Robertson v. Buckner ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
KRISTINA ROBERTSON, Petitioner/Appellant,
v.
JASON BUCKNER, Respondent/Appellee.
No. 1 CA-CV 18-0579 FC
FILED 7-9-2019
Appeal from the Superior Court in Maricopa County
No. FC2010-051230
The Honorable Lisa Ann VandenBerg, Judge
AFFIRMED
COUNSEL
Garnice Law PLLC, Scottsdale
By Victor A. Garnice
Counsel for Petitioner/Appellant
Law Offices of Karla L. Calahan P.C., Phoenix
By Karla Lynn Calahan
Counsel for Respondent/Appellee
ROBERTSON v. BUCKNER
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined.
M O R S E, Judge:
¶1 Kristina Robertson ("Mother") appeals from an order denying
her petition to modify parenting time and allow the relocation of the parties'
child. The superior court properly concluded that Mother, as the petitioner,
bore the burden of proving her proposed modification was in the child's
best interests, and we affirm the order.
FACTS AND PROCEDURAL HISTORY
¶2 The parties have one child, born in 2009. In 2011, Mother and
Jason Buckner ("Father") agreed to joint legal decision-making and
parenting time. In 2014, Mother moved to Germany due to her husband's
military deployment. In light of Mother's move, the parties agreed to a
long-distance parenting plan. Consistent with the parties' agreement, the
superior court ordered that joint legal decision-making would continue,
and the child would reside primarily with Mother in Germany until
February 1, 2015. At that time, the child would return to Arizona and reside
primarily with Father, and Mother would have parenting time over
extended holiday and summer breaks. The parties specifically agreed to
"revisit" the parenting plan and attend mediation when Mother returned to
the United States at the end of her husband's deployment.
¶3 Mother returned to Arizona in May 2018. While in Arizona
awaiting her husband's next assignment, Mother petitioned to "modify
parenting time and allow relocation of the child." Mother asked to be the
primary residential parent and have the child live with her in Illinois, where
her husband would next be stationed. Mediation was unsuccessful, and,
after an evidentiary hearing, the superior court denied Mother's petition.
The court considered the best interests factors listed in Arizona Revised
Statutes ("A.R.S.") sections 25-403 and -403.01 as well as factors listed in the
relocation statute, A.R.S. § 25-408(I), and affirmed the previously-ordered
long-distance parenting plan. Mother timely appealed.
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ROBERTSON v. BUCKNER
Decision of the Court
DISCUSSION
¶4 Although Mother petitioned to modify the primary
residential placement of the child and the parenting plan, she argues on
appeal that the superior court erred by requiring her to meet the burden of
proof required under the relocation statute. A.R.S. § 25-408. She contends
the relocation statute did not apply because she was not moving from
Arizona. Mother also contends this is not a modification petition because
the parties anticipated that they would have to revisit and mediate a new
parenting plan when Mother returned to the United States. We review
these questions of law de novo. Gutierrez v. Fox, 242 Ariz. 259, 266, ¶ 28
(App. 2017); see also Buencamino v. Noftsinger, 223 Ariz. 162, 164, ¶ 7 (App.
2009) (whether the relocation statute applied is a question of law reviewed
de novo).
¶5 Father argues this court lacks jurisdiction to consider the
arguments raised in Mother's appellate briefs because she failed to raise
them below. Appellate courts generally decline to address arguments not
raised in the superior court under the discretionary doctrine of waiver.
Chang v. Siu, 234 Ariz. 442, 446, ¶ 12 (App. 2014). Father incorrectly asserts
that waiver constitutes a lack of appellate jurisdiction. Jurisdiction is
determined by statute, and we have jurisdiction to consider this appeal
from a final order after judgment under A.R.S. § 12-2101(A)(2).
¶6 Mother's position on appeal directly contradicts her position
below. She now argues that the relocation statute does not apply and that
this is not a modification case but more like an initial petition for which the
parties bear an equal burden of proving what is in the child's best interests.
This argument is inconsistent with Mother's request to "relocate" the child
to Illinois and become the primary residential parent. Mother's pretrial
statement specifically cited § 25-408(I) and addressed the factors listed
therein. Mother cannot now claim the superior court erred by applying the
relocation statute when she expressly relied on that statute in her petition
and request for relief. See Caruthers v. Underhill, 235 Ariz. 1, 6-7, ¶ 23 (App.
2014) ("By the rule of invited error, one who deliberately lead the court to
take certain action may not upon appeal assign that action as error.").
Therefore, Mother waived her argument that § 25-408 does not apply.
¶7 The superior court's order is supported by § 25-408(G), which
places the burden of proving a relocation is in the child's best interests on
the party seeking to relocate the child. Additionally, the court properly
placed the burden of proof on Mother because the party seeking to modify
legal decision-making or parenting time bears the burden of proof. Pollock
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ROBERTSON v. BUCKNER
Decision of the Court
v. Pollock, 181 Ariz. 275, 277 (App. 1995); Marley v. Spaulding, 10 Ariz. App.
213, 215 (1969).
¶8 Mother contends this was not a modification proceeding but
a trial de novo because the 2014 parenting time order terminated when she
returned to the United States. Alternatively, Mother contends the 2014
order was temporary because it anticipated that the parties would revisit
the parenting plan when she returned. We disagree. The 2014 order
resolved all issues before the court and was, therefore, a final and not a
temporary order. See Camasura v. Camasura, 238 Ariz. 179, 181-82, ¶ 7 (App.
2015) (holding a final order disposes of all claims or includes an appropriate
certification under Arizona Rule of Family Law Procedure 78(B)).
Although the order implied that Mother's return to the United States might
warrant a modification, the order did not terminate the parenting plan on
a certain date or a named event but directed that the parties attempt to
renegotiate a new parenting plan on Mother's return. After an unsuccessful
mediation, Mother petitioned to modify the parenting plan and relocate the
child to Illinois instead of continuing the long-distance parenting plan
already in place. Therefore, the superior court properly placed the burden
of proof on Mother, as the petitioner, to show the proposed modification
was in the child's best interests. See Pollock, 181 Ariz. at 277; Marley, 10 Ariz.
App. at 215. We affirm the denial of Mother's petition to modify.
¶9 Mother requested an award of attorneys' fees on appeal under
A.R.S. § 25-324. Because Mother failed to state any facts or legal arguments
to support an award of fees under that statute, we deny her request. As the
successful party on appeal, Father is entitled to an award of costs on appeal
upon compliance with Arizona Rule of Civil Appellate Procedure 21. See
A.R.S. § 12-342.
CONCLUSION
¶10 We affirm the superior court's order and award Father's costs
on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
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