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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

          EULERIC TORRANCE LOCKHART, Petitioner/Appellee,

                                         v.

           VICTORIA MARIE WILLIAMS, Respondent/Appellant.

                          No. 1 CA-CV 15-0011 FC A
                              FILED 12-3-2015


            Appeal from the Superior Court in Maricopa County
                           No. FC2013-092368
             The Honorable Benjamin R. Norris, Retired Judge

                                   AFFIRMED


                                    COUNSEL

Euleric Lockhart, Mesa
Petitioner/Appellee

Victoria Marie Williams, Gilbert
Respondent/Appellant



                        MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
                        LOCKHART v. WILLIAMS
                          Decision of the Court

G E M M I L L, Judge:

¶1           Victoria Williams (“Mother”) appeals the family court’s
ruling denying her proposed relocation to Georgia with her daughter, A.L.,
and the family court’s denial of her motion for new trial. For the following
reasons, we affirm.

          FACTUAL AND PROCEDUREAL BACKGROUND

¶2            A.L. was born in Columbus, Georgia. Euleric Lockhart
(“Father”) did not initially live with Mother and A.L., but he and Mother
eventually married and moved to Arizona. Mother and Father separated
shortly thereafter.

¶3           Mother decided that she wanted to move back to Georgia to
be closer to friends and family and to enjoy a better lifestyle. Father
objected to Mother’s proposed relocation with A.L., and the issue of
relocation was presented to the family court, which held an evidentiary
hearing. Shortly thereafter, the family court issued a ruling denying
relocation.

¶4            In its ruling, the family court considered A.L.’s best interests
under Arizona Revised Statutes (“A.R.S.”) section 25-408 and Pollock v.
Pollock, 181 Ariz. 275, 277 (App. 1995). The family court found, among other
things, that Mother was historically hostile toward Father’s relationship
with A.L. The court also determined that Mother had both good and bad
faith reasons for wanting to move and found that the move would degrade
A.L.’s relationship with her father and harm A.L.’s stability. Based
primarily on those findings, the family court denied the proposed
relocation.

¶5           Mother filed a motion for new trial that was denied. Mother
timely appeals, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶6           Mother contends the family court did not give proper weight
to the evidence presented at trial or make the best interests determination
as required by statute. She also contends the family court denied her
motion for a new trial without justification. We will examine each
argument in turn.




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                        LOCKHART v. WILLIAMS
                          Decision of the Court


I.     Sufficiency of the Evidence and Best Interests Determination

¶7             We review a child custody determination for an abuse of
discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003). We
consider the evidence in the light most favorable to upholding the decision.
Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2009). We will accept the family
court’s findings if there is credible evidence to support them. In re Marriage
of Berger, 140 Ariz. 156, 162 (App. 1983). The parent wishing to relocate the
child has the burden to prove that relocation is in the child’s best interests.
A.R.S. § 25-408(G). The family court must consider each factor set forth in
A.R.S. § 25-408(I)1 when considering whether the relocation is in the child’s
best interest. Owen, 206 Ariz. at 420-21, ¶ 8.

¶8            In making its ruling, the family court specifically considered
each factor required by A.R.S. §§ 25-408(I) and 25-403(A). The court listed
each factor individually and then made findings regarding each factor.
Those findings are supported by reasonable, credible evidence.

¶9             Although Mother argues that Father would have received the
same total amount of parenting time under her proposed plan in the event
of relocation, it is not contested that the move would prevent A.L. from
seeing Father for long periods of time during the school year. Furthermore,
Father testified that Mother had on occasion made it difficult for him to
have a relationship with A.L. by not directing A.L. to return Father’s phone
calls, not emailing Father status updates about A.L., and, before they were
married, not letting Father see A.L. at times. The court found that Mother
had “a track record of being hostile to the idea of A.L. having a relationship
with Father” and this factor played a “major role” in the court’s decision.

¶10           Mother claims that some of the family court’s findings were
contrary to the evidence presented and that the family court relied solely,
and incorrectly, on Father’s testimony. The record does not support


1  The applicable subsection of § 25-408 discussed in Owen had been
changed to subsection (H) by the time of this evidentiary hearing and is
now codified at subsection (I). 2012 Ariz. Legis. Serv. Ch. 309 (S.B. 1127);
2015 Ariz. Legis. Serv. Ch. 317 (H.B. 2519). Because the substance of the
subsection has not been substantively altered, we refer to the current
version, A.R.S. § 25-408(I), in this decision.




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                         LOCKHART v. WILLIAMS
                           Decision of the Court

Mother’s contention. Both sides presented evidence at trial, and the
resolution of Mother’s request to relocate required a subjective, fact-
intensive weighing of the evidence presented and an assessment of the
credibility of the witnesses who testified. An appellate court should grant
considerable deference to a family court when reviewing such a
determination. See In re Gen. Adjudication of All Rights to Use Water in Gila
River Sys. & Source, 198 Ariz. 330, 340, ¶ 25 (2000) (“The trial court, not this
court, weighs the evidence and resolves any conflicting facts, expert
opinions, and inferences therefrom.”); See also Mary Lou C. v. Ariz. Dep’t. of
Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004) (quoting Pima Cty. Dependency
Action No. 93511, 154 Ariz. 543, 546 (App. 1987)) (indicating the trial court
is “in the best position to weigh the evidence, judge the credibility of the
parties, observe the parties, and make appropriate factual findings”). On
this record, we conclude that the court’s findings are supported by
reasonable evidence.

¶11            We also conclude that the family court considered each of the
required statutory factors under A.R.S. §§ 25-408 and 25-403 and correctly
placed the burden on Mother to show it would be in A.L.’s best interests to
relocate. The court ultimately found that relocation was not in A.L.’s best
interests under the then-existing circumstances and we discern no abuse of
discretion in reaching this conclusion.

II.    Motion for New Trial

¶12            Mother also argues that the family court erred in denying her
motion for new trial. “A motion for new trial on grounds that the verdict
is against the weight of the evidence is within the sound discretion of the
trial court,” and we review denial of the motion for an abuse of discretion.
Styles v. Ceranski, 185 Ariz. 448, 450 (App. 1996).

¶13           Mother’s motion for new trial argued that the family court’s
ruling was not justified by the evidence, specifically asserting that certain
testimony of Mother regarding the child’s best interests was not “given the
proper weight.” As noted above, the family court is in the best position to
evaluate the credibility of the witnesses. In that process, the court must
weigh the evidence “independently from the conclusions of witnesses.” See
Leslie C. v. Maricopa Cty. Juvenile Court, 193 Ariz. 134, 136 (App. 1997). A
review of the record reveals the family court considered and gave
appropriate weight to the testimony of both Mother and Father. Because
reasonable evidence supports its ruling, the family court did not abuse its
discretion in denying Mother’s motion for new trial.



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                       LOCKHART v. WILLIAMS
                         Decision of the Court


                            CONCLUSION

¶14           Finding no abuse of discretion or legal error, we affirm the
decision of the family court.




                                 :ama




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