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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN P. WHITMAN, Petitioner/Appellee,

v.

KIMBERLY C. WHITMAN, Respondent/Appellant.

No. 1 CA-CV 18-0592 FC

Appeal from the Superior Court in Maricopa County

No. FC 2014-050023

The Honorable Roy C. Whitehead, Judge

AFFIRMED

COUNSEL

Garnice Law PLLC, Scottsdale

By Victor A. Garnice

Counsel for Respondent/Appellant

Burggraff Tash Levy PLC, Scottsdale

By Michael J. Dinn, Jr., Erika Isard

Counsel for Petitioner/Appellee

FILED 8-1-2019
WHITMAN v. WHITMAN

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Kimberly C. Whitman (“Mother”) appeals the superior 

court’s order granting Justin P. Whitman’s (“Father”) petition to prevent 

relocation of K.W., the parties’ minor child, and modifying the parties’ 

physical custody arrangement and parenting time plan. Mother argues the 

court erred by requiring Mother to prove relocation was in K.W.’s best 

interests under Arizona Revised Statutes (“A.R.S.”) section 25-408(I). For 

the reasons that follow, we affirm.

BACKGROUND

¶2 At the time of Mother’s and Father’s April 2017 decree of 

dissolution, Mother lived in Arizona and Father lived in Ohio. After a 

contested custody hearing, the court determined it was in K.W.’s best 

interests to reside in Arizona. Consequently, although the decree granted

the parties joint legal decision-making authority, it designated Mother the 

primary residential parent and implemented a long-distance parenting 

plan for Father’s parenting time. 

¶3 On June 13, 2017, just 10 weeks after the dissolution order, 

Father received a letter from Mother informing him that she planned to 

move to Nevada with K.W. Father petitioned the superior court to prevent

the relocation, requesting the court make him K.W.’s primary residential 

parent and establish “a reasonable long-distance parenting plan (from 

Nevada, should Mother decide to move without [K.W.]).” 

¶4 Mother filed a motion to dismiss Father’s petition in July and

relocated K.W. to Nevada shortly thereafter. Mother argued (1) the

relocation statute, § 25-408, did not apply because it requires that “both 

parties reside in the State of Arizona” and Father “was not residing in 

Arizona at the time [she] told [him] of her intention to move to Nevada”;

and (2) Father’s petition was premature under Arizona Rule of Family Law 

Procedure (“Rule”) 91 and A.R.S. § 25-411(A). The superior court denied 

Mother’s motion to dismiss and held an evidentiary hearing focusing on 
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whether relocating to Nevada was in K.W.’s best interests. After hearing 

testimony from Father, Mother, and Mother’s new husband, the court took 

the matter under advisement. In its detailed ruling, the court began by 

stating it would “not again address whether Father’s requests for relief are 

precluded by A.R.S. §§ 25-408, 25-411, and . . . Rule 91.” The court then

concluded Mother “failed to meet the requisite burden of proving that 

relocation . . . is in [K.W.’s] best interests,” and explained its conclusion with 

an analysis of the best interests factors listed in §§ 25-403(A) and -408(I). 

Given its conclusion, the court ordered that K.W. would “reside primarily 

with Father” going forward and adopted a new long-distance parenting 

plan. Mother timely appealed. 

DISCUSSION

A. Application of § 25-408

¶5 Mother argues the superior court erred by requiring her to 

prove that the relocation was in K.W.’s best interests under § 25-408(I). 

Specifically, Mother asserts that no jurisdictional basis exists for applying 

the statute because it applies only when both parents reside in the state, and 

Father did not live in Arizona “either at the time of entry of the Decree or 

at the time of the filing of his Petition.” We review de novo whether the 

court appropriately considered § 25-408(I)’s best interests factors. 

Buencamino v. Noftsinger, 223 Ariz. 162, 163, ¶ 7 (App. 2009). 

¶6 Section 25-408 provides, in relevant part, “[i]f . . . both parents 

are entitled to joint legal decision-making or parenting time and both 

parents reside in the state, at least forty-five days’ advance written notice 

shall be provided to the other parent before” relocating the child to either 

another state or more than 100 miles within the state. A.R.S. § 25-408(A).

