Hendricks v. Mortensen

735 P.2d 851, 153 Ariz. 241, 1987 Ariz. App. LEXIS 375
CourtCourt of Appeals of Arizona
DecidedFebruary 12, 1987
DocketNo. 2 CA-CV 5828
StatusPublished
Cited by8 cases

This text of 735 P.2d 851 (Hendricks v. Mortensen) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hendricks v. Mortensen, 735 P.2d 851, 153 Ariz. 241, 1987 Ariz. App. LEXIS 375 (Ark. Ct. App. 1987).

Opinion

OPINION

HOWARD, Presiding Judge.

This is a modification of custody case. The facts considered in the light most favorable to the party who was successful below are as follows. A decree of dissolution of marriage was entered January 16, 1985, nunc pro tunc to November 1, 1983. The parties were given joint custody of their minor child Derek, who was born on October 14, 1980. Under this arrangement Derek stayed with his mother five nights a week and with his father two nights a week.

On November 21, 1984, Linda, believing she had been divorced since 1983, filed a petition requesting an order modifying the decree of dissolution in order to allow her to move to California with Derek so she could better herself financially and marry a man to whom she was engaged. She presented testimony that Bruce had threatened her and Derek and also testified that if the court did not modify the decree she would remain in Arizona. The trial court denied the petition, finding that there had not been a showing of changed circumstances since the dissolution trial on November 1, 1983.

On January 23, 1985, Linda left Tucson with Derek without letting anyone know where they were going. They went to Texas where she took up residence with Derek under an assumed name. She felt this action was necessary because after the January 16th hearing, Bruce slashed the tires on her car and told her that it could just as easily have been her throat instead of the tires. He also told her that she should commit suicide because it would be a lot easier on her than he would be. This conduct was not new. In September 1984, Bruce assaulted her. He also called her employer, leaving a message, for her that she should have herself checked for herpes. In July 1985, Linda’s and Derek’s whereabouts were discovered and Derek was returned to Tucson, the parties agreeing that he would be in his father’s custody until the custody hearing which occurred in December 1985. Both parties petitioned the court for sole custody. In the meantime, psychological evaluations were done on both parties. Linda had remained in Texas where she is employed and married to an electrical engineer.

The psychological evaluations did not reveal any startling information about either party. Dr. Burkholder, Bruce's retained psychologist, had no concerns about Linda as a parent and nothing negative to say [243]*243about her parenting. She felt there was a strong normal bonding attachment between Derek and his mother. Over the five months while Derek was with his father, Derek told Dr. Burkholder that he missed his mother and wanted to be with her more.

Dr. Ghertner, Linda’s retained psychologist, worked jointly with Dr. Burkholder. He related that neither he nor Dr. Burk-holder felt that Linda’s ability as a parent was ever called into serious question. The relationship between Linda and Derek was described as being very good and very strong and the stronger parent-child bond existed between Linda and Derek. Derek’s personal preference was to be with his mother. Ghertner also reported that Linda has a continuing fear of Bruce and could not live in the same city with him. He concluded that Linda should have the primary custody of Derek and that it would not be disruptive to move Derek back to his mother’s residence on a permanent basis.

Dr. Morris, who performed a psychological test on Bruce and Linda, reported that Bruce’s testing revealed that he had some confusion about sex-role identification, had a preoccupation with genital-related activity and had an inability to carry out close relationships. The test showed him trying to appear more mature than he was, having the need to be in control and suspicious, and living in a fantasy world at times. It also revealed his being superficial in relationships.

The trial court, finding that there had been a substantial and continuing change of circumstances so that joint custody was no longer feasible and finding that it was in the best interest of Derek that his custody be with his mother, modified the custody provisions, awarding sole custody to his mother with visitation rights in his father.

Appellant contends the trial court should not have modified the custody provisions because (1) there was no change of circumstances; (2) it considered evidence which was res judicata; and (3) it was not in Derek’s best interest because his mother had previously “kidnapped” him. We disagree and affirm.

A.R.S. § 25-332(A) and (B) set forth the factors which the trial court may consider upon a petition to modify custody:

“A. The court shall determine custody, either originally or upon petition for modification, in accordance with the best interests of the child. The court may consider all relevant factors, including:
1. The wishes of the child’s parent or parents as to his custody.
2. The wishes of the child as to his custodian.
3. The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest.
4. The child’s adjustment to his home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent.
B. The court shall consider evidence of spouse abuse as being contrary to the best interests of the child. If the court finds that spouse abuse has occurred, the court shall make arrangements for visitation that best protect the child and the abused spouse from further harm.”

Although our statutes do not require that there be a showing of change in circumstances materially affecting the welfare of the child in order to modify a custody decree, our case law does require such a showing. Johnson v. Johnson, 13 Ariz. App. 574, 479 P.2d 721 (1971). The trial court has broad discretion to determine whether a change of circumstances has occurred and on review the trial court’s decision will not be reversed absent a clear abuse of discretion, in other words, a clear absence of evidence to support its actions. Pridgeon v. Superior Court, 134 Ariz. 177, 655 P.2d 1 (1982).

Appellant contends the trial court erred in admitting evidence of his conduct prior to the January 16th hearing and that the issue of remarriage and leaving the state as grounds for modification had already been litigated, decided adversely to Linda [244]*244and was res judicata. We do not agree. In Pridgeon v. Superior Court, supra, the court quoted with approval from the Oregon case of Harder v. Harder, 26 Or.App. 337, 552 P.2d 852, 854-55 (1976):

“[0]nce it has been decided that a given set of circumstances either does or does not require the modification of the support or custody provisions of a dissolution decree, no subsequent motion based exclusively on those same ‘circumstances’ may be entertained.

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Cite This Page — Counsel Stack

Bluebook (online)
735 P.2d 851, 153 Ariz. 241, 1987 Ariz. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendricks-v-mortensen-arizctapp-1987.