Vincent v. Nelson, No. CV 14–0541 FC.

CourtCourt of Appeals of Arizona
Writing for the CourtGEMMILL, Judge
Citation719 Ariz. Adv. Rep. 35,357 P.3d 834,238 Ariz. 150
Decision Date20 August 2015
Docket NumberNo. CV 14–0541 FC.
PartiesIn re the Matter of Michelle Diane VINCENT, Petitioner/Appellee, v. Jeffrey Daniel NELSON, Respondent/Appellant.

238 Ariz. 150
357 P.3d 834
719 Ariz.
Adv. Rep. 35

In re the Matter of
Michelle 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.


357 P.3d 835

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:

238 Ariz. 151

¶ 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).

357 P.3d 836
238 Ariz. 152

¶ 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

238 Ariz. 153
357 P.3d 837

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
...

To continue reading

Request your trial
77 practice notes
  • Hefner v. Hefner, No. 1 CA-CV 18-0404 FC
    • United States
    • Court of Appeals of Arizona
    • December 10, 2019
    ...Husband for injury to his personal well-being. Deferring to the fact-finder’s credibility determination, as we must, Vincent v. Nelson , 238 Ariz. 150, 155, ¶ 18, 357 P.3d 834, 839 (App. 2015) (citing Goats v. A. J. Bayless Mkts., Inc. , 14 Ariz. App. 166, 169, 481 P.2d 536 (App. 1971), Hus......
  • Backstrand v. Backstrand, No. 1 CA-CV 19-0742 FC
    • United States
    • Court of Appeals of Arizona
    • December 24, 2020
    ...We will not substitute our judgment by reweighing the evidence underlying the court's best-interests analysis. See Vincent v. Nelson , 238 Ariz. 150, 155, ¶ 18, 357 P.3d 834, 839 (App. 2015) ("[T]he family court is in the best position to judge the credibility of witnesses and resolve confl......
  • Quijada v. Quijada, No. 1 CA-CV 18-0118
    • United States
    • Court of Appeals of Arizona
    • February 19, 2019
    ...). In doing so, we defer to the court’s factual findings so long as there is competent evidence to support them. See Vincent v. Nelson , 238 Ariz. 150, 155, ¶¶ 17-18, 357 P.3d 834, 839 (App. 2015) (citing Hurd v. Hurd , 223 Ariz. 48, 52, ¶¶ 16, 19, 219 P.3d 258, 262 (App. 2009), and Goats v......
  • Kazi v. Saleem, No. 1 CA-CV 16-0475 FC
    • United States
    • Court of Appeals of Arizona
    • June 8, 2017
    ...affecting the welfare of the child" before determining whether modification is in the child's best interest. Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17, 357 P.3d 834, 839 (App. 2015) (citing Canty v. Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994)); accord Christopher K. v. Mark......
  • Request a trial to view additional results
77 cases
  • Hefner v. Hefner, No. 1 CA-CV 18-0404 FC
    • United States
    • Court of Appeals of Arizona
    • December 10, 2019
    ...Husband for injury to his personal well-being. Deferring to the fact-finder’s credibility determination, as we must, Vincent v. Nelson , 238 Ariz. 150, 155, ¶ 18, 357 P.3d 834, 839 (App. 2015) (citing Goats v. A. J. Bayless Mkts., Inc. , 14 Ariz. App. 166, 169, 481 P.2d 536 (App. 1971), Hus......
  • Backstrand v. Backstrand, No. 1 CA-CV 19-0742 FC
    • United States
    • Court of Appeals of Arizona
    • December 24, 2020
    ...We will not substitute our judgment by reweighing the evidence underlying the court's best-interests analysis. See Vincent v. Nelson , 238 Ariz. 150, 155, ¶ 18, 357 P.3d 834, 839 (App. 2015) ("[T]he family court is in the best position to judge the credibility of witnesses and resolve confl......
  • Quijada v. Quijada, No. 1 CA-CV 18-0118
    • United States
    • Court of Appeals of Arizona
    • February 19, 2019
    ...). In doing so, we defer to the court’s factual findings so long as there is competent evidence to support them. See Vincent v. Nelson , 238 Ariz. 150, 155, ¶¶ 17-18, 357 P.3d 834, 839 (App. 2015) (citing Hurd v. Hurd , 223 Ariz. 48, 52, ¶¶ 16, 19, 219 P.3d 258, 262 (App. 2009), and Goats v......
  • Kazi v. Saleem, No. 1 CA-CV 16-0475 FC
    • United States
    • Court of Appeals of Arizona
    • June 8, 2017
    ...affecting the welfare of the child" before determining whether modification is in the child's best interest. Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17, 357 P.3d 834, 839 (App. 2015) (citing Canty v. Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994)); accord Christopher K. v. Mark......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT