Alcott v. Killebrew

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
KRISTYN ANNE ALCOTT, Petitioner/Appellant,
v.
KYLE JEFFRY KILLEBREW, Respondent/Appellee.
No. 1 CA-CV 20-0538 FC
FILED 10-19-2021
Appeal from the Superior Court in Maricopa County
No. FC2015-091121
The Honorable Suzanne S. Marwil, Judge
AFFIRMED
COUNSEL
Strong Law, Scottsdale
By Marc R. Grant, Jr.
Counsel for Petitioner/Appellant
Kyle Jeffry Killebrew, Peoria
Respondent/Appellee
ALCOTT v. KILLEBREW
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Samuel A. Thumma joined.
P O R T L E Y, Judge:
¶1 Kristyn Anne Alcott (“Mother”) appeals the family court’s
ruling on competing petitions to modify a decree entered in 2015. Mother
argues the family court (1) erred in ordering Mother and Kyle Jeffry
Killebrew (“Father”) to choose a school for their children using distance as
the only factor; (2) failed to consider all relevant school placement factors
as discussed in Jordan v. Rea, 221 Ariz. 581, 590, ¶¶ 23-24 (App. 2009); and
(3) effectively usurped her authority to make a final decision on a choice of
school for the parties’ children. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were married in 2009 and have two minor
children, born in December 2010 and February 2012. In 2015, Mother filed
a petition to dissolve their marriage. Later that year, the parties submitted
a consent decree, which the court entered.
¶3 In the decree, the court awarded the parties joint legal
decision-making with Mother having final decision-making authority.
Mother received primary physical custody with Father receiving regular
parenting time. The decree also specified the following regarding the
children’s education:
Once both children are of appropriate school age, [the] parties will
mutually agree upon an elementary school of equal distance between
parental homes. This agreement shall be in writing and filed
with the court at that time.
(Capitalization omitted; italics added.)
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
2
ALCOTT v. KILLEBREW
Decision of the Court
¶4 After the parties stipulated to adopt a week on/week off
parenting time schedule in August 2016, the court adopted and entered the
agreement as an order. A year later Mother filed a petition to modify child
parenting time after Father moved to Flagstaff, Arizona. The family court
granted the petition and ordered: (1) Father could exercise parenting time
every weekend except for the first weekend of each month as long as Father
lived more than twenty-five miles away from Mother; (2) the parties would
resume the week on/week off schedule should Father relocate within
twenty-five miles of Mother; and (3) the parties would continue to have
joint legal decision-making authority, and if they could not agree after
making a good-faith effort to reach an agreement, Mother would have
“presumptive decision-making authority.” Importantly, the court also
otherwise affirmed “all Orders currently in place, except as expressly
modified herein.”
¶5 Father subsequently moved back to the Phoenix area, near
Mother’s residence, and the parties resumed their week on/week off
parenting schedule. The resumption of this schedule was not without
controversy, however, involving significant motion practice and a prior
appeal not detailed here.
¶6 In May 2019, Father filed a “Petition to Modify Legal
Decision-Making, Parenting Time and Child Support,” requesting he be
awarded sole legal decision-making, especially regarding the children’s
medical and education decisions, and seeking equal parenting time.
Mother then filed a petition seeking an order that Father pay certain
medical bills, and in July 2019, Mother filed a petition to modify parenting
time and child support.
¶7 In August 2019, Father also filed an “Expedited Petition for
Temporary Orders Re: Legal Decision-Making,” in which he stated he had
just become aware that Mother had again moved and placed the children
in another school, which was at least twenty-two miles away from the
children’s previous school and farther from Father’s residence, and
requested that the family court “temporarily order that he be awarded sole
legal decision-making such that he [might] move the minor children to the
school where they attended the previous year.” In his response to Mother’s
pending petition to modify parenting time, Father also contended in part
that Mother had moved the children from an A-rated school to a B-rated
school that had fewer services for the children.
¶8 The court set a temporary orders hearing for September 2019.
