The Arizona Courts of Appeals have published several opinions on family law cases since January 2009. A summary of those decisions follows.
Kline v. Kline, A CA-CV 08-0050, Arizona Court of Appeals (Division One)
This case addressed whether an award of spousal maintenance obtained as part of a default judgment is valid under Rule 44(G) of the Arizona Rules of Family Law Procedure when the demand for maintenance was contained in an Amended Petition for Dissolution that was never formally served.
The facts are as follows: The wife filed for divorce in October 2005, and her Petition for Dissolution of Marriage was personally served on the husband. The Petition did not include a request for spousal maintenance. However, a week later the wife filed an Amended Petition for Dissolution that added a specific demand for spousal maintenance. The Amended Petition was mailed to husband's former attorney, but there was no evidence that formal service was ever accomplished.
Husband entered a special appearance to contest the jurisdiction of the Arizona court. The court found that it did have jurisdiction to proceed with the matter. Thereafter, wife filed a Petition for Temporary Orders. Husband's attorney made certain comments during the Temporary Orders hearing demonstrating that husband was aware that wife had requested spousal maintenance in the Amended Petition for Dissolution. Wife was awarded $5,000.00 per month in temporary spousal maintenance.
Husband never filed a Response to the Amended Petition for Dissolution, so the wife eventually moved to finalize the matter and obtained a default Decree of Dissolution of Marriage that included an order for husband to continue paying spousal maintenance in the amount of $5,000.00 per month for five years.
Husband appealed on the grounds that the judgment for spousal maintenance was improper because husband never was served with wife's Amended Petition for Dissolution and did not have formal notice of the request for maintenance.
The court held that an award of spousal maintenance based on a Petition for Dissolution that is not properly served is not valid, unless the lack of proper service could not cause prejudice to the defaulting party. In this case, the husband was not prejudiced, because comments made by his attorney at the Temporary Orders hearing demonstrated that husband was aware that a request for maintenance had been made. Therefore, the default judgment for spousal maintenance was affirmed.
Jordan v. Rea, Division One of the Arizona Court of Appeals, 1 CA-SA 09-0007
In this decision, the court considered (1) What standard must be applied when divorced parents who share joint legal custody their child cannot agree on what school the child should attend; (2) whether a child can be precluded from attending a religious school only because a parent objects on religious grounds, and (3) can a parent be ordered to pay tuition for a private religious school as part of that parent's support obligation?
The facts are as follows: the parents divorced in 2005 and were awarded joint legal custody of their two children. Both children attended a private religious school - the eldest child began attending before her parents were divorced. The father was also ordered to pay child support to mother. About eight months after the divorce was finalized, father filed a petition to modify his support obligation. He asserted that he could not afford to continue paying for private tuition. Mother argued that the parents had agreed their children would attend the private school and that tuition should be included as part of child support. The court ordered that father should continue paying the private tuition as part of the child support obligation because it was the parties' custom for the children to attend the private school, and neither parent had requested an order modifying where the children would attend school.
Thereafter, father filed a Petition to Enforce the Parenting Plan and argued that the court's Order with respect to child support violated father's constitutional rights and violated the parenting plan. Judge John Rea reduced father's child support obligation and issued an Order requiring mother to enroll the children in a different school after the end of the current semester. The judge reasoned that the parents shared joint legal custody, and thus each had the authority to make religious decisions for the children when the children were in the care of the respective parents. The judge believed that school was a "religiously-neutral" time period when neither parent has the authority to require the children to receive religious training over the objection of the other parent. Mother filed a special action challenging this decision, and Division One of the Arizona Court of Appeals accepted jurisdiction.
The Court held that the court must apply the best-interests of the child as the standard for reaching a decision when parents who share joint legal custody cannot agree on educational decisions. The Court was troubled because the Superior Court effectively vetoed mother's educational preference in its decision and eliminated the option of the religious school rather than treating it in a neutral manner and comparing that school with other educational options. The Court also noted that the parties' parenting plan was akin to a contractual agreement, and neither parent bargained for or received the ability to unilaterally determine that the children would not attend a school based on religious preferences. The Court determined that the Superior Court's holding that any objection made by a parent on religious grounds to a school would be sustained as a matter of law was a legal error.
Instead of focusing on the objection of one parent, the Appellate Court held that courts must resolve educational disputes in accordance with the best interests of the children. The religious preference or objection of one parent is only one of a myriad of factors that must be considered to determine the best interests of the child. This protects both parents' constitutional rights to determine the upbringing of their child. Therefore, a religious objection to a school is not a sufficient basis in and of itself to determine that the child should not attend the school, and a decision allowing a child to attend such a school over the objection of a parent does not violate that parent's Fourteenth Amendment rights.
