Day v. Walleart

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CASEY DAY, Petitioner/Appellee,

v.

ANDREAH WALLEART, Respondent/Appellant.

No. 1 CA-CV 20-0062 FC
FILED 10-15-2020

Appeal from the Superior Court in Mohave County
No. L8015DO201707346
The Honorable Steven C. Moss, Judge

APPEAL STAYED AND REMANDED FOR LIMITED PURPOSE

COUNSEL

Silk Law Office, Lake Havasu City
By Melinda Silk
Counsel for Petitioner/Appellee

Law Offices of Heather C. Wellborn P.C., Lake Havasu City
By Heather C. Wellborn, Alyssa N. Oubre
Counsel for Respondent/Appellant

DAY v. WALLEART
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.

W I L L I A M S, Judge:

¶1 Andreah Wallaert (“Mother”) appeals the superior court’s
order denying her motion to relocate and modifying parenting time.
Because the court did not determine whether Casey Day (“Father”) had
good cause for his failure to timely object to Mother’s notice of her intent to
relocate, this appeal is stayed and the matter remanded to allow the
superior court to make a finding on that issue.

¶2 Mother and Father divorced in 2018 and have one minor child
together. At the time of the dissolution, the superior court adopted the
parties’ agreement that they would share joint legal decision-making
authority and Father would have parenting time with the child three nights
per week.

¶3 In July 2019, Mother sent notice to Father, via certified mail,
that she intended to relocate with the child to California. The notice was
delivered to Father’s residence on July 5, 2019 and Mother received the
signed certified mail receipt from the postal service. Father denied that he
signed the certified mail receipt and testified that he first saw Mother’s
notice sometime between July 7th and 9th when he found it in his mailbox.1
Father did not object to the relocation until August 8, 2019 when he filed a
motion to prevent relocation.

¶4 After an evidentiary hearing on Father’s motion, the court
ruled that Mother could not relocate with the minor child because it was
not in the child’s best interests. Mother timely appealed. This court has
jurisdiction pursuant to A.R.S. § 12-2101(A)(2).

¶5 A.R.S. § 25-408(A) requires a parent who shares joint legal
decision-making authority or parenting time of a minor child to notify the

1The superior court found that the signature on the certified mail receipt
was not Father’s.

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DAY v. WALLEART
Decision of the Court

other parent in writing at least 45 days before moving with the child outside
of the state or more than 100 miles within the state. The notice must be made
by “certified mail, return receipt requested, or pursuant to the Arizona rules
of family law procedure.” A.R.S. § 25-408(B) (emphasis added). The
non-moving parent must petition the court within 30 days after notice to
prevent relocation; if no petition is filed within 30 days, the court may grant
a petition to prevent relocation “only on a showing of good cause.”
A.R.S. § 25-408(C).

¶6 Because Father’s objection was not filed within 30 days after
service of Mother’s notice, the superior court could not grant Father’s
motion to prevent relocation unless it first found that he had good cause for
filing it late. A.R.S. § 25-408(C). The court ruled, however, that Mother had
improperly served her notice because she did not send it via restricted
delivery and concluded that the 30-day period for Father to object never
commenced. The superior court determined that Father’s objection was not
untimely. Therefore, the court did not require Father to show, and did not
make a finding, that he had good cause for the late objection.

¶7 In ruling that Mother did not properly serve her notice, the
court referred to Arizona Rule of Family Law Procedure (“Family Rule”)
41(d)(1), which requires service by mail to be “restricted delivery to the
person and requires a receipt signed by the addressee.” The applicable
statute, however, only required Mother to serve the notice via certified mail,
return receipt requested, or in compliance with Family Rule 41.
A.R.S. § 25-408(B). Mother satisfied the statute by mailing her notice by
certified mail and requesting a return receipt. The superior court erred by
ruling that Mother did not properly serve her notice under A.R.S. § 25-408
and by failing to make a finding regarding whether Father had good cause
for filing his objection more than 30 days after Mother served her notice.

¶8 An appellate court may “suspend an appeal and revest
jurisdiction in the superior court to allow the superior court to consider and
determine specified matters.” ARCAP 3(b). Accordingly, this appeal is
stayed for 45 days and jurisdiction is revested in the superior court to allow
that court to make specific findings regarding whether Father had good
cause for his untimely objection to Mother’s notice of her intent to relocate.
The Clerk of the Court is directed to provide notification of this decision to
the parties involved as well as the Honorable Steven C. Moss. Mother’s
counsel shall provide a copy of the superior court’s decision to this court
within five days of its entry.

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DAY v. WALLEART
Decision of the Court

Upon receipt of the same, the stay shall be lifted, and the matter will
proceed forward.

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

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