Hamilton v. Rockney
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: GH In re the Marriage of: ) ) LORI M. HAMILTON, ) 1 CA-CV 09-0152 ) Petitioner/Appellant, ) Department D ) v. ) MEMORANDUM DECISION ) (Not for Publication ERIC N. ROCKNEY, ) Rule 28, Arizona Rules of ) Civil Appellate Procedure) Respondent/Appellee. ) __________________________________) Appeal from the Superior Court of Maricopa County Cause No. FC2003-094900 The Honorable Jo Lynn Gentry-Lewis, Judge AFFIRMED Cates, Hanson, Sargeant & Rakestraw, P.L.C. By Leslie Rakestraw Attorneys for Petitioner-Appellant Eric Rockney In Propria Persona Phoenix Prescott T H O M P S O N, Judge &1 Lori M. Hamilton (mother) appeals from the trial court s denial of her Request to Relocate with Child. we affirm. Finding no error, &2 Mother and Eric N. Rockney (father) have one minor child, born in 1999. In 2003, mother filed for divorce. Attached to mother s Petition for Divorce was a settlement agreement signed by both parties which indicated that father lived in Chino Valley, Arizona, and which outlined their custody agreement. The agreement indicated that mother would have legal custody and father would have visitation; the parties agreed not to move from the state of Arizona with the minor child. In 2008, mother filed a motion seeking the trial court s leave to relocate from Gilbert, Arizona to her home state of Texas. In the motion, mother asserted that their child would then be in the presence of [her] family on a daily basis as opposed to father s taking 25 days of visitation over the 2007 school year. She also indicated she was having financial difficulties and her family had offered housing and financial assistance. &3 Father objected to the motion to relocate. Father argued, among other things, that his parenting time would be unreasonably burdened that accustomed such school a and move would friends. take He also extended family also resides in Arizona. the primary custodian. themselves. Five A trial was held. witnesses, including the minor noted from that his his own Father offered to become The parties represented the parties, testified. Father, in addition to himself, presented three witnesses. 2 It appears that mother marked items for identification but did not offer them into evidence. 1 present sufficient The court found that mother did not evidence or testimony pursuant to Arizona Revised Statutes (A.R.S.) § 25-408(I) (2009) to meet her burden to relocate the minor child and denied mother s motion. &4 We review child custody determinations for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). A non-custodial parent has a statutory right to reasonable parenting time. A.R.S. § 25-408(A). The burden of proof is on the parent seeking the relocation to show that such a move is in the child s best interests. court shall not deviate from a A.R.S. § 25-408(G). written agreement The expressly prohibiting such a relocation unless the court finds that provision is no longer in the child s best interests. &5 A.R.S. § 25-408(H). In deciding a request for relocation, the court must make specific findings including interests. on addressing the record whether it as to all is in the relevant factors children's See Owen, 206 Ariz. at 421, ¶ 9, 79 P.3d at 670. best The trial court did not initially make such findings, but later entered a minute entry addressing each factor. The trial court indicated that other than some limited testimony indicating that the child 1. We note that one of the items of evidence that mother apparently sought to introduce was Dates of Eric s visitation which contains the same information as her motion for relocation in the record on appeal. This motion shows that, among other time, father spent all of the fall break (seven days) and ten days of the winter break with the child during the 2007 school year. 3 would be able to participate in sports if he was allowed to relocate, no other testimony was presented in support of such a move. 2 The trial court indicated that such a move would clearly interfere with Father s relationship with the child . . . Mother did not state her reasons for relocation and so the Court cannot determine that her request is made in good faith. The court considered the best interests of the child and found mother did not meet her burden of proof for relocation. The trial court did not abuse its discretion in denying mother s motion to relocate the minor child over the objection of his father. 3 &6 Mother, citing ARCAP Rule 21, requests attorneys fees and costs on appeal. That request is denied. 2. As the record on appeal does not contain the transcript of the hearing, we will assume that the evidence supported the court s denial of the request to relocate. See Copeland v. City of Yuma, 160 Ariz. 307, 311, 772 P.2d 1160, 1164 (App. 1989)(citing A.D.R. Dev. Co. v. Greater Arizona Sav. and Loan Ass'n, 15 Ariz. App. 266, 267, 488 P.2d 471, 472 (1971)). 3. This appeal addresses only the discrete issue presented above. Our ruling does not address any other issues or rulings by the trial court in this domestic relations case. 4 &7 For the foregoing reasons, we affirm. /S/ ________________________________ JON W. THOMPSON, Judge CONCURRING: /S/ ______________________________________ PATRICIA A. OROZCO, Presiding Judge /S/ ______________________________________ DIANE M. JOHNSEN, Judge 5
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