Opinion
No. 1 CA-CV 19-0533 FC No. 1 CA-CV 19-0693 FC (Consolidated)
04-20-2021
In re the Matter of: BRETT BUCHHOLZ, Petitioner/Appellee, v. KALYNN PALMISANO, Respondent/Appellant.
COUNSEL Bellah Law PLLC, Glendale By Shasta Marie Nolte Counsel for Petitioner/Appellee Garnice Law PLLC, Scottsdale By Victor A. Garnice Counsel for Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2008-051165
The Honorable Dawn M. Bergin, Judge Retired
AFFIRMED
COUNSEL Bellah Law PLLC, Glendale
By Shasta Marie Nolte
Counsel for Petitioner/Appellee Garnice Law PLLC, Scottsdale
By Victor A. Garnice
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined. CATTANI, Judge:
¶1 Kalynn Palmisano ("Mother") challenges the superior court's order granting the petition to prevent relocation filed by Brett Buchholz ("Father") and the court's associated imposition of sanctions against her under A.R.S. § 25-408(B) and (J). For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The parties' marriage was dissolved by consent decree in 2008, with Father and Mother agreeing to share joint custody of their minor child, S.B. The decree designated Mother as the primary residential parent and granted Father parenting time every other weekend, with Father agreeing to pay $444.02 in monthly child support.
¶3 In mid-2017, Father petitioned to modify parenting time and child support. The parties, who both resided in Arizona, agreed to modify the schedule to grant Father additional weekend, mid-week, and vacation parenting time.
¶4 Just a few months later, around December 21, 2017, Mother served Father with notice that she intended to move with S.B. to Nebraska. She apparently completed the move on January 18, 2018. Father filed a petition to block the relocation a few days later, alleging that it would harm his relationship with S.B. and would not be in S.B.'s best interests. Mother counter-petitioned to modify the parenting time schedule, alleging that relocation was necessary for her husband's employment and to avoid eviction in Arizona. She further alleged that in Nebraska, S.B. was receiving better education and better assistance in dealing with her particular learning needs.
¶5 The parties agreed that S.B. would remain in Nebraska pending trial, with Father receiving parenting time during spring and summer breaks. The parties also stipulated to appoint Dr. D.J. Gaughan to perform a comprehensive family evaluation.
¶6 Father, Mother, and Dr. Gaughan testified at trial. After considering S.B.'s best interests and making findings on relevant factors, the superior court rejected Mother's relocation request and ruled that S.B. would reside primarily with Father, with Mother receiving long-distance parenting time. The court further found that Mother had failed to provide Father the statutorily required 45 days' advance written notice before relocating S.B. to Nebraska and, as a result, ordered Mother to pay all travel costs for her long-distance parenting time as a sanction under A.R.S. § 25-408(B). The court denied both parties' requests for attorney's fees under § 25-324(A), but decided that Father was entitled to fees and costs under § 25-408(J) because Mother's relocation to Nebraska had unreasonably denied, restricted, or interfered with his parenting time. The court certified this relocation order as final and immediately appealable under Arizona Rule of Family Law Procedure ("Rule") 78(b) as to the issues fully resolved, noting that the amount of the § 25-408(J) attorney's fees award remained outstanding.
¶7 Father then filed a fee affidavit seeking just over $28,000 in attorney's fees. Mother filed an objection, and the next day, filed a timely notice of appeal from the relocation judgment. Father did not file a reply to his application for attorney's fees, and the court granted a reduced award of $5,000. Mother separately appealed from the judgment on fees, and we consolidated the two appeals. We have jurisdiction under A.R.S. § 12-2101(A)(2).
DISCUSSION
I. Relocation Judgment.
A. Relocation.
¶8 Mother argues that the record does not support several of the court's best-interests findings, undermining its ultimate best-interests determination and its ruling preventing relocation. We review the superior court's order concerning relocation, parenting time, and legal decision-making for an abuse of discretion. Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018); Murray v. Murray, 239 Ariz. 174, 176, ¶ 5 (App. 2016). We defer to the superior court's credibility assessments and resolution of factual disputes. Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019). We will affirm if substantial evidence supports the court's findings, even if there is contrary evidence. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).
