Artemchuk v. Chernysh ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
YURI ARTEMCHUK, Petitioner/Appellant,
v.
OLENA CHERNYSH, Respondent/Appellee.
No. 1 CA-CV 15-0628 FC
FILED 7-21-2016
Appeal from the Superior Court in Maricopa County
No. FC2013-003574
The Honorable George H. Foster, Jr., Judge
AFFIRMED
COUNSEL
Gregg R. Woodnick PLLC, Phoenix, AZ
By Leslie A. W. Satterlee
Co-Counsel for Petitioner/Appellant
Melinda K. Cekander PLLC, Heron, MT
By Melinda K. Cekander
Co-Counsel for Petitioner/Appellant
Rebecca L. Owen PLLC, Phoenix, AZ
By Rebecca L. Owen
Co-Counsel for Respondent/Appellee
The Murray Law Offices, P.C., Scottsdale, AZ
By Stanley D. Murray
Co-Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Kent E. Cattani joined.
H O W E, Judge:
¶1 Yuri Artemchuk (“Father”) challenges the family court’s
order approving Olena Chernysh’s (“Mother’s”) relocation to Michigan
with their minor daughter (“the child”) and modifying their parenting
schedule in light of the relocation. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were divorced in 2013. The divorce decree
granted them joint legal decision-making authority for their daughter and
named Mother as the child’s primary residential parent. The decree also
incorporated a “Parenting Plan Agreement” with detailed provisions
governing future relocations by either parent. The Plan provided that
“[n]either parent shall remove the child from the State of Arizona without
the written consent of the other party or order of the court.” It also provided
that if either parent decided to relocate outside Arizona, that parent must
“notify the other in writing by certified mail at least ninety (90) days prior
to the date of departure.”
¶3 The Plan further provided that if the parents could not agree
on a new parenting schedule, they must try to reach an agreement “with
the assistance of Conciliation Court or a private counselor.” But if no
agreement could be reached, either parent could “file a decision-making
proceeding in a court of competent jurisdiction.” In any case, if the non-
relocating parent still resided in Arizona, the child must “remain with the
non-moving parent, until such time as a written agreement is reached or
court order is entered concerning decision-making.”
2
ARTEMCHUK v. CHERNYSH
Decision of the Court
¶4 In May 2014, Mother sent Father a certified letter stating her
desire to relocate with the child to Michigan. The certified letter went
unclaimed. Mother then had the letter personally served on Father in June
2014. Having received no response, Mother and the child relocated to
Michigan in September 2014. Mother’s counsel then wrote Father a letter
inviting him to “discuss parenting time or mediation.”
¶5 Meanwhile, Father filed three petitions in family court asking
the court to hold Mother in contempt for violating the Parenting Plan.
Father later filed an amended petition seeking, among other things, sole
custody of the child. Mother then petitioned to modify the parenting
schedule and child support in light of the relocation. In January 2015, Father
requested that the child be returned to Arizona pursuant to the Parenting
Plan. The family court denied Father’s request because it had not yet heard
any evidence whether Mother violated the Parenting Plan.
¶6 The family court resolved the parties’ competing petitions in
two evidentiary hearings. At the first hearing in February 2015, the court
addressed Father’s contention that Mother did not give him proper notice
of her intent to relocate under the Parenting Plan. The court found that
Mother properly served Father. During this hearing, Father again requested
that the child be returned to Arizona. The court denied the request,
however, finding that it was not in the child’s best interests to be away from
Mother for the two weeks between the date of Father’s request and the end
date of the relocation hearing.
¶7 At the second hearing in May 2015 (the “relocation hearing”),
the family court addressed whether Mother’s relocation violated the
Parenting Plan and whether relocation was in the child’s best interests. The
court found that although Mother had “willfully” violated the Plan, under
the relocation factors listed in A.R.S. §§ 25–403(A) and 25–408(I), Mother
had met her burden of showing that moving to Michigan with the child was
in the child’s best interests. The court thus granted Mother’s request to
relocate the child to Michigan. The court also found that Father should be
given “meaningful and substantial parenting time” and implemented a
long distance parenting schedule and increased Father’s child support
obligation. Father timely appealed.