¶7 In Berrier v. Rountree, 245 Ariz. 604 (App. 2018), we rejected an 

argument substantively similar to Mother’s, explaining that

[s]ection 25-408(A) describes the circumstances under which 

a party must give notice before effecting certain types of 

relocations. Nothing in the statute provides that subsection 

(A) limits the types of relocation issues that the court may 

decide. To the contrary, § 25-408(C), without restriction, 

authorizes “a parent who is seeking to relocate the child [to 

petition] the court for a hearing, on notice to the other parent, 

to determine the appropriateness of a relocation that may 

adversely affect the other parent’s legal decision-making or 

parenting time rights.” Mother’s California residency 
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therefore did not eliminate the requirement that the court, 

which had exclusive continuing jurisdiction under 

§ 25-1032(A), engage in the § 25-408(I) analysis.

245 Ariz. at 606, ¶ 9 n.2 (second alteration in original). Mother attempts to 

distinguish Berrier, arguing that it “conflate[s] the issues of jurisdiction over 

the issue of relocation with the issue of maintaining continuing jurisdiction 

to the exclusion of courts of other states,” but we are not persuaded. Under 

Arizona’s version of the Uniform Child Custody Jurisdiction and 

Enforcement Act, with exceptions not applicable here, an Arizona court that 

has made a child custody determination retains “exclusive, continuing 

jurisdiction” over further determinations unless either

1. A court of this state determines that neither the child, nor 

the child and one parent, nor the child and a person acting as 

a parent have a significant connection with this state and that 

substantial evidence is no longer available in this state 

concerning the child’s care, protection, training and personal 

relationships[; or]

2. A court of this state or . . . another state determines that the 

child, the child’s parents and any person acting as a parent do 

not presently reside in this state.

A.R.S. § 25-1032(A). The superior court did not make either of these 

findings, nor did Mother ask it to. Instead, as the court explained in its 

ruling, it retained exclusive, continuing jurisdiction over child custody 

matters pertaining to K.W.

¶8 Relying on Vincent v. Nelson, 238 Ariz. 150 (App. 2015), and 

Thompson v. Thompson, 217 Ariz. 524 (App. 2008), Mother contends 

§ 25-408(A) creates additional jurisdictional requirements beyond those of 

§ 25-1032(A), and Father did not meet those requirements because he 

resided in Ohio when he filed his petition. Neither of these cases are 

relevant to this decision because they addressed whether a parent’s 

intrastate moves exceeded the 100-mile limit of § 25-408(A)(2). Vincent, 238 

Ariz. at 154, ¶¶ 12–15; Thompson, 217 Ariz. at 527, ¶¶ 1–15. Here, Mother’s 

move from Arizona to Nevada with K.W. triggered § 25-408 because it was 

unquestionably a relocation of K.W. outside of the state. See A.R.S. 

§ 25-408(A)(1); Berrier, 245 Ariz. at 606 , ¶ 9 n.2 (explaining that Mother’s 

out-of-state residency “did not eliminate that the requirement that the 

court, which had exclusive continuing jurisdiction under § 25-1032(A), 

engage in the § 25-408(I) analysis”); see also Vincent, 238 Ariz. at 153, ¶ 10
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(“At the time of Mother’s moves . . . , there was a court order in place 

entitling both parents to custody or parenting time, thereby satisfying the 

initial requirement for application of [the statute].”). 

¶9 Mother also contends § 25-408 does not apply because the 

April 2017 decree “made no reference whatsoever to . . . § 25-408” and 

Father’s “unilateral choice to initiate the post-Decree proceeding and label 

it as one challenging ‘relocation’ cannot control.” But K.W. resided in 

Arizona at the time of the decree and Mother had not expressed any 

intention to relocate with K.W.; therefore, there was no need for the Decree 

to reference the statute. Moreover, even if we accept Mother’s contention 

that this case is a “long-distance parenting issue” and not a “relocation 

case,” the superior court did not abuse its discretion by considering the 

§ 25-408(I) factors. See Buencamino, 223 Ariz. at 163, ¶ 10 n.3. Mother 

conceded as much in her prehearing statement, asserting that “[a]lthough 

the provisions of A.R.S. § 25-408 are not applicable in this matter, the Court 

may, in its discretion, consider the best interest factors outlined in A.R.S. 

