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Plumacher v. Sheedy

Court of Appeals of Arizona, First Division

December 10, 2013

JENNIFER A. PLUMACHER, Petitioner/Appellee,
v.
ANTHONY R. SHEEDY, Respondent/Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. FC2011-071870 The Honorable Michael W. Kemp, Judge

Jennifer A. Plumacher, Peoria In Propria Persona

Anthony R. Sheedy, Phoenix In Propria Persona

Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Margaret H. Downie joined.

MEMORANDUM DECISION

PETER B. SWANN PRESIDING JUDGE

¶1 Anthony R. Sheedy ("Father") appeals from rulings granting physical custody of his daughter ("Child") to Jennifer A. Plumacher ("Mother") and authorizing Mother to enroll Child in the school of Mother's choice. Under A.R.S. § 25-403, the court was required to support the custody ruling with express findings of fact.[1] It did not do so. We therefore vacate that order and remand so that the court may decide physical custody by considering the relevant factors and making the required findings.

FACTS AND PROCEDURAL HISTORY

¶2 Child was born to Mother and Father, an unmarried couple, in January 2008. In October 2011, Mother filed a petition by which she sought sole custody of Child and child support from Father. Father answered Mother's petition, filed counterclaims by which he sought joint custody and equal parenting time, filed a request for findings of fact and conclusions of law under ARFLP 82 on parenting time only, and filed a petition for temporary orders. The parties also disputed whether Child, who was to start school in September 2012, should attend a school near Mother's residence or a school halfway between Mother's place of employment and Father's residence.

¶3 In March 2012, the court entered temporary orders on custody, parenting time, and child support, deferring the issue of Child's school enrollment until the June 2012 trial. The parties agreed before trial that they should share joint legal custody of Child.

¶4 At trial, Mother testified that the parties had shared a nearly equal parenting schedule when Father lived in Surprise and she was able to care for Child at her home in Peoria when he was at work, but the schedule proved unworkable after Father moved to Tempe and was unable to provide reliable child care when he was at work. According to Mother, she and Father then agreed to a schedule whereby Father took the Child every weekend. Mother testified that she and Father had used that schedule for almost a year, and she wanted it to continue because of the significant distance between the parties' residences and their differing work schedules. Mother testified that the school Father had selected for Child was approximately 40 miles from her home and 16 miles from where she worked, which would require Mother to wake Child extremely early on weekdays and place Child in before-school and after-school care. Mother testified that if she had care of Child during the week and Child was placed in a school near her home, Child's maternal grandparents could provide after-school care. Mother also expressed concern regarding Father's ability to get Child to school on time and the stability of his marriage to Child's stepmother.

¶5 Father disputed Mother's testimony, claiming that the parties had continued an equal parenting schedule up until the time that Mother filed her petition, and that any difficulties regarding Child's travel to a school nearer to his residence could be overcome through cooperation.

¶6 According to the court-appointed parenting-conference provider, Dr. Denise Glassmoyer, Father had stated that he wanted equal parenting time on an alternating 5-2-2-5 schedule. Dr. Glassmoyer noted that the distance between the parties' homes presented logistical challenges and suggested that the court consider a parenting plan that would maximize stability as Child transitioned to attending school. Dr. Glassmoyer opined that a "structured parenting plan with Mother as the primary custodial parent and Father with consistent, frequent parenting time" might be in Child's best interest.

¶7 The court adopted the findings, conclusions, and recommendations of Dr. Glassmoyer's written report and expressed the intent to follow Dr. Glassmoyer's ...


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