Opinion
No. 1 CA-CV13-0520
11-25-2014
ANNIKA M. JACKSON, Petitioner/Appellee-Cross Appellant, v. PHILLIP T. JACKSON, Respondent/Appellant-Cross Appellee.
COUNSEL Rubin & Ansel, PLLC, Scottsdale By Yvette D. Ansel, Jennifer B. Rubin Counsel for Respondent/Appellant-Cross Appellee Davis Miles McGuire Gardner, PLLC, Gilbert Douglas C. Gardner Counsel for Petitioner/Appellee-Cross Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. FC 2012-053850
The Honorable Danielle J. Viola, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL Rubin & Ansel, PLLC, Scottsdale
By Yvette D. Ansel, Jennifer B. Rubin
Counsel for Respondent/Appellant-Cross Appellee
Davis Miles McGuire Gardner, PLLC, Gilbert
Douglas C. Gardner
Counsel for Petitioner/Appellee-Cross Appellant
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined. DOWNIE, Judge:
¶1 Phillip Jackson ("Father") appeals orders of the superior court granting Annika Jackson ("Mother") permission to relocate with the parties' minor children and denying his petition to modify custody and parenting time. Mother cross-appeals the court's modified child support order and its allocation of travel expenses. With the exception of the child support order, which we vacate and remand, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the superior court's ruling. See Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676, 679 (App. 1998).
¶2 The parties married in 2003 and lived in Sedona, Arizona. They have two minor children, born in 2006 and 2010. In September 2011, Mother filed a dissolution petition. Father relocated to Phoenix in the fall of 2011. The parties entered into a consent decree ("Decree"), which the superior court approved and filed on December 7, 2011.
¶3 The Decree required Father to pay $2189.27 per month in child support. It also incorporated a Custody and Co-Parenting Agreement ("Agreement") the parties had negotiated that awarded Mother sole legal custody of the children. Father's presumptive parenting time, after testing negative for drugs and alcohol, was on Thursdays and Fridays from 2:30 to 7:00 p.m. while he lived in Sedona, with the option of Tuesdays between 2:30 and 4:00 p.m. Mother received uninterrupted parenting time during the "summer break" to travel with the children to visit extended family in her home country of Sweden.
¶4 The parties agreed to sell the marital residence, but Mother remained in the home with the children until the summer of 2012. In the interim, Father exercised semi-regular parenting time, though not typically according to the schedule outlined in the Agreement. Mother's employment in Sedona ended in the spring of 2012, just before her annual trip to Sweden. In anticipation of both the sale of the house and a possible relocation for new employment, Mother moved property from the marital home into storage in Sedona. She and the children then departed for Sweden, with plans to return in August.
¶5 Though Mother had discussed with Father the prospect of moving closer to him upon her return, on July 10, 2012, she decided to accept a job in Sweden. On July 11, 2012, Mother's counsel sent Father a "Notice of Relocation Pursuant to A.R.S. § 25-408," advising of Mother's intention to relocate to Sweden and asking him to renegotiate parenting time. Father responded that he was opposed to the relocation. When Mother did not return with the children in early August, Father filed an Emergency Petition to Prevent Relocation and a Petition for Modification of Custody, Parenting Time, and Child Support. Mother filed a Petition to Approve Relocation on August 6, 2012.
¶6 The superior court found Mother in contempt for violating paragraph N of the Agreement, which states:
Neither parent shall change their residence in a manner which shall substantially affect this Co-Parenting Agreement without first making arrangements for appropriate modification of this Agreement through direct negotiation or Court order. Both parents acknowledge that [Mother] and her family are from Sweden and may choose to review if the best interests of the children are met by a move closer to her family.However, the court found Mother "presented evidence as to a good cause basis for her failure to fully comply with paragraph N," stating she "remained in Sweden in order to accept employment at a time that Mother was otherwise unemployed." The court also found Father in contempt because he had not complied with the Agreement's substance abuse testing and monitoring terms and had offered "no basis for not fully complying with the order." The court declined to order the children's return to the United States, stating:
[E]ntering an order as a sanction to require Mother to return to Arizona where she has no current means of supporting herself or the children and no place to live is not in the children's best interest. Moreover, the Court finds ordering that the children be placed in Father's primary care at this
time is inappropriate given Father's admitted failure to comply with the TASC alcohol testing requirements of the parties' [Agreement] and Father's recent DUI.
¶7 The court held a two-day evidentiary hearing to address relocation, as well as Father's modification petition. In a ruling filed June 24, 2013, the court denied Father's petition for joint custody and equal parenting time and granted Mother's request to relocate. The court awarded Father parenting time during school vacations and summer breaks, as well as an optional week of parenting time each month in Sweden. The parties were each ordered to pay one-half the children's airfare expenses, with Mother being solely responsible for travel costs for an escort for the children. The court deviated from the child support guidelines and reduced Father's obligation to $0.
¶8 Father timely appealed, and Mother timely cross-appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21 and -2101(A)(1).
DISCUSSION
I. Father's Appeal
¶9 Father contends the court abused its discretion by granting Mother's relocation petition and by denying his request to modify custody and parenting time. He further argues the court failed to make necessary findings of fact under A.R.S. §§ 25-403 and -408.