§ 25-408(I).” Thus, the court did not err in considering § 25-408(I)’s factors 

when determining whether Mother’s move to Nevada was in K.W.’s best 

interests. See Gutierrez v. Fox, 242 Ariz. 259, 270, ¶ 44 (App. 2017)

(“Although this is not a relocation case under § 25-408, the superior court 

may consider § 25-408 factors in resolving a long-distance parenting 

issue.”); Munari v. Hotham, 217 Ariz. 599, 602, ¶ 15 (App. 2008) (“[T]he 

courts are both empowered and obliged to consider the child’s best interests

when a parent moves to relocate a child.”). 

¶10 Finally, Mother does not contend on appeal that the superior 

court should have summarily dismissed Father’s petition pursuant to 

A.R.S. § 25-411(A), the statute that generally bars parents from seeking to 

modify parenting time earlier than one year after a prior order setting 

parenting time. See Robert Schalkenback Found. v. Lincoln Found., Inc., 208 

Ariz. 176, 180, ¶ 17 (App. 2004) (explaining that issues not raised in an 

opening brief are considered abandoned and waived). 

¶11 Even if she had raised the issue, the one-year bar established 

by § 25-411(A) applies equally to parents seeking to relocate when a 

proposed relocation “would implicate a further change in decision-making 

or parenting time.” Murray v. Murray, 239 Ariz. 174, 177, ¶ 9 (App. 2016);

cf. Pollock v. Pollock, 181 Ariz. 275, 279 (App. 1995) (finding the custodial 

parent’s “proposed move is in the nature of a motion to modify visitation” 

and when “a parent seeks to remove a child from the state and . . . such [a]

move may adversely affect the other parent’s visitation rights a hearing 

should be held to resolve the issue”); Bloss v. Bloss, 147 Ariz. 524, 526 (App. 
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1985) (concluding that a mother’s move to another state was equivalent to

an order seeking a modification of father’s parenting time and a best 

interests hearing was necessary). Accordingly, the superior court did not 

err by holding a hearing on whether the relocation was in K.W.’s best 

interests because Father contested K.W.’s relocation from Arizona to 

Nevada and the evidence demonstrates that the relocation clearly and 

negatively impacted Father’s parenting time. 

B. Modification of Physical Custody and Parenting Time

¶12 Before changing a previous custody order, the superior court

“must determine that there has been ‘a material change in circumstances 

affecting the welfare of the child.’” Vincent, 238 Ariz. at 155, ¶ 17 (citation 

omitted). Mother argues that because the decree already established a longdistance parenting plan, her relocation of K.W. “could not serve as a 

changed circumstance for modification purposes.” We review findings of 

a material change in circumstances for an abuse of discretion. Id. The

court’s order does not make an express finding that Mother’s move 

constituted a material change, but the specific factual findings supporting 

its conclusion that the relocation was not in K.W.’s best interests allow us 

to infer such a finding. Canty v. Canty, 178 Ariz. 443, 449 (App. 1994)

(finding a parent’s move to Montana was a material change in 

circumstances even though the court’s minute entry did not specifically 

find any such change); see also Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990)

(“[A]s a general rule, an appellate court may infer that the trial court has 

made the additional findings necessary to sustain its judgment.”). On this 

record, reasonable evidence supports the court’s finding and Mother 

provided no authority for her contention that a custodial parent’s relocation 

of a child from one state to another cannot be considered a material change 

if a long-distance parenting plan is already in place. 

¶13 Mother does not challenge any of the superior court’s factual 

findings under either § 25-403 or § 25-408(I) so we affirm the court’s order 

denying relocation and modifying physical custody and parenting time 

without analysis of the factual findings. 

C. Attorneys’ Fees and Costs

¶14 Both parties request attorneys’ fees incurred in this appeal 

under A.R.S. § 25-324(A), which requires us to consider “the financial 

resources of both parties and the reasonableness of the positions each party 

has taken throughout the proceedings.” Neither party took unreasonable 

positions in this appeal. Having considered the relevant financial evidence 
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in the record, we decline to award fees. Because Father is the successful 

party on appeal, he may recover his taxable costs upon compliance with 

ARCAP 21.

CONCLUSION

¶15 Based on the foregoing, we affirm.