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Arbizo v. Shank

Court of Appeals of Arizona, Second Division

September 18, 2015

Marcello Arbizo III, Petitioner/Appellee,
v.
Amanda Shank, Respondent/Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Graham County No. DO201000395, The Honorable D. Corey Sanders, Judge Pro Tempore.

Marcello Arbizo III, Safford In Propria Persona

Solyn & Lieberman, PLLC, Tucson By Melissa Solyn and Scott Lieberman Counsel for Respondent/Appellant

Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly [1] concurred.

MEMORANDUM DECISION

HOWARD, JUDGE:

¶1 Appellant Amanda Shank appeals from the trial court's post-decree order denying her request to relocate her son, B., and granting appellee-father Marcello Arbizo's petition to modify legal decision-making rights and parenting time. Shank argues the court abused its discretion by denying the relocation and by modifying the custody arrangement in the absence of a material change in circumstances. For the reasons below, we affirm the denial of relocation and reverse the grant of modification.

Factual and Procedural Background

¶2 Shank and Arbizo were unmarried when they had a child, B., in 2009. In 2010, Arbizo petitioned the court to establish custody, parenting time, and child support. Shank was awarded sole legal decision-making authority, with the parents sharing joint physical custody. At the time, both parties lived in Safford, Arizona.

¶3 In 2014, Shank sought to relocate B. to Phoenix, where she was planning to move for economic and educational reasons. When Shank informed Arbizo of her intent to relocate, Arbizo moved to prevent her from relocating B. and petitioned to modify legal decision-making and parenting time. In his petition, Arbizo requested sole legal decision-making authority subject to equal parenting time regardless of the relocation. Arbizo also requested an alternate parenting plan in the event Shank moved to Phoenix.[2]

¶4 Following a hearing, the trial court denied Shank's request for relocation and granted Arbizo's petition to become the sole legal decision-maker. Further, the court modified the parenting time arrangement to significantly reduce Shank's parenting time and to alter the schedule. We have jurisdiction over Shank's appeal pursuant to A.R.S. §§ 12-120.21 and 12-2101 (A)(1).

Modification of decision-making and parenting time

¶5 Shank first argues that the trial court erred in modifying decision-making and parenting time because her proposed relocation to Phoenix did not constitute a material change in circumstances. We review a trial court's decision regarding legal decision-making and parenting time for an abuse of discretion. Owen v. Blackhawk 206 Ariz. 418, ¶ 7, 79 P.3d 667, 669 (App. 2003). "'To change a previous [decision-making and parenting time [3] order, the court must determine whether there has been a material change in circumstances affecting the welfare of the child.'" Id. ¶ 16, quoting Canty v. Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994); Christopher K. v. Markaa S., 233 Ariz. 297, ¶ 15, 311 P.3d 1110, 1113 (App. 2013). After determining that circumstances have changed, the court then must "determine whether a change in [legal decision-making and parenting time] would be in the child's best interest." Christopher K, 233 Ariz. 297, ¶ 15, 311 P.3d at 1113.

¶6 In Owen, this court considered facts similar to those presented in this case. In that case, the mother proposed relocation and the father sought a change of physical custody and parenting time "if the mother moved to Wyoming." 206 Ariz. 418, ¶ 14, 79 P.3d at 671. The mother testified multiple times she did not intend to move if the relocation was denied. Id. ΒΆ 15. The trial court denied the mother's ...


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