Kasper v. Ausema

IN RE THE MARRIAGE OF JENNA KASPER, FKA JENNA AUSEMA, Petitioner/Appellant, and JOHN AUSEMA, Respondent/Appellee.

No. 2 CA-CV 2017-0092-FC

ARIZONA COURT OF APPEALS DIVISION TWO

February 6, 2018

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NOT FOR PUBLICATION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. DO200901522

The Honorable DeLana Fuller, Judge Pro Tempore

AFFIRMED

COUNSEL

Adam C. Rieth, P.L.L.C., Gilbert

By Adam Rieth

Counsel for Petitioner/Appellant

Eden Law Office, P.L.L.C., Phoenix

By Dorian L. Eden

Counsel for Respondent/Appellee

MEMORANDUM DECISION

Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred.

BREARCLIFFE, Judge:

¶1 Jenna Kasper appeals from the trial court's ruling denying her petition to relocate the residence of the parties' children from California to Nevada, denying her request to modify legal decision-making authority and parenting time, denying her request for attorney fees, granting John Ausema's request to be primary residential parent, removing Kasper's final legal decision-making authority, and granting Ausema a greater share of parenting time. She claims that the court: (1) erred by placing on her the burden to prove relocation would be in the best interest of the children, (2) abused its discretion in making its findings and conclusions as to their best interest, (3) abused its discretion by finding that relocation to Nevada would not be in the children's best interest, (4) erred by modifying legal decision-making authority at all, (5) abused its discretion by modifying the parenting-time order as it did, (6) abused its discretion by failing to award her attorney fees, (7) abused its discretion by using unstated findings from its earlier, temporary order to support its ruling on relocation, (8) erred by failing to cite to the correct, existing legal decision-making order, and (9) erred by referring to a period of five months as a "few months." Finding no error and no abuse of discretion, we affirm.

Factual and Procedural Background

¶2 In the parties' April 2011 decree of dissolution, Kasper was awarded "sole legal and physical custody" of the parties' children, and Ausema was awarded supervised parenting time. In February 2013, the trial court, on the parties' stipulation, modified the parenting-time order by adopting a residential, vacation, and holiday parenting-time plan that allowed Ausema unsupervised parenting time; Kasper remained the primary residential parent. In April 2015, after a contested, evidentiary hearing, the court awarded Ausema and Kasper joint legal decision-making authority, leaving Kasper as the primary residential parent, giving her final legal decision-making authority, and modifying the summer parenting-time schedule, but otherwise leaving the regular parenting-time orderunchanged. In January 2016, Kasper petitioned under A.R.S. § 25-408 to relocate with the children from Arizona to California. Ausema opposed the petition and filed his own motion to modify legal decision-making, parenting time, and child support. Following an evidentiary hearing in February 2016, the court granted Kasper's petition, allowing her to relocate with the children to California.

¶3 In May 2016, claiming that Kasper intended to move with the children from California to Nevada, Ausema filed a petition to prevent the relocation. Thereafter, Kasper filed her "Request to Relocate the [M]inor Children," seeking to move the children from California to Nevada. At about the time she filed her request, Kasper had purchased a home in Nevada and enrolled the children in school. Ausema also filed a motion for temporary orders. Following an evidentiary hearing, the trial court entered temporary orders for the children to live with Ausema in Arizona and set an evidentiary hearing on the petition to relocate.

¶4 Following a December 30, 2016 evidentiary hearing, the trial court denied Kasper's petition on March 27, 2017, finding that she had not carried her burden of proving that it was in the children's best interest to move to Nevada. The court affirmed the order of joint legal decision-making authority, ordered that neither parent would have final legal decision-making authority, and, under A.R.S. §§ 25-403 and 25-408, because it was in the children's best interest, ordered that the children live primarily with Ausema in Arizona. Kasper timely appeals and seeks a reversal to allow her to relocate the children to Nevada and seeks an award of attorney fees. We have jurisdiction under A.R.S. § 12-2101(A)(1).

