Opinion
No. 2 CA-CV 2018-0101-FC
02-25-2019
IN RE THE MARRIAGE OF JASON KRAUSE, Appellee, and JODIE LYNN KRAUSE, Appellant.
COUNSEL Jason Krause, Apache Junction In Propria Persona Gillespie, Shields, Durrant & Goldfarb, Mesa By Mark A. Shields Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pinal County
No. S1100DO201501092
The Honorable Richard T. Platt, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Jason Krause, Apache Junction
In Propria Persona Gillespie, Shields, Durrant & Goldfarb, Mesa
By Mark A. Shields
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Jodie Krause appeals the trial court's order entered in this post-decree proceeding brought by her former husband, Jason Krause. The court ordered that the parties' two children would relocate to live with Jason, modified the parties' parenting time, and awarded Jason sole legal decision-making authority. We vacate that portion of the order concerning legal decision-making authority, but affirm in all other respects.
Factual and Procedural Background
¶2 We review the record in the light most favorable to upholding the trial court's ruling and will affirm if any reasonable evidence in the record supports its decision. Johnson v. Johnson, 131 Ariz. 38, 44 (1981). The parties married in 2007, and had two children, T.K., born in 2008, and B.K., born in 2013. Jason petitioned for dissolution of the marriage in 2015, and the trial court entered a decree of dissolution in October 2016. The court awarded the parties joint legal decision-making authority and awarded Jodie the majority of the parenting time, placing the children with her during the week and giving Jason parenting time three weekends per month.
¶3 In October 2017, Jason petitioned to modify parenting time, seeking to have the children reside with him during the week and to give Jodie parenting time three weekends per month. Jason also requested that T.K. attend school in the district closest to his home for the 2017-2018 school year. He asserted that "substantial changes have occurred which would warrant an immediate modification of the current parenting time orders," citing T.K.'s declining grades and consistent tardiness and absences while in Jodie's care. Jason also alleged: T.K. did not have adult supervision after school; Jodie was unable to secure housing and was living in her boyfriend's home, where his two children resided; Jodie's boyfriend has a history of "felony assault"; T.K. and B.K. do not have their own bedrooms when they are with Jodie; and Jodie does not take the children for medical care when needed and has "caused problems with the children's [health] insurance staying active." Along with his petition, Jason proposed a parenting plan that called for continuing joint legal decision-making authority.
¶4 In response to Jason's petition, Jodie requested that she continue to have the children on weekdays and that Jason have parenting time every other weekend. She, too, requested joint legal decision-making, but with the final decision-making authority residing with her in the event she and Jason disagreed.
¶5 Neither party was represented by counsel in the trial court, which appointed a Best Interest Attorney ("BIA") for the children and held a hearing on Jason's petition. Jason, Jodie, and the BIA testified at the hearing. In an under-advisement ruling, the court granted Jason's petition to modify parenting time and awarded him sole legal decision-making authority. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).
Although neither party was represented by counsel at the hearing, they are entitled to no more consideration than if they had been represented by counsel. See Smith v. Rabb, 95 Ariz. 49, 53 (1963); In re Marriage of Williams, 219 Ariz. 546, ¶ 13 (App. 2008).
Discussion
¶6 On appeal, Jodie argues the trial court erred by: (1) modifying parenting time without finding a change in circumstance under A.R.S. § 25-411; (2) awarding Jason sole legal decision-making authority even though he did not request it; and (3) granting a relocation under A.R.S. § 25-408 without making statutorily required findings.
Modification of Parenting Time
¶7 Jodie asserts the trial court erred by granting Jason's petition to modify parenting time without first making a "threshold finding of a change in circumstance or good cause even to set the matter for trial." As she notes, "[w]hen considering a petition for change of custody, the court must first determine whether there has been a change in circumstances materially affecting the child's welfare. If the court finds such a change in circumstances, it must then determine whether a change in custody would be in the child's best interests." Christopher K. v. Markaa S., 233 Ariz. 297, ¶ 15 (App. 2013) (citation omitted). "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." Hendricks v. Mortensen, 153 Ariz. 241, 243 (App. 1987). A trial court has broad discretion to determine if a change of circumstances exists, and we will not reverse its determination "absent a clear abuse of discretion, in other words, a clear absence of evidence to support its actions." Id.; see also Nold v. Nold, 232 Ariz. 270, ¶ 11 (App. 2013).
Our legislature amended A.R.S. §§ 25-403 and 25-411 in 2012, changing "custody" to "legal decision-making and parenting time." See 2012 Ariz. Sess. Laws, ch. 309, §§ 5, 22.
¶8 Here, although the trial court did not expressly find there had been a change in circumstances that materially affected the children, it did expressly find that Jodie and Jason had "previously lived near each other," Jodie had "relocated to Navajo County with the children without notice to [Jason], even though [they] had a joint legal decision-making plan," she had moved several times since 2017, and was living with her boyfriend and his children. As noted, Jason alleged that Jodie's living situation was having an adverse effect on their children. At the hearing, Jason and Jodie testified that Jodie's boyfriend had spanked T.K. at some point, that both T.K. and B.K. had suffered lice infestations multiple times while living with Jodie and her boyfriend, and that Jodie had moved T.K. to a new school without telling Jason. The court reasonably could have concluded that, individually or collectively, relocating several times, moving in with the boyfriend, the boyfriend's use of corporal punishment on T.K., the lice infestations, and changing schools constituted change that materially affected the children. The court's finding that a change in circumstance had occurred is implicit in its detailed ruling and the evidence supports such a finding. We find no abuse of discretion.