¶9 The superior court must determine whether to allow relocation "in accordance with the child's best interests." A.R.S. § 25- 408(G). In so doing, the court must consider all relevant factors bearing on best interests, including the factors enumerated in A.R.S. § 25-403(A) and, in the relocation context, additional factors enumerated in A.R.S. § 25-408(I). In a contested case, the court must make specific findings about all relevant factors and explain the reasons its decision is in the child's best interests. A.R.S. § 25-403(B); Hurd, 223 Ariz. at 52, ¶ 20.
¶10 Mother first disputes the superior court's finding that S.B.'s relationship with Mother's husband, Tyler, is strained (as contrasted with S.B.'s close relationships with Mother and S.B.'s half-siblings in Mother's household as well as with Father's household and extended family). See A.R.S. § 25-403(A)(2) (child's "interaction and interrelationship" with parents, siblings, and others). Mother asserts that the court seemed to believe Tyler "had only one direct interaction [with S.B.]—a one-time begrudging visit to a nail salon" and ignored evidence of other positive interactions. But the court simply used this interaction as one example showing that Tyler and S.B. were not close, not as the sum total of their relationship. The court also cited other interactions, including evidence that S.B. reported to Father and Dr. Gaughan that she disliked Tyler, based in part on her perception that "he is disrespectful to her and Mother." Although Mother notes different evidence of positive interactions, we do not reweigh the evidence on appeal. See Lehn, 246 Ariz. at 284, ¶ 20.
¶11 Mother also urges that the court erred by noting that she and Tyler "engaged in frightening yelling matches" in S.B.'s presence, highlighting Dr. Gaughan's testimony that these "discussions" took place on another floor where Mother and Tyler did not realize the children would overhear. But Dr. Gaughan also cited concern with the serious nature of these arguments, and S.B. reported hearing—and being frightened by—the arguments. Although Mother presented evidence that she and Tyler took steps to reduce such arguments, albeit only after Dr. Gaughan flagged that the children could hear them, the court nevertheless could consider the arguments and their effect on S.B. in assessing S.B.'s family relationships under § 25-403(A)(2).
¶12 Second, Mother disputes the superior court's findings as to S.B.'s "adjustment to home, school and community." See A.R.S. § 25-403(A)(3). She asserts the court's finding that S.B. was not doing well in school is not supported by the evidence, arguing S.B.'s grades dipped before the relocation. But the court did not find that relocation had harmed S.B.'s academic performance, merely that S.B. was not doing well (which Mother does not dispute).
¶13 Mother further argues that the court erred by considering her arguments with Tyler in assessing S.B.'s home life. She asserts that her relationship with Tyler had improved, as proven by Dr. Gaughan's testimony that she and Tyler were getting along better and arguing less frequently. But the superior court was not required to (and in fact did not) accept Dr. Gaughan's conclusion in this regard. Cf. Nold v. Nold, 232 Ariz. 270, 274-75, ¶ 14 (App. 2013). And we defer to the court's determination that other, contrary evidence—including Father's testimony about Tyler's disclosures regarding problems between Mother and Tyler—was credible. See Lehn, 246 Ariz. at 284, ¶ 20.
¶14 Mother also asserts that the court lacked an evidentiary basis for its stated concern that she frequently used S.B. as a caregiver for the younger children. But while Dr. Gaughan testified at one point that the babysitting issue was resolved, he also related that S.B. had reported continuing to take care of the younger children (albeit less frequently) and opined that the amount of time S.B. reported caregiving was "more than it should be" for a child her age. The record thus supports the court's findings in this regard.
¶15 Third, Mother disputes the court's finding that S.B. was "somewhat conflicted" on where she wanted to reside. See A.R.S. § 25-403(A)(4) (child's wishes as to legal decision-making and parenting time). She asserts that the court failed to consider that S.B. "never listed any specific positive things about living with Father," but Dr. Gaughan's report included several such positive statements, including S.B.'s comments about her close relationship with the other members of Father's household.
