Opinion
No. 2 CA-CV 2014-0166
09-18-2015
MARCELLO ARBIZO III, Petitioner/Appellee, v. AMANDA SHANK, Respondent/Appellant.
COUNSEL Marcello Arbizo III, Safford In Propria Persona Solyn & Lieberman, PLLC, Tucson By Melissa Solyn and Scott Lieberman Counsel for Respondent/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Graham County
No. DO201000395
The Honorable D. Corey Sanders, Judge Pro Tempore
AFFIRMED IN PART; REVERSED IN PART
COUNSEL Marcello Arbizo III, Safford
In Propria Persona
Solyn & Lieberman, PLLC, Tucson
By Melissa Solyn and Scott Lieberman
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. HOWARD, Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Appellant Amanda Shank appeals from the trial court's post-decree order denying her request to relocate her son, B., and granting appellee-father Marcello Arbizo's petition to modify legal decision-making rights and parenting time. Shank argues the court abused its discretion by denying the relocation and by modifying the custody arrangement in the absence of a material change in circumstances. For the reasons below, we affirm the denial of relocation and reverse the grant of modification.
Factual and Procedural Background
¶2 Shank and Arbizo were unmarried when they had a child, B., in 2009. In 2010, Arbizo petitioned the court to establish custody, parenting time, and child support. Shank was awarded sole legal decision-making authority, with the parents sharing joint physical custody. At the time, both parties lived in Safford, Arizona.
¶3 In 2014, Shank sought to relocate B. to Phoenix, where she was planning to move for economic and educational reasons. When Shank informed Arbizo of her intent to relocate, Arbizo moved to prevent her from relocating B. and petitioned to modify legal decision-making and parenting time. In his petition, Arbizo requested sole legal decision-making authority subject to equal parenting time regardless of the relocation. Arbizo also requested an alternate parenting plan in the event Shank moved to Phoenix.
An attachment which details Arbizo's proposed parenting plan for sole custody is missing from the record.
¶4 Following a hearing, the trial court denied Shank's request for relocation and granted Arbizo's petition to become the sole legal decision-maker. Further, the court modified the parenting time arrangement to significantly reduce Shank's parenting time and to alter the schedule. We have jurisdiction over Shank's appeal pursuant to A.R.S. §§ 12-120.21 and 12-2101(A)(1).
Modification of decision-making and parenting time
¶5 Shank first argues that the trial court erred in modifying decision-making and parenting time because her proposed relocation to Phoenix did not constitute a material change in circumstances. We review a trial court's decision regarding legal decision-making and parenting time for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, ¶ 7, 79 P.3d 667, 669 (App. 2003). "'To change a previous [decision-making and parenting time] order, the court must determine whether there has been a material change in circumstances affecting the welfare of the child.'" Id. ¶ 16, quoting Canty v. Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994); Christopher K. v. Markaa S., 233 Ariz. 297, ¶ 15, 311 P.3d 1110, 1113 (App. 2013). After determining that circumstances have changed, the court then must "determine whether a change in [legal decision-making and parenting time] would be in the child's best interest." Christopher K., 233 Ariz. 297, ¶ 15, 311 P.3d at 1113.
At the time Owen was decided, the court used the term "custody" but "[l]egal custody is now known as 'legal decision making.'" Christopher K. v. Markaa S., 233 Ariz. 297, n.2, 311 P.3d 1110, 1111 n.2 (App. 2013).
¶6 In Owen, this court considered facts similar to those presented in this case. In that case, the mother proposed relocation and the father sought a change of physical custody and parenting time "if the mother moved to Wyoming." 206 Ariz. 418, ¶ 14, 79 P.3d at 671. The mother testified multiple times she did not intend to move if the relocation was denied. Id. ¶ 15. The trial court denied the mother's request to relocate but still granted the father's request for a change in custody. Id. ¶ 5.
¶7 This court determined the trial court had abused its discretion in two ways: first, by modifying the physical custody arrangement and "impos[ing] a long-distance parenting time schedule for mother" when the father did not request such a physical custody arrangement absent the relocation; and second, by modifying the physical custody arrangement without a material change in circumstance. Id. ¶ 16. Because the mother neither had plans to move nor had moved at the time of the hearing, "there [was] no evidence of any material change to justify changing the [custody plan]." Id.
¶8 Here, Arbizo did petition to change legal decision-making and parenting time whether or not Shank moved to Phoenix. However, he requested a modified, but substantially equal, parenting-time schedule; not the schedule the trial court imposed. Further, the court identified only Shank's proposed move as a "substantial and continuing circumstance." During the hearing, Shank repeatedly testified that, although it might create a significant hardship on her marriage and family, she did not intend to move if the court denied her request to relocate the child.
¶9 The trial court noted that "[i]t seems clear . . . that this relocation by [Shank] will take place regardless of whether [B.] accompanies [her]." Arbizo likewise argues that Shank's relocation is inevitable. But the record does not contain any evidence that Shank had, in fact, relocated. As the court in Owen concluded, a proposed relocation does not constitute a material change in circumstances. Owen, 206 Ariz. 418, ¶ 16, 79 P.3d at 667. Thus, the trial court abused its discretion in modifying legal decision-making authority and parenting time based on a material change in circumstances. Id.