In her separate pretrial statement, Mother argued she had presumptive
3
ALCOTT v. KILLEBREW
Decision of the Court
decision-making authority under the January 2018 order and could
unilaterally change the children’s school unless Father could demonstrate
that it was contrary to the children’s best interests. She also argued that
“changing schools again at this point will only cause upset and disrupt the
children.” In Father’s separate pretrial statement, he argued the children’s
new school lacked “before and after care,” which created a logistical
hardship for him because it resided at least twenty-four miles away.
¶9 In its temporary ruling, the family court
directed [Father] to research any other schools available to the
children and that are more centrally located between the
parties. Once appropriate schools are located, Father shall
provide a list of the schools to Mother. If the parties are
unable to reach an agreement, counsel are directed to submit
a blind list of schools to the Court on or before October 3, 2019.
(Emphasis omitted.) The court also deleted the 25-mile radius contingency
contained in its January 2018 order.
¶10 The parties were unable to agree on a suitable equidistant
school that was still accepting students. The court then issued a temporary
order that the children remain at their new school and making Mother
responsible for picking up and dropping off the children.
¶11 The trial on the parties’ pending petitions was set for August
2020. In her separate pretrial statement, Mother argued that the school
choice issue was no longer in dispute. In his pretrial statement, Father
argued he should have final decision-making authority, in part because
“Mother repeatedly abuses the authority to have final say [which] allows
her to change schools [each time] she moves.”
¶12 After trial, the court made detailed best interest findings.
Specifically, the court addressed the school choice issue, noting that Father
found it hard to work while the children were enrolled in a school that did
not have a before or after care program:
The Court ordered that the children could remain enrolled in
[the new school] because no school equidistant between the
parties had space for them in October 2019. That may not be
true at this time. Further, the lack of a before and after school
program has led to more interaction between the parties and
more conflict. Accordingly, by no later than September 8,
2020, both parties shall make and exchange lists of no less
4
ALCOTT v. KILLEBREW
Decision of the Court
than three schools equidistant between the parties that are
receiving open enrollment students; the parties will then meet
and confer by September 15, 2020 and cho[o]se a school giving
preference to any school that appears on both lists. If they
cannot select a school, they should submit a combined list to
the Court by no later than September 22, 2020 that includes
the distance between [each] school and each parties’ [sic]
residence and the Court will choose one. Neither party shall
unilaterally remove the children from the selected school.
(Emphasis omitted.) The court also “award[ed] Father and Mother joint
legal decision-making authority regarding the Children with Mother
having final say in the event of impasse after good faith meditation.”
¶13 We have jurisdiction over Mother’s appeal pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).
ANALYSIS
I. Standard of Review
¶14 We review the family court’s custody and parenting time
orders for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013). We review de novo the interpretation of statutes and decrees of
dissolution. Palmer v. Palmer, 217 Ariz. 67, 69, ¶ 7 (App. 2007); see also Baker
v. Meyer, 237 Ariz. 112, 115, ¶ 7 (App. 2015) (“We review a parenting
agreement de novo because it is incorporated into the dissolution decree
and because it is ‘akin to a type of contractual agreement between the
parties.’” (quoting Jordan, 221 Ariz. at 588, ¶ 15)).
II. Father’s Brief
¶15 After Mother’s motion, this court struck Father’s answering
brief for failure to comply with the Arizona Rules of Civil Appellate
Procedure. Father was granted the opportunity to file a compliant brief but
did not do so. Although this court has discretion to consider Father’s failure
to file an appropriate answering brief as conceding error, see ARCAP
15(a)(2); Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982), we decline to
do so, given that the best interests of the children are at issue, see Hoffman v.
Hoffman, 4 Ariz. App. 83, 84-85 (1966).
5
ALCOTT v. KILLEBREW
Decision of the Court
III. Mother’s Objections to the Family Court’s Orders
¶16 Mother argues the question of school choice was never really
at issue in the August 2020 hearing. The record, however, clearly provides
that Father filed his petition to modify in May 2019 in response to Mother’s
series of moves that caused the children to change schools—a circumstance
with which Father did not agree—and disrupted his parenting time.
