Opinion
2 CA-CV 2022-0036-FC
01-19-2023
In re the Marriage of Taft Luc Mitchell, Appellee, and Katherine Ciarra Mitchell, Appellant.
Donaldson Stewart P.C., Chandler By Heather N. Peláez Counsel for Appellee Law Offices of Kevin Jensen PLLC, Mesa By Kevin Jensen Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100DO201900198 The Honorable Lawrence M. Wharton, Judge Pro Tempore
Donaldson Stewart P.C., Chandler By Heather N. Peláez Counsel for Appellee
Law Offices of Kevin Jensen PLLC, Mesa By Kevin Jensen Counsel for Appellant
Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vásquez and Judge Sklar concurred.
MEMORANDUM DECISION
ECKERSTROM, Presiding Judge
¶1 Katherine Mitchell ("Mother") appeals from the trial court's order modifying parenting time and child support with regard to her two children with Taft Mitchell ("Father"). She contends the court erred in modifying the parenting plan without first finding that there had been a change of circumstances that was detrimental to the children. Because Mother's claim is premised on a misinterpretation of the law and a selective review of the record, we reject it and, thus, affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. Ball v. Ball, 250 Ariz. 273, n.1 (App. 2020). The parties married in 2013 and had two children together. The parties and their children resided together in Arizona until Mother and Father separated in September 2018. At that time, Mother and the children relocated to Idaho to live with Mother's parents. Father consented to and assisted financially with this move. In January 2019, Father filed for divorce. In August 2019, Mother, her parents, and the children relocated together to Alaska, without Father's consent.
¶3 In November 2019, after a bench trial, the trial court granted Mother's request to relocate the children to Alaska. Although it denied Father's request that the children be returned to Arizona, the court granted him "substantial and continuing parenting time," including summer months and major holidays as divided in the court's order. In February 2020, Father filed a motion for reconsideration, challenging inter alia the court's determinations regarding relocation. In May 2020, after a hearing, the court denied any relief regarding the relocation to Alaska.
This order and others established child support obligations, but that issue is not the focus of the parties' arguments on appeal.
¶4 In May 2021, Father filed a petition to modify parenting time and child support. He explained that, in March 2021, Mother had informed him that she wanted to relocate with her parents and the children to Kansas. Then, two months later, Mother notified him of her intent to relocate back to Idaho. Father stated that he opposed the relocation "because it is not stable for the children to move so frequently and reside in less than adequate conditions each time." He further noted his belief that "the educational and emotional needs of the [c]hildren are being cast aside and treated as an afterthought" and articulated specific concerns, including that the children were already behind academically and that another relocation would leave them with "no ties to their new apartment, school, or community." He then argued that it would be in the children's best interests to relocate to Arizona, where he continues to live in the same house they recognize, "with plenty of space where they have family and many friends that they have known for years," including a stepmother and twin sisters, one block away from the school they would attend and in the same residential community as their church. He concluded by stating that a relocation to Arizona would "create a more stable, supportive environment during the school year" and that Mother could parent in the summers.
¶5 In October 2021, the trial court held an evidentiary hearing on Father's motion to modify. The primary issue presented was whether the children should continue living primarily with Mother or relocate to Arizona with Father. At the conclusion of the presentation of evidence, the court found that, since the entry of the original orders, there had been "a substantial and continuing change in circumstances, warranting a change in the parenting time schedule." In particular, the court highlighted Mother's move from Alaska and remarriage, as well as the birth of a new child and the addition of two step-siblings. It further explained that these circumstances had created "a material change that has affected the welfare of the children" and that it intended to modify parenting time to essentially reverse the parents' blocks of time. The minute entry from the hearing reiterated the court's findings.
¶6 The trial court asked the parties to stipulate to a parenting plan consistent with its ruling and to submit it to the court by the end of November 2021 for review and approval. Father later notified the court that the parties had not been able to reach an agreement. Thus, in December 2021, the court issued its ruling modifying the parenting plan. It noted that the court had taken testimony from the parties and considered the evidence, "including the demeanor of the witnesses, reviewed the exhibits as well as the case history, and considered the parties' arguments," and conducted "significant deliberation." The court then made detailed written findings on the best-interest factors required under A.R.S. § 25-403.
¶7 In particular, the trial court found that both parents had remarried, Father and his new spouse have twins, and Mother and her new spouse have a newborn and two additional minor children from his prior relationship. It then noted: "The presence of the two minor children of Mother's new husband has caused some conflict with the minor children of this matter in that some gifts sent by Father for these minor children have unsettled the harmony in Mother's home." Noting that the children had changed schools several times due to Mother's relocations, the court found that "their attendance and educational progress has suffered." In contrast, it found that the children "are well-adjusted to Father's home[,] which he has maintained since the divorce," and that father "regularly helps with their education." Finally, the court found that Mother's relocations with the children "have negatively affected Father's parenting time and access to records for the children."
