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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              LAURA GIBSON HULSEY, Petitioner/Appellee,

                                        v.

               CODY LYNN HULSEY, Respondent/Appellant.

                           No. 1 CA-CV 16-0103 FC
                               FILED 1-5-2017


            Appeal from the Superior Court in Navajo County
                        No. S0900DO201500271

                   The Honorable Dale P. Nielson, Judge

                                  AFFIRMED


                                   COUNSEL

Riggs Ellsworth & Porter PLC, Show Low
By Michael R. Ellsworth
Counsel for Petitioner/Appellee
Coronado Law Firm PLLC, Lakeside
By Eduardo H. Coronado, Kai M. Henderson
Counsel for Respondent/Appellant




                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.


N O R R I S, Judge:


¶1            Respondent/Appellant, Cody Lynn Hulsey (“Father”),
appeals from a decree of dissolution, challenging the superior court’s
award of sole legal decision-making to Petitioner/Appellee Laura Gibson
Hulsey (“Mother”), authorizing her to move to Utah with their minor
children on or after March 1, 2017, and awarding Father less parenting time
if Mother moved to Utah and he decided to stay in Arizona. For the
following reasons we affirm these rulings.

             FACTS AND PROCEDURAL BACKGROUND1

¶2             On January 6, 2016 the superior court entered a decree
dissolving the parties’ marriage. The decree established a comprehensive
parenting time schedule, splitting time between Mother and Father by
giving Father parenting time every other weekend as long as “he chooses
to have the parenting time where the children reside.” Because, however,
Mother testified at trial that she would have the support of her extended
family, better access to and opportunity for education, the ability to support
herself and her children by working in her family’s business, and would be
unable to support herself and her children in Arizona, the court authorized
Mother and the children to move to Utah on or after March 1, 2017. If
Mother moved to Utah, and Father stayed in Arizona, then the court
reduced Father’s parenting time to “the first weekend of every month.” The
court also awarded Mother sole legal decision-making authority. On
appeal, Father argues the superior court based these rulings on his need to

              1We  construe the facts in a light most favorable to affirming
the decree. Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d
1137, 1141 (1994) (citation omitted).


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                            Decision of the Court
take prescription pain medication for his back injury and, further, ignored
relevant evidence.

                               DISCUSSION

I.     Sole Legal Decision-Making

¶3            When deciding whether to award sole or joint legal decision-
making and parenting time, the superior court must consider the best
interests of the child and all relevant factors, including those listed in
Arizona Revised Statutes (“A.R.S.”) section 25–403(A) (Supp. 2015) and
A.R.S. § 25-403.01(B) (Supp. 2015). Additionally, the superior court must
make express findings as to each factor and explain its reasoning in support
of each finding. A.R.S. § 25–403(B). The court has substantial discretion in
making these determinations.

¶4             Here, the superior court found that “the parents are not able
to communicate effectively” and, while joint legal decision-making might
be logistically possible, “the parents will not be able to communicate to the
extent that [it] is possible.” Additionally, it found an “escalating” pattern of
domestic violence by Father against Mother and expressed “concern” about
Father’s mental health “given his reliance on pain medication.” Based on
these findings, the superior court concluded it was in the children’s best
interests to award sole legal decision-making authority to Mother.

¶5              On appeal, Father challenges the superior court’s ruling
granting sole legal decision-making to Mother, arguing that it abused its
discretion because it “ignored evidence” when considering the relevant
factors and instead “fixated” on his use of prescription pain medication to
treat his back injury. Essentially, Father’s argument requests that we re-
weigh the evidence presented to the superior court, something this court
will not do. Hurd v. Hurd, 223 Ariz. 48, 51–52, ¶¶ 11, 16, 219 P.3d 258, 261–
62 (App. 2009) (appellate court will not re-weigh conflicting evidence or re-
determine preponderance of the evidence) (citations omitted). In addition,
“[w]e must give due regard to the trial court’s opportunity to judge the
credibility of the witnesses,” and “[e]ven though conflicting evidence may
exist, we affirm the trial court’s ruling if substantial evidence supports it.”
Id. at 52, ¶ 16, 219 P.3d at 262 (citations omitted).

