Opinion
No. 1 CA-CV 19-0273 FC
12-12-2019
In re the Matter of: NICHOLAS LISTRANI, Petitioner/Appellee, v. MICHELLE LOONEY, Respondent/Appellant.
COUNSEL Law Office of Roman A. Kostenko PLC, Phoenix By Roman A. Kostenko Counsel for Petitioner/Appellee Michelle Looney, Black Canyon City Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. FC2018-004053
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
Law Office of Roman A. Kostenko PLC, Phoenix
By Roman A. Kostenko
Counsel for Petitioner/Appellee
Michelle Looney, Black Canyon City
Respondent/Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.
PERKINS, Judge:
¶1 Michelle Looney appeals the trial court's denial of her request for relocation and challenges its determination of parenting time. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Nicholas Listrani ("Father") and Michelle Looney ("Mother") (collectively: "Parents") are the biological parents of R.L., born in 2010. In July 2018, Father petitioned for legal decision making and parenting time for R.L. Mother then filed a request to relocate from Arizona to Oregon with R.L. She claimed that Parents and R.L. had planned to move to Oregon before the end of Parents' relationship.
¶3 The trial court issued an Order for Paternity, Legal Decision Making, Parenting Time and Child Support in March 2019. Regarding relocation, the court found that both parties took their positions in good faith, but that the alleged benefits to R.L. and Mother were speculative. Further, the court found that the move would negatively affect the bond between R.L. and Father. Accordingly, the court denied Mother's request. The court noted that Mother remained free to relocate to Oregon on her own and ordered that a long-distance parenting plan must be developed if she decided to do so.
¶4 Mother timely appealed from this decision.
DISCUSSION
¶5 Mother alleges that Father behaved manipulatively in prior proceedings and that the facts weigh in favor of her requests for relocation and parenting time. We review parenting time and relocation decisions for an abuse of discretion. Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018) (parenting time); Murray v. Murray, 239 Ariz. 174, 176, ¶ 5 (App. 2016) (relocation). In so doing, we view the facts in the light most favorable to upholding the judgment. Hurd v. Hurd, 223 Ariz 48, 52, ¶ 19 (App. 2009).
"Our duty on review does not include reweighing conflicting evidence or redetermining the preponderance of evidence." Id. at ¶ 16.
¶6 Appellants are required to order transcripts of superior court proceedings not in the record that "the appellant deems necessary for proper consideration of the issues on appeal." ARCAP 11(c)(1)(A). If an appellant argues on appeal that a judgment is "contrary to the evidence, the appellant must include in the record transcripts of all proceedings" containing evidence relevant to that argument. ARCAP 11(c)(1)(B). Mother failed to order transcripts, meaning "we assume that they would support the court's findings and conclusions." Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).
¶7 Here, the court made the required specific findings on the record. See A.R.S. § 25-403. The court noted that "[b]oth parents enjoy a wonderful and loving relationship with the child." The court found that the child was developing attachments with Parents and their relatives, and that the child was comfortable in Parents' homes. The court also found that the child was too young to provide meaningful input as to his wishes and that no credible evidence was presented concerning other factors. It concluded that joint legal decision-making was in R.L.'s best interest, and accordingly ordered a parenting-time schedule that the court believed was "practical" and maximized each Parent's time with R.L. The court did not abuse its discretion in its order of parenting time.
¶8 In considering a request for relocation, a court must also make factual findings under A.R.S. § 25-408(I). Woyton v. Ward, 1 CA-CV 18-0677, 2019 WL 5445823, at *3, ¶ 12 (Ariz. App. Oct. 24, 2019). The parent seeking the relocation bears the burden of persuading the court that the relocation is in the best interest of the child. A.R.S. § 25-408(G). Here, the court considered all required factors, including both parents' good faith positions, the lack of proven advantage for either Mother or R.L. in moving, and the likely harm to R.L.'s relationship with Father. The court denied Mother's request. As its findings support its conclusion, the court did not abuse its discretion.
¶9 Father also requests that we award him attorney's fees and costs under A.R.S. § 25-324. After considering the financial resources of the parties and the reasonableness of each party's position on appeal, we decline to award attorneys fees but award Father his taxable costs on appeal upon compliance with ARCAP 21(b).
CONCLUSION
¶10 We affirm.