Wright v. Wright ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
KORRI WRIGHT, Petitioner/Appellant,
v.
BRIAN WRIGHT, Respondent/Appellee.
No. 1 CA-CV 17-0505 FC
FILED 5-3-2018
Appeal from the Superior Court in Yuma County
No. S1400DO201401453
The Honorable John P. Plante, Judge
VACATED AND REMANDED
COUNSEL
Torok Law Office P.L.L.C., Yuma
By Gregory T. Torok
Counsel for Petitioner/Appellant
Bleich Law Office P.C., Yuma
By Robert Bleich
Counsel for Respondent/Appellee
WRIGHT v. WRIGHT
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.
J O N E S, Judge:
¶1 Korri Wright (Mother) appeals the family court’s order
denying her petition to relocate her four minor children (the Children) from
Yuma to San Diego, California. For the following reasons, we vacate the
order and remand for reconsideration consistent with this decision.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Brian Wright (Father) were married in 1999. They
divorced in 2015 and share joint legal decision-making and equal parenting
time with the Children. After the divorce, the youngest child, B.W., was
diagnosed with a genetic disorder typically characterized by cognitive
difficulties.
¶3 In October 2016, Mother petitioned to relocate the Children to
San Diego. Mother argued the move was appropriate because B.W. could
obtain specialized treatment not available in Yuma and because the parties’
San Diego-based extended family would be available for support. See Ariz.
Rev. Stat. (A.R.S.) § 25-408(A).1 Mother believed Father could choose to
“reside in California and operate his truck washing business from San
Diego,” but agreed parenting time would need to be modified if Father
remained in Yuma. Father objected to the relocation.
¶4 After a four-day evidentiary hearing, the family court denied
Mother’s petition, finding she failed to prove that relocation would be in
the Children’s best interests. Mother timely appealed, and we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2). See In re
Marriage of Dorman, 198 Ariz. 298, 300-01, ¶ 4 (App. 2000) (concluding a
family court order is appealable as a “special order after final judgment” if
it raises an issue different than that raised in the underlying dissolution
decree, affects the underlying decree, and resolves all issues raised in the
1 Absent material changes from the relevant date, we cite a statute’s
current version.
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WRIGHT v. WRIGHT
Decision of the Court
petition, even if the order is modifiable) (citing Cone v. Righetti, 73 Ariz. 271,
275 (1952)).
DISCUSSION
¶5 On appeal, Mother challenges the family court’s best interests
finding. She argues the court erred by: (1) failing to consider that Father’s
treatment plan for B.W. offers a lesser-quality standard of care and
contemplates travel to Phoenix that is contraindicated by his condition and
the paucity of emergency medical services en route, and (2) placing undue
emphasis upon Father’s relationship with the Children.2 We review the
court’s decision on a relocation petition for an abuse of discretion and
consider the application and interpretation of statutes de novo. Murray v.
Murray, 239 Ariz. 174, 176, ¶ 5 (App. 2016) (citing Owen v. Blackhawk, 206
Ariz. 418, 420, ¶ 7 (App. 2003), and Thompson v. Thompson, 217 Ariz. 524,
526, ¶ 7 (App. 2008)).
¶6 Where parents reside in Arizona and share joint legal
decision-making authority or parenting time, one parent may relocate with
the parents’ common minor children over the other’s objection only with
court approval. See generally A.R.S. § 25-408; Vincent v. Nelson, 238 Ariz. 150
(App. 2015). The requesting party bears the burden of proving that
relocation is in the children’s best interests. A.R.S. § 25-408(G). In
determining best interests, the court is required to consider “all relevant
factors,” including eighteen specific factors enumerated within A.R.S. §§
25-403(A) and -408(I). A.R.S. § 25-408(I). “[W]hen the superior court holds
a hearing on a request for relocation that necessarily implicates a change in
parenting time or legal decision-making,” the court must make specific
findings of fact with regard to those factors. Murray, 239 Ariz. at 177, ¶ 9
(citing Owen, 206 Ariz. at 421, ¶ 11).
¶7 The requirement for specific findings “exists not only to aid
an appellant and the reviewing court, but also for a more compelling reason
— that of aiding all parties and the family court in determining the best
interests of the child or children both currently and in the future.” Reid v.
Reid, 222 Ariz. 204, 209, ¶ 18 (App. 2009) (citations omitted). The failure to
2 In his answering brief, Father suggests this Court may affirm
because Mother’s relocation plan presumed “a court-mandated co-
relocation of Father.” We agree with Mother that the record does not
support this argument.
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WRIGHT v. WRIGHT
Decision of the Court
make the statutory findings constitutes error as a matter of law.3 Id. at ¶ 20
(citing In re Marriage of Diezsi, 201 Ariz. 524, 526, ¶ 5 (App. 2002)); see also
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
¶8 The family court here explained in a thoughtful manner the
reasons why it believed relocation was not in the best interests of the
Children, but its ruling does not reflect any findings regarding, or specific
consideration of, the mandatory statutory factors. See Hurd v. Hurd, 223
Ariz. 48, 53-54, ¶¶ 25-26 (App. 2009) (finding significance, and error, in the
absence of findings related to several factors enumerated in A.R.S. §§ 25-
403(A) and -408(I), even where the evidence otherwise supported the
relocation decision). This was error. Accordingly, we vacate the court’s
order and remand this matter for a determination supported by findings
reflecting consideration of the statutory factors.
3 Although Father does not contest the adequacy of the court’s
findings and Mother proclaims disinterest in “the check list arithmetic of
the trial court’s findings concerning the statutory factors,” we decline to
find the issue waived. See Reid, 222 Ariz. at 209-10, ¶¶ 19-20 (noting no law
“has created an unalterable rule mandating waiver in all instances” and
finding mechanically applying waiver principles in this setting prevents
development “of the baseline information required for future petitions
involving a child or children’s best interests”); see also Hays v. Gama, 205
Ariz. 99, 102, ¶ 18 (2003) (“We have repeatedly stressed that the child’s best
interest is paramount in custody determinations.”) (collecting cases). It
nonetheless remains the Court’s preference that issues regarding the
adequacy of findings be raised first in the family court; “doing so . . .
provide[s] that court with a simpler, more expedient opportunity to remedy
its lack of findings and perhaps reconsider its decision.” Reid, 222 Ariz. at
209, ¶ 19.
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WRIGHT v. WRIGHT
Decision of the Court
CONCLUSION
¶9 The family court’s order denying Mother’s relocation petition
is vacated, and the case is remanded to the family court for reconsideration.
The court is directed to make specific findings on the record in regard to all
factors relevant to Mother’s relocation request, including but not limited to
those set forth in A.R.S. §§ 25-403(A) and -408(I). We leave it to the court’s
discretion as to whether additional evidence or argument would be helpful.
We otherwise offer no opinion as to the merits of the request.
AMY M. WOOD • Clerk of the Court
FILED: AA
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