The Court of Appeals also determined that it was permissible to include the private tuition expense in the Child Support Order, even if the parents did not agree that the tuition expense should be included. Father objected on the grounds that he was being required to subsidize a religious institution if tuition were to be included in the Child Support Order; however, the Court distinguished between requiring support of a religion and requiring a parent to make a child support payment that includes education expenses when the Court previously determined that attending the school is in the best interests of the children. The purpose of child support is to provide financially for a child, not to provide for a religious institution, and as such inclusion of the private school tuition in the child support calculation does not implicate the parent's First Amendment rights.
Egan v. Fridlund-Horne (Hochmuth), 2009 Ariz. App. LEXIS 56 (Ariz. Court of Appeals, Division One)
The facts of this case are that same-sex partners Egan and Hochmuth agreed to have a child. Egan became pregnant with the assistance of a sperm donor, and the parties and the child lived together as a family for seven years. After that time, the parties separated, but continued to share equal parenting time with the child. However, Egan gradually moved to limit Hochmuth's visitation. Hochmuth filed suit to establish in loco parentis rights toward the child. The Superior Court awarded Egan legal custody of the child, and ordered the parties to share substantively equal parenting time. Egan filed a special action and requested a stay of the Order. The Appellate Court granted the stay and accepted jurisdiction.
The parties agreed that Hochmuth stands in loco parentis to the child. However, Egan argued that a person standing in loco parentis must demonstrate that the natural parent is denying all visitation before the non-parent can seek rights under A.R.S. 25-415(C). Since Egan was allowing Hochmuth some time with the child, Egan asserted that Hochmuth's petition should have been dismissed. The Court noted that it was previously held that "a parent's willingness to allow some visitation is but one factor to consider under 25-409" McGovern v. McGovern, 201 Ariz. 172, 179 (App. 2001). The Court therefore concluded that Hochmuth did not have to show a complete denial of visitation prior to seeking visitation rights.
Egan then argued that the superior court abused its discretion by not giving adequate consideration to Egan's decision as the natural parent to limit the child's visitation with Hochmuth. Egan further argued that since Hochmuth had not alleged that Egan is an unfit mother, Egan's decision with respect to parenting time should be presumed as reasonable and in the best interests of the child. Hochmuth argued that Egan is a fit parent, but that Hochmuth rebutted the presumptions about the best interests of the child and reasonableness of Egan's decisions by demonstrating that Egan consented to and fostered the parental relationship between Hochmuth and the child. Hochmuth also argued that grandparent rights precedent should not be applied to this case, because of the extensive involvement Hochmuth had with Egan and the child.
The Court addressed these arguments by first outlining Egan's constitutionally protected right to parent her child, and the limitations that may be placed on this right. One such limitation that may be ordered is allowing a child to have visitation with a person absent the approval of the parent. However, certain due process protections must be implemented to protect the parent's constitutional rights when such a visitation order is considered. At a minimum, the competent parent's wishes regarding visitation must be accorded "special weight" by the superior court. McGovern, 201 Ariz. at 177; Jackson v.Tangreen,199 Ariz. 306, 310 (App. 2000); Graville v. Dodge, 195 Ariz. 119, 125 (App. 1999). The Court also identified other protections in the Arizona grandparent visitation statute, including that "it is framed in permissive terms; the right to visitation arises only if the trial court finds it is in the best interests of the child; and, in determining best interests, the court is required to consider all relevant factors, including those set forth in subsection (C)" of A.R.S. 25-409. McGovern, 210 Ariz. at 178.
Therefore, when the court considers an in loco parentis petition, the court must presume that a fit parent's decision with respect to that visitation was made in the best interests of the children, and that parent's opinion must be accorded special weight.
The Court next addresses Hochmuth's assertion that grandparent rights precedent should not apply to the case at hand, and that Hochmuth should be awarded greater visitation due to the closeness of her relationship with the family. The Court disagrees with this contention and asserts that Hochmuth's relationship with the child and Egan is not a sufficient basis in and of itself to find that more visitation than what was offered by the parent is in the child's best interests. Since Arizona does not recognize the common law de facto parent doctrine, Hochmuth does not automatically enjoy a right to visitation, and the Court must apply the factors enumerated in A.R.S. 25-415 and 25-409 to determine if visitation is appropriate.
