellee

Cervone Law P.C., Phoenix
By Kristina L. Cervone
Counsel for Respondent/Appellant
 LAZZARA v. PARKER
Decision of the Court

MEMORANDUM DECISION

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

P E R K I N S, Judge:

¶1 Joy Parker (“Mother”) appeals from the superior court’s order
that granted Lawrence Lazzara (“Father”) increased parenting time and
sole legal decision-making. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Mother married in 2006 and have two sons
together. The older son, Calvin (a pseudonym), attends several therapies
each week to help with his severe autism. The younger, Noah (also a
pseudonym) attends psychotherapy sessions. In 2017, Father filed for
divorce. The 2017 dissolution decree awarded joint legal decision-making
and granted Mother slightly more weekly parenting time.

¶3 The parties operated under this agreement for roughly four
years. During this time, Father remarried and bought a large house with
ample space for Calvin’s therapies. Father asked Mother if Calvin could do
his therapies at the new house and asked for equal parenting time. Mother
refused, telling Father to “[g]o ahead and serve me with papers.” Father
petitioned in October 2021 for equal parenting time. In his pretrial
statement, he asked for sole legal decision-making or, in the alternative,
final say. Mother asked the court to affirm joint legal decision-making and
the original parenting time decree.

¶4 Before a February 2022 temporary orders hearing, the parties
partially agreed to co-parenting terms. During that hearing, the court found
a substantial change in circumstances because Mother stopped following
the parenting schedule the two parties had followed for years.

¶5 During litigation over Father’s petition, Mother
misrepresented things to the court, refused to submit evidence, and even
destroyed evidence. She made derogatory statements against Father while
attempting to persuade his family to support her agenda. While still caring
for the children under joint legal decision-making, Mother unilaterally

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terminated Noah’s psychotherapy appointments, attempted to circumvent
Father’s wishes when enrolling Noah with a new therapist, regularly
showed up late to exchange the children with Father, and falsely reported
to mandatory reporters that Father abused and neglected the children.

¶6 In May 2023, the superior court awarded Father sole legal
decision-making authority (the “May Order”) because the record showed
Mother acted not for the best interests of the children but “to inflict the
greatest possible damage on Father.” Mother also “violate[d] the Court’s
order regarding joint legal decision-making.” The court noted Father made
92% of the combined annual income but found Mother so unreasonable
during litigation it awarded Father a portion of his attorney fees.

¶7 Thereafter, Father had Calvin’s genitals shaved to help with
hygiene. Mother accused Father of sexually assaulting their autistic son
through the shaving incident and moved to alter or amend the May Order,
relying on that incident as “newly discovered material evidence.” Mother
thought this incident “illuminate[d] the past” and wanted the court “to
simply have . . . a new trial” because a different judge now presided over
the case. The court denied her motion.

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

DISCUSSION

¶9 On appeal, Mother challenges the May Order, the denial of
her motion to alter or amend, and the court’s award of attorney fees to
Father.

I. May Order

¶10 “[A] court may modify a parenting plan only if it first finds a
material change of the circumstances affecting the child’s welfare since the
last court order.” Backstrand v. Backstrand, 250 Ariz. 339, 341, ¶ 1 (App. 2020).
If the court finds a change, it then “determine[s] whether a change in the
parenting plan will be in the child[ren]’s best interests” by applying the
relevant factors in A.R.S. § 25-403(A). Id. The court has “broad discretion to
decide whether a change of circumstances has occurred.” Id. at 343, ¶ 14.
We will affirm the court’s legal decision-making order absent an abuse of
discretion. Id. The court abuses its discretion when it commits an error of
law in reaching a discretionary decision or when the record does not

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support the court’s decision. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App.
2019).

¶11 Mother challenges the May Order for two reasons: (1) the
court did not make a proper change in circumstances finding, and (2) the
court did not consider and make sufficient findings on the required best
interests factors. She generally contends the evidence supports neither a
change in circumstances nor a finding that awarding Father sole legal
decision-making was in the children’s best interests.

A. Change in Circumstances

¶12 Mother argues the court never made a proper change in
circumstances finding. During the temporary orders hearing in early 2022,
the court found “there ha[d] been a material change [in circumstances]”
because the parties failed to co-parent as they had before. The court based
its final decision on these changed circumstances, explicitly found during
the temporary orders hearing. In its May Order the court reiterated in detail
the facts supporting its earlier change in circumstances finding.

