Wright v. Wright ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
KORRI WRIGHT, Petitioner/Appellant,
v.
BRIAN WRIGHT, Respondent/Appellee.
No. 1 CA-CV 18-0675 FC
FILED 10-17-2019
Appeal from the Superior Court in Yuma County
No. S1400DO201401453
The Honorable John P. Plante, Judge
AFFIRMED
COUNSEL
Mary Katherine Boyte, PC, Yuma
By Mary K. Boyte Henderson
Counsel for Petitioner/Appellant
Law Office of Robert E. Siesco, Phoenix
By Aaric A. Siesco, Robert E. Siesco
Counsel for Respondent/Appellee
WRIGHT v. WRIGHT
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.
J O H N S E N, Judge:
¶1 Korri Wright ("Mother") appeals from the superior court's
order denying her petition to relocate her four children from Yuma to San
Diego. The court based its decision on findings that were supported by the
evidence and reasonably weighed and applied the statutory considerations
bearing on relocation. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The parties are the parents of four children, the youngest of
whom, LB, was diagnosed with a genetic disorder after the parties divorced
in 2015. LB initially was diagnosed with Autism Spectrum Disorder, but
that diagnosis later was changed to Rubinstein-Taybi Syndrome ("RTS"),
which is characterized by developmental delays, cognitive difficulties and
medical complications. The parties' three older children range in age from
11 to 15, and LB is now six years old. The children have lived in Yuma most
of their lives.
¶3 In 2016, Mother petitioned to relocate the children to San
Diego, claiming LB could receive better medical services and
developmental therapies there than were available in Yuma. Mother also
asserted that both parents had extended family support available in San
Diego. She also contended that Brian Wright ("Father") could operate his
Yuma-based business from San Diego. Father objected to the relocation,
arguing that LB received adequate services in Yuma with occasional travel
to Phoenix to see medical specialists. Father also denied that he could run
his business from San Diego.
¶4 After a four-day evidentiary hearing, the superior court
denied Mother's petition. In Mother's first appeal, this court vacated the
order because the superior court did not make the findings required by
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Decision of the Court
Arizona Revised Statutes ("A.R.S.") sections 25-403 (2019) and -408 (2019).1
See Wright v. Wright, 1 CA-CV 17-0505 FC, 2018 WL 2050091, at *2, ¶¶ 8-9
(Ariz. App. May 3, 2018) (mem. decision). On remand, the superior court
reviewed the recording of the evidentiary hearing, made written findings
regarding the applicable statutory factors and again denied Mother's
petition to relocate. Mother timely appealed, and we have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §
12-2101(A)(2) (2019).
DISCUSSION
¶5 In considering a petition for relocation, the court must base its
decision on the best interests of the children. A.R.S. § 25-408(G). In
determining the children's best interests, the court shall consider all
relevant factors listed in §§ 25-403 and -408(I). We review the court's
decision on a relocation petition for an abuse of discretion and do not
reweigh or redetermine the evidence. Murray v. Murray, 239 Ariz. 174, 176,
¶ 5 (App. 2016); Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). We view
the evidence in the light most favorable to sustaining the court's findings
and determine whether that evidence reasonably supports those findings.
Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015). An abuse of
discretion occurs when the record fails to provide substantial evidence to
support the court's findings. Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9 (App.
2012).
A. Father's Objection to Mother's Petition to Relocate Is Untimely,
and Mother Did Not Waive Her Right to Appeal.
¶6 Father argues that Mother's petition to relocate did not
contain detailed facts as required by A.R.S. § 25-411(L) (2019). Father did
not raise that objection before the evidentiary hearing; therefore, he has
waived it. In re Marriage of Dorman, 198 Ariz. 298, 302, ¶ 11 (App. 2000)
("Errors in preliminary procedures, such as those in § 25-411, must be
addressed prior to a resolution on the merits.").
¶7 We also reject Father's contention that Mother waived any
objections to the superior court's most recent findings because she did not
file a post-order motion. Such motions, although sometimes helpful, are
not required to preserve an argument that the evidence does not support
the court's findings. See Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013).
1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
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Decision of the Court
B. Evidence in the Record Supports the Superior Court's Findings.
1. Effect of reduced parenting time with Father.
¶8 Mother suggests that Father would have followed her and the
children to San Diego if the superior court had allowed the relocation. The
court, however, found that Father would "most likely not be able to move
due to his business and financial demands," and evidence in the record
supports that finding. The necessary implication of that finding is that
Mother's relocation with the children to San Diego would diminish Father's
parenting time. The superior court found relocation "would take away an
outstanding parent who has the child at least one-half of the time. . . . This
would be a tragedy for all of the children." The result, the court found,
"would likely be an emotional trauma to [LB] and not beneficial to the other
children."
¶9 The court acknowledged that better medical services would
be available for LB in San Diego, but expressly placed more weight on
maintaining equal parenting time, finding that "[p]arent participation is the
most critical aspect of [LB's] development[]," and close contact with his
parents and siblings was "most important" for LB. A.R.S. § 25-408(I)(7).
Mother contends the evidence does not support these findings and argues
the court gave undue weight to the effect of a reduction in Father's
parenting time.
¶10 Mother asserts the court's findings are inappropriate
generalizations that lack support from LB's therapists or other medical
providers. See Barron v. Barron, 246 Ariz. 580, 587, ¶ 21 (App. 2018) (court
abused its discretion when no factual basis or testimony from a therapist,
counselor or expert supported its finding that children would not be able to
adjust to change in parenting time), vacated in part on other grounds, 246 Ariz.
