Wiltbank v. Wiltbank

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TY WILTBANK, Petitioner/Appellee,

v.

JANELLE WILTBANK, Respondent/Appellant.

No. 1 CA-CV 20-0213 FC
FILED 8-10-2021

Appeal from the Superior Court in Maricopa County
No. FC2005-091560
The Honorable Adele Ponce, Judge

AFFIRMED

COUNSEL

Ty Wiltbank, Southhaven, MS
Petitioner/Appellee

Janelle Wiltbank, Queen Creek
Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Chief Judge Kent E. Cattani delivered the decision of the Court, in which
Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.

C A T T A N I, Chief Judge:

¶1 Janelle Smith (“Mother”) appeals the superior court’s order
granting a request by Ty Wiltbank (“Father”) that he be permitted to
relocate with their minor children to Mississippi. For reasons that follow,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties divorced in 2005 and have four children, two of
whom (A.W. and J.W.) were minors at the time of the relocation
proceedings. A.W. turned eighteen during the pendency of this appeal.

¶3 Under a 2016 parenting time order, Father was named the
primary residential parent of the children. At that time, he lived in Arizona
with the children, his new wife, and the children’s step- and half-siblings.
Mother also lived in Arizona with her new husband and their son until they
moved to Georgia in late 2017. The parenting time order stated that neither
parent could relocate with the children to another state without the other
parent’s permission or a court order.

¶4 In April 2019, Father sent Mother written notice of his intent
to relocate to Mississippi with A.W. and J.W. In May 2019, Mother filed an
objection to Father’s notice of intent to relocate. Mother then moved back
to Arizona.

¶5 In June 2019, Father formally petitioned to modify the
parenting time orders based on his intent “to relocate to Mississippi as
mandated by his current employer.” By that time, Father had already
moved with the children to Mississippi. Mother objected to relocation. The
superior court scheduled an evidentiary hearing and ordered that
Conciliation Services interview the children. After the hearing, the court
granted Father’s petition to relocate. Mother timely appealed, and we have
jurisdiction under A.R.S. § 12-2101(A)(2).

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DISCUSSION

¶6 Mother argues that the superior court erred by granting
Father’s relocation request, asserting both that Father failed to provide the
requisite notice before moving and that relocation was not in the children’s
best interests. We review the superior court’s relocation decision for an
abuse of discretion. Murray v. Murray, 239 Ariz. 174, 176, ¶ 5 (App. 2016).
We do not reweigh the evidence on appeal, and we will affirm the superior
court’s ruling if substantial evidence supports it. Hurd v. Hurd, 223 Ariz.
48, 52, ¶ 16 (App. 2009).

I. Notice and Timing of Relocation.

¶7 Mother argues that the court erred by authorizing relocation
because Father had moved before securing a court order (or Mother’s
consent) as required by the parenting time order1 and because he failed to
provide her the notice of intent to relocate required by A.R.S. § 25-408(A).

¶8 Under § 25-408(A), if both parents are entitled to joint legal
decision-making or parenting time and both parents reside in the state, a
parent seeking to relocate a child out of state must provide the other parent
at least 45-days’ advance written notice. Arizona courts generally treat the
statutory “term ‘residence’ as carrying the same connotations as the term
‘domicile.’” St. Joseph’s Hosp. & Med. Ctr. v. Maricopa Cnty., 142 Ariz. 94, 99
(1984). Domicile requires actual physical presence and an intent to remain.
Ariz. Bd. of Regents v. Harper, 108 Ariz. 223, 228 (1972). A person may have
only one domicile at a time. Id.

¶9 When Father notified Mother of his intent to relocate, Mother
was living in Georgia. Although Mother argues she was still “residing” in
Arizona because she owned a home in Arizona and only intended to live in
Georgia temporarily, Mother was not physically present in Arizona and
had not resided in Arizona since moving to Georgia in 2017. While Mother
moved back to Arizona thereafter, the notice requirements in § 25-408(A)
did not apply because both parents did not reside in Arizona at that time.

1 Mother argues that Father cannot rely on § 25-408(F)(1) to justify
premature relocation because his employer did not require the move. See
A.R.S. § 25-408(F)(1) (authorizing temporary relocation pending a final
determination if “required by circumstances of . . . employment”). Because
Father did not assert in superior court that § 25-408(F)(1) justified his
actions, we do not address this argument.

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¶10 Moreover, even assuming the court had discretion to impose
sanctions under § 25-408 or otherwise for Father’s failure to comply with a
parenting time order, see Green v. Lisa Frank, Inc., 221 Ariz. 138, 152, ¶ 37
(App. 2009) (recognizing “[a] court’s inherent authority to sanction parties
for failing to comply with its orders”), the children’s best interests are
paramount in determining what type of sanctions, if any, were warranted.
See A.R.S. § 25-408(B); Hays v. Gama, 205 Ariz. 99, 102, ¶¶ 17–18 (2003). And
here, the superior court found that ordering a return to Arizona would not
be in the children’s best interests, which supports the court’s decision
declining to order that the children be returned to Arizona as a sanction for
Father’s failure to follow the parenting time order.

II. Best Interests.

¶11 Mother argues the superior court abused its discretion in
weighing the relocation and best-interests factors and, ultimately, by
authorizing relocation. The court must determine whether to permit
relocation “in accordance with the child’s best interests.” A.R.S. § 25-
408(G). Best interests in this context requires consideration of all the
relevant factors set forth in A.R.S. § 25-408(I), which also includes the
generally applicable best-interests factors of § 25-403(A). The parent
seeking relocation has the burden of establishing that it is in the children’s
best interests. A.R.S. § 25-408(G).

¶12 Mother argues that relocation was not in the children’s best
interests, pointing to evidence that: (1) Father thwarted her attempts to
communicate with or visit the children; (2) Father made unilateral decisions
regarding one child’s mental-health treatment; (3) the children were not
well adjusted in the home, school, and community; and (4) there was a 2009
substantiated report that Father had physically disciplined J.W. See, e.g.,
A.R.S. §§ 25-403(A)(3), (5)–(6), (8), -403.03, -408(I)(3)–(6). But the superior
court considered these concerns and nevertheless concluded that other
evidence supported a best-interests finding. Both parents had a strained
relationship with A.W. (who had mental-health and substance-abuse
issues). And evidence showed that Mother may have permitted the
children to use drugs, contributing to the substance abuse. In addition,
Father had been the primary caregiver since 2016, and Mother had not
regularly seen the children since moving to Georgia in 2017. And although
J.W. was having difficulty adjusting to school, he had improved after
getting services for dyslexia (for the first time) in Mississippi. And finally,
the court considered the 2009 report regarding J.W. but also acknowledged
Father and J.W. had a positive relationship as of the date of the hearing.

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¶13 Mother also contends that because the court lacked evidence
comparing the children’s lifestyle in Arizona with that in Mississippi,
Father did not meet his burden of showing relocation was in their best
interests. There was, however, evidence relevant to this factor. A.W.’s
mental-health and substance-abuse issues predated the move to
Mississippi, suggesting there was no change in the child’s lifestyle. Other
evidence showed a positive change—J.W. had done well in school since
moving to Mississippi.

¶14 Accordingly, the superior court did not abuse its discretion in
finding that relocation was in the children’s best interests. See Hurd, 223
Ariz. at 52, ¶ 16 (“Even though conflicting evidence may exist, we affirm
the trial court’s ruling if substantial evidence supports it.”).

CONCLUSION

¶15 The superior court’s order is affirmed.

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

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