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In re Engstrom

Court of Appeals of Arizona, First Division

January 9, 2018

In re the Matter of: DANA JENNIFER ENGSTROM, Plaintiff/Appellant/Cross-Appellee,
v.
JAMES MCCARTHY, Respondent/Appellee/Cross-Appellant.

         Appeal 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 Plaintiff/Appellant/Cross-Appellee

          Ruth Atkinson Lusby PA, Scottsdale By Ruth A. Lusby The Murray Law Offices PC, Scottsdale By Stanley D. Murray Co-Counsel for Defendant/Appellee/Cross-Appellant

          Judge Maurice Portley [1] delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.

          OPINION

          Maurice Portley, Judge

         ¶1 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2 The parties married in 2002 and have four children. Mother filed a petition for dissolution of marriage in 2014.

         ¶3 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).

         DISCUSSION

         ¶4 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 Agreement

         ¶5 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.

         ¶6 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."

         ¶7 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."[2] Nevertheless, citing A.R.S. ยง 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 ...


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