                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


  CHRISTOPHER E. BAIKER, a resident of Arizona, Plaintiff/Appellant,

                                         v.

         ASHLEY DORRANCE KAPLAN, a resident of California,
                      Defendant/Appellee.

                              No. 1 CA-CV 15-0033
                                FILED 6-2-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-091912
                  The Honorable David K. Udall, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Limón-Wynn Law, PLLC, Tempe
By Monica A. Limón-Wynn
And
Jones, Skelton & Hochuli, P.L.C., Phoenix
By Eileen Dennis GilBride
Counsel for Plaintiff/Appellant

Dickenson Wright, Phoenix
By Robert L. Schwartz, Scott A. Holcomb, Anne L. Tiffen
Counsel for Defendant/Appellee
                           BAIKER v. KAPLAN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Maurice Portley and Judge Patricia K. Norris joined.


T H O M P S O N, Presiding Judge:

¶1            Christopher E. Baiker (father) appeals from the trial court’s
dismissal of his breach of contract claim against Ashley Dorrance Kaplan
(mother). This action arises from a vacation scheduling conflict between
the parents during the summer of 2013, and whether such conflict
amounted to mother breaching their parenting agreement. Finding mother
did seek to modify the agreement, but finding a question of fact as to
whether she acted in good faith, we reverse and remand for further
proceedings.

               FACTUAL AND PROCEDURAL HISTORY

¶2             The essential facts are largely undisputed. Mother and father
are the divorced parents of two minor children. They have an Amended
and Restated Joint Custody Agreement (parenting agreement) which gives
father priority summer vacation scheduling in odd numbered years and
mother in even numbered years.

¶3           Before consulting with father, and perhaps as early as late
2012, mother booked two extended family vacations for the children during
the summer of 2013. Father rejected that schedule and, sometime later at
the suggestion of their parenting coordinator, submitted his proposed
schedule. Mother objected to the schedule as it conflicted with her plans
and was set such that she would never have the children for any two
consecutive weeks over that summer.

¶4             Father filed an Expedited Motion to Enforce Summer
Parenting Time Schedule in the Dissolution Action seeking enforcement of
his odd-year numbered vacation priority. Mother filed a response seeking
an order permitting her to take the children on the disputed vacations.
Mother alleged father was being purposefully and unreasonably
obstructionist regarding her plans. She asserted father was not using his
“best efforts,” as required in the parenting agreement, to amicably resolve
issues as they occur and in order to limit litigation.



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                           Decision of the Court

¶5            Eventually, the parenting coordinator recommended that
father’s schedule have priority, it being an odd year. The family court
adopted that recommendation and granted father a portion of his attorneys’
fees.

¶6            In the family court, father then filed a motion asserting
mother breached their parenting agreement by attempting to modify their
custody arrangement and he was entitled to damages as outlined in their
Supplemental Property Agreement (SPA).           Mother filed a motion to
dismiss asserting father needed to bring a separate civil suit for any breach
of contract claim, and also res judicata. After briefing and oral argument,
the family court granted mother’s motion to dismiss; it did not award
attorneys’ fees to either party. The family court specifically found neither
party had acted unreasonably.

¶7            Father then filed the immediate suit in superior court. Mother
filed a motion to dismiss arguing: (1) the penalty provision of the SPA is
unenforceable as a matter of law; (2) claim preclusion prohibits the bringing
of this suit because father already recovered in the family court matter
when the court ruled in his favor on the vacation issue; and (3) there was
no breach by mother. Father responded.

¶8              After oral argument and briefing, the trial court dismissed
father’s complaint with prejudice. The trial court found: (1) father initiated
the proceedings below and mother was merely the responsive party, (2)
there was no prerequisite finding mother acted in bad faith, as required
before asserting a breach of parenting agreement, and (3) mother did not
breach the agreement. The trial court reiterated that the family court had
found neither parent had acted unreasonably. Following the dismissal of
the civil suit, mother was awarded attorneys’ fees in the amount of $25,130
under Arizona Revised Statutes (A.R.S.) § 12-341.01. Father timely
appealed.

                               DISCUSSION

¶9            On appeal from the dismissal of his complaint, father asserts
the trial court erred in finding mother did not breach the parenting
agreement by attempting to modify it in a manner inconsistent with the
SPA, in finding she did not act in bad faith, and in awarding her attorneys’
fees. He further argues that the breach provision in the SPA is enforceable
and does not violate public policy, and that res judicata does not preclude
this action.