449 (2019). Father, on the other hand, cites the testimony of Dr. Feder, a
child psychiatrist specializing in developmental disorders, that it is
"optimal" for LB to have both parents as involved with him as possible, and
Dr. Subbu's testimony that both parents are important. Although the
court's findings are not an exact restatement of the physicians' testimony,
both physicians confirmed that parental involvement is important for LB.
¶11 Mother acknowledged Father's importance in LB's life and his
significant participation in all the children's daily activities. The evidence
also established that the parties currently live a half-mile apart, sharing
convenient access to most of the children's activities. Under the parties'
current living arrangements, which the court characterized as "ideal," the
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WRIGHT v. WRIGHT
Decision of the Court
children are accustomed to and benefit from spending equal time with both
parents.
¶12 Moreover, we disagree with Mother that the court's
conclusions about the significance of both parents' active involvement in
the children's lives constituted findings of fact. When the court found that
it was most important that both parents remain equally involved with the
children, the court was balancing the competing concerns this difficult case
presents. Mother may disagree about what is most important, but there was
evidence to support the court's factual findings that a relocation would
dramatically impair the beneficial living and parenting-time arrangements
the children have enjoyed since the divorce and that having both parents
involved in their lives is important.
2. Financial considerations.
¶13 Mother also argues the superior court failed to consider the
financial advantages the proposed relocation would provide her and
focused instead only on the disadvantages it would impose on Father. The
court did not ignore this evidence. Instead, it found Mother was
overstating the financial benefits of relocation. The court found if it allowed
Mother to relocate, she would continue to rely on Father and her parents
for support while living with the children in a much smaller home, and that
her new job would not increase the parties' combined income. Further, the
court addressed the financial hardships that would occur if Father moved
to San Diego and ultimately concluded he had greater financial stability in
Yuma. See A.R.S. § 25-408(I)(3). The evidence supports these findings.
3. Need for travel and the adequacy of services for LB.
¶14 Mother argues the superior court placed Father's interests
above LB's when it weighed the inconvenience of long-distance parenting
time against the child's current need to travel to Phoenix for medical
services. In considering the children's "adjustment to home, school and
community," A.R.S. § 25-403(A)(3), the court found that although LB
receives some therapies in Yuma, the family must take him to Phoenix for
all his major medical services. As for the prospective advantage of the
relocation, see A.R.S. § 25-408(I)(3), the court found that although there "are
more and better medical facilities in San Diego[,]" there are "adequate
therapies" available in Yuma and major medical services available in
Phoenix. The court again noted it was "indisputable" that facilities in San
Diego were superior to those in Yuma when it considered the reasons for
Mother's request. See A.R.S. § 25-408(I)(7).
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¶15 Mother's argument that relocation is in LB's best interests
rests on the premise that adequate services are not available in Yuma. She
cites the testimony of Dr. Feder, who explained that therapies for autism
and RTS are not interchangeable and that trying to teach LB's current
therapists the best methods for treating RTS would unnecessarily delay his
progress.
¶16 The evidence, however, showed that therapies a
developmental pediatrician had recommended for LB are available in
Yuma. Father also testified there was a facility in Yuma that provided the
"evidence-based" therapy Dr. Feder had recommended. Although Mother
challenged the quality of the services available in Yuma, she did not
establish that LB would suffer any actual developmental delay or harm
from relying on therapy available in Yuma.2 To the contrary, the evidence
showed LB has shown improvement after receiving these therapies.
¶17 Mother also argues the superior court ignored evidence that
LB's medical needs require frequent travel to Phoenix, a six-hour round
trip. Mother testified the travel is expensive and it is difficult to arrange
child care for the other children. At the time of the hearing, LB needed an
MRI, an EEG and a surgery that would require a pediatric anesthesiologist,
none of which were available in Yuma. There was no clear indication,
however, how frequently LB will need to travel for additional medical
services in the future.
¶18 The court did not ignore the need for travel; it acknowledged
that LB would need to be driven to Phoenix for some medical services if the
parties remained in Yuma. Yet, the court also noted that significant travel
would be necessary for Father's parenting time if Mother relocated.3
2 Both parties testified that some of LB's occupational therapy now is
done online because of a lack of available therapists. It is not clear from the
record whether LB's current special-needs preschool constitutes a
"developmental preschool," as the developmental pediatrician
recommended. The evidence showed that the Head Start program LB was
attending at the time of the hearing planned to reduce his hours because it
could not adequately address his needs.
3 For the first time on appeal, Mother suggests that Father could
exercise his parenting time in San Diego, thus alleviating LB's need to
travel. She waived this argument by failing to raise it in the superior court.
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Decision of the Court
¶19 The court did not place Father's parenting time or
convenience above LB's interest in receiving proper medical care. In
weighing the competing concerns, the court found LB could receive
adequate services in Yuma and that, although travel to Phoenix would be
needed, the children would benefit from continuing to live in Yuma near
both parents, where they were well-adjusted and financially stable. We
must defer to the court's decision on how to weigh these concerns.
¶20 In sum, the superior court was within its discretion in
concluding that the existence of "more and better medical facilities in San
Diego" did not trump all other considerations in this case. Although
Mother asks this court to balance these considerations differently, "[o]ur
duty on review does not include re-weighing conflicting evidence or
redetermining the preponderance of the evidence." Hurd, 223 Ariz. at 52, ¶
16. The court's findings were reasonably supported by the evidence.
¶21 Father requests an award of attorney's fees on appeal under
A.R.S. § 25-324 (2019). On the record presented, we have no grounds to
award fees under this statute and deny his request.
CONCLUSION
¶22 We affirm the order denying the petition to relocate.
AMY M. WOOD • Clerk of the Court
FILED: AA
Moreover, she does not explain how, given Father's finances, he could
afford to exercise his parenting time in San Diego while continuing to live
in Yuma.
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