Coronado v. Coronado ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
ROBERT CORONADO, Petitioner/Appellant,
v.
HOLLY CORONADO, Respondent/Appellee.
No. 1 CA-CV 22-0291 FC
FILED 3-9-2023
Appeal from the Superior Court in Navajo County
No. S0900DO202100083
The Honorable Melinda K. Hardy, Judge
AFFIRMED IN PART, VACATED AND REMANDED IN PART
COUNSEL
White Mountain Law Group, PLC, Show Low
By Michael R. Ellsworth
Counsel for Petitioner/Appellant
David J. Martin, Attorney at Law, PLLC, Lakeside
By David Joseph Martin
Counsel for Respondent/Appellee
CORONADO v. CORONADO
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann1 delivered the decision of the court, in which
Presiding Judge Maria Elena Cruz and Judge Angela K. Paton joined.
S W A N N, Judge:
¶1 Robert Coronado (“Father”) appeals from an order granting a
Petition to Permit Relocation in favor of Holly Coronado (“Mother”).
Father contends that the superior court erred by finding that he had been
properly served with the Petition to Permit Relocation and by allowing
Mother to seek relocation within one year after the decree. We affirm the
superior court’s decision to proceed with the hearing as scheduled because
by voluntarily appearing at the hearing, Father waived the issue of service.
We vacate and remand with respect to the superior court’s modification of
parenting time within one year of the decree.
FACTS AND PROCEDURAL HISTORY
¶2 Father petitioned to dissolve the parties’ marriage in March
2021. The parties’ children are S.C. and O.C. The next month, the parties
entered into a ARFLP (“Rule”) 69 agreement for temporary orders
awarding Mother physical custody except during Father’s daytime
parenting time, twice per week. In September 2021, Father received a letter
from Mother’s attorney informing him of her intent to relocate the children
from Show Low, Arizona, to Phoenix, Arizona. A final hearing regarding
the parties’ dissolution of marriage occurred on October 8, 2021. On
October 26, 2021, Father’s counsel filed a motion to withdraw as his counsel,
which the court granted in November 2021. Two days later, Father filed a
1 Judge Peter B. Swann was a sitting member of this court when the
matter was assigned to this panel of the court. He retired effective
November 28, 2022. In accordance with the authority granted by Article 6,
Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the
Chief Justice of the Arizona Supreme Court has designated Judge Swann as
a judge pro tempore in the Court of Appeals for the purpose of participating
in the resolution of cases assigned to this panel during his term in office and
for the duration of Administrative Order 2022-162.
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CORONADO v. CORONADO
Decision of the Court
pro per Petition to Prevent Relocation of the Minor Children, but Mother
was never served with the petition.
¶3 The superior court issued the decree of dissolution of
marriage in November 2021. The decree awarded Mother sole legal-
decision making. Father received unsupervised parenting time every other
week from Sunday at 10:00 a.m. until Monday at 5:00 p.m. The parties
alternated holidays according to the schedule in the decree.
¶4 Neither party appeared for a hearing set on the Petition to
Prevent Relocation in November 2021. The next month, Mother filed a
Petition to Permit Relocation and requested leave to move the children to
Connecticut. On December 14, 2021, the superior court held a hearing on
the Petition to Permit Relocation. Father states he was not served with the
Petition, but he received an email about the hearing from his attorney who
had previously withdrawn from the case. Both parties appeared at the
hearing, and Father represented himself. The superior court granted
Mother’s Petition to Permit Relocation. On March 1, 2022, the superior
court issued the order granting the petition, but the order did not have Rule
78(c) finality language. The superior court issued an amended order with
the Rule 78(c) finality language on December 13, 2022.
¶5 Father timely appeals.
DISCUSSION
I. THE SUPERIOR COURT DID NOT ERR BY FINDING THAT
FATHER WAIVED SERVICE BY APPEARING IN COURT.
¶6 Father first contends that the superior court erred by finding
Father was properly served with the Petition to Prevent Relocation and
proceeding with the evidentiary hearing. “We accept the court’s findings
of fact unless they are clearly erroneous but review conclusions of law and
interpretation of statutes de novo.” DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9
(App. 2019).
¶7 “A party may accept service. A party may also voluntarily
appear without being served.” Rule 40(f). A voluntary appearance occurs
when “[a] party on whom service is required . . ., in person or by an
attorney, enter[s] an appearance in open court. The appearance must be
noted by the clerk on the docket and entered in the minutes.” Rule
40(f)(2)(A). “[A]ppearance under subparts (f)(1) or (f)(2) [governing
acceptance of service and voluntary appearance, respectively] have the
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same force and effect as if a summons had been issued and served.” Rule
40(f)(3).
¶8 Father argues that he did not receive service of Mother’s
Petition to Permit Relocation, preventing him from filing a response within
twenty days. But Father appeared voluntarily at the hearing after he
received an email from his former attorney informing him of the hearing.
Regardless of whether Father received the proper summons, he waived the
issue of service by voluntarily appearing at the hearing. At the hearing, the
clerk noted in the transcript the “in-person presence of Robert Coronado.”
The superior court did not err by proceeding with the hearing.
II. THE SUPERIOR COURT ERRED BY MODIFYING FATHER’S
PARENTING TIME EARLIER THAN ONE YEAR AFTER THE
DECREE.
¶9 Father also contends that the superior court erred by allowing
Mother to relocate the children earlier than one year after the decree. In its
order, the superior court made findings for each best-interests factor under
A.R.S. § 25-403 and each relocation factor under A.R.S. § 25-408. The
superior court stated that the “current parenting plan is no longer in the
minor children’s best interests.” The superior court granted the petition to
allow the children to relocate to Connecticut and ordered that Father may
not have overnight visits until his housing can accommodate the children.