¶6            Contrary to Father’s argument, the superior court neither
ignored evidence nor fixated on his use of medication in awarding sole legal
decision-making to Mother, and substantial evidence supports the superior
court’s findings. First, Father’s own testimony that he “can’t talk about
anything serious” with Mother and Mother’s testimony that they could not


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                            Decision of the Court
“come to any agreement with one another” supports the superior court’s
finding that the parties’ inability to communicate made joint legal decision-
making impossible. Second, the court did not fixate on Father’s use of
prescription medication but rather expressed concern over his mental
health based on the trial evidence that Father had a “short fuse” while on
medication and “[h]e’s very angry . . . go[ing] off in tirades in front of the
kids.” And, as noted, Mother testified that, after Father’s injury, there had
been four separate instances of domestic violence, the last witnessed by
their children, which supported the court’s finding of Father’s “escalating”
pattern of domestic violence. Given this evidence, the court did not abuse
its discretion in awarding Mother sole legal decision-making.

II.    Relocation

¶7             Father next argues the superior court abused its discretion in
authorizing Mother to relocate to Utah with her children on or after March
1, 2017. Id. at 52, ¶ 19, 219 P.3d at 262 (appellate court reviews superior
court’s decision to allow relocation for an abuse of discretion) (citation
omitted). The statutes pertaining to legal decision-making and parenting
time intersect with those pertaining to relocation. See A.R.S. § 25-408(I)
(supp. 2015) (court considering relocation petition must take into account
“all relevant factors” relating to child’s best interests, including “[t]he
factors prescribed under A.R.S. § 25–403”). In addition to the children’s best
interests, the court must consider the prospective advantages of the move
“for improving the general quality of life for the custodial parent or for the
child.” A.R.S. § 25-408(I)(3).

¶8              The superior court found the children “to be adjusted” to their
community in Utah and recognized Mother’s need “to advance her
education or employment opportunities” as the primary provider for the
children. Although A.R.S. § 25-408(I) does not require the court to make
specific findings of fact in deciding whether to allow relocation, the court
clarified its reasoning during a hearing in response to Father’s motion for
clarification of the decree, explaining, “I see [Mother] as going to have to be
the primary caretaker here because [Father] cannot work, he’s very limited
in his income ability, and the mother’s got to have the opportunities to get
education or training.” The court also though it “reasonable to permit”
Mother “to live with some distance” from Father in light of the domestic
violence.

¶9             The record supports the superior court’s relocation decision.
Mother’s family testified the children “love it [in Utah]” and her family is
“there to assist if she needs help.” In addition to Mother’s testimony about
the incidences of domestic violence, see supra ¶ 6, Mother further testified


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                           Decision of the Court
she is financially unable to support herself in Arizona and she has an
opportunity to work for her father in Utah after completing a “series of
classes” in “technical business.” In contrast, Father’s family testified as to
his difficulty “getting by” on only his disability income. Given this
evidence, the superior court did not abuse its discretion in authorizing
Mother to relocate to Utah with the children on or after March 1, 2017.

III.   Parenting Time

¶10            Finally, Father argues the superior court abused its discretion
when it “denied [him] equal parenting time due to his back injury and need
for pain medication” again asking us to re-weigh the evidence. As
discussed above, see supra ¶ 2, the court reduced Father’s parenting time if
he decided to stay in Arizona if Mother and the children moved to Utah
but, contrary to Father’s argument, the court’s decision was not based on
his medical condition and use of medication. Considering the children’s
interests, the court believed it would be unfair to the children “to have to
travel 20 hours twice a month” if Mother moved to Utah. Given the totality
of the evidence presented to the superior court, as discussed above, and
considering the distance between Father’s home in Arizona and Mother’s
anticipated home in Utah, the superior court did not abuse its discretion in
reducing Father’s parenting time if Mother moved to Utah and he elected
to stay in Arizona. See Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d 818, 823
(1970) (appellate court reviews family court’s decision regarding parenting
time for abuse of discretion and will affirm “[u]nless it clearly appears that
the trial judge has mistaken or ignored the evidence”) (citation omitted).

                              CONCLUSION

¶11           For the foregoing reasons, we affirm the superior court’s
rulings challenged by Father on appeal. In the exercise of our discretion and
after considering the available information in the record regarding the
parties’ financial resources, we deny Mother’s request for an award of
attorneys’ fees on appeal. We grant Mother, however, her taxable costs
pursuant to A.R.S. § 25-324 (Supp. 2015), contingent upon her compliance
with Arizona Rule of Civil Appellate Procedure 21.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA

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