Backstrand v. Backstrand, No. 1 CA-CV 19-0742 FC

• Court: Court of Appeals of Arizona
• Writing for the Court: McMURDIE, Judge
• Citation: 250 Ariz. 339,479 P.3d 846
• Parties: In Re the Matter of: Lukas BACKSTRAND, Petitioner/Appellee, v. Kathy BACKSTRAND, Respondent/Appellant.
• Decision Date: 24 December 2020
• Docket Number: No. 1 CA-CV 19-0742 FC

250 Ariz. 339
479 P.3d 846

In Re the Matter of: Lukas BACKSTRAND, Petitioner/Appellee,
v.
Kathy BACKSTRAND, Respondent/Appellant.

No. 1 CA-CV 19-0742 FC

Court of Appeals of Arizona, Division 1.

FILED December 24, 2020

Loose Law Group, P.C., Phoenix, By Edward J. Walneck, Counsel for Petitioner/Appellee

The Wilkins Law Firm, PLLC, Phoenix, By Amy M. Wilkins (argued) & Laura C. Brosh, Counsel for Respondent/Appellant

Judge Paul J. McMurdie delivered the Court's opinion, in which Presiding Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

OPINION OF THE COURT

McMURDIE, Judge:

¶1 Kathy Backstrand ("Mother") appeals from the superior court's order placing her child, Lola, in the primary care of Lukas Backstrand ("Father") and modifying the couple's parenting time. We hold that a court may modify a parenting plan only if it first finds a material change of the circumstances affecting the child's welfare since the last court order. If the court finds a material difference in the circumstances, it then may determine whether a change in the parenting plan will be in the child's best interests. See A.R.S. 25-403(A) (listing the factors a court must consider when deciding legal decision-making and parenting time either initially or on a petition to modify). We reject Mother's contention that the court cannot modify parenting time unless it first finds a material change detrimental to the child's welfare.

FACTS AND PROCEDURAL BACKGROUND

¶2 Lola was born in 2011 while her parents were living in Minnesota. The family moved to Arizona five years later. In March 2017, Father filed for dissolution. After Mother and Father reached agreements on dissolution matters, the court approved a consent decree prepared by the parties in August 2017. While the dissolution proceeding was pending, Father moved back to Minnesota.

¶3 The parties agreed to share joint legal decision-making authority of Lola. They also decided on two different parenting schedules, entitled "Plan A" and "Plan B." Under Plan A, which would apply if Father lived in Minnesota, Lola would live primarily with Mother in Lake Havasu City and attend school there. Father would have parenting time in the summers, during school breaks, and on certain holidays. Under Plan B, which would apply if Father lived in Lake Havasu City, the parents would equally share parenting time. After the court approved and entered the parenting plan, Father did not return to Arizona, and the parties implemented Plan A.

¶4 In April 2018, less than a year after entry of the decree, Mother informed Father that she wanted to move with Lola to Las Vegas, Nevada. Father objected. See A.R.S. § 25-411(A) ("[a] person shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after its date"). Mother did not move at that time. In August 2018, just more than a year after entry of the consent decree, Mother sent Father a letter informing him that she and Lola were moving to Las Vegas. Father again objected and petitioned to prevent Lola's move.

¶5 In his petition to prevent relocation, Father alleged the move was not in Lola's best interests under the factors specified in A.R.S. § 25-408(I). While Father's petition was pending, Mother sent an email to Father stating she planned to move with Lola to Las Vegas on October 3. The day before the scheduled move, Father filed an emergency motion with the court seeking temporary orders enjoining Mother from relocating until further court order. The next day, the court

479 P.3d 849

denied the motion, and Mother moved with Lola to Las Vegas and enrolled her in school.

¶6 In response to the move, Father amended his petition to request a modification of legal decision-making and parenting time. Father alleged Mother had created a substantial and continuing change of circumstances by moving that justified modifying legal decision-making and parenting time. Father requested, inter alia , that the court make him Lola's primary residential parent and grant Mother long-distance parenting time. The court appointed a family court evaluator and ordered the parties to participate in an evaluation concerning legal decision-making and parenting time. The court-appointed evaluator recommended the court allow Lola to remain with Mother in Las Vegas.

