Berk v. Dimarco

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

JENNIFER BERK,
Petitioner/Appellant,

v.

PAUL DIMARCO,
Respondent/Appellee.

No. 1 CA-CV 19-0424 FC
FILED 6-25-2020

Appeal from the Superior Court in Maricopa County
No. FC2012-000217
The Honorable Todd F. Lang, Judge

AFFIRMED

COUNSEL

Chloe R. Woods, Phoenix
Counsel for Petitioner/Appellant

Greenberg Traurig, LLP, Phoenix
By Matthew P. Hoxsie
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Chief Judge Peter B. Swann joined.

T H U M M A, Judge:

¶1 Jennifer Berk (Mother) appeals from the superior court’s
order denying her petition to relocate her daughter to Missouri. Because
Mother has shown no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Paul DiMarco (Father) are the parents of a nine-
year-old daughter. From 2012 to 2014, the court entered various orders
regarding parenting time, legal decision-making and support. In late 2018,
after Mother lost her job as a tennis instructor in Arizona, she found another
job in Florida. Mother filed a petition to relocate the child and sought to
move by January 8, 2019. Father opposed Mother’s petition. In January
2019, Mother relocated to Florida on an emergency basis as permitted by
Arizona Revised Statutes (A.R.S.) section 25-408(F)(1) (2020).1 Mother and
the child remained in Florida until the court ordered that the child return
and remain in Arizona.

¶3 After Father filed a petition to modify legal decision-making,
the court set an evidentiary hearing to consider Mother’s petition for
relocation and Father’s petition to modify. During that hearing, Mother
changed her relocation request from Florida to Missouri. The court heard
testimony from Mother, Father, the maternal grandfather, the child’s
stepmother, Father’s co-worker and others.

¶4 The court concluded Mother had not shown “that moving to
Missouri . . . is in the child’s best interests” and denied her petition for
relocation but awarded her sole legal decision-making authority. This court
has jurisdiction over Mother’s timely appeal pursuant to Article 6, Section
9 of the Arizona Constitution and A.R.S. § 12-120.21(A)(1).

1 Absent other material revisions after the relevant dates, statutes and rules

cited refer to the current version unless otherwise indicated.

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Decision of the Court

DISCUSSION

¶5 This court reviews decisions regarding child custody and
relocation for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420
¶ 7 (App. 2003). The evidence is viewed in a light most favorable to
upholding the court’s findings. Vincent v. Nelson, 238 Ariz. 150, 155 ¶ 17
(App. 2015). “[T]he family court is in the best position to judge the
credibility of witnesses and resolve conflicting evidence, and appellate
courts generally defer to the findings of the family court.” Id. at 155 ¶ 18.

¶6 In resolving a relocation request, the court must “make
specific findings on the record as to all relevant factors and the reasons its
decision is in the children’s best interests.” Hurd v. Hurd, 223 Ariz. 48, 52 ¶
20 (App. 2009). The factors a court must consider are set forth by statute.
See A.R.S. § 25-408(I). Section 408(I) incorporates the factors set forth in
A.R.S. § 25-403(A) to evaluate the best interests of a child.

¶7 Mother argues that the court failed to make proper findings.
More specifically, Mother argues the court “listed the relevant best interest
factors . . . but failed to make any specific findings on any of the factors
except for two.” Relatedly, Mother also argues the court’s findings makes it
unclear whether the court placed too much weight on some factors and
failed to consider others.

¶8 Contrary to Mother’s assertions on appeal, the court made
thorough and detailed findings as to why relocation to Missouri would not
be in the child’s best interests. Mother’s reliance on Owen and Hurd is
misplaced. In Hurd, the superior court did not make findings as to all the
Section 408(I) factors and failed to make any findings as to the Section
403(A) factors. 223 Ariz. at 53-54 ¶¶ 22-26. And in Owen, the superior court
“did not elaborate or explain how it weighed any factor.” 206 Ariz. at 421 ¶
8. Here, by contrast, the court made six pages of findings concerning all the
relevant factors in Section 403(A) and Section 408(I).

¶9 Along with these findings, the record supports the superior
court’s ruling. As the parent seeking to relocate, Mother bore the burden of
proving that moving to Missouri was in the child’s best interest, not just
Mother’s interests. A.R.S. § 25-408(G). After considering the evidence, the
court found Mother had failed to carry her burden of proof. The court found
the child was closely bonded with stepmother and enjoys being a big sister
to Father’s other daughter. The court further noted that the child is thriving
at home, at school and in the community. Although Mother has friends in
Missouri, the court determined that Mother was unable to provide details

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Decision of the Court

or specifics about those friendships. Mother acknowledged that the child
does not have any close ties to Missouri. The court also concluded the
“proposed move would not improve the Child’s quality of life.”

¶10 The superior court did not abuse its discretion in denying
Mother’s petition for relocation. The record demonstrates the court
considered and made findings as to all the relevant factors. Ultimately,
although Mother demonstrated that finding a tennis job in Phoenix is
difficult, and while relocating to Missouri would improve her career, that
alone does not justify relocating the child to Missouri away from Father, her
extended family and friends. Accordingly, the order denying her petition
seeking relocation is affirmed. In exercising the court’s discretion, Mother’s
request for attorneys’ fees and costs on appeal is denied.

CONCLUSION

¶11 The order denying Mother’s petition for relocation is
affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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