¶13 In addition to challenging the sufficiency of the court’s change
in circumstances finding, Mother challenges its evidentiary basis. The
record supports the court’s finding of “a change of circumstances materially
affecting the welfare of the [children].” Backstrand, 250 Ariz. at 343, ¶ 14
(quoting Black v. Black, 114 Ariz. 282, 283 (1977)). Mother ignored Father’s
input on the children’s medical decisions and subsequently attempted to
exclude him from making decisions about the children’s mental and
physical care. The co-parenting that the previous orders relied on no longer
existed. The court did not err in finding a change in circumstances to
warrant the modifications it ordered.

B. Sufficient Findings

¶14 Mother next argues the superior court failed to consider and
make sufficient findings on the required best interests factors. “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). When
making a change to the level of decision-making, the court must consider
four additional, mandatory factors: (1) the agreement of the parents
regarding joint legal decision-making, (2) whether the parents’ lack of
agreement comes from something other than the children’s best interests,
(3) the abilities of the parents to cooperate in decision-making, and (4) the
logistics of joint legal decision-making. A.R.S. § 24-403.01(B).

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¶15 Mother insists this case is similar to Owen v. Blackhawk, in
which we rejected as insufficient the superior court’s “list[ing] some
statutory factors by number” without analysis. Owen v. Blackhawk, 206 Ariz.
418, 421, ¶ 12 (App. 2003). But the court here provided ample analysis, albeit
without specific statutory citations for each factor considered. The court’s
detailed minute entry contemplated the children’s best interests,
considering the relevant factors listed in Section 25-403(A). The court also
addressed the factors Section 25-403.01 mandates. We decline Mother’s
invitation to elevate form over substance when, as here, the court explicitly
addressed the substance of the required factors.

¶16 Next, Mother contends the court improperly weighed the
evidence because it failed to consider Father’s admission that he and
Mother agreed on parenting matters 90 percent of the time. We do not
reweigh evidence. See Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52, ¶ 11 (App.
2009). And we will not substitute our judgment for the superior court’s in
how to weigh the evidence. The court did not abuse its discretion when
weighing the statutory factors.

II. Rule 83 Motion

¶17 Mother argues the court erred in denying her motion to alter
or amend under Arizona Rule of Family Law Procedure 83(a)(1)(E) because
the shaving incident was newly discovered evidence the court needed to
consider. We review a court’s ruling on a motion to alter or amend for an
abuse of discretion. Wisniewski v. Dolecka, 251 Ariz. 240, 241, ¶ 5 (App. 2021).
Under Rule 83, “[t]he court may . . . alter or amend all or some of its rulings”
if “newly discovered material evidence that could not have been discovered
and produced at the trial with reasonable diligence” would “materially
affect[] a party’s rights.” Ariz. R. Fam. Law P. 83(a)(1)(E). This “newly
discovered evidence must have been in existence at the time of the trial.”
Wendling v. Sw. Sav. & Loan Ass’n, 143 Ariz. 599, 602 (App. 1984) (analyzing
Arizona Rule of Civil Procedure 59); see also Watson v. Ford, 1 CA-CV 21-
0193 FC, 2022 WL 1223811, at *3, ¶ 15 (Ariz. App. Apr. 26, 2022) (mem.
decision) (applying Wendling to Rule 83 motions). Because the shaving
occurred after trial, it could not be evidence that existed at the time of trial
and did not provide a proper basis for a Rule 83 motion. The superior court
properly denied Mother’s motion.

III. Attorney Fees

¶18 After it considered that Father made significantly more than
Mother and Mother’s unreasonable acts during litigation, the court

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awarded Father a portion of his attorney fees. Mother argues the court
abused its discretion because Father made more money than she did, and
he took unreasonable positions during litigation.

¶19 The court may award attorney fees after considering (1) the
parties’ financial resources and (2) the reasonableness of their positions
throughout litigation. A.R.S. § 25-324(A). We review an award of attorney
fees for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6
(App. 2014). “Balancing and evaluating factors pertinent to an award of
attorney[] fees is within the superior court’s discretion, and this court will
not substitute its discretion for that of the superior court.” Ferrill v. Ferrill, 253 Ariz. 393, 399, ¶ 25 (App. 2022). We decline Mother’s request for us to
reweigh the statutory factors and substitute our judgment for that of the
superior court in its fee award.

¶20 Both parties now request attorney fees under A.R.S. § 25-324.
In our discretion, and after considering the parties’ financial resources and
positions taken on appeal, we award Father a portion of his reasonable
attorney fees on appeal. Father is entitled to costs upon compliance with
ARCAP 21.

CONCLUSION

¶21 We affirm.

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

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