In re the Matter of: AUSTIN J. BERRIER, JR., Petitioner/Appellant,
STACY LUREE ROUNTREE, Respondent/Appellee.
from the Superior Court in Maricopa County No. FC2013-005762
The Honorable Katherine M. Cooper, Judge
Moshier Law Firm, PC, Scottsdale By Jennifer K. Moshier
Murray Law Offices, PC, Scottsdale By Stanley David Murray
Co-Counsel for Petitioner/Appellant
Berkshire Law Office, PLLC, Phoenix By Keith Berkshire,
Kristi A. Reardon, Erica L. Gadberry Counsel for
Peter B. Swann delivered the opinion of the court, in which
Presiding Judge Kenton D. Jones and Judge David D. Weinzweig
In this family-law case, the superior court was asked to
establish a primary residence for a child who had previously
shared time equally with parents in two different states on a
biweekly basis. The parties presented the issue as one of
parenting-time reconfiguration and school choice, and the
court adopted that view. We hold that the issue was actually
one of relocation affecting parenting time. We remand so that
the parties may file appropriate pleadings to permit the
court to make all required findings regarding the relocation
question under A.R.S. § 25-408, and so that the parties
may, if they wish, properly raise the question of a
modification of legal decision-making authority.
AND PROCEDURAL HISTORY
Austin J. Berrier, Jr., ("Father") and Stacy Luree
Rountree ("Mother") are the divorced parents of a
young child ("Child"). Father has lived in
Goodyear, Arizona, and Mother in Irvine, California, since at
least the time of the decree of dissolution in 2014.
The decree incorporated the parties' agreements regarding
legal decision-making authority and parenting time. With
respect to legal decision-making authority, the decree
ordered that the parties would share "joint legal
decision-making authority regarding [Child]," with
Mother having "presumptive decision-making authority as
defined in [psychologist] Dr. Yee's [comprehensive family
evaluation] report dated November 18, 2014 (at page 9)."
Dr. Yee's report stated:
The presumptive decision-making authority would permit
[Mother] to make preliminary decisions after conferring with
[Father]. If [Father] believes that [Mother]'s decision
is contrary to the best interests of the child, he would have
the right to seek review through the Court. [Father] would
have the burden to demonstrate that [Mother]'s decision
is contrary to the child's best interest. It would not be
sufficient to demonstrate that an alternative decision might
also be in the best interest of the child.
respect to parenting time, the decree ordered that the
parties would "exercise a two (2) week on/two (2) week
off parenting time schedule with exchanges occurring every
other Sunday at 2:00 p.m. at the Patton Museum in Indio,
California until such time as the child begins
Father filed a petition to modify parenting time when Child
became eligible for kindergarten in 2017. Asserting that
school enrollment would necessitate adjustment of the
parenting-time schedule, Father argued that Child "would
be best served with a parenting plan that allow[s] for the
child to reside in Arizona and attend school there."
Mother agreed that the parenting-time schedule needed to be
changed. She contended, however, that the decree authorized
her to select Child's school and her choice of a
California school required Child to "reside primarily in
California." Both Mother and Father proposed frequent
exchanges to provide for roughly equal parenting time on
weekends and school breaks.
In his pretrial statement, Father requested, for the first
time, "a majority parenting time award and
majority legal decision making." (Emphasis added.) In
response, Mother filed a motion in limine asking the court to
limit the scope of trial to school choice and parenting time.
At the outset of trial, the court informed Father:
"We're here about parenting time . . . . but if you
feel it's important to offer testimony or evidence with
respect to who should be making the decisions on education, .
. . because that's really what we're here on --
what's driving this is . . . where [Child]'s going to
go to school, I'm going to ...