Father would be allowed spring break and at least half of summer breaks.
¶10 We review the superior court’s orders concerning parenting
time and relocation for abuse of discretion. Owen v. Blackhawk, 206 Ariz.
418, 420, ¶ 7 (App. 2003); Murray v. Murray, 239 Ariz. 174, 176, ¶ 5 (App.
2016). An abuse of discretion occurs “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.” Little v. Little, 193 Ariz. 518,
520, ¶ 5 (1999) (citation omitted).
¶11 “Arizona statutes pertaining to legal decision-making and
parenting time intersect with those pertaining to relocation.” Murray, 239
Ariz. at 176, ¶ 6. To allow relocation, the superior court must make specific
findings about all relevant factors under A.R.S. § 25-408(I), which includes
the best-interests findings under A.R.S. § 25-403. See Owen, 206 Ariz. at 421,
¶¶ 8–9. Additionally, “[a] person shall not make a motion to modify a legal
decision-making or parenting time decree earlier than one year after its
date, unless the court permits it to be made on the basis of affidavits that
there is reason to believe the child’s present environment may seriously
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endanger the child’s physical, mental, moral or emotional health.” A.R.S.
§ 25-411(A).
¶12 During the hearing on the Petition to Permit Relocation,
Father attempted to admit into “evidence” the case of Murray v. Murray, 239
Ariz. 174 (App. 2016). Mother’s counsel objected on grounds of lack of
disclosure. At first, the court admitted the case into evidence. After Father
stated he had spoken to his attorney, who had withdrawn from the case,
before the hearing, the court stated that Father’s attorney should have told
him to disclose Murray v. Murray before the hearing. The superior court
then stated, “I’m going to change my ruling, and I’m going to sustain
[Mother’s] objection on admitting that into evidence, based upon your not
providing any disclosures.”2
¶13 Caselaw is not “evidence,” and need not be admitted to be
considered—courts are bound to follow controlling authority, including
caselaw.3 “The superior court is bound by decisions of the court of appeals;
its precedents furnish a proper guide to that court in making its decisions.”
Francis v. Ariz. Dep’t of Transp., 192 Ariz. 269, 271, ¶ 10 (App. 1998). Yet
when the court made findings of fact and conclusions of law, it chose not to
address Murray. Not only did the court not address Murray, but it did not
address A.R.S. § 25-411(A), the relevant statute discussed in Murray.
¶14 In Murray, we held that the superior court correctly granted a
petition to prevent relocation. 239 Ariz. at 177, ¶ 10. The superior court
issued a dissolution decree in 2009, then later an order modifying parenting
time in 2014. Id. at 175, ¶ 2. One month after the order, the father filed a
petition to prevent relocation. Id. The mother appealed the superior court’s
grant of the father’s motion. Id. at 176, ¶¶ 2, 4. We held that “[t]he superior
court correctly concluded that Mother’s proposed relocation of the children
was subject to § 25-411(A)’s one-year waiting period after a modification of
parenting time or legal decision-making before a parent may seek another
change.” Id. at 176, ¶ 8. We noted that under A.R.S. § 25-411, “[a] parent
ordinarily may not ask to change parenting time or legal decision-making
within a year after a modification order; the same constraint applies when
2 The court scheduled the hearing on the merits of Mother’s petition
ten days after she filed it, which was so accelerated that disclosure of facts
under the timeline provided by the rules was rendered impossible.
3 We note that nondisclosure would have been a suspect basis for
outright preclusion even if evidence (and not caselaw) had been the subject
of the objection. See Hays v. Gama, 205 Ariz. 99, 103–04, ¶¶ 21–23 (2003).
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Decision of the Court
a parent seeks a relocation that necessarily will involve a change in
parenting time or legal decision-making.” Id. at 177, ¶ 8.
¶15 Here, the superior court’s amended order granting the
relocation clearly modified Father’s parenting time by requiring him to
travel to Connecticut for visits, except when the children visit Arizona.
Mother filed the Petition to Permit Relocation and the court granted it one
month after it entered the decree. The order permitting Mother’s relocation
before the expiration of one year after entry of the decree modified Father’s
parenting time in violation of A.R.S. § 25-411(A). The superior court did
not find that any statutory exception to the one-year rule applied. Mother
argues she “alluded to” these exceptions during her testimony, but the
superior court did not make any findings or conclusions concerning
exceptions to the general rule.
¶16 Mother contends this case is distinguishable from Murray.
She argues that here, unlike in Murray, Father failed to file a proper Petition
to Prevent Relocation. Mother also argues that the move in Murray did not
represent the children’s best interests, whereas in this case, the move would
benefit the children’s best interests. But, these differences, even if real, do
not alter the rule that parenting time cannot be modified within one year
after the decree unless the evidence supports one of the exceptions in A.R.S.
§ 25-411(A). The superior court erred by granting Mother’s Petition to
Permit Relocation.
CONCLUSION
¶17 For the foregoing reasons, we affirm the superior court’s
ruling regarding service of process and vacate the remainder of its decision
permitting relocation. We remand for further proceedings consistent with
this decision.
¶18 Both parties request an award of attorney’s fees and costs
under A.R.S. § 25-324, and we deny their requests in the exercise of our
discretion. Our decision to vacate and remand the order granting relocation
renders Father partially successful on this appeal. He may recover his
taxable costs upon compliance with ARCAP 21. See Henry v. Cook, 189 Ariz.
42, 44 (App. 1996).
AMY M. WOOD • Clerk of the Court
FILED: AA
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