The Court discusses the distinctions between parenting time available to persons defined by law as parents and the visitation available for non-parents (such as Hochmuth) to demonstrate that rights of visitation are more limited in scope than rights to parenting time. A right to visitation therefore does not trump the custodial rights vested in Egan.
The Court also concludes that the factors enumerated in 25-409(C) must also be considered in this case.
Therefore, the superior court must consider all of the above items (ie, a rebuttable presumption the the parent's decision to limit visitation is in the child's best interests, the parent's wishes must be given special weight, the court must consider the factors outlined in ARS 25-409(C) and other relevant best interests factors, and the burden of proof rests with the nonparent to demonstrate visitation is in the child's best interests) to determine whether a person standing in loco parentis should be awarded visitation.
In this case, the superior court had discretion to order visitation for Hochmuth, and the question is whether that court abused its discretion in awarding Hochmuth substantially equal parenting time. The Court concludes that the superior court did abuse its discretion. First, the superior court does not appear to have granted any special weight to Egan's preferences with respect to parenting time, and nor did it apply the A.R.S. 25-409(C) factors. Furthermore, as a matter of law the grant of equal visitation to a non-parent was unreasonable, as the custody order gives Hochmuth a substantially similar ability to direct the upbringing of the child as that enjoyed by Egan. The award of equal visitation is therefore a greater intrusion on Egan's right to parent her child than what was contemplated by the legislature.
Therefore, the Court erred in awarding Hochmuth equal visitation.
This opinion also has a special concurrence from Judge Daniel Barker. Judge Barker agrees with the outcome, but he would reject the parties' stipulation that Hochmuth stood in loco parentis to the child and deny visitation on the grounds that the in loco parentis statute does not grant Hochmuth rights. His reasoning is that only a person who has acted as a parent may stand in loco parentis, and Hochmuth cannot qualify as a parent based on her sex because the child already has a mother in Egan, and the legislature did not intend to modify gender terms associated with parenting in the in loco parentis statute. Judge Barker also believes that Hochmuth should have been required to show by clear and convincing evidence that the limitations on visitation imposed by Egan were unreasonable and not in the child's best interests.
Duwyenie v. Moran, 2009 Ariz. App. LEXIS 17 (Ariz. Court of Appeals, Division Two)
The facts of this case are that the parents had a child born out of wedlock. Mother is a member of the San Carlos Apache Tribe in Arizona; father is a member of the Rosebud Sioux Tribe in South Dakota. When the parties ended their relationship, they agreed to share joint legal and equal physical custody of the child. However, when father exercised parenting time, he absconded with the child to South Dakota and obtained a temporary custody order from the Rosebud Sioux Tribe. The tribes conferred afterwards and agreed to let the matter proceed in Gila County Superior Court, but the Rosebud Sioux Tribe asserted jurisdiction again after that agreement. Mother then filed an action in Gila County Superior Court. The court determined that the home state of the child was Arizona, and entered orders determining paternity, custody, parenting time, and child support. Father appealed.
Father claims that Arizona improperly exercised jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) by refusing to recognize the Rosebud Sioux Tribe's assertion of jurisdiction over the child. Jurisdiction to make a custody determination is vested in the child's home state. The home state is defined as where the child resided for six consecutive months prior to the filing of a custody action. The Court does not believe Arizona lost home state status through Father's unauthorized removal of the child from the state, and thinks finding otherwise would encourage removal of children from the state at the onset of a custody action. Furthermore, mother promptly initiated an action through the San Carlos Apache Tribe after her son was removed from the state. Since the Rosebud Sioux Tribe never had home state jurisdiction, Arizona was not obligated under the UCCJEA to defer to the Rosebud Sioux Tribe's decision.
Therefore, the Arizona court properly exercised jurisdiction in accordance with the UCCJEA in this case.
Maximov v. Maximov, 1 CA-CV 07-0914 (Arizona Appellate Court, Division One)
This appeal stems from a dissolution proceeding in Maricopa County. Husband filed for dissolution in October 2005. On March 30, 2006, the Court entered temporary orders requiring husband to pay wife temporary spousal maintenance and child support totaling $7,500.00 per month effective April 2006. Husband paid this amount from April 2006 through September 2006, for a total of $45,000.00. In September 2006, husband moved to modify the temporary orders on the grounds that he could not afford the $7,500.00 payments. The court deferred ruling on the issue until trial. Husband stopped paying the $7,500.00 every month from October 2006 through July 2007, when the court issued its ruling. The court reduced husband's combined support obligation to $1,826.34 per month and made this obligation retroactive to when husband was initially order to pay temporary support in April 2006. The court apportioned the $45,000.00 of total payments husband had made from April 2006 through July 2007 to determine that husband overpayed his support obligation fyr $2,250.00 in temporary support. Wife contends that A.R.S. 25-327 provides that the modification in support should only be retroactive to when husband filed his petition for modification of temporary orders, and that husband therefore owes wife a total of $18,263.40 in past support accumulated between October 2006 and July 2007.
