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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JUSTIN P. WHITMAN, Petitioner/Appellee,

                                         v.

              KIMBERLY C. WHITMAN, Respondent/Appellant.


                            No. 1 CA-CV 18-0592 FC
                                 FILED 8-1-2019


            Appeal from the Superior Court in Maricopa County
                           No. FC 2014-050023
                The Honorable Roy C. Whitehead, Judge

                                   AFFIRMED


                                    COUNSEL

Garnice Law PLLC, Scottsdale
By Victor A. Garnice
Counsel for Respondent/Appellant

Burggraff Tash Levy PLC, Scottsdale
By Michael J. Dinn, Jr., Erika Isard
Counsel for Petitioner/Appellee
                        WHITMAN v. WHITMAN
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.


B R O W N, Judge:

¶1            Kimberly C. Whitman (“Mother”) appeals the superior
court’s order granting Justin P. Whitman’s (“Father”) petition to prevent
relocation of K.W., the parties’ minor child, and modifying the parties’
physical custody arrangement and parenting time plan. Mother argues the
court erred by requiring Mother to prove relocation was in K.W.’s best
interests under Arizona Revised Statutes (“A.R.S.”) section 25-408(I). For
the reasons that follow, we affirm.

                             BACKGROUND

¶2             At the time of Mother’s and Father’s April 2017 decree of
dissolution, Mother lived in Arizona and Father lived in Ohio. After a
contested custody hearing, the court determined it was in K.W.’s best
interests to reside in Arizona. Consequently, although the decree granted
the parties joint legal decision-making authority, it designated Mother the
primary residential parent and implemented a long-distance parenting
plan for Father’s parenting time.

¶3            On June 13, 2017, just 10 weeks after the dissolution order,
Father received a letter from Mother informing him that she planned to
move to Nevada with K.W. Father petitioned the superior court to prevent
the relocation, requesting the court make him K.W.’s primary residential
parent and establish “a reasonable long-distance parenting plan (from
Nevada, should Mother decide to move without [K.W.]).”

¶4            Mother filed a motion to dismiss Father’s petition in July and
relocated K.W. to Nevada shortly thereafter. Mother argued (1) the
relocation statute, § 25-408, did not apply because it requires that “both
parties reside in the State of Arizona” and Father “was not residing in
Arizona at the time [she] told [him] of her intention to move to Nevada”;
and (2) Father’s petition was premature under Arizona Rule of Family Law
Procedure (“Rule”) 91 and A.R.S. § 25-411(A). The superior court denied
Mother’s motion to dismiss and held an evidentiary hearing focusing on



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                           Decision of the Court

whether relocating to Nevada was in K.W.’s best interests. After hearing
testimony from Father, Mother, and Mother’s new husband, the court took
the matter under advisement. In its detailed ruling, the court began by
stating it would “not again address whether Father’s requests for relief are
precluded by A.R.S. §§ 25-408, 25-411, and . . . Rule 91.” The court then
concluded Mother “failed to meet the requisite burden of proving that
relocation . . . is in [K.W.’s] best interests,” and explained its conclusion with
an analysis of the best interests factors listed in §§ 25-403(A) and -408(I).
Given its conclusion, the court ordered that K.W. would “reside primarily
with Father” going forward and adopted a new long-distance parenting
plan. Mother timely appealed.

                                DISCUSSION

       A.     Application of § 25-408

¶5            Mother argues the superior court erred by requiring her to
prove that the relocation was in K.W.’s best interests under § 25-408(I).
Specifically, Mother asserts that no jurisdictional basis exists for applying
the statute because it applies only when both parents reside in the state, and
Father did not live in Arizona “either at the time of entry of the Decree or
at the time of the filing of his Petition.” We review de novo whether the
court appropriately considered § 25-408(I)’s best interests factors.
Buencamino v. Noftsinger, 223 Ariz. 162, 163, ¶ 7 (App. 2009).

¶6            Section 25-408 provides, in relevant part, “[i]f . . . both parents
are entitled to joint legal decision-making or parenting time and both
parents reside in the state, at least forty-five days’ advance written notice
shall be provided to the other parent before” relocating the child to either
another state or more than 100 miles within the state. A.R.S. § 25-408(A).

