No. 1 CA-CV 19-0568 FC
COUNSEL The Murray Law Offices, PC, Phoenix By Stanley David Murray Co-Counsel for Respondent/Appellant Blehm Law, PLLC, Phoenix By Bryan James Blehm Co-Counsel for Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
The Honorable Kerstin G. LeMaire, Judge
AFFIRMED IN PART; REMANDED
COUNSEL The Murray Law Offices, PC, Phoenix
By Stanley David Murray
Co-Counsel for Respondent/Appellant Blehm Law, PLLC, Phoenix
By Bryan James Blehm
Co-Counsel for Respondent/Appellant
Judge David B. Gass replaces the Honorable Kenton D. Jones, who was originally assigned to this panel. Judge Gass has read the briefs and reviewed the record.
¶1 William Cormier (father) appeals orders of legal decision-making, parenting time, and child support for two minor children (the children). For the following reasons, this court affirms the judgment for child support arrears but remands to the superior court to reconsider its relocation, legal-decision making, and parenting time orders after it considers and makes findings under A.R.S. § 25-408.I.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to sustaining the superior court's orders. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 283, ¶ 14 (App. 2019). For several years, father, Evelin De Cormier (mother), and the children resided in the United Arab Emirates (UAE). While living in the UAE, mother and father divorced. Shortly after the divorce and without father's knowledge or consent, mother moved with the children to Arizona. Father then moved to Massachusetts and over the next two years, sought to re-establish contact with the children.
This court exercises its discretion and declines to treat mother's failure to file an answering brief as a confession of error. See ARCAP 15(a)(2); Thompson v. Thompson, 217 Ariz. 524, 526, ¶ 6 n.1 (App. 2008).
The record inconsistently identifies mother as both "Evelin" and "Evelyn." This court adopts the spelling from the order father appealed. --------
¶3 When father re-established contact with the children, mother registered the UAE divorce decree in Arizona and petitioned to modify legal decision-making and parenting time. Mother later petitioned to enforce the original child support order, alleging father never made the court-ordered $2,177.94 monthly child support payments. Father also sought to modify child support. By this time, mother had remarried and was making plans to immigrate with the children to New Zealand to be with her new husband.
¶4 At the evidentiary hearing on the petitions, both parents sought primary physical custody of the children, mother in New Zealand and father in Massachusetts. Mother denied receiving support payments from father. She also said father subjected her to physical and emotional abuse during the marriage, causing her to fear for her and the children's safety. The court-appointed advisor (CAA) said the children gave similar reports of domestic violence and both children said they wished to live primarily with mother. The CAA and paternal grandmother expressed concern about whether living primarily with father was in the children's best interests given their limited contact with him since the parties' separation.
¶5 Father denied the alleged abuse and said he did not pay child support because mother would not give him receipts. He admitted, consistent with his pretrial statement, he believed he had been relieved of his obligation to pay child support when mother left the UAE with the children. He further acknowledged seeing the children for only three-and-a-half weeks in the preceding two years.
¶6 After taking the matter under advisement, the superior court ordered joint legal decision-making, designated mother as the primary residential parent in New Zealand, and awarded father parenting time on the children's breaks from school. The superior court reduced father's monthly child support obligation to $500 and entered a judgment for arrears of $74,049.96 for the period from August 2015 to June 2019. Father timely appealed. This court has jurisdiction under Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101.A.1-2.
A. Due Process
¶7 Father argues he was deprived of due process because he was not given adequate time to prepare his opposition to mother's proposed relocation. "Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner, as well as a chance to offer evidence and confront adverse witnesses." Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11 (App. 2016) (internal quotations omitted). "Due process errors require reversal only if a party is thereby prejudiced." Volk v. Brame, 235 Ariz. 462, 470, ¶ 26 (App. 2014). Whether a party is afforded due process presents a constitutional issue this court reviews de novo. Wassef v. Ariz. State Bd. of Dental Exam'rs ex rel. Hugunin, 242 Ariz. 90, 93, ¶ 11 (App. 2017).
¶8 Father did not prove a due process violation here. The record shows father knew mother intended to relocate to New Zealand by January 2019, when it was memorialized in the CAA's report. Father had four months to gather the information and evidence he believed relevant on this point. Indeed, he devoted several pages of his pretrial statement to the issue of mother moving the children to New Zealand, and he elaborated on his concerns during the evidentiary hearing.
¶9 Father did not request additional time to prepare for, or present evidence at, the hearing. Cf. Gamboa v. Metzler, 223 Ariz. 399, 402, ¶¶ 14-16 (App. 2010) (finding no error in imposing time constraints when party failed to request more time). And he does not specify what information he could or would have obtained if he had additional time. See State v. Dunlap, 187 Ariz. 441, 451 (App. 1996) (unavailability of evidence is not sufficient to establish prejudice; proponent must show specific evidence would have been admissible and affected outcome).