Application of A.R.S. § 25-408

¶5 For the first time on appeal, Kasper argues that the trial court erred by assigning her the burden of proving that the relocation was in the children's best interest under A.R.S. § 25-408. She argues that § 25-408, Arizona's relocation statute, does not apply because she was residing in California at the time she sought to relocate to Nevada. Thus, she argues, the statute's placement of the burden of proof on her as the relocating parent was legal error.

¶6 At no time in the trial court did Kasper raise this argument; indeed, her petition to relocate was brought under § 25-408, and she argued below that the § 25-408 factors favored the relocation. Legal issues and arguments must be presented to the trial court and cannot be argued for thefirst time on appeal. See Chang v. Siu, 234 Ariz. 442, ¶ 12 (App. 2014) ("An appellate court normally will not address arguments not raised in the superior court prior to the appeal."). Because this argument and legal issue was not presented to the trial court, we will not consider it.

Best Interest Findings

¶7 Kasper argues that the best-interest factors supported her relocation and that the trial court abused its discretion in finding otherwise. We review a relocation decision for an abuse of discretion. Hurd v. Hurd, 223 Ariz. 48, ¶ 19 (App. 2009). "An abuse of discretion exists when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision." Id. quoting State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, ¶ 14 (App. 2003). Trial courts are given broad discretion to determine what is in a child's best interest because they are in the best position to make that determination. Porter v. Porter, 21 Ariz. App. 300, 302 (1974). We defer to a trial court's discretionary findings, assessment of witness credibility, and the weighing of evidence so long as the trial court "remains within the bounds of that discretion." Gutierrez v. Fox, 242 Ariz. 259, ¶ 49 (App. 2017).

¶8 Here, the trial court stated its findings and rationale for each of the relevant factors under A.R.S. § 25-408(I), which included the best-interest factors under A.R.S. § 25-403(A). Under the § 25-403 best-interest factors, the court found equally for each parent. In considering the remaining best-interest factors under § 25-408(I), the court found that the factors weighed against relocation to Nevada. On the whole, the court found that Kasper had not met her burden of proving that relocating the children again, this time from California to Nevada, was in their best interest.

¶9 Kasper argues the trial court's conclusions were "against the weight of the evidence." However, she is essentially asking this court to reweigh the evidence and disregard any assessment by the trial court of the witnesses' credibility, which we will not do. Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 49 (App. 1998). If substantial evidence supports the trial court's findings and conclusions, they will not be disturbed on appeal. See Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982) ("On review, the trial court's decision will not be reversed absent a clear abuse of discretion, i.e., a clear absence of evidence to support its actions."). Substantial evidence supports the trial court's findings and conclusions that relocation was not in thechildren's best interest,¹ and, because it does, we find no abuse of discretion.

Modification of Legal Decision Making and Parenting Time

¶10 Kasper claims that the order removing her final legal decision-making authority was error because neither party expressly moved for such a modification under Rule 91, Ariz. R. Fam. Law P., and because there was no express finding of a material change in circumstances or a showing that modification was in the children's best interest. We review a trial court's legal decision-making order for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, ¶ 11 (App. 2013). For such a modification, "the court must first determine whether there has been a change in circumstances materially affecting the child's welfare," and then, "whether a change in custody would be in the child's best interests." Christopher K. v. Markaa S., 233 Ariz. 297, ¶ 15 (App. 2013) (internal citations omitted).

¶11 Whether or not a Rule 91 petition is filed with the relocation petition, it is self-evident that a petition by a parent seeking to move the residence of the children from one state to another may require a change in either parenting time or legal decision-making authority. Cf. Murray v. Murray, 239 Ariz. 174, ¶ 10 (App. 2016) (finding a material change in circumstances because mother's plan to relocate may have implicated legal decision-making). We can reasonably infer that the trial court found a material change in the circumstances affecting the children. See Johnson v. Elson, 192 Ariz. 486, ¶ 11 (App. 1998) (appellate court may infer findings of fact and conclusions of law to sustain trial court if reasonably supported by evidence); see also Canty v. Canty, 178 Ariz. 443, 448-49 (1994) (finding sufficient evidence of changed circumstances though finding absent from minute entry). The court left unchanged the overall joint legal decision-making order, and the court...