Shank also argues that the modification was improper because the trial court did not properly consider B.'s best interests under A.R.S. § 25-403 and because the court did not properly consider the statutory mandates regarding legal decision-making and parenting time. Because we are reversing the trial court's order with regard to the modification, we do not consider these additional arguments.
Relocation
¶10 Shank also argues that the trial court abused its discretion when it denied her request to relocate by failing to properly consider the factors set out in A.R.S. § 25-408. Shank relies on Owen to support her argument that the trial court improperly focused on Arbizo's loss of parenting time to the exclusion of the relevant § 25-408 factors.
¶11 We review a trial court's ruling on a relocation request for an abuse of discretion. Owen, 206 Ariz. 418, ¶ 7, 79 P.3d at 670 (construing relocation as decision regarding child custody). "Failure to make the requisite findings in an order or on the record constitutes an abuse of discretion." Baker v. Meyer, 237 Ariz. 112, ¶ 11, 346 P.3d 998, 1002 (App. 2015).
¶12 In a relocation action, "[t]he trial court is required to consider the factors set forth in [§ 25-408(I)]." Owen, 206 Ariz. 418, ¶ 8, 79 P.3d at 669-70. Section 25-408(I)(1) requires a trial court to consider the factors listed in A.R.S. § 25-403 in determining a child's best interests. A.R.S. § 25-408(I)(1). Section 25-403 lays out eleven factors used to determine whether a change in legal decision-making and parenting time is in the best interest of a child. A.R.S. § 25-403(A)(1)-(11). Section 25-408 "does not require that trial courts make specific findings of fact in deciding whether to allow relocation," Owen, 206 Ariz. 418, ¶ 9, 79 P.3d at 670, but § 25-403 requires specific findings on all relevant best-interest factors in any "contested legal decision-making or parenting time case," § 25-403(B).
Owen refers to A.R.S. § 25-408(J), which has since been renumbered to § 25-408(I). 2001 Ariz. Sess. Laws, ch. 14, § 13; 2015 Ariz. Sess. Laws, ch. 371, § 2. --------
¶13 In Owen, the trial court simply listed the subsections of § 25-408 it considered relevant without elaborating or explaining how it had weighed those factors "other than to state that the relocation would interfere with the continuation of a meaningful relationship between father and child and would adversely affect father's rights." Owen, 206 Ariz. 418, ¶ 8, 79 P.3d at 670. Because the court did not sufficiently explain its consideration of the applicable factors, we reversed that order. Id. ¶ 12.
¶14 In this case, the trial court made very specific findings pursuant to § 25-408. Although it did not specifically refer to the subsections, the court expressly weighed and explained its reasoning as to all subsections of § 25-408(I). It concluded its analysis by finding that "it is in the best interests of [B.] that the mother's relocation of him to Maricopa County [be] denied." The court's findings and conclusions are sufficient to allow this court to review its decision. Thus, we reject Shank's argument concerning § 25-408. See Owen, 206 Ariz. 418, ¶ 12, 79 P.3d at 670-71.
¶15 Shank additionally argues the trial court failed to make proper findings under § 25-403(A)(2)-(3) in its statutorily required best-interest analysis. In the relocation context, the trial court found, pursuant to § 25-403(A)(2) (effect on child's relationship with parents and family), that the move would decrease B.'s connection to his father, stepmother, sisters, and extended family. The court also noted that B. "has an extensive network of support on both sides of the family in Graham County" and further that it was "hard pressed to articulate how taking [B.] away from . . . Graham County would be in his best interests." As to § 25-403(A)(3) (child's adjustment to home, school, and community), the court noted that "[B.] is secure in his current school and community. Relocation would require a change from his familiar surroundings and could be an adverse event to his stability."
¶16 We cannot find any defects in the trial court's § 25-403 analysis. Although the court considered the relocation's potential reduction in Arbizo's parenting time, the ruling does not indicate that it did so to the exclusion of the other factors. And we do not reweigh the factors on appeal. Xavier R. v. Joseph R., 230 Ariz. 96, ¶ 12, 280 P.3d 640, 644 (App. 2012). The court did not abuse its discretion. Consequently, we affirm the denial of relocation.
Attorney Fees
¶17 Shank requests her attorney fees pursuant to A.R.S. § 25-324. Because she prevailed only in part, in our discretion, we deny her request for fees under § 25-324 without prejudice to her presenting a request for attorney fees on appeal to the trial court. We grant her taxable costs pursuant to A.R.S. § 12-341, subject to compliance with Rule 21, Ariz. R. Civ. App. P.
Disposition
¶18 Based on the foregoing, we affirm the order of the trial court denying relocation and reverse the portion of the order regarding the modification of legal decision-making and parenting time.