Landwehr v. Landwehr

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JACQUELYN LANDWEHR, Petitioner/Appellee,

v.

KASEY LANDWEHR, Respondent/Appellant.

No. 1 CA-CV 21-0381 FC
FILED 3-1-2022

Appeal from the Superior Court in Maricopa County
Nos. FC2018-092291
FC2020-095183
The Honorable Marvin L. Davis, Judge

AFFIRMED

COUNSEL

The Sampair Group PLLC, Glendale
By Patrick S. Sampair
Counsel for Petitioner/Appellee

Paul D. Nordini, Esq, Scottsdale
By Paul D. Nordini
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Kasey Landwehr (“Father”) appeals from the superior court’s
order denying his petition to prevent relocation of his two minor children.
Because Father has not shown that the court abused its discretion, we
affirm.

BACKGROUND

¶2 Jacquelyn Landwehr (“Mother”) and Father married in 2015
and share two minor daughters. Father is the biological parent and Mother
is the adoptive parent of their two daughters. Mother filed for divorce in
2018 and, after Father failed to file a timely response, the superior court
issued a default decree of dissolution. The decree awarded Mother sole
legal decision-making over the two children and designated her as the
primary residential parent, with Father having one weekend of supervised
parenting time each month.

¶3 In June 2020, Mother informed Father she was relocating to
Louisiana with the children. The parties disagree as to whether Father
approved the move. In July, Father filed a petition to prevent the relocation
and soon thereafter Mother was evicted from her “living situation” in
Arizona. At the time she was also experiencing a high-risk pregnancy, was
unable to work, and could not afford to live in Arizona without financial
support. Mother moved to Louisiana with the daughters, and several
weeks later Father filed an expedited motion to return the children to
Arizona. Mother and the children remained in Louisiana pending the
resolution of Father’s petition, living with her boyfriend (the father of her
baby).

¶4 After some continuances, both parents testified at an
evidentiary hearing in April 2021. Mother explained that she could not
afford to live in Arizona without financial support and that she was unable
to work due to her high-risk pregnancy. She also introduced evidence of
her eviction from her living situation and a letter from her doctor explaining

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why she was unable to travel with her daughters at the end of her
pregnancy. She also testified that it was not possible for her to return to
Arizona with her daughters because she had a good job in Louisiana, was
enrolled in college, and the children were doing well in school and extra-
curriculars.

¶5 The superior court found that Mother met her burden to show
that the move to Louisiana was in the children’s best interests. The court
issued specific findings under A.R.S. §§ 25-403 and -408 stating, in part, that
(1) “the children are well adjusted to Mother’s home in Louisiana, and are
also thriving socially, academically and athletically in Louisiana,” (2) based
on the testimony presented, they want to stay in Louisiana with Mother,
and (3) “the children will likely have a better quality of life with Mother in
Louisiana.” The court concluded that preventing the children from living
in Louisiana “would have a destabilizing effect” on the children’s lives. It
also noted that if the children remained in Louisiana, Father’s parenting
time would increase significantly from the current parenting plan. The
court denied Father’s petition and awarded him long-distance parenting
time. Father timely appealed, and we have jurisdiction under A.R.S.
§ 12-120.21(A)(1).

DISCUSSION

¶6 A parent living in Arizona who has legal decision-making
authority or parenting time generally cannot relocate their children out of
state without advance written notice to and permission from the other
parent or court approval. A.R.S. § 25-408(A), (F). In deciding whether to
allow a parent to relocate with the children, a court must consider all the
relevant factors, including those in §§ 25-408(I), -403.01(B), and -403(A).
Ultimately, the relocation must be in “the child’s best interests.” A.R.S. § 25-
408(G).

¶7 We review a superior court’s relocation decision for an abuse
of discretion. Murray v. Murray, 239 Ariz. 174, 176, ¶ 5 (App. 2016). A court
abuses its discretion when it rules without supporting evidence or commits
a legal error in making a discretionary decision. DeLuna v. Petitto, 247 Ariz.
420, 423, ¶ 9 (App. 2019). We review legal issues de novo. Quijada v.
Quijada, 246 Ariz. 217, 219, ¶ 5 (App. 2019).

