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In re Sundstrom

Court of Appeals of Arizona, First Division

October 17, 2017

In re the Matter of: JESSICA ANN SUNDSTROM, Petitioner/Appellant,
v.
JAMIE FLATT, Respondent/Appellee.

         Appeal from the Superior Court in Maricopa County No. FC2007-094222 The Honorable Jeffrey A. Rueter, Judge

          Larson Law Office, PLLC, Mesa By Robert L. Larson Counsel for Petitioner/Appellant.

          Jamie Flatt, Mesa Respondent/Appellee.

          Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Peter B. Swann and Judge Maurice Portley joined. [1]

          OPINION

          MCMURDIE, JUDGE.

         ¶1 Jessica Ann Sundstrom ("Mother") appeals a superior court order awarding Jamie Flatt ("Father") sole legal decision-making concerning their two minor children. Mother argues the superior court erred by awarding legal decision-making to Father when he had not filed a petition to modify in accordance with Arizona Rule of Family Law Procedure 91. Because neither the rule, nor the relevant statute, require the party who is ultimately granted legal decision-making of the child to be the party who originally petitioned the court, and Mother received adequate notice of Father's request for sole legal decision-making, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Mother and Father are the parents of two minor children, born in 2003 and 2006. They dissolved their marriage in 2008 by a consent decree that awarded Mother sole legal decision-making with the parents sharing equal parenting time.

         ¶3 In late 2014, Mother filed a Petition to Modify Legal Decision-Making, Parenting Time, and Child Support seeking to retain sole legal decision-making of the children, and either supervised or reduced parenting time for Father. In November 2015, Father moved for temporary orders requesting sole legal decision-making. After conducting protracted temporary order proceedings, the court set a final hearing on Mother's petition. For the final hearing, Father filed a pretrial statement requesting sole legal decision-making. Mother objected to Father's request in her pretrial statement because he had not filed a petition to modify legal decision-making in accordance with Arizona Rule of Family Law Procedure 91.

         ¶4 At the final evidentiary hearing, Mother moved to withdraw her original petition to modify.[2] The superior court denied Mother's request. After the hearing, the court awarded Father sole legal decision-making of the minor children. In its order, the court allowed Father to amend his pleadings pursuant to Rule 34(B), and found it had the authority to modify legal decision-making because Mother had filed a petition that complied with Rule 91(D). Mother timely appealed and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).

         DISCUSSION

         ¶5 Mother argues the superior court erred by awarding Father legal decision-making because Father had not filed his own petition to modify legal decision-making in accordance with either A.R.S. § 25-411 or Arizona Rule of Family Law Procedure 91.

         ¶6 By statute, a parent seeking to "modify any type of legal decision-making" must "submit an affidavit or verified petition setting forth detailed facts supporting the requested modification" and provide notice to the other parties. A.R.S. § 25-411(L). By rule, the superior court may not modify legal decision-making "unless there is compliance with A.R.S. § 25-411 and the requirements [of Rule 91(D)]." Ariz. R. Fam. Law P. ("ARFLP") 91(D). Rule 91(D) requires "any party seeking a modification of legal decision-making" to file a "Petition for Modification of Legal Decision-Making, either verified by the moving party or supported by the requisite affidavit(s) pursuant to A.R.S. § 25-411, " as well as provide notice to the other parties to the proceeding. ARFLP 91(D)(1).

         ¶7 Mother admits her petition to modify legal decision-making complied with both § 25-411 and Rule 91(D), but argues that because Father did not file his own petition, the superior court erred by granting him sole legal decision-making of their two children. We disagree with Mother's construct of § 25-411 and Rule 91(D). Section 25-411(L) requires "a person, " and Rule 91(D)(1) requires "any party, " to file a petition to modify legal decision-making. Neither the rule nor the statute require the party who is ultimately granted legal decision-making of the children to be the party that originally petitioned the court. A contrary reading would allow the court to rule only in favor of the party petitioning for a modification, and therefore require both parents to file petitions to allow the court to grant either party legal decision-making. Such a reading would be illogical. Once a party has petitioned to modify legal decision-making and the court has found adequate cause for a hearing, the petitioning party must be prepared for the possibility that the court will not view the evidence favorably to the petitioner. Because Mother petitioned to ...


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