Vincent v. Nelson
238 Ariz. 150
| Ariz. Ct. App. | 2015Background
- Parents divorced in 2009; mother (Vincent) was designated primary physical custodian and parents shared joint legal decision-making.
- At a May 15, 2009 bench ruling (incorporated in the decree), the family court orally approved mother’s relocation from Phoenix to Payson (~95.23 miles) and the move occurred about a week after the decree.
- Over the next years mother moved several times (Mesa, Heber, Lakeside); father (Nelson) remained in Maricopa County and later sought modification and challenged relocation compliance with A.R.S. § 25-408.
- Father raised for the first time in 2013 that the statute’s 100-mile limit should be measured from mother’s Phoenix address at decree rather than from Payson, arguing the cumulative distance to Lakeside exceeded 100 miles.
- The family court (2014) found the 2009 court-approved Phoenix→Payson move exempt under § 25-408(D), held Payson→Lakeside is under 100 miles so § 25-408(A)(2) does not apply, denied modification for lack of material change, awarded mother attorney fees for father’s untimely relocation challenge, and transferred venue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relocation: whether § 25-408(A)(2)’s 100-mile limit applies to mother’s move to Lakeside | Nelson: measure from mother’s Phoenix address at decree; Phoenix→Lakeside exceeds 100 miles so § 25-408(A)(2) applies | Vincent: prior court-approved Phoenix→Payson move is exempt under § 25-408(D); measure from Payson, not Phoenix | Court: Phoenix→Payson was court-authorized and timely completed under § 25-408(D); exempt from future calculations; Payson→Lakeside <100 miles so § 25-408(A)(2) inapplicable; relocation challenge denied |
| Modification: whether a material change in circumstances justified modifying custody/parenting time | Nelson: mother’s decree violations and relocations constitute a material change affecting children’s welfare | Vincent: no material change; moves were permitted or not legally disqualifying | Court: no abuse of discretion; factual findings supported; denied modification |
| Attorney fees on appeal | Vincent: requests fees under A.R.S. § 25-324, arguing father’s petition lacked good faith | Nelson: opposed | Court of Appeals: denies appellate fee request in exercise of discretion; mother entitled to taxable costs as prevailing party |
Key Cases Cited
- Thompson v. Thompson, 217 Ariz. 524 (App. 2008) (interpreting § 25-408 and holding a court-approved relocation exempt from later § 25-408(A) distance calculations)
- Canty v. Canty, 178 Ariz. 443 (App. 1994) (material-change standard required to modify custody)
- In re Marriage of Diezsi, 201 Ariz. 524 (App. 2002) (appellate review standard for custody modification is abuse of discretion)
- Hurd v. Hurd, 223 Ariz. 48 (App. 2009) (defer to family court findings and view evidence to sustain those findings)
- Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166 (App. 1971) (credibility determinations lie with the trial court)