Pickett v. Borg ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
ANITRA PICKETT, Petitioner/Appellant,
v.
TROND BORG, Respondent/Appellee.
No. 1 CA-CV 19-0570 FC
FILED 10-1-2020
Appeal from the Superior Court in Maricopa County
No. FC2017-051652
The Honorable Adam. D. Driggs, Judge
REVERSED AND REMANDED IN PART, AFFIRMED IN PART
COUNSEL
Canterbury Law Group LLP, Scottsdale
By Jonathan P. Ibsen, Craig Peter Cherney
Counsel for Petitioner/Appellant
Davis Miles McGuire Gardner PLLC, Tempe
By Spencer T. Schiefer
Counsel for Respondent/Appellee
PICKETT v. BORG
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Appellant Antira Pickett (“Mother”) challenges two aspects
of the superior court’s dissolution decree: (1) the award of final legal
decision-making authority to Father and (2) the determination that a
Norwegian government pension earned by Appellee Trond Borg (“Father”)
is his sole and separate property. We affirm as to the first issue but reverse
and remand as to the second.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mother filed for dissolution of the parties’ marriage in 2017.
The parties have two minor children. Though the parties agreed to share
joint legal decision-making authority, both sought final legal decision-
making authority if they could not reach an agreement. Father requested
such authority in all matters, while Mother sought it only for medical and
educational decisions. The superior court found that Mother had
“attempted to control even minor, everyday decisions that do not fall
within the confines of legal decision-making, such as choices of movies,
activities and nutrition.” On that basis, the court awarded “final decision-
making authority” to Father, stating that Mother had “demonstrated a
complete inability to co-parent or even consider Father’s role of rights in
the decision-making process.”
¶3 The parties also disagreed on how to characterize a
government pension Father earned while the family lived in Norway (the
“Folketrygden”). Although they agreed it could not be legally divided,
Mother contended it was community property and requested its value be
included in calculating an equalization payment. The court ordered Father
to make an equalization payment but declined to include the
Folketrygden’s value, concluding it was “very similar” to a Social Security
entitlement in the United States, which is treated as the sole and separate
property of the participating spouse. Kelly v. Kelly, 198 Ariz. 307, 308, ¶ 5
(2000) (citing 42 U.S.C. § 407(a)).
2
PICKETT v. BORG
Decision of the Court
¶4 Mother timely appealed from the decree. We have jurisdiction
under Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).
DISCUSSION
¶5 At the outset we note that Mother raises several challenges to
the court’s factual findings for the first time in her reply brief. We typically
do not consider arguments raised for the first time in reply, In re Marriage
of Pownall, 197 Ariz. 577, 583, ¶ 25 n.5 (App. 2000), and we will not do so
here.
I. The Superior Court Did Not Abuse Its Discretion by Awarding
Father Final Legal Decision-Making Authority.
¶6 We review the superior court’s legal decision-making orders
for an abuse of discretion. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App.
2019). An abuse of discretion occurs when the court commits an error of law
in reaching a discretionary decision or when the record does not support
the court’s decision. Id.
¶7 Mother contends the court erred in granting Father
“unrestricted tiebreaker powers,” arguing that such powers constitute de
facto sole legal decision-making authority. In sole legal decision-making,
“one parent has the legal right and responsibility to make major decisions
for a child.” A.R.S. § 25-401(2), (6). That parent
may determine the child’s upbringing, including the child’s
education, care, health care and religious training, unless, on
motion by the other parent, the court, after a hearing, finds
that in the absence of a specific limitation of the parent
designated as the sole legal decision-maker’s authority, the
child’s physical health would be endangered or the child’s
emotional development would be significantly impaired.
A.R.S. § 25-410(A).
¶8 The decree does not grant Father such broad authority. It
instead requires that both parties “give good faith consideration to the
views of the other and put forth best efforts to reach a consensus decision.”
It also specifically limits Father’s final decision-making authority to
situations where the parties “cannot agree after making a good faith effort
to reach an agreement,” as the court believed Father would “consider
Mother’s views and positions in making major decisions regarding the
3
PICKETT v. BORG
Decision of the Court
children.” We therefore reject Mother’s contention that the decree imposes
“zero limits . . . on [Father’s] tie-breaker authority.”
¶9 Mother also relies on Nicaise v. Sundaram, 245 Ariz. 566 (2019).
There, the superior court awarded joint legal decision-making authority but
gave the father “the ability to make the final decision as to medical, mental
health, dental, and therapy issues” if the parents could not agree. Id. at 567,
¶ 3. Mother contended this amounted to an award of sole legal decision-
making, but our supreme court disagreed:
Awarding joint legal decision-making authority with final
decision-making authority over certain matters to one
parent . . . creates shared legal decision-making with the
possibility that one parent will exercise a superior right if the
parents cannot reach a joint agreement in good faith. By
contrast, an award of sole legal decision-making . . . creates
unshared authority. The distinction is illustrated by the
family court’s order here conditioning the exercise of Father’s
final legal decision-making authority upon good-faith efforts
to reach a consensus. Such orders are common and
commendable and do not convert joint into sole legal
decision-making.
Id. at 568-69, ¶ 14. Like the decree at issue in Nicaise, the decree in this case
requires the parties to confer in good faith before making decisions for the
children and grants Father’s tie-breaking authority only where they cannot
agree. The decree is therefore consistent with Nicaise.