¶7 In July 2019, the court conducted a three-day trial on Father's petition. During the trial, Father questioned the court-appointed evaluator about his process and findings. Father then presented testimony from an expert witness challenging the evaluator's report's evidentiary value and opining on the importance of Lola's relationship with other family members. Father and Lola's paternal grandfather testified about the Minnesota town where Father and his family lived. The testimony revealed their family's involvement in Lola's life, activities available to Lola there, and identified the school she would attend if Father became her primary residential parent. Finally, the court heard extensive testimony concerning Mother's other child, Lola's half-brother Cole, who had lived with Mother, Father, and Lola before the divorce.

¶8 When Mother and Father separated, Cole relocated to Minnesota to live with his father, and Mother voluntarily agreed to terminate her parental rights to Cole. Both Cole's father and Father testified that Cole and Lola had a close relationship, and Cole frequently stayed with Father and Lola for extended periods during Father's parenting time. Father also testified that Cole and Lola's relationship had deteriorated since they began living apart.

¶9 For her part, Mother testified about the reasons she decided to move to Las Vegas. She elaborated on the benefits of her new career, work schedule, and how the increase in income allowed her and Lola to have a better life than in Lake Havasu City. Mother also testified concerning Lola's integration into her new school, extracurricular activities, social life, and living situation. Finally, Mother testified about her fiancé’s relationship with Lola.

¶10 Father and Mother each testified about their respective places of residence. Both parents believed the other's home would negatively affect Lola, and both expressed distaste for the environment in the other's community. Father asserted a move to Las Vegas would expose Lola to inappropriate matters. Mother claimed the small town where Father lived would cause Lola to become small-minded. However, neither parent pointed to specific evidence showing that the other's residence was detrimental to Lola's welfare. After the hearing, the court took the matter under advisement.

¶11 In August 2019, the court placed its findings and conclusions on the record. The court first found that "[M]other created [a] change in circumstances that [is] substantial and continuing affecting Lola's best interests by relocating from Lake Havasu City to Las Vegas." Based on this finding, the court then considered and made findings regarding each of the factors outlined in A.R.S. § 25-408(I) and A.R.S. § 25-403(A). The court concluded that it was in Lola's best interests to make Father her primary residential parent and allow her to reside in Minnesota. Accordingly, the court reversed Mother's and Father's roles under the parenting plan and ordered Lola to live and attend school in Minnesota. The court also ordered that Mother be given more parenting time during the summers than the plan initially provided for Father. The court made no other changes to the parenting plan but ordered Father's counsel to prepare a formal written order addressing its ruling. When Father's counsel failed to file the order, the court issued a written order reaffirming and elaborating on its oral findings and conclusions.

¶12 Mother appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

479 P.3d 850

DISCUSSION

A. The Superior Court Did Not Abuse Its Discretion by Finding a Material Change of Circumstances Affecting Lola's Welfare.

¶13 Mother first argues Father failed to demonstrate a material change of circumstances affecting Lola's welfare. As a result, Mother asserts the court lacked any basis to modify the original decree. We disagree.

¶14 When presented with a request to modify a dissolution decree's decision-making and parenting-time provisions, the superior court must engage in a two-stage inquiry.¹ "First, the court must ascertain whether there has been a change of circumstances materially affecting the welfare of the child." Black v. Black , 114 Ariz. 282, 283, 560 P.2d 800, 801 (1977) (citation omitted). Only if it finds such a change in circumstances may it "then proceed to determine whether a change in custody will be in the best interests of the child." Id. ; see also A.R.S. 25-403(A). "[T]he burden is on the moving party to satisfy the court that conditions and circumstances have so changed after the original decree as to justify the modification." Burk v. Burk , 68 Ariz. 305, 308, 205 P.2d 583 (1949). The superior court is vested with broad discretion to decide whether a change of circumstances has occurred. Pridgeon v. Superior Court , 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982). "On review, the trial court's decision will not be reversed...