Correia v. Gleason

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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 In re the Matter of: ) ) DEJA ANDREA CORREIA, ) ) Petitioner/Appellant, ) ) v. ) ) WILLIAM JOSEPH GLEASON, III, ) ) Respondent/Appellee. ) __________________________________) DIVISION ONE FILED: 06/21/2011 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CV 11-0046 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court of Maricopa County Cause No. FC2005-092628 The Honorable James P. Beene, Judge AFFIRMED Knapp & Roberts, P.C. By David L. Abney Attorneys for Petitioner/Appellant Michael E. Hurley Attorney for Respondent/Appellee Scottsdale Phoenix T H O M P S O N, Judge ¶1 Deja Andrea Correia (mother) appeals from the trial court s denial of her motion to relocate the parties child (child) to San Diego, California. For the reasons that follow, we affirm the decision of the trial court. FACTUAL AND PROCEDURAL HISTORY ¶2 Mother and child s father, William Joseph Gleason, III (father) were never married, but they lived together until child was seven years old. In 2006, the superior court awarded the parties joint legal custody of child. primary residential parent. Father Mother was designated the had parenting time on weekends. ¶3 In July 2010, mother sent father a letter of intent to relocate child, who was then thirteen years old, to San Diego. Father filed a petition to prevent the relocation. In September 2010, the trial court held an evidentiary hearing, and declined to interview child in camera after father objected. Subsequently, the trial court awarded the parties joint legal custody of relocation child and and granted designated father s father petition primary with substantial parenting time for mother. to prevent residential parent, Mother relocated to San Diego where she lives with her husband and son and has employment in the mortgage business. DISCUSSION ¶4 Mother raises one issue on appeal: whether the trial court abused its discretion by not asking child directly about her preference before ruling on the relocation issue. 2 Arizona Revised Statutes (A.R.S.) § 25-408(G) (Supp. 2009) requires the trial court to determine whether relocation is in the child s best interests and places the burden of proof on the parent seeking to relocate the child. A.R.S. § 25-408(I) sets forth eight consider factors the court shall in determining the child s best interests in a relocation case, including [t]he factors prescribed under § 25-403. A.R.S. § 25-408(I)(1). Section 25-403(A) (Supp. 2009) sets forth eleven factors which the trial court shall consider when determining custody of a child in accordance with the child s best interests. One factor the court shall consider is [t]he wishes of the child as to the custodian. A.R.S. § 25-403(A)(2). However, [t]he child s desires are important but not necessarily controlling. Bailey v. Bailey, 3 Ariz. App. 138, 141, 412 P.2d 480, 483 (1966) (citation decision omitted). under an We abuse review of the trial discretion court s standard. custody Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003) (citation omitted). ¶5 Mother acknowledges that the trial court heard evidence about child s preference regarding the relocation from both parents and from her counselor before making his decision.1 1 Mother does not contend that the trial court did not consider evidence on this point. The trial court s minute entry order, which quotes A.R.S. § 25-403(A) and contains findings as to each factor, states however that no evidence was presented regarding 3 We find no abuse of discretion in the trial court s decision not to personally interview child. Interviewing the child in a custody case is permissive, not mandatory. See A.R.S. § 25- 405(A) (2007) ( The court may interview the child in chambers to ascertain the child s wishes as to the child s custodian and as to parenting time. ) (emphasis added). of Turek, 817 P.2d 615, 616 (Colo. See also In re Marriage Ct. App. 1991) (statute authorizing court to interview a child in chambers to determine child s wishes regarding custody issues does not mandate such an interview); 24A Am. Jur. 2d Divorce and Separation § 884 (2011) (court s private interview with child). Mother cites Stringer v. App. Vincent, 411 N.W.2d 474 (Mich. Ct. 1987), for the proposition that it was reversible error not to interview child, but we decline to rely on that case. In Stringer, the trial court made a custody decision without holding any evidentiary hearing, and based its ruling on the pleadings and a friend of the court report. 411 N.W.2d at 476. The Michigan Court of Appeals stated, [t]he trial court could not have considered the eleven factors set out in the definition of a child s best interests since it had been presented with no evidence. Id. Unlike the trial court in Stringer, the court in this case held child s wishes. Nevertheless, it is clear from the transcript and the counselor s report, which the judge discussed with the attorneys, that the court did have the evidence, albeit conflicting evidence, regarding child s wishes. Mother takes issue only with the lack of an in camera interview. 4 an evidentiary hearing and had before it evidence about child s preference. ¶6 Here, the evidence was that child gave different opinions as to where she wanted to live at different times. trial court had the counselor s report from September The 2010, wherein child told her counselor that she had always lived with her mother testified Father and wanted that child acknowledged to continue wanted that living to live with child told with her the her. in Mother San counselor Diego. that she wanted to live with mother, but testified that she also told him that she wanted to live with him. It was within the trial court s discretion to rely on the testimonial evidence of both parties and the counselor s report regarding child s preference and not conduct an interview. We further note that the trial court also properly considered the remaining factors set forth in A.R.S. §§ 25-408(I) and 25-403(A), and was clearly troubled by the impact mother s decision to relocate child s on-going relationship with father. of discretion on the facts of this would have on We can find no abuse case. The question of whether a child of a certain age must be interviewed by the trial court every there is a custody dispute is a question for the legislature. 5 Attorneys Fees on Appeal ¶7 Father requests an award of attorneys fees and costs on appeal pursuant to A.R.S. § 25-324 (2007) and Arizona Rule of Civil Appellate unreasonable financial Procedure positions resources, we on 21(c). appeal, deny Mother and father s based did on request not the for take parties attorneys fees and costs. CONCLUSION ¶8 For the foregoing reasons, we affirm the decision of the trial court. /s/ ___________________________ JON W. THOMPSON, Judge CONCURRING: /s/ _________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ ________________________________ MARGARET H. DOWNIE, Judge 6

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