A. Evidence Supporting Emergency Relocation

¶8 Father argues the superior court failed to properly address
that Mother “unilaterally” relocated while his petition was pending and

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had a “history of repeatedly relocating the children.” Temporary relocation
is governed by § 25-408(F)(1), which states as follows:

Pending a determination by the court of a petition or
application to prevent relocation of the child[,] [a] parent with
sole legal decision-making or a parent with joint legal
decision-making and primary residence of a child who is
required by circumstances of health, safety, employment or
eviction of that parent or that parent’s spouse to relocate in
less than forty-five days after written notice has been given to
the other parent may temporarily relocate with the child.

Father contends that Mother did not prove she satisfied any of these
statutory exceptions to relocate the children on an emergency basis. Mother
has sole legal decision-making of the children and is their primary
residential parent. She testified that her move was the result of her high-
risk pregnancy, inability to work in Arizona, and her eviction from her
home in Arizona. The court found that Mother met her burden to show her
emergency relocation satisfied the elements of § 25-408(F)(1) and her
motives and beliefs were genuine and sincerely held.

¶9 Father also argues the superior court did not properly
consider his evidence that Mother had previously relocated the children.
He contends that if the court had considered this evidence, the outcome
may have been different. Father also argues the court should have
mentioned Mother’s prior moves within Arizona.

¶10 As an initial matter, Father’s arguments seem to contest the
adequacy of the superior court’s findings. But a court is not required to
make findings on every piece of evidence presented to it for an emergency
relocation; and the court here made findings for each of the statutory factors
outlined in § 25-408(F)(1) in its final order. Because Father did not request
findings of fact or conclusions of law under Arizona Rule of Family Law
Procedure (“ARFLP”) Rule 82, the court’s order sufficiently stated the
factual basis for its conclusions. Further, Mother’s previous moves within
the Phoenix metropolitan area do not constitute a “relocation” as defined
by § 25-408(A).

¶11 The superior court is in the best position to assess credibility
and to resolve conflicting evidence. Vincent v. Nelson, 238 Ariz. 150, 155,
¶ 18 (App. 2015). On appeal, we view the facts presented in the light most
favorable to sustaining the court’s findings. Hefner v. Hefner, 248 Ariz. 54,
57 n.2 (App. 2019). We will reverse a decision only if there is “a clear

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absence of evidence to support” those findings. Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982).

¶12 The superior court was faced with conflicting evidence.
Mother testified that her August departure from Arizona was made in good
faith due to her high-risk pregnancy and the economic complications that
followed. Father, in contrast, testified that only after the fact did Mother
make excuses in an “attempt to evade [the] statutory mandate.” On the
record presented, the court could properly reject Father’s claim that Mother
manufactured her testimony to fit within the exception. The reasons
Mother provided at trial track what she listed in her response to Father’s
petition to prevent relocation. She supported her testimony with an August
8, 2020 text confirming her eviction, and a January 2021 letter from her
obstetrician, addressing her pregnancy complications.

¶13 Further, we reject Father’s contention that the statutory
scheme incentivizes emergency relocation. We are not persuaded that an
emergency relocation unfairly allows the relocating parent to gather
evidence to support their final best interests claim. First, unilateral
relocation is only permitted in the case of a parent with sole decision-
making authority or as the residential parent in a joint decision-making
situation. See A.R.S. § 25-408(F)(I). Second, any claim of emergency
relocation by a parent must still be supported by evidence, which for
testimony includes cross-examination, with the party making such a claim
having the burden of proof. See A.R.S. § 25-408(G) (burden on party seeking
relocation); State v. Rivera, 210 Ariz. 188, 190, ¶ 11 (2005) (noting that “cross-
examination is the appropriate tool for probing the truthfulness of a
witness’s statements”). Third, the superior court always has the authority
to impose sanctions when warranted. See A.R.S. § 25-408(B).

B. Burden of Proof

¶14 Father argues the superior court improperly placed a
“special” burden of proof on Mother because Mother prematurely relocated
with the children while his petition was pending. The burden of proof is a
legal issue we review de novo. Hefner, 248 Ariz. at 60, ¶16.

