Jordan v. Smith

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

MICHAEL LEE JORDAN, Petitioner/Appellant,

v.

SARAH ELIZABETH SMITH, Respondent/Appellee.

No. 1 CA-CV 14-0365 FC
FILED 3-31-2015

Appeal from the Superior Court in Maricopa County
No. FC2012-007909
The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Michael Lee Jordan
Petitioner/Appellant

Steven R. Garcia, P.L.L.C., Phoenix
By Steven R. Garcia
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge Donn Kessler joined.

G E M M I L L, Judge:

¶1 Michael L. Jordan (“Father”) appeals the family court’s order
authorizing relocation of minor child, A.S., with Sarah E. Smith (“Mother”),
including the best interests finding. For the reasons that follow, we affirm.

FACTS

¶2 In October 2012, Father filed in Maricopa County Superior
Court a petition for paternity, child custody, parenting time, and child
support regarding A.S. Mother’s counsel accepted service on her behalf
because Mother had moved to Pennsylvania with A.S. Mother filed a
response in February 2013. Both parents requested sole custody of the
minor child, reasonable parenting time for the other parent, and for child
support to be paid by the non-custodial parent. Mother, however, asked
the court to approve a “long distance” parenting plan because she lived in
Pennsylvania.

¶3 In March 2013, the parties entered into an agreement,
stipulating that Father was the biological father and each party would
undergo a psychological evaluation. The family court appointed Dr. S.F. to
conduct the evaluations and prepare a written report. The court also
ordered that the report would be entered into evidence despite any
evidentiary objections that could be made.

¶4 The court issued temporary orders in a May 2013 minute
entry. The family court found that it had jurisdiction because A.S. resided
in Arizona from the time of her birth until she relocated to Pennsylvania
with Mother. The court issued orders regarding visitation, child support,
and legal decision making. The court granted the parties joint legal decision
making, allowed Mother to remain in Pennsylvania, and ordered her to
provide Father with weekly updates regarding A.S. Father was ordered to
pay child support and granted visitation time in Pennsylvania. Also, the
court granted Father a downward deviation in child support because of his
anticipated travel costs to visit A.S.

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¶5 In August 2013, the parties stipulated to follow Dr. S.F.’s
recommendations. The parties agreed that they would abstain from
consuming alcohol, participate in ongoing treatment pursuant to the
diagnostic hypotheses generated by Dr. S.F., and submit to weekly random
urinalysis through TASC. Furthermore, Father agreed to seek treatment for
alcohol abuse.

¶6 The family court conducted a trial in September 2013 and
issued a paternity decree on October 1, 2013. In the paternity decree, the
court made best interests findings pursuant to Arizona Revised Statutes
(“A.R.S.”) § 25-408(H). The court found that both parties had failed to
comply with certain portions of the stipulated agreements and court orders.
Mother did not submit weekly urinalysis samples for testing. Father failed
to pay child support and admitted to using his money for personal
entertainment rather than saving it for travel to see A.S. The court did find
that the parties complied with other provisions of the agreements and
orders. Father visited A.S. in Pennsylvania on one occasion. It was
reported by a supervisor and Father’s mother that the visit went well.
Mother emailed weekly updates to Father, through her counsel, and
attached pictures of A.S.; Father, however, did not respond. The court was
most concerned, though, with both parents’ history of substance abuse.
Therefore, the court issued orders regarding relocation, legal decision
making, and parenting time that could vary contingent upon Mother and
Father’s completion by February 28, 2014 of a compliance plan ordered by
the court.

¶7 The compliance plan for both parents mandated that they
participate in ongoing treatment pursuant to Dr. S.F.’s diagnostic
hypotheses and in random urinalysis testing. Specifically for Father, the
court required that: he abstain from consuming alcohol for twelve months;
wear a SCRAM bracelet detecting alcohol consumption for four months;
complete a parenting class and a 20-week class through Community
Bridges; exercise parenting time every month in Pennsylvania; and comply
with his financial obligations of child support and arrearages. The court
required Mother to abstain from alcohol consumption during her parenting
time.

