Johnson v. Provoyeur ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
REBECCA L. JOHNSON, Petitioner/Appellant,
v.
JAMES PROVOYEUR, Respondent/Appellee.
No. 1 CA-CV 15-0086 FC
FILED 1-28-2016
Appeal from the Superior Court in Maricopa County
No. FC2013-000701
The Honorable Michael J. Herrod, Judge
REMANDED
COUNSEL
Gillespie, Shields, Durrant & Goldfarb, Phoenix
By DeeAn Gillespie Strub, Mark A. Shields
Counsel for Petitioner/Appellant
Kenneth A. Winsberg, PC, Phoenix
By Kenneth A. Winsberg
Counsel for Respondent/Appellee
JOHNSON v. PROVOYEUR
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined.
S W A N N, Judge:
¶1 Rebecca L. Johnson (“Mother”) appeals the superior court’s
order that James Provoyeur (“Father”) serve as the primary residential
parent of the parties’ minor children. As part of its analysis under A.R.S.
§ 25-403, the court found that Mother had moved the children from Rhode
Island to Arizona to further her own interests and not theirs. But under
§ 25-403, Mother’s motivation was relevant only to the extent her choice
affected the children’s best interests -- and the court made no findings on
that issue. The court’s consideration of Mother’s motivation in the
abstract was inconsistent with A.R.S. § 25-403, and on this record we
cannot discern whether the error affected the court’s conclusion.
Accordingly, we remand for further findings.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father, a married couple, lived together with
their two children in Rhode Island. For years, Mother told Father that she
wished to relocate the family to Arizona, where she grew up and her
relatives resided. Father opposed the plan for financial reasons. But in
October 2012, Mother took a new position with her employer and moved
to Arizona with the children, who were at that time four and two years
old. Father acquiesced to the move because he believed that it was
temporary and that Mother would “come to her senses” and return to
Rhode Island. Mother, by contrast, believed that Father would eventually
join her in Arizona.
¶3 Soon after Mother arrived in Arizona, she learned that she
was pregnant with the parties’ third child. Mother gave birth to the child
in June 2013 and filed a petition for dissolution of marriage later that
month.
¶4 The parties agreed to a neutral parenting plan under which
the children would live with the primary residential parent during the
school year and with the other parent during summer and school breaks.
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JOHNSON v. PROVOYEUR
Decision of the Court
The parties disagreed about who should be the primary residential parent
-- Mother argued that she should be the primary residential parent in
Arizona, and Father argued that he should be the primary residential
parent in Rhode Island. Both parties presented the issue to the superior
court largely as one of relocation under A.R.S. § 25-408.
¶5 After an evidentiary hearing, the court held that it was in the
children’s best interests for Father to serve as the primary residential
parent. In support of this conclusion, the court made findings regarding
the factors enumerated in A.R.S. § 25-403(A). As part of its findings under
A.R.S. § 25-403, the court found: “Mother’s actions in moving to Arizona
were to further her interests and not the best interests of the children.”
¶6 Mother challenged the above-quoted finding in a motion for
new trial, arguing that she and the children shared an economic interest in
her taking a more prestigious and lucrative job. The court denied the
motion. Mother timely appeals.
DISCUSSION
¶7 Though they both presented the case to the superior court as
a relocation dispute under A.R.S. § 25-408, the parties now concede on
appeal that § 25-408 does not govern their dispute. Section 25-408 applies
when a written agreement or court order establishes joint legal decision-
making authority or parenting time for two Arizona parents, and one of
the parents seeks to relocate the children outside of the state or more than
one hundred miles within the state. A.R.S. § 25-408(A); see also Buencamino
v. Noftsinger, 223 Ariz. 162, 163, ¶¶ 8-10 (App. 2009). Here, the parties
sought an initial determination of legal decision-making authority and
parenting time, and Father did not reside in Arizona. The superior court
therefore properly analyzed the matter under A.R.S. § 25-403 rather than
§ 25-408.
¶8 Section 25-403 provides that to determine legal decision-
making and parenting time, the superior court “shall consider all factors
that are relevant to the child’s physical and emotional well-being,
including” eleven specifically enumerated factors, and, in a contested
case, “shall make specific findings on the record about all relevant factors
and the reasons for which the decision is in the best interests of the child.”
The court has broad discretion in the analysis. In re Marriage of Diezsi, 201
Ariz. 524, 525, ¶ 3 (App. 2002). We will reverse, however, if the court
commits an error of law in the process of exercising its discretion. Fuentes
v. Fuentes, 209 Ariz. 51, 56, ¶ 23 (App. 2004).
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JOHNSON v. PROVOYEUR
Decision of the Court
¶9 Here, the court made written findings regarding each of the
enumerated § 25-403 factors, as well as the factors set forth in §§ 25-403.03,
-403.04, and -403.05. We do not disturb those findings.
¶10 The court’s finding regarding Mother’s motivation for
moving to Arizona did not independently relate to any of the factors
enumerated in those statutes. Of course, the court was not limited to the
enumerated factors. Because the paramount goal of the inquiry is to
determine what will serve the children’s best interests, Hays v. Gama, 205
Ariz. 99, 102, ¶ 18 (2003), § 25-403 provides that the court must consider
and make specific findings regarding “all” factors relevant to the
children’s well-being, A.R.S. § 25-403; see also Downs v. Scheffler, 206 Ariz.
496, 499, 500, ¶¶ 8, 13 (App. 2003). And in some cases, some or all of the
factors described in § 25-408 may be relevant. Buencamino, 223 Ariz. at
163, ¶ 10 n.3.
¶11 Here, the parties emphasized Mother’s motivation in
moving to Arizona as a relevant factor under the rubric of A.R.S. § 25-
408(I)(7). The court’s finding that Mother was motivated by personal
interest was supported by sufficient evidence. But the court made no
findings concerning the effect of Mother’s choice on the children. In the
absence of a finding that Mother’s decision had, by the time of trial,
affected the children’s best interests, the question of her motivation was
simply irrelevant.1 Cf. Higgins v. Higgins, 194 Ariz. 266, 271-72, ¶¶ 19-25
(App. 1999) (holding that court abused its discretion by finding that
mother’s adulterous cohabitation with boyfriend harmed the children
when no evidence showed that they were harmed). The court’s
consideration of Mother’s motivation, by itself, was improper, and on this
record we must remand because we cannot discern whether the error
affected the court’s conclusion. Cf. Owen v. Blackhawk, 206 Ariz. 418, 421-
22, ¶ 12 (App. 2003) (holding that in view of court’s failure to explain its
consideration of relevant § 25-408 factors, reversal and remand was
necessary because it was unclear whether court focused too much
attention on one factor to the exclusion of others).
1 By the same token, Father’s acquiescence to the move -- which
Mother characterizes on appeal as “waiver” -- would be relevant only to
the extent his decision affected the children’s well-being.
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JOHNSON v. PROVOYEUR
Decision of the Court
CONCLUSION
¶12 We reverse and remand to allow the superior court to make
a finding as to the relevance (if any) of Mother’s motivation in moving the
children to the children’s physical and emotional well-being, to conduct
any further proceedings necessary to aid this determination, and to
reweigh all relevant findings in accordance with § 25-403. We deny
Father’s request for attorney’s fees on appeal.
:ama
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