Bumekpor v. Shaw

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EDEM I. BUMEKPOR, Petitioner/Appellant,

v.

ARISHA SHAW, Respondent/Appellee.

No. 1 CA-CV 24-0160 FC

FILED 10-24-2024

Appeal from the Superior Court in Maricopa County
No. FC2022-090552
The Honorable Lisa Stelly Wahlin, Judge

AFFIRMED

COUNSEL

Edem Igor Bumekpor, Gilbert
Petitioner/Appellant

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Andrew M. Jacobs joined.
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Decision of the Court

C R U Z, Judge:

¶1 Edem Bumekpor (“Father”) appeals the long-distance
parenting plan between him and Arrisha Shaw (“Mother”) regarding his
two minor sons, J.S-B., born in 2020, and S.S-B., born in 2021 (“the
children”). Because he has shown no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
superior court’s orders. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 283, ¶ 14
(App. 2019).

¶3 The parties were never married but have two minor children
in common. In February 2022, Father filed a petition in Maricopa County
Superior Court to establish parenting time, legal decision-making, and
child support, seeking to be designated as the children’s primary physical
custodian. Father also obtained a preliminary injunction prohibiting both
parties from removing the children from Arizona without prior written
consent or court approval. Mother was properly served with the petition
and preliminary injunction, among other documents, on February 12, 2022.

¶4 The parties both testified that Mother moved to Indiana with
the children within a week of being served with the preliminary injunction
prohibiting such a move. Father filed a petition for a finding of contempt,
arguing Mother removed the children in violation of the preliminary
injunction. Mother’s response alleged Father had consented to her taking
the children to Indiana to visit her family. Mother also alleged Father had
consented to relocating the family, but abruptly changed his mind; as a
result, she did not have the financial resources to return to Arizona, as she
had already taken significant steps to relocate out of the state.

¶5 In July 2022, both parties were represented by counsel at a
resolution management conference regarding the parties’ petitions and
Father’s petition for contempt. As a result, the court issued a minute entry
stating the parties were required to participate in mediation. Father then
moved for temporary orders, requesting he be the primary residential
parent and that Mother return the children to Arizona.

¶6 In September 2022, the court held an evidentiary hearing
regarding the request for temporary orders. The resulting temporary
orders provided for joint legal decision-making and designated Mother as
the primary residential parent, recognizing the need for a long-distance

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parenting plan. Father was given one week of parenting time every month.
Father filed a motion for reconsideration, which the court denied.

¶7 After trial in January 2024, the superior court issued final
orders which provided for joint legal decision-making authority and a long-
distance parenting time plan, designating Mother as the primary residential
parent but providing long-distance parenting time to Father. The orders
include best interests findings based on the factors in A.R.S. §§ 25-403, -
403.01, and -403.03.

¶8 In late January 2024, Father moved for clarification of the final
orders, asking that the court address the “unauthorized relocation of the
children” in February 2022. Father sought to clarify if it was “lawful for
[M]other to continue to reside with children outside the state of Arizona,”
and if not, to “provide specific clarification on when [M]other is to
permanently relocate children back to Arizona.” The court denied Father’s
motion and entered a final Rule 78(c) judgment.

¶9 Father timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1) and (2).

DISCUSSION

¶10 Father’s brief does not comply with Arizona Rule of Civil
Appellate Procedure (“ARCAP”) 13(a)(7)(A). That rule requires that
arguments include “contentions concerning each issue presented for
review, with supporting reasons for each contention, and with citations of
legal authorities and appropriate references to the . . . record.” Id. Because
Father’s arguments are “not supported by adequate explanation, citations
to the record, or authority,” they are waived. See In re Aubuchon, 233 Ariz.
62, 64-5, ¶ 6 (2013). Mother failed to file an answering brief, which typically
“constitutes a confession of error.” Gibbons v. Indus. Comm’n, 197 Ariz. 108,
111, ¶ 8 (App. 1999). We may, however, exercise our “discretion to waive
this general rule to address a purely legal issue.” Id. at 111, ¶ 8. And we
generally decline to apply a parent’s waiver where, as here, it would affect
the interests of children. Hays v. Gama, 205 Ariz. 99, 102-03 ¶ 18 (2003),
citing Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (1966) (stating that application
of implied confession of error should not be mandatory in cases involving
minor children). While we decline to apply waiver here, Father has shown
no error.

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Decision of the Court

I. A.R.S. § 25-408.

¶11 Father argues on appeal that the superior court “abused its
discretion in entering a long-distance parenting plan” without making
findings pursuant to A.R.S. § 25-408. Whether the relocation provisions of
A.R.S. § 25-408 apply is an issue of statutory interpretation we review de
novo. Buencamino v. Noftsinger, 223 Ariz. 162, 164, ¶ 7 (App. 2009).

¶12 Section 25-408 provides that if both parents of a child are
entitled to joint legal decision-making or parenting time “by written
agreement or court order,” and both parents reside in Arizona, a parent
may not relocate the child out of state, or more than 100 miles within the
state, without providing notice so that the other parent has an opportunity
to petition the superior court to prevent the relocation of the child. A.R.S.
§ 25-408(A), (C). Section 25-408 does not apply here because there was no
written agreement between the parties, and no court orders were in place
at the time of Mother’s move to Indiana with the children.

¶13 The temporary orders established, for the first time, the
requirement for “compliance with A.R.S. § 25-408” should either party seek
to “relocate the residence of the children outside of the state of Arizona or
to a distance greater than 100 miles from the current residential locations.”
(emphasis added). The record supports a finding that the children’s
“current residential location[]” at the time of issuance of the temporary
orders was in Indiana. Thus, A.R.S. § 25-408 does not apply to the
circumstances of this case.

II. Contempt.

¶14 Father indicates the superior court failed to rule on his request
for a finding of contempt against Mother for her failure to comply with the
preliminary injunction issued at the filing of Father’s petition, which bound
Mother after she was served with it, before she moved to Indiana. The
preliminary injunction provided that the parties were not to remove the
children “then residing in [Arizona] without prior written consent of the
parties or the permission of the court.” Father correctly notes that “A.R.S.
§ 25-808 provides that the Preliminary Injunction ‘has the force and effect
of an order of the Superior Court signed by a judge and is enforceable by
all remedies made available by law including contempt of Court.[‘]”

¶15 Mother moved to Indiana with the children after she had been
served with the preliminary injunction. Father first petitioned for a
contempt finding in May 2022. He asserts that at a July 2022 resolution
management conference, the court “did not address the matter of contempt

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Decision of the Court

and instructed [he] file[] a motion for temporary order if [he] wanted the
matter of removal of children from the State of Arizona addressed.” Yet
Father cites no evidence to support this assertion and provides no transcript
from that conference. To the contrary, the record reflects the superior court
set the matter of Mother’s contempt for hearing in July 2022, as part of a
resolution management conference where both parties were present and
represented by counsel, and that after discussion, the case was placed on
the inactive calendar for dismissal. In the absence of a transcript of that
conference, we presume the actions of the superior court are supported by
the missing transcript. “[W]here an incomplete record is presented to an
appellate court, the missing portions of that record are to be presumed to
support the action of the trial court.” Cullison v. City of Peoria, 120 Ariz. 165,
168 n.2 (1978) (citation omitted). Thus, Father has shown no error.

CONCLUSION

¶16 The final order is affirmed.

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

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