DISCUSSION
1. The Relocation Request
¶8 Father first contends that the family court erred in finding that
relocation was in the child’s best interests. In assessing a relocation request,
3
ARTEMCHUK v. CHERNYSH
Decision of the Court
the family court must consider the child’s best interests by using the
relevant factors listed in A.R.S. § 25–408(I) and § 25–403(A). A.R.S.
§ 25–408(G), (I); Owen v. Blackhawk, 206 Ariz. 418, 420–21 ¶¶ 8–12, 79 P.3d
667, 669–70 (App. 2003). In cases where the factors are divided, we do not
reweigh conflicting evidence. Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16, 219 P.3d
258, 262 (App. 2009). Instead, we review the decision for an abuse of
discretion. Murray v. Murray, 239 Ariz. 174, 176 ¶ 5, 367 P.3d 78, 80 (App.
2016). In doing so, we view the evidence in the light most favorable to
sustaining the family court’s findings and will sustain those findings if any
reasonable evidence supports them. Johnson v. Johnson, 131 Ariz. 38, 44, 638
P.2d 705, 711 (1981). The parent seeking relocation bears the burden of
proof. A.R.S. § 25–408(G); Pollock v. Pollock, 181 Ariz. 275, 277, 889 P.2d 633,
635 (App. 1995). Because the evidence supports the family court’s relocation
order, the court did not abuse its discretion.
¶9 Here, the family court’s detailed decision reflects the court’s
consideration of the statutory factors and that it did not unduly focus on
any one factor to the exclusion of others. See id. at 278, 889 P.2d at 636(stating that the best interest factors “should be weighed collectively”). The
record shows that several factors weighed against relocation. One factor is
that Mother had “removed [the child] from Arizona contrary to the
Parenting Plan,” indicating to the family court that Mother was less likely
to allow frequent, meaningful, and continuing contact with Father. A.R.S.
§ 25–403(A)(6). Other factors are that relocation would “in some ways
make[] Father’s parenting time more difficult” and that it was “too early to
say how well [the child] has or has not adjusted” to the Russian community
in Michigan. A.R.S. §§ 25–403(A)(2); 25–408(I)(5). A final factor is that the
child was “always happy to see Father when he has been able to exercise
parenting time.” A.R.S. § 25–408(I)(6).
¶10 But the record shows that more factors weighed in favor of
relocation. One factor is that Mother relocated “in good faith . . . [and] not
to frustrate the relationship between Father and child.” A.R.S.
§ 25–408(I)(2). Three other factors are that the child “ha[d] spent the
majority of her life in the care of Mother,” that the child had adjusted to
living in Michigan, and that both parents “appear to have the financial
resources to allow travel so that Father is able to establish and maintain a
reasonable long distance parenting time schedule.” A.R.S. § 25–408(I)(5),
(6). Two final factors are that the child would have a stable home in
Michigan and that relocation would be advantageous for Mother because
“she would be with her new husband where he lives and works and where
she also can work.” A.R.S. § 25–408(I)(2), (8). The family court also found
that Mother would comply with parenting time orders going forward and
4
ARTEMCHUK v. CHERNYSH
Decision of the Court
noted that she had “made [the child] available to Father on several
occasions.” A.R.S. § 25–408(I)(4). Consequently, because the record
supports the family court’s order for relocation, the court did not abuse its
discretion in approving Mother’s relocation request.
¶11 Although Father challenges each of the court’s findings, he
largely does so by ignoring testimony that supports each finding while
emphasizing testimony favorable to his positions. Selective citation to the
record does not establish an abuse of discretion, however. See Hurd, 223
Ariz. at 52 ¶ 19, 219 P.3d at 262 (stating that an abuse of discretion occurs
only “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”).
¶12 Father concedes that relocation was advantageous for
Mother, but nonetheless argues that the family court “failed to identify
anything to support its conclusion that there was some greater advantage
to the child in Michigan.” The record shows that the family court did not
reach that conclusion, and the relevant statutes do not require the court to
reach such a conclusion. See A.R.S. § 25–408(I)(3) (family court must
consider “[t]he prospective advantage of the move for improving the
general quality of life for the custodial parent or for the child”).
