Vincent v. Nelson

• Decision Date: 20 August 2015
• Docket Number: No. CV 14–0541 FC.,CV 14–0541 FC.
• Citation: 719 Ariz. Adv. Rep. 35,357 P.3d 834,238 Ariz. 150
• Parties: In re the Matter of Michelle Diane VINCENT, Petitioner/Appellee, v. Jeffrey Daniel NELSON, Respondent/Appellant.
• Court: Arizona Court of Appeals

238 Ariz. 150

357 P.3d 834

719 Ariz. Adv. Rep. 35

In re the Matter ofMichelle Diane VINCENT, Petitioner/Appellee

v.Jeffrey Daniel NELSON, Respondent/Appellant.

No. CV 14–0541 FC.

Court of Appeals of Arizona, Division 1.

Aug. 20, 2015.

Riggs, Ellsworth & Porter, P.L.C. by Michael R. Ellsworth, Show Low, Counsel for Petitioner/Appellee.

The Owsley Law Firm, PLLC by Carlie Owsley Walker, Avondale, Counsel for Respondent/Appellant.

Judge JOHN C. GEMMILL delivered the opinion of the Court, in which Presiding Judge MICHAEL J. BROWN and Judge RANDALL M. HOWE joined.

OPINION

GEMMILL, Judge:

¶ 1 This is a family court relocation case. In Thompson v. Thompson, 217 Ariz. 524, 176 P.3d 722 (App.2008), this court addressed how the 100–mile distance in Arizona Revised Statutes (“A.R.S.”) section 25–408(A)(2) should be calculated. In this opinion, we again consider the 100–mile provision in § 25–408(A)(2).

¶ 2 Jeffrey Nelson (“Father”) appeals the family court's ruling rejecting his challenge to a relocation by Michelle Vincent (“Mother”) with their children. He also appeals the court's denial of his request for a modification of prior parenting time and legal-decision making orders. We affirm.

BACKGROUND

¶ 3 In November 2008, Mother filed a dissolution of marriage petition with minor children in Maricopa County Superior Court. During a resolution management conference in January 2009, Mother informed the court she intended to move to Payson or Heber. At the time, both parents resided in Phoenix, and temporary orders for custody and parental visitation were in place. The court informed Mother that under A.R.S. § 25–408, she could not relocate the children more than 100 miles from her address in Phoenix without Father's agreement or the court's approval. During the resolution management conference, the parents and the court engaged in discussion regarding the distance between Phoenix and Heber and between Phoenix and Payson. After Mother was made aware that Payson was less than 100 miles from Phoenix and Heber was more than 100 miles from Phoenix, she informed the court she would move to Payson. The court encouraged the parents to reach an agreement on the relocation, but if they could not, the court indicated it would make the decision.

¶ 4 At the dissolution trial on May 15, 2009, the parents informed the court they were unable to reach an agreement on relocation. Mother told the court that she was moving to Payson and did not intend to remain in Phoenix. Mother explained that she had already acquired a job and an apartment in Payson and that her Phoenix lease would end soon. The family court noted that Payson was approximately 95.23 miles from Mother's current zip code in Phoenix; that the children's quality of life would improve in Payson; that Mother had extended family in Payson; that she had the opportunity to earn more money in Payson than in Phoenix; and that rent was lower in Payson. The court then summarized its decision:

I'm [going to] let mom go to Payson with the children. I think that's in the children's best interest. She's been their primary caretaker. She's been a stay at home mom and at least, at this point with their ages, I think it's in their best interest.

¶ 5 In a decree filed May 29, 2009, the family court granted the dissolution of marriage. The court awarded joint legal decision-making to the parents and designated Mother as the primary physical custodian, with the children to reside with Mother at all times except during the parenting time awarded to Father. The decree was silent regarding relocation. Approximately a week after the May 29, 2009, decree was issued, Mother filed a change of address form reporting that she had moved from Phoenix to Payson.

¶ 6 From 2009 until 2013, Mother moved several times. In October 2009, she moved to Mesa for a limited time due to having a high-risk pregnancy. In December 2009, venue for the case was changed from Maricopa County to Gila County. In approximately August 2010, Mother moved to Heber. In 2012, she moved to Lakeside and petitioned to have venue changed from Gila County to Navajo County. Father, who lived in Maricopa County, objected and petitioned the court to transfer venue back to Maricopa County, which the court granted. In March 2013, Father filed a modification petition. Just before a hearing set for August 2013, Father filed an amended pretrial statement in which he argued for the first time that A.R.S. § 25–408 should be invoked to disallow Mother's move to Lakeside.¹ The hearing was continued to March 2014.

