                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                          In re the Matter of:

           MICHELLE DIANE VINCENT, Petitioner/Appellee,

                                   v.

           JEFFREY DANIEL NELSON, Respondent/Appellant.

                          No. CV 14-0541 FC
                            FILED 8-20-2015


          Appeal from the Superior Court in Maricopa County
                         No. FC2008-053239
                   The Honorable Jay M. Polk, Judge

                              AFFIRMED


                              COUNSEL

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

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



                              OPINION

Judge John C Gemmill delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown and Judge Randall M. Howe joined.
                          VINCENT v. NELSON
                           Opinion of the Court

G E M M I L L, Judge:

¶1            This is a family court relocation case. In Thompson v.
Thompson, 217 Ariz. 524 (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:



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                         VINCENT v. NELSON
                          Opinion of the Court


      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

1We are not presented in this appeal with any issue regarding the potential
waiver by inaction of the restrictions of A.R.S. § 25-408(A).


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                           VINCENT v. NELSON
                            Opinion of the Court

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.

¶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.)


2 This statute was amended in 2015, but the changes are not material to the
issues in this case.


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                           VINCENT v. NELSON
                            Opinion of the Court

¶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.

¶11            The Thompson court interpreted A.R.S. § 25-408 in a situation
similar to this case.3 Id. at 525–26, ¶¶ 2–11. 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. 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. 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. 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.
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.

¶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


3 When Thompson was decided in 2008, the subsections of A.R.S. § 25-408
were numbered differently than they are presently because a subsection has
since been removed. See 2012 Ariz. Sess. Laws, ch. 309 (S.B 1127) (2nd Reg.
Sess.). The pertinent subsections referred to in Thompson and in this
decision are similar, and in this opinion we cite the subsections as they
currently exist in the statute.



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                            VINCENT v. NELSON
                             Opinion of the Court

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 (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 the effect of court approval of
Mother’s move from Phoenix to Payson and the application of § 25-408(D)
to exempt the miles of this first move from future calculations.
Accordingly, under Father’s argument, the 100-mile provision of § 25-
408(A)(2) would be applicable when Mother relocated to Lakeside because
Lakeside is more than 100 miles from Phoenix.

¶13           Although Mother’s address of record on the day the decree
was issued was in Phoenix, we conclude that the language of Thompson
must be understood in light of the facts in that case. The Thompson court
presumably focused on the mother’s address at the time of the decree,
because the mother’s first move in that case had been both approved by the
court and completed before the decree. On the facts of this case, however, the
statutory language of § 25-408—particularly subsection (D)—and the logic
of Thompson support the conclusion that the distance from Phoenix to
Payson should be exempted from the 100-mile calculation under A.R.S. §
25-408(A)(2). See Thompson, at 526, ¶ 10 (concluding that “[m]other’s first
move met the criteria of subsection [D] and so subsection [A] did not apply
to that move. When, as here, subsection [D] exempts a move from
subsection [A], the miles of the exempted move should not be included
within subsection [A]’s 100 mile condition.”).

¶14           Subsection 25-408(D) provides a one-year time limit for
approved relocations to be completed, and Mother’s move in 2009 to
Payson was promptly accomplished. Although Father argues for a literal
application of certain language from Thompson, we do not think that the fact
that Mother completed the approved relocation from Phoenix to Payson
approximately a week after the decree was entered—rather than before
entry of the decree—should be dispositive. Mother’s move to Payson was
approved by the court and timely completed in accordance with A.R.S. §


4 The oral pronouncement of the family court on May 15, 2009, see supra ¶ 4,
constituted a court order within the meaning of A.R.S. § 25-408(A) and (D).


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                            VINCENT v. NELSON
                             Opinion of the Court

25-408(D). Accordingly, under A.R.S. § 25-408 and Thompson, the family
court correctly determined that the mileage from Phoenix to Payson is
exempted from future calculations under § 25-408. In essence, the “starting
point” for application of § 25-408(A)(2) in the future became Mother’s
address in Payson.

¶15         The family court did not err in ruling that because the distance
from Payson to Lakeside was less than 100 miles, the limitations of A.R.S. §
25-408 did not apply. Father’s relocation challenge was appropriately
rejected.5

II.    Modification

¶16          Father argues the family court erred in finding no material
change in circumstances warranting a modification of court-ordered
parenting time and legal-decision making. Father contends that the family
court did not properly consider Mother’s alleged “divorce decree
violations” and Mother’s relocation as evidence of a material change in
circumstances. We disagree.

¶17           To change a previous custody order, the family court must
determine that there has been a “material change in circumstances affecting
the welfare of the child.” Canty v. Canty, 178 Ariz. 443, 448 (App. 1994).
This court will not disturb the family court’s decision absent a clear abuse
of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 2002).
We view the evidence in the light most favorable to sustaining the family
court’s findings, and we also determine whether evidence in the record
reasonably supports the family court’s findings. Hurd v. Hurd, 223 Ariz. 48,
52, ¶ 19 (App. 2009) (citing Ariz. Dep’t of Econ Sec. v. Burton, 205 Ariz. 27, 30,
¶ 14 (App. 2003)).

¶18           In its April 2014 ruling, the family court denied Father’s
requests for a modification and specifically found that “Father has failed to
demonstrate that a material change in circumstance affecting the Children’s
welfare has occurred since the” May 2009 orders. The record indicates that
Mother and Father presented evidence about Mother’s alleged violations of
the decree and her relocation to Lakeside. The family court found Mother

5 In Thompson, this court noted that it “need not decide whether subsection
[A] applies when a parent makes serial non-court approved relocations that
individually are less than 100 miles but, in the aggregate, total more than
100 miles.” 217 Ariz. at 526, ¶ 11 n.4. Similarly, the issue of potential “serial
non-court approved relocations” is not addressed in this opinion.


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                           VINCENT v. NELSON
                            Opinion of the Court

and her witnesses to be more persuasive in their testimony than Father and
his witnesses, a finding that is significant. Although Father argues the
family court did not properly consider the evidence before it, the record
reveals the family court carefully and comprehensively considered the
evidence and issues. Moreover, the family court is in the best position to
judge the credibility of witnesses and resolve conflicting evidence, and
appellate courts generally defer to the findings of the family court. See Goats
v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 169, 171 (App. 1971). We
conclude that the record and the law support the findings and conclusions
of the family court in denying Father’s requested changes in parenting time
and legal decision-making.

III.   Attorney Fees

¶19           Mother requests an award of attorney fees on appeal under
A.R.S. § 25-324. She argues that the court is required to award attorney fees
when a petition is not filed in good faith and was not grounded in fact or
law. Having considered the factors set forth in A.R.S. § 25–324 and in the
exercise of our discretion, we deny Mother’s request for an award of fees.
As the prevailing party on appeal, Mother is entitled to an award of taxable
costs incurred on appeal upon her compliance with Arizona Rule of Civil
Appellate Procedure 21.

                              CONCLUSION

¶20           Finding no abuse of discretion or legal error, we affirm the
family court’s rulings.




                                  :ama




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