2. The Parenting Plan
¶13 Father also contends that the family court should have
ordered Mother to return the child to Arizona before the relocation hearing
as the Parenting Plan required. Father cites A.R.S. § 25–408(H), which bars
the family court from “deviat[ing] from a provision of any parenting plan
or other written agreement by which the parents specifically have agreed
to allow or prohibit relocation of the child unless the court finds that the
provision is no longer in the child’s best interests.” Section 25–408(H)
creates a rebuttable presumption that such provisions are in the child’s best
interests. Father therefore contends that Mother never overcame this
rebuttable presumption and that the family court should not have “moved
on to the relocation issue” without ordering the child’s return.
¶14 Here, Father’s argument regarding returning the child
pursuant to the Parenting Plan is moot. We may decline to address issues
raised on appeal if facts show that they are or have become moot. In re
Henry’s Estate, 6 Ariz. App. 183, 188, 430 P.2d 937, 942 (1967). An issue
becomes moot when an event occurs that would cause our decision to have
no practical effect. Sedona Private Prop. Owners Ass’n v. City of Sedona, 192
5
ARTEMCHUK v. CHERNYSH
Decision of the Court
Ariz. 126, 127 ¶ 5, 961 P.2d 1074, 1075 (App. 1998). The Parenting Plan
provided that the child should remain in Arizona only “until such time as
a written agreement is reached or court order is entered concerning
decision-making.” On appeal, the relocation hearing had already taken
place and the family court had approved the child’s relocation. The Plan
therefore no longer affords Father any practical remedies. Had Father
sought special action relief when the family court denied his requests,
perhaps this issue would have been ripe for review. But as it stands,
Father’s attempt to enforce this Plan provision is moot. See Contempo-Tempe
Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 227, 229, 696 P.2d 1376, 1378
(App. 1985) (“A case is moot when it seeks to determine an abstract
question which does not arise upon existing facts or rights.”).
Consequently, because the Parenting Plan no longer affords Father any
meaningful relief, his argument is moot.
3. Modification of the Parenting Schedule
¶15 Father contends in the alternative that the family court did not
grant him sufficient parenting time in the modified parenting schedule. We
review a parenting schedule for an abuse of discretion. Armer v. Armer, 105
Ariz. 284, 289, 463 P.2d 818, 823 (1970). The non-custodial parent is entitled
to reasonable parenting time, unless it would endanger the child’s physical,
mental, moral, or emotional health. A.R.S. § 25–403.01(D). Here, the family
court found no such issues, but instead found that Father had “been
involved with [the child] on a regular basis” and had “not neglected [the
child] or his paternal duties.”
¶16 Father argues nonetheless that the family court ruled “that he
should be given significant parenting time, as well as extra parenting time
to make-up [sic] for the time he lost when Mother moved to Michigan with
the child,” but did not give him the parenting time he deserved. Father
offers no evidence suggesting that the family court ignored its own findings
in modifying the parenting schedule, however. He also does not show that
the parenting time he received was unreasonable given that the child now
resides in Michigan.
¶17 Father further contends that Mother “suffered no
consequence as a result of willfully violating the court order by relocating
with [the child],” and on that basis asks this Court to remand “with
instructions to increase Father’s parenting time.” But Father cites no
authority suggesting that a parent’s violations of a past agreement must be
punished when modifying a parenting schedule. See A.R.S. § 25–403.02(B)
(provided that the family court must adopt a parenting plan that is
6
ARTEMCHUK v. CHERNYSH
Decision of the Court
“[c]onsistent with the child’s best interests”); A.R.S. § 25–411(J) (“The court
may modify an order granting or denying parenting time rights whenever
modification would serve the best interest of the child.”). Nonetheless, the
record shows that the family court considered Mother’s Parenting Plan
violation in determining the parenting schedule. Consequently, the family
court did not abuse its discretion in setting Father and Mother’s parenting
schedule.
4. Attorney’s Fees and Costs
¶18 Mother requests attorney’s fees pursuant to A.R.S.
§ 25–324(A), under which we consider “the financial resources of both
parties and the reasonableness of the positions each party has taken
throughout the proceedings.” Having reviewed the record, we decline to
award attorney’s fees to either party. See Kent v. Carter-Kent, 235 Ariz. 309,
314 ¶ 25, 332 P.3d 56, 61 (App. 2014). But as the prevailing party, we award
Mother her costs incurred on appeal upon compliance with Arizona Rule
of Civil Appellate Procedure 21.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
:AA
7