The operative petitions were filed in 2012 but not decided until 2013. A.R.S. §§ 25-403 and -408 were amended effective January 1, 2013. See S.B. 1127, 50th Leg., 2nd Reg. Sess. (Ariz. 2012). Because the changes are immaterial to our analysis, we cite the current statute.
¶10 The superior court is required to decide relocation requests in accordance with the children's best interests. A.R.S. § 25-408(F). It must consider all of the A.R.S. § 25-408(H) factors, including the best interest factors enumerated in A.R.S. § 25-403(A). When custody is contested, the court must "make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child." Owen v. Blackhawk, 206 Ariz. 418, 421, ¶ 9, 79 P.3d 667, 670 (App. 2003). In evaluating the adequacy of findings of fact, the key issue is the appellate court's ability to "ascertain from the court's orders and ruling how the court weighed the statutory factors and [arrived] at its conclusion." Reid v. Reid, 222 Ariz. 204, 207, ¶ 13, 213 P.3d 353, 356 (App. 2009).
¶11 We find the superior court's findings of fact here more than adequate. The court's 21-page ruling includes findings regarding each factor enumerated in §§ 25-403 and -408. The court also explains how it weighed various factors and how it assessed the parties' conflicting claims and evidence. Based on well-articulated factors and findings, the court concluded that Mother was "seeking to relocate in good faith," that "relocation is unlikely to have any significant effect on the children's stability," and that Mother carried her burden of proving "that moving to Sweden with the children is in the children's best interests."
¶12 The court similarly issued more than adequate findings regarding Father's petition to modify custody and parenting time, concluding:
The court finds Mother and Father agreed that Mother would have sole custody (decision-making) at the time of the dissolution. Since that time, Father failed to fully and timely comply with the drug testing contemplated by the Consent Decree. Father has a history of substance abuse and using illegal substances (heroin) as late as spring 2012. In addition, Father received a DUI in April 2012.The court explained that even if it ordered the children's return to Arizona, it would not award Father the parenting time he had requested, stating:
Since the entry of the Decree, Father failed a drug test, received a DUI, and tested positive for cocaine. Such facts do not support a modification of parenting time from Mother being the primary residential parent to the parties exercising an equal parenting time schedule. More important, Father moved to Scottsdale - if Mother returns to Sedona or the surrounding area, an equal parenting time schedule would not be feasible.
Father correctly asserts that the reference to "heroin" is unsupported by the record. At trial, Father admitting using cocaine in 2012, a fact recounted by the court elsewhere in its ruling. It appears the reference to "heroin" is an error that should instead read "cocaine."
¶13 The findings and analysis in this matter differ markedly from the cases upon which Father relies. Compare Nold v. Nold, 232 Ariz. 270, 273- 74, ¶¶ 14-15, 304 P.3d 1093, 1096-97 (App. 2013) (vacating and remanding where family court adopted custody evaluator's opinion on all statutory factors without independent analysis); Hart v. Hart, 220 Ariz. 183, 187, ¶ 14, 204 P.3d 441, 445 (App. 2009) (remanding for additional findings "because of the significant number of factors not addressed"); Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 19, 80 P.3d 775, 780 (App. 2003) (remanding where superior court failed to make any findings on the record); Owen, 206 Ariz. at 421-22, ¶ 12, 79 P.3d at 670-71 (reversing and remanding where ruling identified only a few statutory factors and made detailed findings as to one); In re Diezi, 201 Ariz. 524, 526, ¶ 5, 38 P.3d 1189, 1191 (App. 2002) (remanding where superior court did not state findings for § 25-403 factors or indicate it had considered them). The court here made detailed findings of fact for every relevant statutory factor, and the findings were based on evidence of record. The findings are more than adequate for us to engage in meaningful appellate review. See, e.g., Miller v. Bd. of Supervisors of Pinal Cnty., 175 Ariz. 296, 299, 855 P.2d 1357, 1360 (1993) ("A trial court's findings of fact satisfy Arizona law if they are 'pertinent to the issues and comprehensive enough to provide a basis for the decision.'").
¶14 Father's real complaint seems to be that the court failed to weigh the evidence in the manner he advocates. He focuses almost exclusively on evidence that supports his positions, without acknowledging the conflicting evidence deemed credible by the superior court. "Our duty on review does not include re-weighing conflicting evidence;" we will affirm the superior court's ruling "if substantial evidence supports it." Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009).
Where there is conflicting evidence as to disputed facts or the reasonable inferences to be drawn from those facts, this court has held it will not substitute its opinions for the findings of the trial court . . . . This rule is founded upon the theory that the trial court, having seen and heard the witnesses and the evidence, is in a better position to determine credibility and weight than the appellate court.United Calif. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 302, 681 P.2d 390, 454 (App. 1983).