Further, Mother’s response to Father’s petition makes clear that school
choice was at issue. In fact, their disagreement about a choice of schools
was the basis for the temporary orders hearing, and their separate pretrial
statements and the August 2020 hearing transcript clearly indicates that the
issue of school choice remained an open question and continued to be an
underlying basis for Father’s petition.
¶17 Mother next argues that the family court (1) erred in ordering
her and Father to choose a school using distance as the only factor; (2) failed
to consider all relevant school placement factors as discussed in Jordan; and
(3) effectively usurped her authority to make a final decision on a choice of
school for the children.
¶18 Mother does not acknowledge that within the consent decree
she and Father carved out a specific exception to final decision-making
authority with respect to the children’s education. The parties agreed, and
the court ordered, that “[o]nce both children are of appropriate school age,
[the] parties will mutually agree upon an elementary school of equal
distance between parental homes.” And in its January 2018 orders, after
Mother’s first contested petition to modify parenting time, the family court
confirmed that the parties continued to be subject to this bargained-for
exception when the court affirmed “all Orders currently in place, except as
expressly modified herein.”
¶19 As the family court correctly recognized, based on the plain
language of the decree, the controlling criterion for school choice is which
available school lies “of equal distance between parental homes.” The
available school that most closely qualifies under this criterion becomes the
default choice. If two or more available schools appear to equally qualify
under this criterion, the parties must follow the express language of the
decree and mutually agree upon which school to choose, using a “best
interests of the children” standard. See Jordan, 221 Ariz. at 584, ¶ 2.
Although the family court’s January 2018 orders gave Mother
“presumptive decision-making authority” if the parties could not “agree
after making a good faith effort to reach an agreement,” it did not provide
Mother with unfettered sole decision-making authority, see generally Nicaise
6
ALCOTT v. KILLEBREW
Decision of the Court
v. Sundaram, 245 Ariz. 566, 568-69, ¶ 14 (2019) (distinguishing between joint
legal decision-making with final decision-making authority and sole legal
decision-making authority), nor did it preclude court intervention, as
Mother suggests.
¶20 Nothing prevents the parties from mutually negotiating an
agreement that accounts for other school-choice factors consistent with
what they believe to be in the children’s best interests; again, however, the
default choice is the available school most closely “of equal distance
between parental homes.” When the parties are unable to agree, or if either
party refuses to abide by the parties’ bargained-for agreement, the other
party may seek enforcement through the court. See A.R.S. § 25-403.02(D)
(authorizing court intervention “[i]f the parents are unable to agree”); Paul
E. v. Courtney F., 246 Ariz. 388, 395, ¶ 27 (2019) (“[I]f the court awards joint
legal decision-making authority, the court is authorized to resolve any
conflict.”). The family court’s authority and discretion, which was not
abused in this case, lies in enforcing the parties’ bargained-for criterion—
the available school that is most closely of equal distance between the
parties’ homes—and in resolving any further ambiguity using a best
interests standard.2
IV. Attorneys’ Fees on Appeal
¶21 Mother requests an award of her costs and attorneys’ fees
under A.R.S. § 25-324. Mother is not the prevailing party and has not shown
a disparity in the parties’ financial resources or that Father was
unreasonable in the positions he took on appeal before his brief was struck
for failure to comply with the Arizona Rules of Civil Appellate Procedure.
Accordingly, we deny Mother’s request for costs and attorneys’ fees. Father
did not ask for costs in any brief we can consider.
2 We disagree with Mother’s contention that, on this record, the family
court has not been provided with sufficient information to make a best
interests determination. If the family court believes it is necessary,
however, it certainly may hold an additional hearing regarding the best
interests of the children.
7
ALCOTT v. KILLEBREW
Decision of the Court
CONCLUSION
¶22 The family court’s August 2020 under advisement ruling is
affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
8