Shaw v. Bergeron
1 CA-CV 21-0194-FC
Ariz. Ct. App.Oct 26, 2021Background
- Parents (Matthew Shaw and Mercedes Bergeron) have two sons; original dissolution decree granted joint legal decision-making and nearly equal parenting time with school placements near Father unless he moved.
- Father moved ~15 miles in 2019; parents disagreed on new schools, mediation failed, and they filed cross-petitions to modify decision-making, parenting time, and support.
- At an evidentiary hearing (July 2020) the family court kept joint legal decision-making but gave Mother final authority if parents disagreed, adopted a 5-2-2-5 schedule (more weekday time for Mother), and modified child support; judgment entered Nov. 2, 2020; Father awarded $3,000 in attorney’s fees.
- Key factual bases for modification: Brett’s severe behavioral problems, Father’s alleged uncooperativeness in obtaining treatment, and Mother’s preference for higher-ranked schools thought less likely to aggravate Brett.
- Dispute over whether Mother received imputed income from below-market housing: Mother paid $800/month rent to grandmother, made significant improvements and paid other housing costs; experts estimated fair rents from ~$1,300–1,778.
- Post-judgment matters included an unsigned minute entry clarifying exchange times, amended child support orders, Father’s denied permission to refile an early modification petition, and this appeal from the November judgment and related orders.
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| Modification of legal decision-making and parenting time | Court erred by awarding Mother unlimited final decision-making and insufficient findings for modification | Order was within court’s discretion; findings supported best interests (behavior, schools, scheduling) | Affirmed: final decision-making as a tie-breaker is permissible; court made required findings and evidence supports modification |
| Attribution of reduced rent as income for child support | Court should treat the difference between Mother’s actual rent and fair market rent as gross income | Mother paid substantial housing costs and improvements; no net recurring gift/benefit | Affirmed: no abuse of discretion — Mother showed no substantial, regular net benefit to treat as income |
| Clarification of parenting-time exchange times (minute entry changing 6:00 p.m. to 3:00 p.m./after school) | Rule 84(d) prohibits reopening a judgment to change exchange times | Minute entry was issued before judgment was final on all post-decree issues, so order remained modifiable | Affirmed: court did not violate Rule 84(d) because the parenting-time order was not yet an appealable judgment |
| Limitation of attorney’s fees award to Father | Court abused discretion by not awarding broader fees to Father | Court considered resources and reasonableness; both parents took unreasonable positions but Father caused unnecessary delay | Affirmed: court’s fee decision was supported by findings that parents had similar resources and Father contributed to unreasonable delay |
| Denial of permission to file early petition to modify (alleged CNA vaccine mishandling) | Alleged that Mother’s home vaccinations and CNA conduct seriously endanger children and justify filing within one year | Alleged conduct did not show serious endangerment; claims speculative as to diminished vaccine protection | Affirmed: denial not an abuse of discretion — allegations did not show actual or serious endangerment required to permit early filing |
Key Cases Cited
- Nicaise v. Sundaram, 245 Ariz. 566 (2019) (supreme court upheld tie-breaking final decision-making awards to one parent)
- Pridgeon v. Superior Court, 134 Ariz. 177 (1982) (modification requires best-interest determination and change of circumstances)
- Cummings v. Cummings, 182 Ariz. 383 (App. 1994) (free use of a home can be treated as income if substantial and regular)
- Yee v. Yee, 251 Ariz. 71 (App. 2021) (post-decree orders are appealable only after the family court fully resolves all post-decree issues)
- Engstrom v. McCarthy, 243 Ariz. 469 (App. 2018) (standard of review: family court decisions on decision-making, parenting time, child support, and fees reviewed for abuse of discretion)