¶15 We review orders regarding relocation, custody, and parenting time for an abuse of discretion. See Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982); Hurd, 223 Ariz. at 52, ¶¶ 18-19, 219 P.3d at 262. In reviewing for an abuse of discretion,
[t]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. We cannot substitute our discretion for that of the trial judge.Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985). We find no abuse of discretion here. The court's extensive findings of fact are supported by the record, and its explanation of how it weighed various factors does not suggest the court gave controlling weight to any one factor, as Father contends. Because the court made the requisite findings and substantial evidence supports those findings, we affirm the relocation, custody, and parenting time orders.
II. Mother's Cross-Appeal
¶16 On cross-appeal, Mother contends the court erred by deviating from the Arizona Child Support Guidelines ("the Guidelines") and by failing to make necessary findings of fact. We review the superior court's interpretation of the Guidelines de novo, though we consider its application of the Guidelines to a given set of facts for an abuse of discretion. Strait v. Strait, 223 Ariz. 500, 502, ¶ 6, 224 P.3d 997, 999 (App. 2010).
¶17 In a proceeding to modify child support, the amount of support ordered is presumptively the amount derived from application of the Guidelines. See A.R.S. § 25-320(A)-(D). However, the court may deviate from the amount dictated by the Guidelines if "application of the guidelines would be inappropriate or unjust in a particular case." A.R.S. § 25-320(D). Section 20 of the Guidelines states that a deviation is appropriate only if all of the following criteria are met:
A.R.S. § 25-320 app. § 20 (2011) ("Guidelines").1. Application of the guidelines is inappropriate or unjust in the particular case,
2. The court has considered the best interests of the child in determining the amount of a deviation. A deviation that reduces the amount of child support paid is not, by itself, contrary to the best interests of the child,
3. The court makes written findings regarding 1. and 2. above in the Child Support Order, Minute Entry or Child Support Worksheet,
4. The court shows what the order would have been without the deviation, and
5. The court shows what the order is after deviating.
¶18 Prior to the modified order, Father was paying $2189.27 per month in child support. Applying the Guidelines, the superior court determined his obligation as of June 1, 2013 would be $1349.18. However, the court deviated from the Guidelines and reduced Father's child support obligation to zero.
¶19 The court's findings do not satisfy the requirements of section 20. The court stated simply that "a deviation regarding the obligation to pay child support from $1349 to $0 is appropriate because of the significant cost associated with the travel expenses for the children in order for Father to exercise parenting time." However, the court did not make the required finding that it had considered the children's best interests in deviating from the Guidelines and eliminating Father's support obligation. Nor does the record include evidence of out-of-pocket travel costs Father is likely to incur. For these reasons, we vacate the child support order and remand for reconsideration and appropriate findings of fact.
Because the parties have not briefed the issue, we do not resolve whether § 18 of the Guidelines directs that travel expenses should be the subject of an expense allocation order rather than a basis for a downward deviation from the presumptive child support amount. That issue may be raised on remand if appropriate.
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¶20 Mother also contends the court erred in allocating travel expenses. "We review the allocation of travel expenses for an abuse of discretion." Cook v. Losnegard, 228 Ariz. 202, 204, ¶ 9, 265 P.3d 384, 386 (App. 2011). We will not substitute our judgment for that of the superior court and will affirm if the court "could have made the ruling without exceeding the bounds of reason." Id. at 205, ¶ 11, 265 P.3d at 387.
¶21 A court may "allocate travel expenses of the child associated with parenting time in cases where one-way travel exceeds 100 miles." Guidelines § 18. In doing so, the court must weigh "the means of the parents and may consider how their conduct (such as a change of residence) has affected the costs of parenting time." Guidelines § 18. The allocation must allow for continued contact with each parent, if possible. Guidelines § 18.
¶22 We find no error. The court divided the children's airfare equally and held Mother solely responsible for the costs of any escort for the children. The court did not specifically explain its rationale, but unlike a child support deviation, it was not required to do so. As such, we look to the evidence presented to determine if the court abused its discretion. See Cook, 228 Ariz. at 205, ¶ 11, 265 P.3d at 387.
¶23 Father's income is higher than Mother's. However, Mother's move to Sweden created the need for travel expenses, and Mother's income is not insubstantial. Under these circumstances, we cannot say the court abused its discretion in requiring Mother to pay a larger portion of the travel costs.
III. Attorneys' Fees
¶24 In his opening brief, Father requested an award of fees on appeal pursuant to A.R.S. § 25-324. In his reply brief, he argues for the first time that the superior court erred by not awarding him fees under A.R.S. § 25-414(C). Arguments not presented until the reply brief will not be considered. State v. Watson, 198 Ariz. 48, 51, ¶ 4, 6 P.3d 752, 755 (App. 2000); Anderson v. Country Life Ins. Co, 180 Ariz. 625, 636, 886 P.2d 1381, 1392 (App. 1994).
¶25 Mother also requests attorneys' fees incurred on appeal pursuant to A.R.S. § 25-324. Having considered the parties' financial resources and the reasonableness of their positions on appeal, we deny both fee requests. As the successful party on appeal, however, Mother is entitled to recover her taxable costs upon compliance with ARCAP 21.
CONCLUSION
¶26 We affirm the superior court's orders relating to relocation, custody, parenting time, and allocation of travel expenses. We vacate the existing child support order and remand for further proceedings consistent with this decision.