The Court first examines the language of A.R.S. 25-329 and determines that this statute applies to decrees regarding maintenance or support, and not temporary orders. A.R.S. 25-315 is the applicable statute for modification of temporary orders, and nothing in this statute prevents the Court from making an Order effective prior to the date when the petition is filed. A.R.S. 25-315 also does not require the superior court to expressly find good cause to modify a temporary support order, and there was sufficient evidence here to support the court's ruling.
Thomas v. Thomas, 1 CA-CV 07-0471 (Arizona Appellate Court, Division One)
Husband and wife agreed to deliberately omit reference to a condo they owned while married in their Decree of Dissolution of Marriage. After the parties were divorced, husband gave wife a quit-claim deed on the condo that wife was to hold as security against a loan husband took out on another property owned by wife. However, wife violated the terms of their agreement and recorded the quit-claim deed. Husband brought suit asking the court to award him half of the equity in the condo. The trial court entered an order to this effect, and wife appealed on the grounds that the trial court lacked subject matter jurisdiction to enter orders pertaining to the condo.
The division of property in an action for dissolution is governed by A.R.S. 25-318, which requires the court to equitably divide all community, joint and other property between the parties. However, A.R.S. 25-318(D) specifically states that "community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common, each possessed of an undivided one-half interest." The language of the statute makes it clear that ownership of the property transmuted as a matter of law from community property to a tenancy in common at the time the Decree was entered, and the family law court therefore is divested of jurisdiction over the condo. Therefore, husband must file a civil action to address his concerns pertaining to the condo.
Hart v. Hart, 1 CA-CV 07-0794 (Arizona Appellate Court, Division One)
The parties were divorced in 2003. Mother was awarded sole legal and primary physical custody of the children. In 2005 mother petitioned to move with the children to Texas, and her petition was granted. In July 2007, father filed a petition to modify custody. After the hearing, the superior court determined that it would be in the children's best interests to live with father in Arizona, and for mother to exercise supervised visitation with the children during the summer and school breaks. Mother appealed.
Mother argues that the superior court abused its discretion because it did not make findings of fact required by A.R.S. 25-403 in determining that a change in custody was in the best interests of the children. Father argues that the Court should presume that the family law court made all of the necessary findings as long as there is sufficient evidence on the record to support the court's ruling.
A.R.S. 25-403(B) states "[i]n a contested custody 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." The superior court decision does not refer to any of the factors enumerated in the statute. Therefore, the superior court's decision was an abuse of discretion, because the court was mandated to make the findings of fact in A.R.S. 25-403, and the court did not make the necessary findings.
Mother also argues that the court abused its discretion by ordering that mother's parenting time be supervised because father never requested supervised parenting time, and the court did not make any findings to support the need for supervised parenting time. Supervised parenting time is governed by A.R.S. 25-410(B) or A.R.S. 25-411(D). These statutes allow the court to award supervised parenting time if the children would be endangered by the parent. However, unlike A.R.S. 25-403, the supervised parenting time statutes do not require findings of fact on record to support an order for supervised parenting time. Therefore, it was not an abuse of discretion for the court to order supervised parenting time without making specific findings of fact about the appropriateness of the supervised parenting time.
Ordinarily, the Court assumes that the superior court uses the proper legal standard absent a showing to the contrary. In this case, the Court notes that the superior court's order stated that supervised parenting time was appropriate because such parenting time was in the best interests of the children. This standard was error, as A.R.S. 25-410(B) and A.R.S. 25-411(D) require the court to determine that supervised parenting time is necessary to protect the child from being endangered by the parent, rather than determining that supervised parenting time is in the best interests of the child. Since the order by its own terms used an incorrect standard in ordering supervised parenting time, that order was error, and the issue is remanded for a determination under the proper supervised parenting time standard.
