Daurio v. Daurio

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   AMY JO DAURIO, Petitioner/Appellant,

                                        v.

                 STEVEN L. DAURIO, Respondent/Appellee.

                           No. 1 CA-CV 20-0070 FC
                               1 CA-CV 20-0492 FC
                                FILED 5-20-2021


           Appeal from the Superior Court in Maricopa County
                          No. FC 2011-002723
               The Honorable Kerstin G. LeMaire, Judge

    AFFIRMED IN PART; VACATED IN PART AND REMANDED


                               APPEARANCES

Thomas P. Alongi PLLC, Phoenix
By Thomas P. Alongi
Counsel for Petitioner/Appellant

Steven L. Daurio, Phoenix
Respondent/Appellee
                           DAURIO v. DAURIO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.


B R O W N, Judge:

¶1           Amy Jo Garner (“Mother”) appeals the superior court’s denial
of both her 2019 and 2020 petitions to modify legal decision-making and
parenting time. For the following reasons, we affirm in part, vacate in part,
and remand.

                             BACKGROUND

¶2            Mother and Steven Daurio (“Father”) divorced in 2012. They
have one child, A.D., born in 2005. The decree of dissolution ordered “joint
legal custody” and essentially equal parenting time. In 2016, Mother
petitioned for modification of legal decision-making and parenting time,
alleging Father was abusive towards their child. In 2017, Father also
requested modification, asserting Mother had a history of making false
allegations, denying Father contact with A.D., and attempting to alienate
A.D. from Father.

¶3             After an evidentiary hearing, the superior court found it was
in A.D.’s best interests to grant Father sole legal decision-making authority
(the “2017 Order”), reasoning in part that Mother had “actively thwart[ed]
efforts for the child to have contact or a healthy relationship with Father.”
The court also found that Father’s relationship with A.D. could improve by
restricting Mother’s parenting time and thus the court imposed a six-phase
parenting time plan. After Father and A.D. completed an intensive
intervention, Mother would have no contact with A.D. for at least 30 days.
Then she would be able to regain parenting time when the therapeutic
interventionist believed it was in A.D.’s best interests. Mother would begin
with biweekly, three-hour visits. Upon reaching the final, sixth phase,
Mother would have unsupervised parenting time every first, third, and
fourth weekend of the month, and share roughly equal time with Father
during summers and holidays.

¶4          The family progressed through all six phases outlined in the
2017 Order. Mother then petitioned for a modification of parenting time

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and legal decision-making, asserting her progress through all six phases
indicated a material change in circumstances.

¶5            In December 2019, despite finding that Mother had
“substantially complied” with the 2017 Order, the superior court denied her
petition to modify (the “2019 Order”). As to parenting time, the court
reasoned that Mother’s compliance had been presumed, A.D. was thriving
under the current plan, and it was not “in the child’s best interest to change
a plan under which he is currently thriving.” The court also considered
“how much parenting time is already afforded Mother under said plan.”
Addressing legal decision-making, the court found Mother continued to
make A.D. feel guilty about spending time with Father. Mother timely
appealed the 2019 Order.

¶6           Only days later, Father discharged a taser while quarreling
with A.D. A.D. texted Mother that Father had purposefully fired the taser
at him. In response, Mother requested temporary emergency orders and
petitioned to modify parenting time and legal decision-making. At a
hearing on the temporary orders, Father testified he was trying to secure
the taser and keep it safe from A.D. when the device accidentally
discharged. The superior court found Father’s testimony credible and
issued an order (the “2020 Order”) denying Mother’s requests for
temporary orders. In the same minute entry, the court also dismissed
Mother’s petition for permanent modifications to parenting time and legal
decision-making. Mother timely appealed the dismissal of her petition, and
the two appeals were consolidated.1

                               DISCUSSION

       A.     The 2019 Order

¶7          We review modification of parenting time and legal decision-
making orders for an abuse of discretion. Baker v. Meyer, 

237 Ariz. 112

, 116,
¶ 10 (App. 2015). We view the evidence in the light most favorable to
upholding an order and will affirm if the order is supported by reasonable


1      Although Father has filed pleadings in the superior court and
represented himself at the evidentiary hearings at issue here, he did not file
an answering brief. We could consider this failure a concession of the errors
asserted by Mother. See State ex rel. McDougall v. Superior Court, 

