Porter v. Smith
1 CA-CV 16-0512-FC
| Ariz. Ct. App. | Jun 8, 2017Background
- Parents originally shared joint legal decision-making and equal parenting time for three children per a 2010 family-court order.
- In August 2015 Mother petitioned to modify legal decision-making and substantially reduce Father’s parenting time, alleging escalating manipulation and psychological abuse and instability.
- Father counter-petitioned for final legal decision-making, citing inability to co-parent.
- The court appointed a parenting conference provider and received a parenting-conference report and confidential children’s interview report; an evidentiary hearing was held.
- The family court found a "substantial and continuing" change in circumstances and reduced Father’s parenting time for the two daughters (every other weekend and two weeknights), but left the son’s schedule and joint legal decision-making unchanged.
- Father appealed; the appellate court found the family court’s change-of-circumstances finding inadequate and remanded for proper findings. Father’s request for appellate attorney fees was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a substantial and continuing change in circumstances warranting modification of parenting time/legal decision-making | Mother argued Father’s escalating psychological abuse and instability materially affected the children’s welfare | Father denied allegations and argued that the parties’ requests alone do not establish a change in circumstances | Remanded: trial court’s finding was insufficient because it relied on the parties’ requests; court must make specific findings applying the correct legal standard that a material change affecting the children preceded modification |
| Whether Father is entitled to attorney fees on appeal under A.R.S. § 25-324 | Father sought fees as prevailing party on appeal | Mother opposed; neither party prevailed on appeal | Denied: neither party prevailed and neither took unreasonable positions, so fees and costs were not awarded |
Key Cases Cited
- Pridgeon v. Superior Court (LaMarca), 134 Ariz. 177 (1982) (party seeking modification must show material change in circumstances affecting child’s welfare)
- Hendricks v. Mortensen, 153 Ariz. 241 (App. 1987) (same legal standard; modification requires showing changed circumstances materially affecting children)
- In re Marriage of Yuro, 192 Ariz. 568 (App. 1998) (appellate review defers to family court’s factual findings unless clearly erroneous)
- Davis v. Davis, 78 Ariz. 174 (1954) (custody modification requires cogent reasons tied to child’s welfare)
- Canty v. Canty, 178 Ariz. 443 (App. 1994) (change in circumstances must precede alteration of custody)