¶8 Father filed a compliance plan report in January 2014. He
asserted that he was compliant with most of the requirements except the
SCRAM bracelet requirement, which he argued was because of the cost. He
requested that the court exclude this requirement due to financial hardship

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and because he had not consumed alcohol for six months. Mother also filed
a compliance report that indicated she fully complied with the court’s
orders. The court denied Father’s request and noted that he had not
attempted to comply with the SCRAM bracelet requirement until December
2013, which was two months after the court issued the compliance plan.
Father then filed a second compliance plan report on February 18, 2014
where he averred that he was in compliance with the SCRAM bracelet
requirement. Finally, on February 25, Father moved to extend the time to
complete the compliance plan acknowledging he would be unable to
complete the plan’s requirements by the 28th. He argued that he overpaid
the arrearage obligation and had “third-party funding” that would give
him the ability to comply with the financial requirements. By February 28,
Mother was fully compliant. In a response to Father’s motion to extend,
Mother contended that Father had not paid arrearages in full.

¶9 After reviewing the compliance plan reports and other
documents filed by the parents, the court entered findings and orders in a
signed ruling filed April 4, 2014 (“April 4 order”). The court found that
Father did not enroll in individual counseling treatment until February 28,
2014 and that despite the areas of compliance, Father’s efforts were “too
little, too late.” The court also found that it was in the child’s best interests
to be allowed to relocate with Mother. Furthermore, the court indicated
that the October 1 paternity decree was self-executing and that the
provisions of that order were final.

¶10 Father seeks appellate review of certain issues from both the
paternity decree and the April 4 order. Mother contends this court lacks
jurisdiction regarding the paternity decree because it was a final,
appealable order and Father did not appeal within 30 days of the decree. If
the paternity decree was final and appealable when entered on October 1,
2013, then Mother is correct and Father cannot now raise issues settled
therein. If the decree was not a final judgment, but rather the court’s
memorialization of alternative outcomes that depended on the parties’
performance of the compliance plan and a further order of the court
regarding that compliance, then the April 4 order was the final, appealable
order. Father’s notice of appeal within 30 days after the April 4 order would
thus trigger appellate jurisdiction over the decree as well as any issues
resolved in the April 4 order. To decide otherwise would require Father to
have filed his Notice of Appeal prior to the trial court’s final order in which
the contingent provisions were to be made applicable. While the trial court
did refer to the October 1 decree as a final order, we conclude that in light
of the contingencies built into that decree, it was an interlocutory order and

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the April 4 order was the final, appealable order. As a result, this court has
jurisdiction under A.R.S. § 12-2101(A)(1). We also note that, as the
following analysis reveals, the final result is the same either way.

ANALYSIS

¶11 On appeal, Father challenges the order authorizing Mother’s
relocation to Pennsylvania and the court’s best interests finding.1

¶12 The relocation statute, A.R.S. § 25-408, applies when there is
(1) a written agreement or court order that provides for custody or
parenting time by both parents, and (2) both parents reside in Arizona.
Buencamino v. Noftsinger, 223 Ariz. 162, 164, ¶¶ 7–10, 221 P.3d 41, 43 (App.
2009) (deciding when the family court is required to consider or make
specific findings under the § 25-408(H) factors). We are not certain that,
under Buencamino, the relocation statute applies in this case. But we need
not make that determination. Even if there is no requirement to consider
the statutory relocation factors, a family court judge has the discretion to
consider them. Id. at 164 n.3, ¶ 10, 221 P.3d at 43. Additionally, we note
that at the time Father initiated the action, Mother and A.S. were still in
Arizona. A temporary court order providing Father with visitation rights
and joint legal decision-making was entered in May 2013, after Mother
moved to Pennsylvania. In that order, the court acknowledged that at no
time prior did there exist a court order for legal decision-making or custody.
The court, however, allowed Mother to remain in Pennsylvania pending a
final decision and indicated that the court would treat the move as a request
for relocation. Therefore, although both elements identified in Buencamino
may not have been fully satisfied during this action, no error occurred when
the family court chose to consider the relocation factors listed under A.R.S.
§ 25-408(H).