¶10 Mother also contends the “specified decisions” language of
§ 25-401(2) only allows courts to award final legal decision-making
authority for some, but not all, decisions:
“Joint legal decision-making” means both parents share
decision-making and neither parent’s rights or
responsibilities are superior except with respect to specified
decisions as set forth by the court or the parents in the final
judgment or order.
A.R.S. § 25-401(2). But § 25-403(A) obligates the court to “determine legal
decision-making . . . in accordance with the best interests of the child.” See
Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003) (“We have repeatedly stressed
that the child’s best interest is paramount in custody determinations.”); see
also State v. Leonardo, ex rel. County of Pima, 226 Ariz. 593, 595, ¶ 8 (App.
2011) (“In interpreting a statute, we must construe it together with other
4
PICKETT v. BORG
Decision of the Court
statutes relating to the same subject matter.”). The court determined that
granting Father overall tie-breaker authority was in the children’s best
interests, finding Mother had “attempted to control even minor, everyday
decisions that do not fall within the confines of legal decision-making” and
“ha[d] not demonstrated an ability to co-parent in a joint legal decision-
making scenario without one parent having final say.” We do not interpret
§ 25-401(2) to limit the court’s ability to award tie-breaking authority if it is
in the children’s best interests.
¶11 Because we do not remand on legal decision-making
authority or parenting time, we need not address Mother’s contention that
Father failed to submit a proposed parenting plan under A.R.S. § 25-
403.02(A). We also decline Mother’s request that we “clarify” that statute.
II. The Superior Court Erred in Concluding the Folketrygden is
Father’s Sole and Separate Property.
¶12 Mother concedes the Folketrygden cannot be divided but
contends it is community property the court should have included in the
equalization payment calculation. Section 25-318(A) directs the court to first
“assign each spouse’s sole and separate property to such spouse” and then
“divide the community, joint tenancy and other property held in common
equitably, though not necessarily in kind, without regard to marital
misconduct.” See Martin v. Martin, 156 Ariz. 452, 455-56 (1988). Whether
property is community or separate is established at the time of its
acquisition and does not change except by agreement or operation of law.
Bender v. Bender, 123 Ariz. 90, 92 (App. 1979). We review the court’s
characterization of the Folketrygden de novo. Bell-Kilbourn v. Bell-Kilbourn,
216 Ariz. 521, 523, ¶ 4 (App. 2007).
¶13 The court accepted Father’s contention that his Folketrygden
benefits are like Social Security benefits. While Father contended
“Folketrygden” translates to “social security,” he did not offer any
Norwegian law or expert testimony at trial. He instead argues for the first
time on appeal that Norwegian law “clearly sets forth a spouse’s
Folketrygden as an excepted asset that is not divided upon divorce,” citing
one Norwegian authority. He did not provide this authority to the superior
court or this court. See Kadota v. Hosogai, 125 Ariz. 131, 136 (App. 1980)
(“[T]his Court is not required to undertake the burden of researching and
determining foreign law without any assistance from the attorneys.”).
¶14 Mother, for her part, contends she “provided far more
compelling evidence” that the Folketrygden is community property,
5
PICKETT v. BORG
Decision of the Court
“including . . . a Norwegian attorney’s analysis of the Norwegian website
that administers the public pensions, and a certified translation thereof.”
These documents, however, are not part of the record. We, therefore, cannot
consider them. Ness v. W. Sec. Life Ins. Co., 174 Ariz. 497, 500 (App. 1992).
The only somewhat relevant analysis in the record did not address whether
the Folketrygden or its benefits can be divided in divorce; it only states that
“it is not possible to calculate a person’s retirement pension until that
person actually applies for retirement.”
¶15 Given this lack of evidence, we may decide the issue under
Arizona law. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 501 (1996)
(quoting Restatement (Second) of Conflict of Laws § 136). Section 25-318(A)
provides that “property acquired by either spouse outside this state shall
be deemed to be community property if the property would have been
community property if acquired in this state.” And pensions earned during
marriage generally are treated as community property. Kelly, 198 Ariz. at
308, ¶ 5; Kohler v. Kohler, 211 Ariz. 106, 108, ¶ 10 (App. 2005).
¶16 Father bore the burden to overcome these presumptions with
clear and convincing evidence. See Schickner v. Schickner, 237 Ariz. 194, 199,
¶ 22 (App. 2015). Because he did not meet that burden—indeed, neither
party presented any competent evidence comparing the Folketrygden to
Social Security—the court erred in determining the Folketrygden was
Father’s sole and separate property. On remand, the court shall divide the
value of Father’s pension equitably.
III. Attorney Fees and Costs on Appeal
¶17 Both parties request their attorney fees and costs incurred in
this appeal under A.R.S. § 25-324(A), under which we must consider “the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.” Having considered
these matters, we decline to award fees or costs. We also deny Mother’s fee
request under Arizona Rule of Civil Appellate Procedure 25 and A.R.S.
§ 12-349(A).
6
PICKETT v. BORG
Decision of the Court
CONCLUSION
¶18 We affirm the superior court’s legal decision-making and
parenting time orders. Because we conclude Father’s Folketrygden should
be treated as community property under Arizona law, however, we reverse
and remand for further proceedings on the equalization payment due to
Mother. The court may, in its discretion, hear additional evidence on how
to calculate the Folketrygden’s value.
AMY M. WOOD • Clerk of the Court
FILED: AA
7