Affinito v. Affinito ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ERICA C. AFFINITO,
Petitioner/Appellant,
v.
JAMES D. AFFINITO,
Respondent/Appellee.
No. 1 CA-CV 20-0287 FC
FILED 3-2-2021
Appeal from the Superior Court in Yavapai County
No. P1300DO201800398
The Honorable Cele Hancock, Judge
VACATED
COUNSEL
Musgrove Drutz Kack & Flack, PC, Prescott
By Mark W. Drutz, Jeffrey Gautreaux
Counsel for Petitioner/Appellant
David M. Wilson Law Office PC, Prescott
By David M. Wilson
Counsel for Respondent/Appellee
AFFINITO v. AFFINITO
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Chief Judge Peter B. Swann and Judge Kent E. Cattani joined.
T H U M M A, Judge:
¶1 Appellant Erica C. Affinito (Mother) challenges the superior
court’s order granting Appellee James D. Affinito’s (Father’s) motion to
enforce the parties’ parenting plan and subsequent orders challenging that
ruling. For the reasons set forth above, and given the passage of time and
actions implicating the best interests of the young children involved, the
orders are vacated.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mother petitioned for divorce in 2018. At that time, she lived
in Prescott Valley and Father lived in Prescott. The parties have two minor
children, now ten and six years old. In July 2019, the parties reached an
agreement on legal decision-making and parenting time. This Parenting
Plan provides that Mother has primary residential parent status, and Father
receives parenting time “[e]very other week from release of school on
Friday to return to school on Tuesday.” The parties agreed to “make major
educational decisions together” and to “consult an educational
professional” to resolve any disagreements. At that time, the children were
attending school in Prescott Valley. The court entered the decree of
dissolution in December 2019, adopting the agreed-upon Parenting Plan.
The decree also ordered the sale of the marital home in Prescott Valley.
¶3 The next month, in late January 2020, Father filed a petition
alleging Mother planned to relocate to Anthem and enroll the children in
school there by February 7, 2020. Father alleged this constituted a relocation
governed by Arizona Revised Statutes (A.R.S.) § 25-408 (2021)1 and asked
the court to enforce the Parenting Plan by barring Mother from “relocat[ing]
outside the Prescott area.” Father also sought modification of the Parenting
Plan to grant him primary residential parent status. Mother moved to
dismiss the petition, claiming it was premature (because less than a year
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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AFFINITO v. AFFINITO
Decision of the Court
had passed since the entry of the decree as required by A.R.S. § 25-411(A))
and that Mother was moving in Arizona less than 100 miles from her prior
residence (which was not a relocation under A.R.S. § 25-408(A)).
¶4 The court held a resolution management conference on
February 24, 2020. Noting that briefing on Mother’s motion was not yet
complete, the court only heard evidence on Father’s petition to enforce the
Parenting Plan. Mother testified she had already moved to Anthem and
enrolled the children in school there. Father testified, however, that Mother
did not comply with the Parenting Plan before doing so and that he did not
agree with her decisions. Father further testified he would have to travel
approximately 80 miles each way to return the children to school on
Tuesdays if they were to stay in Anthem.
¶5 At the hearing, the court ordered Mother to return the
children to Prescott so they would “be in school by next week and remain
there until there can be a full hearing in this matter.” Mother moved to stay
enforcement of that order, contending she could not re-enroll the children
in their former school because “neither party . . . resides within the school
district.” She also contended that Father “would not agree, even
temporar[il]y, to keep the Children in Anthem . . . and he would not agree
to any terms.”
¶6 At a March 4, 2020 status conference, the court reaffirmed the
February 24 orders. It repeated it was not changing the Parenting Plan
“until we have a full evidentiary hearing,” adding the Parenting Plan
“called for them to make joint legal decision making and seek a professional
educator’s advice.” A resulting March 4 order required the parties to
“follow and comply with the agreed upon Parenting Plan,” also ordering
that the children “come back to Yavapai County for the purposes of
attending school.”
¶7 Mother moved for reconsideration of the March 4 order,
which the court denied. The court also denied her motion to dismiss
Father’s petition and her motion to stay enforcement of the February 24
orders. Mother then sought clarification, which the court denied on April
23, 2020. Mother filed a notice of appeal the next day, challenging the
February 24, March 4 and April 23 orders. This court has appellate
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2).
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DISCUSSION
¶8 The Parenting Plan calls for the parties to “make major
educational decisions together” and to “consult an educational
professional” to resolve disagreements. This apparently did not occur when
Mother enrolled the children in Anthem. Mother unilaterally did so less
than two months after the entry of the Decree. In that respect, Mother’s
actions did not comply with the cooperation and consultation requirements
of the Parenting Plan. But contrary to the superior court’s order, the
Parenting Plan did not require the children to attend school in any specific
location, and the court’s order that the children return to school in Prescott
went beyond the parameters of the Parenting Plan the court purported to
enforce.
¶9 Mother needed to move somewhere by virtue of the court’s
order requiring the sale of the marital residence. And by moving
approximately 80 miles within Arizona, Mother did not “relocate” with the
children as that term is used in A.R.S § 25-408(A)(2) (requiring, as
potentially applicable here, agreement of the parties or a court order to
“[r]elocate the child[ren] more than one hundred miles within the state”)
(emphasis added). Accordingly, to the extent Father’s petition, and the
court, relied on Section 25-408, such reliance was misplaced. Mother’s
motion to dismiss Father’s petition, filed before the February 24 hearing,
raised this issue, but the court’s order did not address it. Accordingly, the
superior court erred to the extent it treated Mother’s actions as a relocation
under Section 25-408.
¶10 During oral argument before this court in January 2021, the
parties indicated that the February 24 orders have not been effectuated
during the pendency of the appeal. Instead, it appears the parties viewed
this appeal as automatically staying the February 24 orders. Accordingly,
the original Parenting Plan schedule apparently has been followed during
the pendency of this appeal. As a result, the children have been attending
school in Anthem (apparently, given COVID-19, remotely at times) when
they are with Mother. When Father exercises his parenting time (every
other week), he picks the children up after school on Friday, travels
approximately 90 miles to his home in Prescott, and then early Tuesday
morning, travels approximately 90 miles to Anthem so the children can
begin their school day in Anthem. As a result, the children miss every other
Monday of school.
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Decision of the Court
¶11 Mother contends she was prejudiced by the court’s decision
not to hold a full hearing on her motion to dismiss, arguing she would have
presented “testimony regarding the best interests of the children.” In
addition, because the current arrangement results in the children missing
10 percent or so of their schooling, the Parenting Plan may no longer be in
the best interests of the children. Moreover, either party now may petition
to modify the Parenting Plan, as it has been in place for more than a year.
A.R.S. § 25-411(A); see also Engstrom v. McCarthy, 243 Ariz. 469, 472 ¶ 10
(App. 2018) (stating a party may seek modification of “an agreement that
was approved and adopted as an enforceable order” under § 25-411).
¶12 Given these various legal and practical issues, including those
implicating the best interests of these young children, the February 24,
March 4 and April 23, 2020 orders are vacated. On remand, the parties may
seek modification of the Parenting Plan pursuant to Section 25-411.
¶13 Father requests his attorneys’ fees incurred in this appeal
under A.R.S. § 25-324(A). Having considered the relevant financial
evidence in the record and the reasonableness of the parties’ positions, his
request is denied. Mother may recover her taxable costs upon compliance
with ARCAP 21.
CONCLUSION
¶14 The February 24, 2020, March 4, 2020 and April 23, 2020
orders are vacated.
AMY M. WOOD • Clerk of the Court
FILED: AA
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