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In re Berrier

Court of Appeals of Arizona, First Division

November 27, 2018

In re the Matter of: AUSTIN J. BERRIER, JR., Petitioner/Appellant,
v.
STACY LUREE ROUNTREE, Respondent/Appellee.

          Appeal 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

          The 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 Respondent/Appellee

          Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Kenton D. Jones and Judge David D. Weinzweig joined.

          OPINION

          SWANN, JUDGE

         ¶1 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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.

         ¶3 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.

         With 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 kindergarten."

         ¶4 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.

         ¶5 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 ...


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