Arizona Court of Appeals

Soebbing v. Soebbing

Summary

Soebbing v. Soebbing was an unpublished memorandum decision where the Arizona Court of Appeals affirmed the family court’s modification of parenting time but vacated its modification of legal decision-making because it was never requested by either party.

Background

When the parties divorced in 2010, the decree awarded joint legal decision-making and designated Mother as the primary residential parent for their minor child. In 2016, Father petitioned to modify the decree and sought equal parenting time. Ultimately, the parties agreed to modify the parenting time schedule and their agreement was adopted by the family court pursuant to Rule 69.

Later that year, a dispute arose regarding Father’s living arrangements. Father alleged that Mother blocked all contact with him and prevented him from seeing their child. Mother claimed that Father voluntarily disappeared for two months.

After Father asked local law enforcement to conduct a welfare check at Mother’s residence, he filed a motion to set aside the Rule 69 agreement and alleged that Mother denied his parenting time and telephonic access for the previous five months. The family court denied Father’s motion but set a hearing to address the parenting time issues.

Father requested that the order be modified to essentially invert the current parenting time schedule and designate him as the child’s primary residential parent. Mother opposed modification and asked the family court to order therapeutic reunification to safely reunify Father and the child after his extended absence.

After hearing argument and considering the evidence, the family court modified parenting time to designate Father as the primary residential parent. It also awarded sole legal decision-making to Father and granted his request for attorney’s fees based on Mother’s unreasonableness.

Family Court Discretion

On appeal, determinations of parenting time and legal decision-making will be affirmed unless the family court abused its discretion. This means the party who files the appeal has to prove the family court made a mistake not just that the outcome was “wrong.” The Court of Appeals does not reweigh evidence or testimony. It merely reviews the record to determine if any evidence, which includes witness/party testimony, exists to support the trial court’s findings.

Here, the Court of Appeals found that the family court properly considered all of the relevant statutory factors prescribed under A.R.S. § 25-403(A) and detailed its specific findings on the record when it modified parenting time. It found that Mother’s failure to follow their Rule 69 Agreement constituted substantial and continuous change and her denial of Father’s parenting time was detrimental to the child. These findings were sufficient to support its modification of parenting time.

But the Court of Appeals reversed the family court’s award of sole legal decision-making to Father because neither party requested modification of legal decision-making. All modifications of legal decision-making must comply with A.R.S. § 25-411 and Rule 91(D). Because neither party party had notice that legal decision-making was at issue, it also would violate their due process rights which require litigants to have an opportunity to be meaningfully heard.

Full decision