In re the Matter of: DANA JENNIFER ENGSTROM, Plaintiff/Appellant/Cross-Appellee,
JAMES MCCARTHY, Respondent/Appellee/Cross-Appellant.
from the Superior Court in Maricopa County No. FC2014-053640
The Honorable Jennifer C. Ryan-Touhill, Judge, VACATED IN
PART AND REMANDED
Burggraff Tash Levy PLC, Scottsdale By Randi Burggraff,
Justin Tash, Michael Dinn, Jr. Counsel for
Atkinson Lusby PA, Scottsdale By Ruth A. Lusby The Murray Law
Offices PC, Scottsdale By Stanley D. Murray Co-Counsel for
Maurice Portley  delivered the opinion of the Court, in
which Presiding Judge Paul J. McMurdie and Judge Peter B.
Maurice Portley, Judge
Dana Engstrom ("Mother") and James McCarthy
("Father") both challenge the parenting time and
legal decision-making terms of the decree dissolving their
marriage. Because we find their Arizona Rule of Family Law
Procedure ("Rule") 69 agreement binding and no
explanation in the record for any modification, we vacate the
legal decision-making and parenting time orders and remand
for further proceedings.
AND PROCEDURAL HISTORY
The parties married in 2002 and have four children. Mother
filed a petition for dissolution of marriage in 2014.
After trial, the family court dissolved the marriage, awarded
Mother sole legal decision-making authority, and awarded the
parties shared parenting time. We have jurisdiction over the
cross-appeals from the July 2016 decree under Arizona Revised
Statutes ("A.R.S.") section 12-2101(A)(1).
Both parents challenge the award of parenting time and legal
decision-making. We will affirm the family court's order
of parenting time and legal decision-making absent an abuse
of discretion. Nold v. Nold, 232 Ariz. 270, 273,
¶ 11 (App. 2013). An abuse of discretion results when
the record is "devoid of competent evidence to support
the decision, " or when the court commits an error of
law in the process of reaching a discretionary conclusion.
Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App.
2009). Moreover, we defer to the court's findings of fact
unless they are clearly erroneous. See Alvarado v.
Thompson, 240 Ariz. 12, 14, ¶ 11 (App. 2016). But
"[c]onclusions of law and the interpretation of statutes
and rules are reviewed de novo." Id. A. Rule 69
Father contends that, because he and Mother had entered into
a Rule 69 agreement before trial that was approved and
adopted by the court as an enforceable order, the court
"could not modify [the] final, existing order regarding
legal decision-making and parenting time absent a showing of
a substantial and continuing change of circumstances."
Mother disagrees, and claims "the [family] court had
authority to reject the parties' Rule 69 Agreement
because it ha[d] discretion" to do so under Rule 69(B)
and A.R.S. § 25-317.
In an October 2014 pretrial resolution management conference,
the parties entered into a Rule 69 agreement in court. Mother
and Father agreed to share joint legal decision-making
authority and parenting time. The court found the agreement
was "fair and equitable, " and "in the best
interest of the parties' minor children."
Consequently, the court approved the agreement "as an
enforceable order of th[e] Court."
At trial, Mother admitted she had voluntarily entered into
the Rule 69 agreement in court, and that she did so with her
attorney present. She claimed, however, that at the time she
entered into the agreement she believed its provisions were
only temporary. After reviewing the agreement and the
"enforceable order, " the court ruled that
"the agreement for joint legal decision-making and equal
parenting time was not temporary." Nevertheless,
citing A.R.S. § 25-317 and Rule 69(B) as legal
authority, the court said that "[notwithstanding the
parties' binding agreement, this [c]ourt can reject an
agreement if the [c]ourt, pursuant to its own discretion,
finds a basis for rejecting an agreement." The ...