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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                TIFFANY ANN ROBLES, Petitioner/Appellant,

                                         v.

               ROLANDO R. PALENCIA, Respondent/Appellee.

                            No. 1 CA-CV 16-0452 FC
                                FILED 5-11-2017


            Appeal from the Superior Court in Maricopa County
                            No. FC2011-007011
                The Honorable Howard D. Sukenic, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Becker Zarling Law, Avondale
By Gina M. Becker-Zarling
Counsel for Petitioner/Appellant

Jordan Law LLP, Maricopa
By Mariam Jordan
Counsel for Respondent/Appellee
                          ROBLES v. PALENCIA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge James P. Beene joined.


T H U M M A, Judge:

¶1            Tiffany Ann Robles (Mother) appeals from the superior
court’s legal decision-making and parenting time order. Because written
findings required by Arizona Revised Statutes (A.R.S.) section 25-403(B)
(2017)1 were not provided, the order is vacated and the case remanded.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Mother and Rolando R. Palencia (Father), who never married,
have three children together. After paying child support for several years,
Father petitioned the superior court to establish legal decision-making and
parenting time, and to modify child support. Both parties testified at an
evidentiary hearing. Father requested joint legal decision-making and equal
parenting time on a week-on, week-off basis. Mother requested joint legal
decision-making with final decision-making authority. She asked the court
to make her the primary residential parent and to grant Father parenting
time one evening per week and every other weekend.

¶3            At the hearing, the court acknowledged the disagreement on
(1) whether Mother should have final decision-making authority and (2)
parenting time. The subsequent written ruling, however, indicates the
parties had reached an agreement:

              The Court has considered the agreement of the
              parties and the factors under A.R.S. § 25-403.
              The parties have stipulated to a finding that the
              agreed upon plan is in the best interests of the
              Children.

The ruling, which awarded joint legal decision-making and equal parenting
time on a 5-2-2-5 schedule, did not contain any written findings discussing

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



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                            Decision of the Court

which § 25-403 factors the court considered or reference any evidence
regarding those factors. Mother appealed, and this court has jurisdiction
pursuant to A.R.S. § 12-2101(A)(2).

                               DISCUSSION

¶4            Decisions regarding legal decision-making and parenting
time are reviewed for an abuse of discretion. See Owen v. Blackhawk, 206
Ariz. 418, 420 ¶ 7 (App. 2003).

I.     The Requirements Of A.R.S. § 25-403.

¶5            Mother argues the factors set forth in A.R.S. § 25-403 were not
“properly considered.” In determining legal decision-making and
parenting time, Arizona law requires the consideration of “all factors that
are relevant to the child’s physical and emotional well-being” including the
factors enumerated in § 25-403(A). A.R.S. § 25-403(A). If the issues of legal
decision-making or parenting time are contested, “specific findings” must
be made “on the record about all relevant factors and the reasons for which
the decision is in the best interests of the child,” regardless of whether a
party requests such findings. A.R.S. § 25-403(B). This requirement “exists
not only to aid an appellant and the reviewing court, but also for a more
compelling reason—that of aiding all parties and the family court in
determining the best interests of the child or children both currently and in
the future.” Reid v. Reid, 222 Ariz. 204, 209 ¶ 18 (App. 2009) (citation
omitted). A determination on legal decision-making or parenting time
made without the required findings is deficient as a matter of law. See, e.g.,
In re Marriage of Diezsi, 201 Ariz. 524, 526 ¶ 5 (App. 2002); Reid, 222 Ariz. at
210 ¶ 20.

¶6            Because this case involves contested issues of legal decision-
making and parenting time, findings under § 25-403, made on the record,
were required but were not made. Accordingly, that portion of the order is
vacated and remand is necessary so that the superior court can “perform
the necessary statutory analysis.” Nold v. Nold, 232 Ariz. 270, 274 ¶ 15 (App.
2013).




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                           Decision of the Court

II.    The Requirements Of A.R.S. § 25-403.02.

¶7             Mother argues awarding equal parenting time on a 5-2-2-5
basis, when neither party requested such a schedule, is error.2 She further
argues error in establishing a holiday schedule because “neither party
testified to any holiday time or vacation time.” Parents who disagree on
parenting time must separately submit their proposed parenting plans.
A.R.S. § 25-403.02(A). “If the parents are unable to agree on any element to
be included in a parenting plan, the court shall determine that element.”
A.R.S. § 25-403.02(D). Although the parents’ wishes should be considered,
the decision must be guided by the best interests of the children. See Dunbar
v. Dunbar, 102 Ariz. 352, 354 (1967).

¶8            Here, the parties did not agree on a parenting plan. Father
separately submitted his proposed plan. Mother did not. Accordingly, the
court was required to establish a parenting plan that included “[a] practical
schedule of parenting time for the child, including holidays and school
vacations.” A.R.S. § 25-403.02(C)(3). Although it did not need to mirror
either parent’s request, the parenting plan adopted did not include required
findings. Accordingly, it is vacated and on remand, the court should
provide specific findings reflecting how the court’s ruling on parenting
time supports the best interests of the children.

III.   Due Process.

¶9            Mother argues “[t]he parties were unable to present their
cases as they saw fit and were unable to provide their testimony to the
Court for determination.” “Due process requires notice and an opportunity
to be heard at a meaningful time and in a meaningful manner.” Huck v.
Haralambie, 122 Ariz. 63, 65 (1979). Here, both parents had an opportunity
to testify and present evidence at the hearing. Mother chose to represent
herself. When Mother hesitated in her presentation, the superior court
appropriately prompted her. Having reviewed the transcript from the
hearing, Mother has shown no abuse of discretion. See Brown v. U.S. Fid. &
Guar. Co., 194 Ariz. 85, 91 (App. 1998).

                              CONCLUSION

¶10          The rulings regarding legal decision-making and parenting
time are vacated, and the case is remanded for the superior court to make

2At the court’s initiative, the parties discussed a possible 5-2-2-5 schedule
at the evidentiary hearing and neither party testified that such a schedule
would not be feasible.


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                           Decision of the Court

specific findings on the record pursuant to A.R.S. § 25-403(B). In so doing,
this court offers no opinion on the merits, recognizing that a weighing of
the statutory factors may, or may not, yield a different outcome. See Hart v.
Hart, 220 Ariz. 183, 186-87 ¶ 13 (App. 2009). Nor does this court direct
additional evidentiary proceedings, unless the superior court determines
they are necessary. See id. at 187 ¶ 14. Father’s requests for attorneys’ fees
on appeal is denied; Mother is awarded her costs on appeal upon
compliance with Arizona Rule of Civil Appellate Procedure 21.




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




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