Barnett v. Jedynak, a CA-CV 07-0558 (Arizona Appellate Court, Division One)
Husband and wife were married in 2004, but had lived together since 1999. Husband purchased a home in his own name in 2002 where the parties lived. The parties divorced in 2006. The superior court initially order that the equity in the home be divided equally between the parties. Husband filed a motion to alter or amend the judgment, arguing that a value-at-dissolution formula similar to that articulated in Drahos v. Rens should be used to determine the community interest in the home, because the home had appreciated prior to marriage. The wife argued that the original court order was appropriate, as wife had shared responsibility for payment of the mortgage since the home was purchased. The superior court granted husband's motion and directed him to submit an appropriate formula to determine the community interest in the home. Husband submitted the formula of C/[A+C]x[D-B], where "A" is the down payment plus principal payments made prior to marriage plus the appraised value of the home as of the date of marriage less the balance on the mortgage, "B" is the appraised value as of the date of the marriage, "C" is the community contribution to the principal, and "D" is the value of the home as of the date of dissolution. The trial court accepted this calculation, and wife appeals.
The Court notes that Arizona does not recognize common law marriages, and there was no evidence that the parties had entered into an express agreement to jointly own the home. Wife's contributions toward the mortgage prior to marriage therefore cannot be considered as part of the community's lien on the home.
However, the Court does identify two problems with the formula proposed by husband to calculate the community interest in the home. First, the formula does not provide reimbursement to the community for contributions to the principal. Secondly, the formula adds the community contribution to the principal to husband's separate equity, which creates a larger denominator and shrinks the community's interest. The formula therefore is not in accordance with the principles articulated in Drahos v. Rens or Marsden v. Marsden.
The Court finds that the appropriate formula to use where separate property appreciates both before and after marriage is to divide the community's contributions to principal by the value of the property at the time of marriage, rather than at the time of acquisition. In algebraic form, the formula to determine the community's interest in the property is C+[C/BxA], where "A" is the appreciate of property during marriage, "B" is the appraised value of the property as of the date of marriage, and "C" is the community contribution to principal.
Engel v. Landman, 1 CA-CV 07-0587 (Arizona Appellate Court, Division One)
The parties in this case were divorced in 2004. Father was ordered to pay $2,000 a month in child support. Father filed a petition to modify child support in 2006, alleging that the income attributed to mother (who was voluntarily unemployed) should be increased because mother had received an inheritance and had the capacity to earn income as an accountant. The court found that mother's income exceeded $13,000.00 per month, and that father's income exceeded $20,000.00 per month. The court modified father's support obligation to $1,686.99 per month. Both parties appealed.
The Court determined that it did not have jurisdiction to hear mother's appeal, so the Court only considered the issues raised by father. Father argued that the superior court erred by attributing hypothetical child care costs to mother. The Court reviewed Section 5(c) of the Arizona Child Support Guidelines, which allows courts the discretion to attribute income to a parent who is not working in order to protect the employed parent from responsibility for a disproportionate amount of the total support obligation. The court is directed to consider several factors in determining whether attributing income is appropriate, including why the parent has chosen to be unemployed and the financial effect on the children. If income is attributed, the court may then also attribute hypothetical child care expenses.
However, in cases such as this where a parent has a high level of income, the highest possible combined total support obligation is reached based on one parent's income, and the income earned by or attributed to the other parent has no impact on the total child support obligation. The only impact from attributing income to the other parent is to increase that parent's proportional share of the support obligation, which has the effect of reducing the support obligation and transferring the burden to the children, since the attributed income is only hypothetical. This effect is ordinarily attentuated by also attributing child care expenses. However, in cases such as this where one parent earns significant income and continues to bear the majority of the proportional responsibility for child support, inclusion of hypothetical child care expenses only increases the total child support obligation, and therefore the amount that is paid by the employed parent. The inclusion of hypothetical child care expenses in this case therefore had the effect of creating a deviation from the child support amount that would otherwise be proper. The inclusion of the child care costs in this case therefore created a result that is contrary to the Arizona Child Support Guidelines purpose of protecting one parent from a disproportionate responsibility for providing for the children. This portion of the decision was therefore reversed.
Father also argues that the court erred by aggregating the stock options he had received in 2004, 2005, and 2006 to determine his income in 2007. The trial court used the Murray method to value the stock options, which entails adding the total number of unexercised shares from all of the options, and then multiplying this number by the stock price increase for the year. However, this method appears to make the support of a child dependent on market fluctuations that do not effect the funds available to support the child. The Court feels that a better method to value the stock options in this case would be to examine the agreement between the parent/employee and the employer to determine what value was placed on the stock options as part of the employment negotiations. The Court declines to approve of a particular accounting method, as the appropriateness of the methods vary on a case-by-case basis. Instead, the court should select a method that addresses the nature of the stock options, taxes, and any other circumstances specifically applicable to the situation, and then apply a reasonable rate of return. The Court therefore vacates the decision with respect to the valuation of father's stock options as part of his income for the child support calculation.