¶7          In Berrier v. Rountree, 245 Ariz. 604 (App. 2018), we rejected an
argument substantively similar to Mother’s, explaining that

       [s]ection 25-408(A) describes the circumstances under which
       a party must give notice before effecting certain types of
       relocations. Nothing in the statute provides that subsection
       (A) limits the types of relocation issues that the court may
       decide. To the contrary, § 25-408(C), without restriction,
       authorizes “a parent who is seeking to relocate the child [to
       petition] the court for a hearing, on notice to the other parent,
       to determine the appropriateness of a relocation that may
       adversely affect the other parent’s legal decision-making or
       parenting time rights.” Mother’s California residency


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                          Decision of the Court

       therefore did not eliminate the requirement that the court,
       which had exclusive continuing jurisdiction under
       § 25-1032(A), engage in the § 25-408(I) analysis.

245 Ariz. at 606, ¶ 9 n.2 (second alteration in original). Mother attempts to
distinguish Berrier, arguing that it “conflate[s] the issues of jurisdiction over
the issue of relocation with the issue of maintaining continuing jurisdiction
to the exclusion of courts of other states,” but we are not persuaded. Under
Arizona’s version of the Uniform Child Custody Jurisdiction and
Enforcement Act, with exceptions not applicable here, an Arizona court that
has made a child custody determination retains “exclusive, continuing
jurisdiction” over further determinations unless either

       1. A court of this state determines that neither the child, nor
       the child and one parent, nor the child and a person acting as
       a parent have a significant connection with this state and that
       substantial evidence is no longer available in this state
       concerning the child’s care, protection, training and personal
       relationships[; or]

       2. A court of this state or . . . another state determines that the
       child, the child’s parents and any person acting as a parent do
       not presently reside in this state.

A.R.S. § 25-1032(A). The superior court did not make either of these
findings, nor did Mother ask it to. Instead, as the court explained in its
ruling, it retained exclusive, continuing jurisdiction over child custody
matters pertaining to K.W.

¶8             Relying on Vincent v. Nelson, 238 Ariz. 150 (App. 2015), and
Thompson v. Thompson, 217 Ariz. 524 (App. 2008), Mother contends
§ 25-408(A) creates additional jurisdictional requirements beyond those of
§ 25-1032(A), and Father did not meet those requirements because he
resided in Ohio when he filed his petition. Neither of these cases are
relevant to this decision because they addressed whether a parent’s
intrastate moves exceeded the 100-mile limit of § 25-408(A)(2). Vincent, 238
Ariz. at 154, ¶¶ 12–15; Thompson, 217 Ariz. at 527, ¶¶ 1–15. Here, Mother’s
move from Arizona to Nevada with K.W. triggered § 25-408 because it was
unquestionably a relocation of K.W. outside of the state. See A.R.S.
§ 25-408(A)(1); Berrier, 245 Ariz. at 606 , ¶ 9 n.2 (explaining that Mother’s
out-of-state residency “did not eliminate that the requirement that the
court, which had exclusive continuing jurisdiction under § 25-1032(A),
engage in the § 25-408(I) analysis”); see also Vincent, 238 Ariz. at 153, ¶ 10



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                          Decision of the Court

(“At the time of Mother’s moves . . . , there was a court order in place
entitling both parents to custody or parenting time, thereby satisfying the
initial requirement for application of [the statute].”).

¶9             Mother also contends § 25-408 does not apply because the
April 2017 decree “made no reference whatsoever to . . . § 25-408” and
Father’s “unilateral choice to initiate the post-Decree proceeding and label
it as one challenging ‘relocation’ cannot control.” But K.W. resided in
Arizona at the time of the decree and Mother had not expressed any
intention to relocate with K.W.; therefore, there was no need for the Decree
to reference the statute. Moreover, even if we accept Mother’s contention
that this case is a “long-distance parenting issue” and not a “relocation
case,” the superior court did not abuse its discretion by considering the
§ 25-408(I) factors. See Buencamino, 223 Ariz. at 163, ¶ 10 n.3. Mother
conceded as much in her prehearing statement, asserting that “[a]lthough
the provisions of A.R.S. § 25-408 are not applicable in this matter, the Court
may, in its discretion, consider the best interest factors outlined in A.R.S.
§ 25-408(I).” Thus, the court did not err in considering § 25-408(I)’s factors
when determining whether Mother’s move to Nevada was in K.W.’s best
interests. See Gutierrez v. Fox, 242 Ariz. 259, 270, ¶ 44 (App. 2017)
(“Although this is not a relocation case under § 25-408, the superior court
may consider § 25-408 factors in resolving a long-distance parenting
issue.”); Munari v. Hotham, 217 Ariz. 599, 602, ¶ 15 (App. 2008) (“[T]he
courts are both empowered and obliged to consider the child’s best interests
when a parent moves to relocate a child.”).