1 Father presented additional issues regarding the psychologist’s
recommendations and the denial of his motion to extend the compliance
deadline. The brief provides no citation to the record or relevant
supporting authority; therefore we will not review those issues. See
ARCAP 13(a)(6) (an appellant’s brief shall contain arguments “with
citations to the authorities, statutes and parts of the record relied on”);
Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2
(App. 2007) (finding an argument waived because appellant failed to cite
relevant supporting authority and did not adequately develop the
argument).

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¶13 This court reviews a relocation decision for an abuse of
discretion. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19, 219 P.3d 258, 262 (App.
2009). An abuse of discretion exists when there is no competent evidence
supporting the decision or if the court commits an error of law. Id.; Fuentes
v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004). This court
will accept the trial court’s factual findings unless clearly erroneous or
unsupported by credible evidence. Federoff v. Pioneer Title & Trust Co. of
Ariz., 166 Ariz. 383, 388, 803 P.2d 104, 109 (1990).

¶14 The family court may allow relocation when it is in the child’s
best interests. A.R.S. § 25-408(F). The burden of proving relocation is in the
child’s best interests is on the parent seeking to relocate. Id. The family
court is required to make specific findings on the record supporting its
decision that relocation is in the best interests of the child. Hurd, 223 Ariz.
at 52, ¶ 20, 219 P.3d at 263; see also Owen v. Blackhawk, 206 Ariz. 418, 420–22,
¶¶ 8, 12, 79 P.3d 667, 669–71 (App. 2003) (requiring the family court to
explain how it weighed the relocation factors). The family court is required
to consider “all relevant factors” in accordance with A.R.S. § 25-408(H),
including:

1. The factors prescribed under § 25–403.

2. Whether the relocation is being made or opposed in
good faith and not to interfere with or to frustrate the
relationship between the child and the other parent or
the other parent’s right of access to the child.

3. The prospective advantage of the move for
improving the general quality of life for the custodial
parent or for the child.

4. The likelihood that the parent with whom the child
will reside after the relocation will comply with
parenting time orders.

5. Whether the relocation will allow a realistic
opportunity for parenting time with each parent.

6. The extent to which moving or not moving will
affect the emotional, physical or developmental needs
of the child.

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7. The motives of the parents and the validity of the
reasons given for moving or opposing the move
including the extent to which either parent may intend
to gain a financial advantage regarding continuing
child support obligations.

8. The potential effect of relocation on the child’s
stability.

A. October 2013 Paternity Decree

¶15 In the October 2013 paternity decree, the family court made
specific findings pursuant to § 25-408(H). The court found that Mother
relocated to Pennsylvania for safety concerns and to be closer to family, but
that given the distance Father’s ability to visit A.S. was limited. See A.R.S.
§ 25-408(H)(2)–(3) & (5). The court indicated there were concerns with
“Mother’s willingness to involve Father in decision-making.” See A.R.S. §
25-408(H)(4). It further found that each parent’s motivation was a “genuine
desire to spend time with the child” and that relocating to Pennsylvania
would not undermine A.S.’s stability if the relocation occurred before the
child turned two-years old. See A.R.S. § 25-408(H)(7)–(8). Testimony and
documentary evidence supported the court’s factual findings. See Federoff,
166 Ariz. at 388, 803 P.2d at 109.

¶16 In accordance with A.R.S. § 25-408(H)(1), the family court is
required to perform further factual analysis by evaluating the factors found
within A.R.S. § 25-403(A) in order to determine the child’s best interests.
The factors in § 25-403(A) include:

1. The past, present and potential future relationship
between the parent and the child.

2. The interaction and interrelationship of the child
with the child’s parent or parents, the child’s siblings
and any other person who may significantly affect the
child’s best interest.

3. The child’s adjustment to home, school and
community.

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4. If the child is of suitable age and maturity, the
wishes of the child as to legal decision-making and
parenting time.