¶16 Fourth, Mother disputes the superior court's finding that Father was more likely to "allow [S.B.] frequent, meaningful and continuing contact with the other parent," challenging the court's reliance on her relocation to Nebraska without Father's consent as the "most compelling evidence" supporting this finding. See A.R.S. § 25-403(A)(6). Although Mother cites Father's agreement that S.B. would remain in Nebraska pending trial, she does not explain how a temporary agreement (in the wake of Mother's unauthorized relocation) bears on whether permanent relocation would be in S.B.'s best interests. And she does not challenge the court's finding that she "tends to be very rigid with parenting time . . . and tries to dictate the schedule." We do not reweigh this evidence on appeal. See Hurd, 223 Ariz. at 52, ¶ 16.
¶17 Fifth, Mother disputes the superior court's finding regarding her reasons for moving to Nebraska, asserting that the court focused solely on the move's effect on Tyler's career prospects and ignored the underlying financial hardships necessitating the move. See A.R.S. § 25-408(I)(7) (parents' reasons for moving or opposing the move). But Mother did not testify about financial distress (whereas Tyler did testify that the move improved his career prospects), so the court was not required to address Mother's undiscussed financial motives.
¶18 Finally, Mother argues that the superior court's perception of two witnesses undermines its ruling. Mother generally contends that inconsistencies in Father's testimony show he was not a credible witness, so the court erred by finding her (but not Father) not to be credible. But we defer to the court's credibility assessments. See Lehn, 246 Ariz. at 284, ¶ 20. And Mother further expresses concern that the court's frustration with Dr. Gaughan, who failed to call in to testify as scheduled, might have negatively affected the court's view of Mother. But as Mother acknowledges, the court made clear that any frustration was directed to Dr. Gaughan alone, not the parties.
¶19 Accordingly, because the record supports the court's best-interests findings and assessment, we affirm its ruling granting Father's petition to prevent relocation.
B. Sanctions.
¶20 Mother next challenges the sanction the court imposed—ordering her to pay all travel costs for her parenting time with S.B.—for her failure to provide Father the statutorily required 45 days' advance written notice before moving to Nebraska with S.B. Mother concedes that she did not provide the notice required by statute but suggests the court should have declined to impose any sanction because Father was not prejudiced by the violation.
¶21 Although the court has discretion to determine what sanction to impose, when a parent fails to provide the requisite notification without good cause, imposition of a sanction is mandatory. A.R.S. § 25-408(B) (dictating that the court "shall sanction" a parent for failure to comply with notification requirements); see also Woodworth v. Woodworth, 202 Ariz. 179, 181-82, ¶¶ 10, 14-18 (App. 2002) (construing a prior version of the statute to permit but not require a sanction under these circumstances); 2010 Ariz. Sess. Laws, ch. 221, § 3 (49th Leg., 2d reg. sess.) (amending § 25-408 to require that a court "shall sanction" a parent who fails to provide the required notification "without good cause"). Although Mother now asserts that relocation was a "financial necessity," at trial she did not testify to or otherwise establish that she suffered financial hardship justifying relocation without meeting notification requirements. And she does not assert that the chosen sanction—requiring her to pay all travel costs for her parenting time—has any impact on S.B.'s best interests. See A.R.S. § 25-408(B) (requiring that sanctions affecting legal decision-making or parenting time comport with the child's best interests).
¶22 Accordingly, the superior court did not err by imposing sanctions under § 25-408(B).
II. Award of Attorney's Fees as Sanction.
¶23 Mother challenges both the superior court's decision to assess attorney's fees against her as a sanction under A.R.S. § 25-408(J) and the amount of fees awarded. Father argues that the court's decision to sanction Mother was proper, but he asserts that the ultimate judgment on fees must be vacated on the theory that Mother's first notice of appeal (filed just after her objection to his fee affidavit and before the court's ruling on fees) divested the superior court of jurisdiction over the case.