¶10 On this record, father did not establish he was deprived of a meaningful opportunity to address mother's proposed relocation. He also did not establish any prejudice.
B. Application of A.R.S. § 25-408
¶11 Father argues the superior court erred by allowing the children to live primarily with mother in New Zealand without addressing the relocation-specific best-interest factors in subsection 25-408.I.
¶12 Whether the relocation provision in subsection 25-408.I applies is an issue of statutory interpretation this court reviews de novo. See Buencamino v. Noftsinger, 223 Ariz. 162, 164, ¶ 7 (App. 2009). Even if a parent need not give notice of an intent to relocate under subsection 25-408.A, the superior court must apply subsections 25-408.G and -408.I "when resolving any contested relocation." See Woyton v. Ward, 247 Ariz. 529, 532, ¶ 9 (App. 2019) (emphasis added). The parent seeking to relocate the children, therefore, bears the burden of proving the relocation is in the children's best interests. See A.R.S. § 25-408.G. And the superior court must consider all the relevant best-interest factors in subsection 25-408.I.
¶13 Here, though the superior court considered the children's best interests based on the factors in §§ 25-403 and -403.01, the record does not indicate it considered or applied the relocation factors in subsection 25-408.I or applied the appropriate burden of proof under subsection 25-408.G. The superior court, therefore, erred. Accordingly, father argues this court must vacate the order and remand for a new trial. See Woyton, 247 Ariz. at 532, ¶ 9. As a general rule, this court would agree. For the following two reasons, however, this case is an exception proving the rule.
¶14 First, both parents sought to relocate the children from their home state of Arizona. Mother sought to relocate the children to New Zealand, and father to Massachusetts. As a result, each parent bore the same burden of proof under subsection 25-408.G. See id. Second, both parents identified and discussed the subsection 25-408.I relocation factors in their pretrial statements and had the opportunity to develop these arguments at the evidentiary hearing.
¶15 This court, therefore, remands this matter for reconsideration of relocation, legal decision-making, and parenting time. On remand, the superior court, in its discretion, may resolve those issues on the existing record, or it may order supplemental briefing and may take additional evidence to address the relocation-specific best-interest factors identified in subsection 25-408.I. See A.R.S. §§ 25-403, -403.01, and -408.
II. Legal Decision-Making and Parenting Time
¶16 Because this court remands the legal decision-making, parenting time, and relocation orders for reconsideration, it need not address all of father's remaining arguments. This court chooses to do so in part to avoid confusion on remand. See Nayeri v. Mohave County., 247 Ariz. 490, 494, ¶ 15 (App. 2019).
A. Historical Relationship with the Children
¶17 Father argues the superior court erred in its best-interests analysis by considering mother's historical role as the children's primary caregiver because "[w]hether one parent, both parents or neither parent has provided primary care of the child," was removed as a statutory best-interests factor in 2012. See A.R.S. § 25-403; 2012 Ariz. Sess. Laws, ch. 309, § 5 (2nd Reg. Sess.). The deletion does not carry significant import.
¶18 When interpreting a statute, the primary goal is to give effect to the legislature's intent. See Parsons v. Ariz. Dep't of Health Servs., 242 Ariz. 320, 323, ¶ 11 (App. 2017). This court looks first "to the statute's plain language as the best indicator of that intent." See id. If the language is clear and unambiguous, courts "must give effect to that language without employing other rules of statutory construction." Id. If the language is ambiguous, courts "look to the rules of statutory construction . . . and consider the statute's context; its language, subject matter, and historical background; its effects and consequences; and its spirit and purpose." Stein v. Sonus USA, Inc., 214 Ariz. 200, 201, ¶ 3 (App. 2007) (internal citations omitted).
¶19 This court strives to "give meaning to each word, phrase, clause, and sentence . . . so that no part of the statute will be void, inert, redundant, or trivial." See Ariz. State Univ. Bd. of Regents v. Ariz. State Ret. Sys., 242 Ariz. 387, 389, ¶ 7 (App. 2017) (alteration original; internal quotation omitted). "In pari materia is a rule of statutory construction whereby the meaning and application of a . . . portion of a statute is determined by looking to statutes which relate to the same . . . thing and which have a purpose similar to that of the statute being construed." Collins v. Stockwell, 137 Ariz. 416, 419 (1983); see also Farmers Co-op. Co. v. DeCoster, 528 N.W.2d 536, 539 (Iowa 1995) ("omission of such provision from a similar statute is significant to show a different intention existed"). This court reads statutes in pari materia and gives effect to all parts of the law on the same subject, if possible. See Collins, 137 Ariz. at 419. "We presume that when the legislature enacts a statute, it is aware of existing statutes, and where a later statute does not expressly repeal a former one, they should be construed so as to give effect to each, if possible." Prudential v. Estate of Rojo-Pacheco, 192 Ariz. 139, 149 (App. 1997) (internal quotations omitted).