5. The mental and physical health of all individuals
involved.

6. Which parent is more likely to allow the child
frequent, meaningful and continuing contact with the
other parent. This paragraph does not apply if the
court determines that a parent is acting in good faith to
protect the child from witnessing an act of domestic
violence or being a victim of domestic violence or child
abuse.

7. Whether one parent intentionally misled the court
to cause an unnecessary delay, to increase the cost of
litigation or to persuade the court to give a legal
decision-making or a parenting time preference to that
parent.

8. Whether there has been domestic violence or child
abuse pursuant to § 25-403.03.

9. The nature and extent of coercion or duress used
by a parent in obtaining an agreement regarding legal
decision-making or parenting time.

10. Whether a parent has complied with chapter 3,
article 5 of this title.

11. Whether either parent was convicted of an act of
false reporting of child abuse or neglect under § 13-
2907.02.

¶17 The court made specific findings regarding each of these
factors and credible evidence supported those findings. It found that A.S.
was thriving in Pennsylvania and has a good relationship with Mother,
Father, and extended family. A.R.S. § 25-403(A)(1)–(3). Mother provided
Father with updates regarding A.S. but she has not allowed Father to
participate in decision-making. A.R.S. § 25-403(A)(6).

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¶18 The court was most concerned with Father and Mother’s
mental health and history of alcohol use. See A.R.S. § 25-403(A)(5); see also
A.R.S. § 25-403.04. The court concluded, based on Dr. S.F.’s report and
testimony, that each parent had a history of alcohol abuse. Credible
evidence supported that conclusion. Dr. S.F. examined both parents in May
2013. In June 2013, Father was discharged from his employment for
“showing up under the influence” of alcohol. The court found that Mother
had worked in a bar for ten years and that she has also driven under the
influence. Because of the parents’ history of alcohol abuse, Dr. S.F. made
recommendations to resolve those issues and the parties stipulated to
follow them. The court found that neither parent had “followed-up” with
all of Dr. S.F.’s recommendations. As to Mother, the court found that she
had failed to undergo alcohol screenings. Regarding Father, the family
court found that he had not complied with the court’s orders to pay child
support. The court found, instead, that Father used this money for other
entertainment activities rather than paying child support or saving money
for travel to visit A.S. The evidence supported the court’s findings. The
court, however, offered Father and Mother another opportunity to remedy
these issues by instituting the compliance plan to be completed by February
28, 2014.

¶19 The court concluded, in the October 2013 paternity decree,
that “determining the best interests of the Child at [the] time require[d]
balancing a number of considerations.” The record supports this
conclusion. Neither parent clearly proved to the court that they could
comply with court orders. Nor had the parents persuaded the court that
their history of alcohol abuse should no longer be a concern. The court
found that if Father could remedy the concerns raised by Dr. S.F., then a
return to Arizona would be in the child’s best interests; however, if he could
not, then the court would authorize relocation. The court indicated similar
concerns regarding Mother and her ability to parent.

B. April 4 Order

¶20 After the February 28 deadline passed, the court entered its
findings in the April 4 order. The court concluded that Father made efforts
to adhere to the compliance plan but ultimately failed to complete all the
terms. Specifically, the court found that Father failed to enroll in treatment
that he had agreed to and the court had ordered after Dr. S.F. recommended
it. As a result, the family court authorized relocation because it concluded
it was in the child’s best interests to achieve permanency and stability. The
evidence supporting that determination, and the findings from §§ 25-

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403(A) and -408(H) included in the October 2013 paternity decree, support
the conclusion in the April 4 order that relocation with Mother was in the
child’s best interests.

ATTORNEY FEES ON APPEAL

¶21 Mother requested an award of attorney fees on appeal, citing
A.R.S. §§ 12-349 and 25-324. We conclude that § 12-349 is not applicable.
Section 25-324, however, is applicable. But 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 ARCAP 21.

CONCLUSION

¶22 The family court made the specific findings necessary under
the law, and those findings are supported by credible evidence and not
clearly erroneous. We conclude that the family court did not abuse its
discretion, and for these reasons we affirm.

:ama

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