¶10           Finally, Mother does not contend on appeal that the superior
court should have summarily dismissed Father’s petition pursuant to
A.R.S. § 25-411(A), the statute that generally bars parents from seeking to
modify parenting time earlier than one year after a prior order setting
parenting time. See Robert Schalkenback Found. v. Lincoln Found., Inc., 208
Ariz. 176, 180, ¶ 17 (App. 2004) (explaining that issues not raised in an
opening brief are considered abandoned and waived).

¶11            Even if she had raised the issue, the one-year bar established
by § 25-411(A) applies equally to parents seeking to relocate when a
proposed relocation “would implicate a further change in decision-making
or parenting time.” Murray v. Murray, 239 Ariz. 174, 177, ¶ 9 (App. 2016);
cf. Pollock v. Pollock, 181 Ariz. 275, 279 (App. 1995) (finding the custodial
parent’s “proposed move is in the nature of a motion to modify visitation”
and when “a parent seeks to remove a child from the state and . . . such [a]
move may adversely affect the other parent’s visitation rights a hearing
should be held to resolve the issue”); Bloss v. Bloss, 147 Ariz. 524, 526 (App.


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                           Decision of the Court

1985) (concluding that a mother’s move to another state was equivalent to
an order seeking a modification of father’s parenting time and a best
interests hearing was necessary). Accordingly, the superior court did not
err by holding a hearing on whether the relocation was in K.W.’s best
interests because Father contested K.W.’s relocation from Arizona to
Nevada and the evidence demonstrates that the relocation clearly and
negatively impacted Father’s parenting time.

       B.     Modification of Physical Custody and Parenting Time

¶12            Before changing a previous custody order, the superior court
“must determine that there has been ‘a material change in circumstances
affecting the welfare of the child.’” Vincent, 238 Ariz. at 155, ¶ 17 (citation
omitted). Mother argues that because the decree already established a long-
distance parenting plan, her relocation of K.W. “could not serve as a
changed circumstance for modification purposes.” We review findings of
a material change in circumstances for an abuse of discretion. Id. The
court’s order does not make an express finding that Mother’s move
constituted a material change, but the specific factual findings supporting
its conclusion that the relocation was not in K.W.’s best interests allow us
to infer such a finding. Canty v. Canty, 178 Ariz. 443, 449 (App. 1994)
(finding a parent’s move to Montana was a material change in
circumstances even though the court’s minute entry did not specifically
find any such change); see also Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990)
(“[A]s a general rule, an appellate court may infer that the trial court has
made the additional findings necessary to sustain its judgment.”). On this
record, reasonable evidence supports the court’s finding and Mother
provided no authority for her contention that a custodial parent’s relocation
of a child from one state to another cannot be considered a material change
if a long-distance parenting plan is already in place.

¶13          Mother does not challenge any of the superior court’s factual
findings under either § 25-403 or § 25-408(I) so we affirm the court’s order
denying relocation and modifying physical custody and parenting time
without analysis of the factual findings.

       C.     Attorneys’ Fees and Costs

¶14            Both parties request attorneys’ fees incurred in this appeal
under A.R.S. § 25-324(A), which requires us to consider “the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings.” Neither party took unreasonable
positions in this appeal. Having considered the relevant financial evidence



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                       WHITMAN v. WHITMAN
                        Decision of the Court

in the record, we decline to award fees. Because Father is the successful
party on appeal, he may recover his taxable costs upon compliance with
ARCAP 21.

                              CONCLUSION

¶15          Based on the foregoing, we affirm.




                     AMY M. WOOD • Clerk of the Court
                     FILED: AA




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