¶8 Then, as it had indicated it intended to do at the hearing on the issue, the trial court reversed the parenting time arrangement, ordering Mother to have parenting time during the summers and other school breaks for certain holidays, while Father assumes the role of "primary residential parent" in Arizona during the school year. A few days later, the court held a status conference at which the parties reached agreement on a number of outstanding issues. The next week, during the first week of January 2022, the court entered a final order under Rule 78(c), Ariz. R. Fam. Law P. This appeal followed.
Jurisdiction
¶9 Although Father does not expressly contest jurisdiction, he notes that Mother's notice of appeal references only the trial court's December 2021 ruling, not its earlier minute entry or the final order from January 2022. Because we have an independent obligation to ensure we have jurisdiction over the matters before us, Camasura v. Camasura, 238 Ariz. 179, ¶ 5 (App. 2015), we briefly address the issue here.
¶10 Father is correct that Mother's notice of appeal fails to reference the trial court's final order. It mentions only "the Order captioned 'Ruling on Matters Under Advisement' entered on the docket on December 27, 2021." As the notice correctly notes, that order was signed and purported to be entered pursuant to Rule 78(b), Ariz. R. Fam. Law P. But it did not contain an express determination by the court that there was "no just reason for delay," as is now required under Rule 78(b) when a trial court seeks to "direct the entry of an appealable judgment as to one or more, but fewer than all, claims." To the contrary, the order in question set a status conference and advised that, if the parties had not reached "any specific agreements regarding the dates of parenting time and/or child support" by that date, the court would enter the terms of the December ruling "as a final order." The court then did so, as promised, after the status conference, in its signed January 2022 minute entry, "entered as a formal order," certifying "that no further matters remain pending" and that the order was being entered pursuant to Rule 78(c).
In August 2022, our supreme court adopted amendments to Rule 78. Ariz. Sup. Ct. Order R-22-0005 (Aug. 29, 2022). The amendments apply to "all cases pending in the superior courts and appellate courts on the filing date of [that] order," which includes the matter before us. Id.
¶11 However, "[w]e liberally construe notices of appeal 'if the result is neither misleading nor prejudicial to the appellees involved.'" Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 30 (App. 1998) (quoting McKillip v. Smitty's Super Valu, Inc., 190 Ariz. 61, 63 (App. 1997)). Father has not been prejudiced by Mother's failure to mention the January 2022 order in her notice of appeal. Indeed, Father's answering brief does not contest jurisdiction or claim any prejudice resulting from Mother's failure to mention the January 2022 order in her notice. See id. Moreover, other than timeliness, defects in a notice of appeal do not affect our jurisdiction. Ariz. R. Civ. App. P. 8(d); see also Schwab v. Ames Constr., 207 Ariz. 56, ¶ 11 (App. 2004) ("This court generally disfavors hypertechnical challenges to a notice of appeal," and "technical defects or omissions in a notice of appeal are usually not jurisdictional and do not render the notice ineffective absent prejudice to the appellee."). In this context, we conclude that Mother's notice of appeal was sufficient to confer jurisdiction over the appeal from the trial court's final judgment. See A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).
Mother's Substantive Claim
¶12 Mother contends the trial court erred "by modifying a parenting plan without first finding that there had been a change of circumstances that was detrimental to the children," a finding she calls a "statutory prerequisite for modifying parenting time." A trial court's determination of parenting plans is afforded substantial deference and "will not be reversed absent . . . a clear absence of evidence to support its actions." Backstrand v. Backstrand, 250 Ariz. 339, ¶ 14 (App. 2020) (quoting Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982)). Mother has not established such abuse here.
¶13 A request for the modification of a parenting plan triggers a "two-stage inquiry." Id. The trial court must first "ascertain whether there has been a change of circumstances materially affecting the welfare of the child." Id. Importantly, "[t]he superior court is vested with broad discretion to decide whether a change of circumstances has occurred." Id. If it identifies such a change, the court must then determine whether a change in the parenting plan would be in the child's best interests. Id. The party seeking the modification bears the burden of establishing to the court's satisfaction that the "conditions and circumstances have so changed after the original decree as to justify the modification." Id. (quoting Burk v. Burk, 68 Ariz. 305, 308 (1949)).
¶14 The first step requires a change in circumstances "materially affecting the welfare of the child." Id. This is distinct from Mother's formulation, which would require the finding of a change that "was harming the children." She inaccurately argues that "changes in parenting time can only follow a detrimental change in circumstances." In Backstrand, we expressly rejected the contention that "the court cannot modify parenting time unless it first finds a material change detrimental to the child's welfare." Id. ¶¶ 1, 20-24.