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                            Decision of the Court

¶10            Dismissal is appropriate under Arizona Rule of Civil
Procedure 12(b)(6) only if “as a matter of law [ ] plaintiffs would not be
entitled to relief under any interpretation of the facts susceptible of proof.”
Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8, 284 P.3d 863, 867 (2012). We
review de novo the grant of a dismissal under Rule 12(b) (6). Id. “[W]e do
not accept as true allegations consisting of conclusions of law, inferences or
deductions that are not necessarily implied by well-pleaded facts,
unreasonable inferences or unsupported conclusions from such facts, or
legal conclusions alleged as facts.” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386,
¶ 4, 121 P.3d 1256, 1259 (App. 2005).

¶11           The asserted basis for father’s complaint is that mother
“violated the express terms of Paragraph 51 of the SPA when she sought an
order from the Family Court seeking to modify the [parenting] agreement
between the parties relative to summer parenting time.” The trial court
granted mother’s motion to dismiss under Rule 12(b)(6). It found, as a
matter of law, father could not be entitled to relief because: mother’s actions
did not breach the contract, mother was the responsive rather than the
initiating party, and there had been no finding that mother acted “in bad



1 The supplemental property agreement, Section 5 “Breach of Agreement,”
states, in pertinent part:

       This Agreement and the Amended Joint Custody Agreement
       are intended to be a final and complete resolution of the
       pending issues between the parties and each party is
       executing this Agreement in reliance thereon. The parties
       have therefore agreed to financial incentives to avoid future
       litigation regarding the Amended Joint Custody Agreement.
       If either party files any action in any court that challenges, or
       attempts to modify or revoke any provision of this Agreement
       or the Amended Joint Custody Agreement except as set forth
       in paragraph 5.11, and a court of competent jurisdiction
       determines the party had no good faith belief for believing
       such grounds existed, the party filing such action will be
       considered in breach of this Agreement. In the event of a
       breach by Ashley, all Supplemental Funds, if any remaining,
       otherwise owed to Chris by Ashley shall be accelerated and
       paid to Chris and Ashley’s interest, any, in the LLC shall
       immediately transfer to Chris.




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                            Decision of the Court

faith” by a court of competent jurisdiction as required by the parenting
agreement.

¶12          Clearly, father had priority vacation scheduling the summer
of 2013. The parenting agreement reads:

       The parties shall communicate with each other no later than
       April 1 of each year to decide the summer visitation schedule.
       In the event the parties cannot reach agreement, Mother’s
       choice of parenting time shall control in even years, and
       Father’s choice of time in odd years.

The trial court found mother did not bring an action but was a responsive
party only. We disagree. See, e.g., the Uniform Child Custody Jurisdiction
and Enforcement Act, A.R.S. § 25–1002(11)(2007) (“Modification means a
child custody determination that changes, replaces, supersedes or is
otherwise made after a previous determination concerning the same child,
whether or not it is made by the court that made the previous
determination.”). Mother refused, twice, to accept the parenting
coordinator’s report endorsing father’s view and then brought the issue
before the court asking that the court allow her to take the children on the
vacations she had scheduled. That request is an affirmative action seeking
modification. The family court’s order, likewise, concluded that “Mother
sought an order from the Court seeking to modify the agreement between the
parties relative to summer parenting time based primarily upon the fact
that she had purchased tickets and made reservations for family vacations
she wished to take with the children in spite of the fact that father had plans
that conflicted with Mother’s plans, of which Mother was made aware on a
timely basis.” (Emphasis added.)

¶13            We next address the trial court’s finding that mother did not
act in bad faith in bringing this action. Paragraph 5 of the agreement
triggers if a parent brings an action to modify the agreement, without a
“good faith basis” for believing that one of the enumerated grounds for
such a modification existed. It was insufficient for the trial court to make
this finding based on the family court’s determination, in an attorneys’ fees
ruling under A.R.S. § 25-324, that neither parent acted unreasonably. The
determination of good faith or bad faith cannot, here, be based solely on the
bare pleadings. For these reasons, we reverse that determination and
remand for further proceedings.

¶14         Father, in one line in his opening brief, asserts the trial court
erred in awarding mother fees under A.R.S. § 12-341.01, because it first



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erred in determining she was the successful party. The grant or denial of
attorneys' fees is generally within the discretion of the trial court, and this
court will not overrule such a decision if it is reasonably supported by the
record. West v. Salt River Agri. Imp. and Power Dist., 179 Ariz. 619, 626, 880
P.2d 1165, 1172 (App. 1994) (citation omitted). However, because we find
the attorneys’ fees award below premature, we reverse the award.

¶15           Both parties seek attorneys’ fees on appeal under A.R.S. § 12-
341.01. Neither party is awarded fees, as there is not yet a successful party.
See A.R.S. § 12-341.01.

                               CONCLUSION

¶16           For the above stated reasons, the trial court is reversed.




                                   :AA




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