¶15 A court must decide “whether to allow the parent to relocate
the child in accordance with the child’s best interests,” and the parent
seeking relocation carries the burden to prove what is in the child’s best
interests. A.R.S. § 25-408(G). Here, the superior court correctly placed the
burden of proof as to both the emergency relocation and whether relocation
was in the children’s best interests on Mother. The court did not apply a

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higher or special burden of proof and issued specific findings on each of the
best interests factors in its final order. Because the court applied the
appropriate burden of proof, Father has shown no error.

C. Best Interests Factors

¶16 Father next argues the superior court did not properly weigh
the evidence and improperly applied the evidence to the best interests
factors. Essentially, he disputes the sufficiency of the evidence supporting
the court’s order. In determining whether to allow a parent to relocate with
the parties’ children, a court must consider all the relevant factors set forth
in A.R.S. §§ 25-408(I), -403.01(B), and -403(A). The court must “make
specific findings on the record as to all relevant factors and the reasons its
decision is in the children’s best interests.” Hurd v. Hurd, 223 Ariz. 48, 52,
¶ 20 (App. 2009); A.R.S. § 25-403(B). We will only reverse the court’s
decision if the court abused its discretion by committing an error of law or
by issuing a ruling where the record is devoid of evidence to support it.
Petitto, 247 Ariz. at 423, ¶ 9.

¶17 Father contends the evidence does not support the court’s
best interests findings, and specifically disputes the court’s finding that the
children appear to have a stronger bond with Mother as well as similar
findings that the children are bonded to Mother’s boyfriend and well-
adjusted to their home in Louisiana.1 Father contends that the superior
court relied too “heavily on Mother’s testimony, wrong facts, and in
disregard to other more material evidence related to Mother’s continued
instability as to where she and the children reside.” He also points out that
the court found that he was more likely to provide parenting time with

1 Father also states that the superior court “seemed to misidentify” the
children’s grandparents by referring to their grandparents as “maternal
grandparents” instead of “biological maternal grandparents.” Even if the
court’s reference was incomplete, he does not explain how it affected the
court’s ruling. Father further asserts the court believed that he and the
children would have to share one bedroom if they lived with him. The
court’s ruling noted that “if the children lived with him, they would share a
room.” (Emphasis added). Although the use of “they” is ambiguous, the
ruling makes no explicit findings that the children would have to share a
room with Father. Further, the court’s ruling addressed the children’s
adjustment to home, school, and community, showing it considered more
factors than just the daughters’ living situation. Thus, Father has not shown
the court erred.

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Mother and argues that despite this finding, the court still ruled in Mother’s
favor.

¶18 Evidence in the record supports each of the superior court’s
findings. Mother testified about her reasons for an emergency relocation
and how well the children were adapting to their new home. Mother
introduced report cards from the children’s schools in Arizona and
Louisiana to contrast the children’s improved academic performance in
their new schools. And the long-distance parenting plan ultimately affords
Father increased parenting time, primarily in Arizona. The fact that the
court found that Father may facilitate more parenting time with Mother is
not dispositive in determining whether the relocation was in the children’s
best interests; it is only one of many factors. See A.R.S. §§ 25-408(I) and
-403(A).

¶19 We afford the superior court great deference in deciding
relocation matters because it acts as the fact finder. See Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 13 (App. 1998). Here, we decline Father’s implicit
request that we reweigh the evidence presented at the hearing. See Hurd,
223 Ariz. at 52, ¶ 16. The court did not make its decision based on a single
factor. See Pollock v. Pollock, 181 Ariz. 275, 278 (App. 1995) (explaining the
best interests factors are “weighed collectively” and “no single factor is
controlling”). Additionally, all of Father’s “more material evidence” is in
the record presented to the superior court, and he has shown no error on
that record.

CONCLUSION

¶20 We affirm the superior court’s order. In our discretion, we
deny Mother’s request for attorneys’ fees under A.R.S. § 25-324(B). As the
successful party on appeal, Mother is awarded taxable costs on appeal
subject to compliance with ARCAP 21.

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

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