¶20 First, the factors identified within § 25-403 are not exclusive. To the contrary, the statute directs the court to consider "all factors that are relevant to the child's physical and emotional well-being, including [those listed]." See A.R.S. § 25-403.A (emphasis added). "'Includes' or 'including' means not limited to and is not a term of exclusion." A.R.S. § 1-215.14; see also Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) ("[T]he term 'including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle."). The statute, therefore, contemplates there are additional factors not listed in subsection 25-403.A that, depending on the facts of the case, may be relevant to the best-interests analysis.
¶21 Second, subsection 25-403.A, paragraph 1 still directs the superior court to consider the "past, present and potential future relationship between the parent and child." Information regarding the nature and extent of mother's relationship with the children—such as her role as the children's primary and then sole caregiver—is plainly subject to consideration under this paragraph. The continued existence of the "past, present and potential future relationship" factor suggests the 2012 deletion of the "primary caregiver" factor does not indicate the legislature believed the primary-caregiver factor was no longer relevant. Instead, it suggests the legislature found the primary-caregiver factor superfluous to the past-relationship factor remaining within subsection 25-403.A.
¶22 Third, contrary to father's argument, consideration of the historic relationship between parents and children does not give rise to a presumption as to what is in a child's best interests. Subsection 25-403.A.1 simply directs the superior court to consider this information. The superior court retains broad discretion to weigh and balance this factor, among many others, in deciding what serves the physical and emotional needs of a child's specific situation. See Engstrom v. McCarthy, 243 Ariz. 469, 474, ¶ 18 (App. 2018) (noting a superior court's broad discretion in imposing conditions under § 25-403.03).
¶23 Accordingly, the superior did not err when it considered mother's historical role as the children's primary caregiver.
B. Maximize Parenting Time
¶24 Father also argues, without elaboration, the superior court erred because the parenting plan did not "maximize his parenting time," presumably arguing he should have equal parenting time. "Equal parenting time, however, may not always be possible, particularly when the parties live in different states or are separated by a considerable distance." See Woyton, 247 Ariz. at 531, ¶ 6. Accordingly, a superior court does not err if the parenting plan does not afford both parents equal time if, as the superior court noted here, the record shows "the distance between the parental residences precludes a regular weekday/weekend parenting time." See id.
III. Child Support Arrears
¶25 Father argues the evidence is insufficient to support the superior court's judgment for child support arrearages based on its determination father had not made any of the court-ordered child support payments. This court reviews a ruling on child support arrearages for an abuse of discretion. Ferrer v. Ferrer, 138 Ariz. 138, 140 (App. 1983).
¶26 Father argues he proved he made "several" support payments and mother "may have also received some money for support when she closed a joint bank account." Though father presented evidence he was "getting ready" to make payments in 2017, he later said he: (1) was "unable" to make payments because of issues with the parties' account; (2) "wouldn't" send mother a money order; (3) did not pay support because he was "in the middle of a court fight"; and (4) did not follow the child support order because mother "stole [the] children." Given the conflicting testimony, the superior court acted within its discretion to determine father made no payments. See Christopher K. v. Markaa S., 233 Ariz. 297, 302, ¶ 22 (App. 2013) ("[T]here is simply no substitute for the court's evaluation of the credibility of witness testimony.").
¶27 Moreover, mother, consistent with her verified petition, testified unequivocally father had not paid the required child support. Her testimony is sufficient to support the superior court's determination father had not paid any court-ordered child support. See id. Because the evidence supports the finding, the superior court did not abuse its discretion.
¶28 Father requests an award of attorney fees incurred on appeal under A.R.S. § 25-324. In its discretion, this court declines this request.
¶29 Because each parent contested the other's proposed relocation with the children, the superior court erred when it failed to consider the factors identified in A.R.S. § 25-408.I. Accordingly, the relocation, legal decision-making, and parenting time orders are reversed and remanded for further proceedings. To avoid undue disruption of the children's lives, the current orders regarding relocation, legal decision-making, and parenting time shall remain in place pending resolution on remand. The record supports the superior court's orders regarding child support, and they are therefore affirmed.