174 Ariz.
450

, 452 (App. 1993). But given the interests at stake, in our discretion we
consider the merits of the appeal. Cardoso v. Soldo, 

230 Ariz. 614

, 616, ¶ 4 n.1
(App. 2012).
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evidence. See Vincent v. Nelson, 

238 Ariz. 150

, 155, ¶ 17 (App. 2015). When
considering a petition to modify parenting time and legal decision-making,
the superior court engages in a two-step analysis by determining (1)
whether a change in circumstances occurred that materially affects the
child’s welfare, and, if so, (2) whether the child’s best interests require a
change in custody. Christopher K. v. Markaa S., 

233 Ariz. 297

, 300, ¶ 15 (App.
2013) (citation omitted).

              1.     Parenting Time

¶8              As a general rule, “the court shall adopt a parenting plan that
. . . maximizes [the parents’] respective parenting time,” so long as it is
consistent with the child’s best interests. A.R.S. § 25-403.02(B); see also
A.R.S. § 25-103(B)(1) (“[A]bsent evidence to the contrary, it is in a child’s
best interest . . . [t]o have substantial, frequent, meaningful and continuing
parenting time with both parents.”)

¶9           Here, the superior court found no material change in
circumstances as to parenting time because, in part, the 2017 Order
contemplated Mother’s compliance and it was not in A.D.’s “best interest
to change a plan under which he is currently thriving.” Mother argues the
superior court erred by considering best interests to determine whether a
material change in circumstances occurred.

¶10             Under the material change analysis, a court looks to whether
any changes affect the welfare of the child. See Backstrand v. Backstrand, 

250
Ariz. 339

, 343, ¶ 14 (App. 2020). “Whether the changes are ultimately
positive or negative is immaterial to the change-of-circumstances inquiry.”

Id. at ¶ 16

. Thus, a court only proceeds to a best interests analysis after
finding a material change in circumstances. See 

id. at ¶ 14

. Here, the
superior court found that Mother had substantially complied with the 2017
Order, indicating her actions and behavior were significant enough that the
court-appointed therapist approved the transition between the six phases.
Yet the court found no material change in circumstances, relying in large
part on best interests evidence—how well A.D. was doing under the current
plan. Thus, we vacate the 2019 Order denying Mother’s petition for
modification of parenting time.

              2.     Legal Decision-Making

¶11           Similar to parenting time, the superior court is obligated to
“adopt a parenting plan that provides for both parents to share legal
decision-making regarding their child,” to the extent it is consistent with
the child’s best interests. A.R.S. § 25-403.02(B).
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¶12          Mother argues her progress through the six phases of the 2017
Order indicates there was a material change in circumstances. She also
points to the family’s self-reported progress in therapy, and her son’s
statements to the therapist that he would like to return to a 50/50 plan.

¶13            To show a material change in circumstances, Mother must
prove the purported change (1) affects the child’s welfare and (2) “justifies
departing from the principles of res judicata underlying the order currently
in place.” Backstrand, 

250 Ariz. at 344, ¶ 16

. The record includes reasonable
evidence, however, that Mother still makes A.D. feel guilty for spending
time with Father. For instance, Mother said her feelings were hurt when
A.D. asked to spend another night at Father’s house, adding that A.D.
should not ask her for money. Thus, we affirm the 2019 Order’s decision as
to legal decision-making.

      B.     The 2020 Order

¶14            In this consolidated appeal, Mother also argues the superior
court erred when it dismissed her 2020 petition to modify parenting time
and legal decision-making after only holding a hearing on temporary
orders. She contends this dismissal violated her due process rights. “[A]
parent is entitled to due process whenever his or her custodial rights to a
child will be determined by a proceeding.” Smart v. Cantor, 

117 Ariz. 539

,
542 (1977) (citation omitted). “Due process entitles a party to notice and an
opportunity to be heard at a meaningful time and in a meaningful manner
. . . [and] to offer evidence and confront adverse witnesses.” Curtis v.
Richardson, 

212 Ariz. 308

, 312, ¶ 16 (App. 2006) (citations omitted).

