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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             DAVID RYAN PORTER, JR., Petitioner/Appellant,

                                        v.

             REBECCA MONET SMITH, Respondent/Appellee.

                           No. 1 CA-CV 16-0512 FC
                             FILED 6-8-2017


           Appeal from the Superior Court in Maricopa County
                          No. FC2009-091089
                The Honorable Jennifer E. Green, Judge

                                 REMANDED


                               APPEARANCES

Rowley Chapman Barney & Buntrock LTD, Mesa
By Joshua R. Boyle
Counsel for Petitioner/Appellant

Rebecca Monet Kinsey (formerly known as Rebecca Smith), Mesa
Respondent/Appellee
                            PORTER v. SMITH
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Margaret H. Downie and Judge Kenton D. Jones joined.


K E S S L E R, Judge:

¶1            David Ryan Porter, Jr. (“Father”) appeals from a family court
order modifying his parenting time with the parties’ two daughters. For
the reasons set forth below, we remand the parenting time order for further
findings in compliance with this decision.

               FACTUAL AND PROCEDURAL HISTORY

¶2            This is a high-conflict custody case. In 2010, the family court
ordered Father and Rebecca Monet Smith (“Mother”) to share joint legal
decision-making and equal parenting time with their son and two
daughters. In August 2015, Mother filed a petition to modify legal decision-
making and parenting time, alleging Father’s “destructive manipulation
and psychological abuse” was escalating and he failed to provide a stable
environment. Father denied these allegations and counter-petitioned for
final legal decision-making authority, citing the parties’ inability to co-
parent. The family court appointed a parenting conference provider to
prepare a report to the court and interview the children, if necessary.

¶3            Following an evidentiary hearing and receipt of the parenting
conference report and confidential children’s interview report, the family
court found a substantial and continuing change in circumstances and
modified Father’s parenting time with the two daughters to every other
weekend and twice during the week. The court did not modify parenting
time for the son or modify joint legal decision-making. Father timely
appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1) (2017).1

                              DISCUSSION

¶4           To modify parenting time, the family court must first
determine there has been a change in circumstances materially affecting the

1      Absent material revision after the relevant date, we cite the current
version of the statutes.


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                             PORTER v. SMITH
                            Decision of the Court

welfare of the children since the last custody order. Pridgeon v. Superior
Court (LaMarca), 134 Ariz. 177, 179 (1982); Hendricks v. Mortensen, 153 Ariz.
241, 243 (App. 1987) (citation omitted). The court has broad discretion to
determine whether such a change has occurred, and its decision will not be
reversed absent a clear abuse of discretion. Pridgeon, 134 Ariz. at 179
(citations omitted). “We view the evidence in the light most favorable to
sustaining the [family] court’s findings and will uphold them unless they
are clearly erroneous or unsupported by the evidence.” In re Marriage of
Yuro, 192 Ariz. 568, 570, ¶ 3 (App. 1998) (citation omitted). As the party
seeking to modify Father’s parenting time, Mother had the burden of
proving a change in circumstances. Pridgeon, 134 Ariz. at 181.

¶5            The family court found there had been a substantial and
continuing change of circumstances “due to both parties seeking a change
in legal decision-making and Mother’s request to substantially reduce
Father’s parenting time.” The fact that both parties seek to change legal
decision-making or one party seeks to reduce the other’s parenting time
does not constitute a change in circumstances materially affecting the
children. Davis v. Davis, 78 Ariz. 174, 176 (1954) (citations omitted) (holding
modification of custody orders requires “cogent reasons” such as changed
conditions affecting “the child whose welfare is the paramount
consideration at all times”); Hendricks, 153 Ariz. at 243 (holding Arizona
case law requires a showing of changed circumstance’s materially affecting
the welfare of the children). In the immediate case, the court’s finding is
merely an observation that what both parties request would result in a
substantial change in legal decision-making and/or parenting time.

¶6             Therefore, we remand the case to the family court for findings
on whether there has been a substantial and continuing change in
circumstances to warrant a change in legal decision-making and/or
parenting time other than merely the requests for change filed by the
parties. “To change a previous custody order, the court must determine
whether there has been a material change in circumstances affecting the
welfare of the child.” Canty v. Canty, 178 Ariz. 443, 448 (App. 1994) (citation
omitted). This change in circumstances cannot be the request to change the
custody order, rather a substantial change in circumstances must precede
alteration of the custody order. We therefore remand for a ruling applying
the correct legal standard.

¶7           Father requests an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. § 25-324 (2017). Neither party took unreasonable
positions on appeal, nor did either party prevail. Therefore, we deny



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                           PORTER v. SMITH
                          Decision of the Court

Father’s request for an award of attorneys’ fees on appeal and exercise our
discretion to not award costs.

                             CONCLUSION

¶8          We remand this case to the family court for findings in
compliance with this decision.




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




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