The court also made express findings that Jason "has a special bond with the children," and that "[i]t is not clear that [Jodie] is bonded with the children." Further, the court found that "[t]he children are well adjusted to [Jason's] home," and that "[t]he [BIA] did not observe [Jodie's] home because [Jodie] was not cooperative [with] the [BIA]."
To the extent Jodie argues the trial court should have made a threshold finding of a change in circumstance before setting a hearing on Jason's petition, the argument is waived because she did not raise it below. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) ("[A]bsent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal."). --------
¶9 Jodie also appears to argue the trial court "abandoned" Rule 91, Ariz. R. Fam. Law P., when it set a hearing on Jason's petition without first finding a change in circumstance had occurred. The version of Rule 91 that was in effect at the time provided:
F. The Court shall have the authority to summarily deny a Petition to Modify parenting time if sufficient allegations are not present pursuant to A.R.S. § 25-411.Ariz. Sup. Ct. Order R-16-0028 (Sept. 2, 2016) (subsection F); Ariz. Sup. Ct. Order R-05-0008 (Jan. 1, 2006) (subsection N). On its face, Rule 91 did not require the court to make a finding that a change in circumstance had occurred before it could set a hearing. See Xavier R. v. Joseph R., 230 Ariz. 96, ¶ 3 (App. 2012) (this court interprets rules in accordance with intent of drafters and plain language is best reflection of intent). Thus, on this point, we find no abuse of discretion.
. . . .
N. Matters brought before the court by motion may be heard by oral argument without testimony. Matters that will require testimony at an evidentiary hearing shall be brought before the court by a Petition for Order to Appear and shall indicate that testimony will be required. Upon receipt of a proper Petition for Order to Appear, the court shall schedule the petition for an evidentiary hearing, a return hearing, oral argument, a post-decree or post-judgment conference, mediation, or other proceeding, and issue an appropriate Order to Appear. The Order to Appear shall state the scheduled date and time and length thereof, and whether evidence will be received at the hearing or conference.
Modification of Legal Decision-Making
¶10 Jodie argues the trial court erred in awarding Jason sole legal decision-making authority even though Jason did not request it in his petition. We review for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, ¶ 7 (App. 2003).
¶11 In his proposed parenting plan, Jason requested that he and Jodie share joint legal decision-making authority, as they had in the original order. Jodie also requested joint legal decision-making authority in her proposed plan, but asked to have final authority on all matters upon which she and Jason disagreed. At the hearing, Jason and Jodie agreed to joint legal decision-making authority, but Jason requested that he be given final authority on disputed matters, while Jodie requested final authority on medical matters. The BIA recommended joint legal decision-making authority and suggested that "the court should bifurcate it and allow [Jason] to have final decision making ability for school related issues."
¶12 Jodie asserts that the trial court "created the issue of legal decision making sua sponte" because "the pleadings did not place the issue of legal decision making before the Court" and "no pretrial statement or minute entry even raised the issue of a modification of legal decision making." Although Jason did not request a modification in legal decision-making authority, Jodie did so in her proposed parenting time plan, when she sought to have final authority on all disputed matters. Thus, the trial court did not address the issue sua sponte. See, e.g., Sundstrom v. Flatt, 244 Ariz. 136, ¶ 7 (App. 2017) (party granted legal decision-making need not be party that petitioned court).
¶13 Relying on this court's decision in Nicaise v. Sundaram, 244 Ariz. 272 (App. 2018), portions of which our supreme court recently vacated, Nicaise v. Sundaram, 245 Ariz. 566 (2019), the trial court explained that it could grant the parties joint legal decision-making authority, but it could not "grant either party having final say over areas." The court added, "So my choice is, . . . sole legal decision making or joint legal decision making where both parents must participate in the decision-making process. One doesn't have final say over the other one." The BIA then recommended the following: "Well, in that case, if [Jason] is granted—if he's granted his petition then I would support him having sole legal decision making." In its under-advisement ruling, the court awarded Jason sole legal decision-making authority.
¶14 This court's opinion in Nicaise was issued one week before the hearing on Jason's petition. In that case, this court concluded that "awarding joint legal decision-making with one parent having the final decision-making authority on certain issues must be interpreted as awarding sole legal decision-making on those issues." 244 Ariz. 272, ¶ 1. Thus, under that opinion, which controlled at the time, the trial court concluded that it could grant either sole or joint legal decision-making authority, with neither parent having the final authority on any matter. Our supreme court, however, has since held otherwise, determining that orders granting the parties joint legal decision-making authority but giving one parent the final authority over certain matters, are "common and commendable and do not convert joint into sole legal decision-making." Nicaise, 245 Ariz. 566, ¶ 14. Thus, we vacate the trial court's order awarding sole legal decision-making authority to Jason and remand for further proceedings consistent with the supreme court's decision in Nicaise, 245 Ariz. 566.
Relocation
¶15 Jodie also argues the trial court erred in failing to treat Jason's petition to modify parenting time as a request for relocation under A.R.S. § 25-408, because the children lived more than 100 miles from Jason. Jodie, however, did not raise this issue below. Generally, arguments not timely raised in the trial court are waived. Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utilities, LLC, 227 Ariz. 382, ¶ 12 (App. 2011) (legal theories must be timely presented "to the trial court so that the court may have an opportunity to address all issues on their merits"). Because we find this issue waived, we do not address it.
Disposition
¶16 For the foregoing reasons, we affirm the trial court's order granting Jason's petition to modify parenting time, vacate its order awarding Jason sole legal decision-making authority, and remand for further proceedings consistent with this decision. In our discretion, we deny Jodie's request for attorney fees and costs on appeal. See Ariz. R. Civ. App. P. 21(a)(2).