¶15           To support her argument, Mother cites Cruz v. Garcia, in
which we held the trial court violated due process by issuing an order on
legal decision-making after conducting a trial that only covered parenting
time. 

240 Ariz. 233

, 237, ¶¶ 14–16 (App. 2016). Mother also cites Cook v.
Losnegard, where we concluded the trial court violated due process when it
ruled on child support after a hearing limited to a custody determination.

228 Ariz. 202

, 205–06, ¶¶ 16–19 (App. 2011). Mother contends her due
process rights were likewise violated because the superior court issued an
order on permanent modifications after only holding a hearing on
temporary orders.

¶16           Mother’s reliance is misplaced. In both Cruz and Cook, we
held due process was violated because the trial court held a hearing on one
issue, but then decided another. See Cruz, 

240 Ariz. at 237, ¶¶ 14

–16; Cook,

228 Ariz. at 205

–06, ¶¶ 16–19. Here, Mother sought the same relief for the

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same reasons in her motion for temporary orders and her petition to
modify—a change in parenting time and legal decision-making because
Father allegedly assaulted A.D. Mother had an unfettered chance to make
her arguments and present her evidence at the temporary orders hearing.

¶17           The superior court also has discretion as to whether holding
a hearing on a petition to modify is necessary. Under A.R.S. § 25-411(L),
“[t]he court shall deny the motion unless it finds that adequate cause for
hearing the motion is established by the pleadings, in which case it shall set
a date for hearing on why the requested modification should not be
granted.” The purpose of requiring adequate cause “is to spare the parties
and the child the cost, disruption, and potential trauma of a full
modification hearing.” DePasquale v. Superior Ct., 

181 Ariz. 333

, 335 (App.
1995). But the court has discretion to hear arguments and take evidence to
reach a more informed decision. 

Id.

 Because the court had already heard
evidence at the temporary orders hearing on the alleged assault and
accepted Father’s version of the incident, Mother was not entitled to
another evidentiary hearing on the petition to modify addressing the same
issues. Thus, the court did not violate her due process rights by failing to
hold such a hearing.

¶18            Mother argues nonetheless that because the superior court
limited the March 2020 hearing to only her request for temporary orders,
she did not pursue her argument that Father had retaliated against her for
filing the 2020 requests for temporary and permanent modifications.
Mother contends she was not given a meaningful opportunity to be heard
on that issue. Her request for permanent modification, however, was based
only on the alleged assault. Mother never filed an amended petition or an
additional petition raising the retaliation issue. Because the issue was
outside the scope of her petition to modify, the court did not violate
Mother’s due process rights. See A.R.S. § 25-411(L) (noting that a petition
to modify should be denied unless “adequate cause . . . is established by the
pleadings”).

¶19           Finally, Mother points out that the superior court informed
the parties that it considered Father’s pro per response to Mother’s petition
to modify as a motion to dismiss. Therefore, the court invited Mother to
file a response no later than March 24, 2020, but nonetheless issued its
ruling on March 11. Mother contends the court violated her due process
rights by dismissing the case before receiving the invited response.

¶20         We disagree. Though a non-moving party has a right to
respond to a motion, see Ariz. R. Fam. L. P. 35(a)(3), Mother already

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presented her argument and evidence on the alleged assault at the
temporary orders hearing. Thus, while the court erroneously ruled before
Mother filed her response, the error does not require reversal. Due process
requires that a party receive adequate notice and an opportunity to be heard
on the issue. Curtis, 

212 Ariz. at 312, ¶ 16

. As noted, Mother already had
the opportunity to be heard on the dispositive issue of her motion for
permanent modifications, the alleged assault with the taser. Because the
court already decided this dispositive issue, finding the incident to be
accidental, the court did not violate Mother’s due process rights by ruling
on the petition before she could file her response to the motion to dismiss.

                             CONCLUSION

¶21           We affirm the superior court’s denial of Mother’s 2019 and
2020 petitions to modify legal decision-making. We vacate the court’s order
denying Mother’s 2019 petition to modify parenting time and remand for
further proceedings. On remand, the court shall reconsider the petition for
modification of parenting time in light of current circumstances. Mother
requests attorneys’ fees and costs under A.R.S. §§ 25-324(A), -415(A)(2). In
our discretion, we deny her request.




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




                                       7

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