¶24 Father's jurisdictional argument is unavailing. The superior court certified the relocation order under Rule 78(b)—that is, as "a final judgment as to one or more, but fewer than all, claims." And as Rule 78(b) acknowledges, an attorney's fees claim is considered a separate claim from the related merits judgment for these purposes. See also Ghadimi v. Soraya, 230 Ariz. 621, 622-23, ¶ 10 (2012) (noting that a dissolution decree was not final and appealable because it neither resolved a claim for attorney's fees nor included Rule 78(b) certification); Nat'l Broker Ass'n v. Marlyn Nutraceuticals, Inc., 211 Ariz. 210, 217, ¶ 33 (App. 2005) (noting that the civil analogue to Rule 78(b) was designed "in part for the purpose of allowing a trial court to expressly enter a judgment on the merits that may immediately be appealed while retaining jurisdiction over an attorneys' fees issue for later resolution"). The court here recited that the relocation judgment was final and appealable as to "the issues addressed in this Order" while expressly noting that "the issue of attorney's fees [under § 25-408(J)] remains outstanding." Accordingly, Mother's appeal from the relocation judgment did not divest the superior court of jurisdiction over the claim for attorney's fees that the court expressly excluded from the 78(b) judgment.
¶25 Mother's challenge to the fact and amount of the attorney's fees award is similarly unavailing. The fee award was based on A.R.S. § 25-408(J), which requires the court to assess attorney's fees and costs as a sanction against a parent "if the court finds that the parent has unreasonably denied, restricted or interfered with court-ordered parenting time." Here, the court found that Mother unreasonably interfered with Father's parenting time by moving S.B. to Nebraska without Father's knowledge or consent.
¶26 Mother urges that the § 25-408(J) sanction was not warranted because the court lacked a basis for finding unreasonableness. She again asserts that financial hardship necessitated the move, but as described above, Mother did not provide evidence of such hardship at trial. Although Mother asserts that her move must have been reasonable because the parties agreed that S.B. would remain in Nebraska pending trial (and the court entered temporary orders to that effect), she does not explain how an after-the-fact, temporary agreement rendered her prior unauthorized conduct reasonable. Additionally, Mother does not explain how relocation with S.B. was her only reasonable option, especially given the effect her out-of-state relocation would have on Father's parenting-time rights.
¶27 Mother further asserts that the court's ruling is internally inconsistent because the court denied both parties' requests for fees under § 25-324(A), which, in Mother's words, also "contains a reasonableness factor." But the two statutes address reasonableness in different contexts: § 25-408(J) is directed to unreasonable interference with the other parent's parenting time, whereas § 25-324(A) involves reasonableness of the positions taken in the court proceedings. We thus discern no error in the superior court's determination that Mother's relocation with S.B. unreasonably interfered with Father's court-ordered parenting time.
¶28 Mother also challenges the amount of the award. After considering Father's fee affidavit (which sought over $28,000) and Mother's objection, the court limited the award to Father's fees stemming from Mother's unauthorized relocation (which it calculated as just less than $8,500), then further reduced the amount of the award to $5,000 based on S.B.'s best interests, taking into account the § 25-408(B) sanction already imposed against Mother.
¶29 While Mother asserts that Father's fee affidavit did not link any charges to specific unreasonable conduct by Mother, the court did so by limiting the award to amounts resulting from Mother's unauthorized relocation. And while Mother faults the court for proceeding even though Father had failed to file an affidavit of financial information as required by Rule 91(n), she does not explain how Father's financial status is relevant to an award under § 25-408(J) or (given that she does not dispute the court's finding that she received disclosure of Father's affidavit of financial information) how she was prejudiced.
CONCLUSION
¶30 For the foregoing reasons, we affirm the superior court's relocation ruling, imposition of § 25-408(B) sanctions, and award of attorney's fees under § 25-408(J). Both parties request their attorney's fees on appeal under A.R.S. § 25-324. Having considered the requisite factors and in an exercise of our discretion, we decline both requests.