¶15 Relocation to another state - causing the children to move to "a new home, school, and community," and to "engage in new activities, form new relationships, and face new challenges" - is by itself a qualifying change in circumstances." Id. ¶ 15. And whether that change is "ultimately positive or negative is immaterial to the change-of-circumstances inquiry." Id. ¶ 16. The court need assess only whether a change of circumstances affecting the child's welfare has occurred and whether the difference is material such that a departure from the underlying order is justified. Id.
¶16 Here, the trial court was clearly justified in finding a qualifying change in circumstances on the basis of the relocation from Alaska to Idaho. This is particularly so given that Mother's relocation to Idaho was a clear, material change in circumstances from the baseline of the original November 2019 decree. See id. ¶ 16. That decree noted the children were "well-adjusted to Mother's [then-]current home in Alaska," where they "appeared] to be thriving" thanks to the "stability" Mother and her parents had created for them, and where Mother intended to live with her parents "on a permanent basis." All of this necessarily changed with Mother's relocation with the children to Idaho in 2021. In addition, the original decree contemplated parenting time for Father during school breaks that do not exist in Idaho. For all these reasons, the court was well within its discretion to find that the relocation was a material change of circumstances affecting the children's welfare. See id. ¶ 19.
¶17 Mother contends the trial court "did not make any findings under [A.R.S.] § 25-411 showing . . . a substantial and continuous change in circumstance materially affecting the welfare of the children." The portions of that statute referencing "substantial" changes relate to military deployment, an issue not relevant here. Section 25-503(E), A.R.S., also references a changed circumstance that is "substantial and continuing," but that statute relates to child support modification or termination, not the modification of a parenting plan. Regardless, as described above, the court made extensive findings regarding the changed circumstances underlying its decision. It was not required, as Mother suggests, to make a finding of "substantial and continuous change" in this context.
¶18 Having found a qualifying chance of circumstances, the trial court proceeded to the second step of the modification inquiry: "whether the decree should be modified based on the court's assessment of the [children's] best interests as provided by the relevant statutory framework." Id. ¶ 25. As noted above, the court made findings on all the best-interest factors provided in § 25-403, assessing present circumstances to determine whether modification of the parenting plan would be in the children's best interests. The court's findings regarding reduced attention, conflict in Mother's home, educational concerns stemming from repeated relocations, and negative impacts on Father's parenting time are all supported by the record. The court was in the best position to judge the credibility of the witnesses and to resolve any conflicts in the evidence. Vincent v. Nelson, 238 Ariz. 150, ¶ 18 (App. 2015). As such, "[w]e will not substitute our judgment by reweighing the evidence underlying the court's best-interests analysis." Backstrand, 250 Ariz. 339, ¶ 27.
¶19 In any case, the record does not support Mother's claim that the trial court "moved the children from a well-established home, school, and family in Idaho." The children had never lived in Mother's current Idaho town before July 2021. By the time of the evidentiary hearing in October 2021, the children had only been enrolled at their school in that town for two months.
¶20 Mother also highlights the trial court's statements regarding Father's need for a "meaningful opportunity to watch his kids grow up" and establish a bond with them. She claims the court "imposed a new policy-those parents with long-distance parenting plans should switch places every few years to ensure both parents have an equal chance to bond with the children." This is not only an exaggeration of the court's ruling;it also overlooks that our legislature has directed trial courts to, consistent with the child's best interests, adopt a parenting plan that "maximizes" each parent's respective parenting time. A.R.S. § 25-403.02(B); see also A.R.S. § 25-408(I)(5) (trial court considering request to relocate child "shall consider" whether relocation "will allow a realistic opportunity for parenting time with each parent").
Mother also exaggerates when claiming that the trial court "even acknowledged that this change [to the parenting schedule] would be 'devastating' for Mother and the children-not beneficial." In reality, the court acknowledged the maternal grandmother's testimony that Mother's side would naturally view a significant change in the parenting arrangement to be "devastating," but also noted that Mother had agreed that a long-distance parenting plan was fundamentally "fair." Far from finding that the change would be "devastating" and "not beneficial" to the children, the court found that it would be in the children's best interests.
¶21 In sum, we cannot credit Mother's claims that the trial court decided to alter the existing parenting arrangement "solely on the basis of a judicial whim" and without the required findings. Rather, the record reflects that the court engaged in the required two-part inquiry. It appropriately exercised its discretion after hearing from the parties, weighing the evidence, and applying the law. We have no basis to reverse its decision.
Attorney Fees and Costs
¶22 Father requests an award of attorney fees under A.R.S. § 25-324. In the exercise of our discretion, we deny that request. See Backstrand, 250 Ariz. 339, ¶ 33. As the successful party, Father is entitled to recover his costs on appeal, upon his compliance with Rule 21(b), Ariz. R. Civ. App. P.
Disposition
¶23 For the foregoing reasons, we affirm the order of the trial court.