¶ 7 At the March 2014 evidentiary hearing, the family court received testimony and exhibits, including the transcript from the May 2009 dissolution trial, and the parents' arguments. The court issued a comprehensive 21–page ruling in April 2014, finding that Mother's relocation to Payson in 2009 was authorized by the family court in an oral pronouncement from the bench in May 2009, and, regarding Mother's move to Lakeside, the provisions of A.R.S. § 25–408 were inapplicable because Lakeside is less than 100 miles from Payson. The court further found that Father failed to demonstrate a material change in circumstances affecting the children's welfare. Additionally, the court made best interest findings in accordance with A.R.S. §§ 25–403 and –408 and issued orders regarding legal-decision making, parenting time, and the appointment of a parenting coordinator. Finally, the court granted Mother an award of attorney fees, finding that Father was unreasonable in raising the relocation challenge just two days before a hearing. The court also ordered venue transferred to Navajo County. Father timely appeals, and we have jurisdiction under A.R.S. § 12–2101(A)(1).

ANALYSIS

I. Relocation

¶ 8 Father argues that A.R.S. § 25–408(A)(2) was applicable to Mother's move to Lakeside. He contends the court should have measured the mileage from Phoenix, where Mother resided when the May 2009 decree was issued, to Lakeside, where Mother now lives, resulting in a distance substantially exceeding 100 miles and triggering the provisions of A.R.S. § 25–408. This appeal presents a question of statutory interpretation that we review de novo. Thompson, 217 Ariz. at 526, ¶ 7, 176 P.3d 722.

¶ 9 We must consider and apply subsections (A) and (D) of A.R.S. § 25–408² :

A. If by written agreement or court order 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 a parent may do either of the following:

1. Relocate the child outside the state.

2. Relocate the child more than one hundred miles within the state.

...

D. Subsection A of this section does not apply if provision for relocation of a child has been made by a court order or a written agreement of the parties that is dated within one year of the proposed relocation of the child.

(Emphasis added.)

¶ 10 At the time of Mother's moves to Payson and later to Lakeside, there was a court order in place entitling both parents to custody or parenting time, thereby satisfying the initial requirement for application of § 25–408(A). As this court pointed out in Thompson, the legislature by enacting these provisions was balancing the competing interests of allowing a parent “some unrestricted flexibility to decide where to live with his or her child” with limits on the ability of a parent to “interfere with the custody or parenting time granted to the other parent by relocating with the child and making it more difficult and costly for the non-relocating parent to have custody or parenting time with the child.” 217 Ariz. at 527, ¶ 14, 176 P.3d 722.

¶ 11 The Thompson court interpreted A.R.S. § 25–408 in a situation similar to this case.³ Id. at 525–26, ¶¶ 2–11, 176 P.3d 722. The mother in Thompson lived in Alpine, and told the court that she wanted to move with the parties' minor children to Show Low. Id. at 525, ¶ 2, 176 P.3d 722. The court approved the mother's relocation in a temporary order that also established custody and visitation. Id. Before the issuance of a final decree, the mother relocated with the children to Show Low. Id. at 525, ¶ 3, 176 P.3d 722. Sometime after the court entered the final decree, she notified the court she intended to move from Show Low to Payson. Id. The father objected to the relocation to Payson and argued that § 25–408(A) required the court to calculate the mileage of the mother's relocation by adding the miles of her first move—from Alpine to Show Low—to the miles of the second move—from Show Low to Payson—a total distance that exceeded 100 miles. Id. at 525, ¶ 4, 176 P.3d 722. Thompson held that subsection (A) did not apply to the first move because the court approved the mother's relocation with the children and the mother actually moved within one year of the court's approval. Id. at 525–26, ¶¶ 2–11, 176 P.3d 722. When subsection (D) renders subsection (A) inapplicable, the miles of the court-authorized relocation are exempt from future calculations under subsection (A). Id. at 526, ¶ 11, 176 P.3d 722.

¶ 12 The facts of this case are similar, but not identical, to the facts in Thompson. Here, Mother's first move—from Phoenix to Payson—was authorized by the family court in 2009.⁴ Unlike the mother in Thompson, however, Mother in this case did not move before the issuance of the May 2009 decree. Father contends that we should apply literally the Thompson court's language that § 25–408(A) “should be construed as allowing a parent granted joint custody or parenting time the right to move up to 100 miles from that parent's physical location with the child as of the date of the written agreement or court order entitling both parents to custody or parenting time. ” Id. at 527, ¶ 14, 176 P.3d 722 (emphasis added). Because Mother and the children still resided in Phoenix on the day the decree was issued, a literal application of the Thompson court's language would negate...