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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VICENTE RUBEN MARTINEZ, Petitioner/Appellant,

v.

CYNTHIA MARISOL GUTIERREZ, Respondent/Appellee.

No. 1 CA-CV 15-0861 FC

Appeal from the Superior Court in Maricopa County

No. FC2013-006662

The Honorable Pamela D. Svoboda, Judge

AFFIRMED

COUNSEL

Joseph W. Charles, P.C., Glendale

By Joseph W. Charles

Counsel for Petitioner/Appellant

The Sampair Group, PLLC, Glendale

By Patrick S. Sampair

Counsel for Respondent/Appellee
MARTINEZ v. GUTIERREZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Rick A. Williams1 joined.

W I N T H R O P, Judge:

¶1 Vicente Ruben Martinez (“Father”) appeals the family court’s 

order granting Cynthia Marisol Gutierrez’s (“Mother”) petition to relocate 

their minor child to Mexico. Father argues that Mother committed fraud 

upon the trial court in earlier proceedings and that the trial court’s best 

interest findings and negative findings related to Father are not supported 

by the record. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother is a citizen of Mexico and a legal resident of the United 

States.2 Mother and Father were married in 2010 and had a child in 2012. 

In 2013, Father filed for divorce, and both parties requested to be named the 

primary residential parent of the minor child.

¶3 Shortly after filing for divorce, Father filed a motion for a 

temporary emergency injunction, requesting, among other things, that the 

court prohibit Mother from taking the child out of the country for any 

reason unless agreed upon in writing by both parties. The court denied the 

motion.

 

1 The Honorable Rick A. Williams, Judge of the Arizona Superior 

Court, has been authorized to sit in this matter pursuant to Article 6, Section 

3, of the Arizona Constitution.

2 The parties’ decree of dissolution incorrectly stated that Mother was 

a dual citizen of Mexico and the United States. Mother’s answering brief, 

however, clarifies that Mother is a Mexican citizen and legal resident of the 

United States, and she was eligible to apply for U.S. citizenship “within a 

few months of the Relocation hearing.”
MARTINEZ v. GUTIERREZ

Decision of the Court

3

¶4 In December 2013, Judge George Foster conducted an 

evidentiary hearing on Father’s petition for dissolution and heard 

testimony from witnesses, including Mother and Father.

¶5 In 2014, after taking the matter under advisement, Judge 

Foster issued a decree of dissolution and best interest findings regarding 

the minor child,3 ordering Mother to be the child’s primary residential 

parent and granting Father visitation rights.

4 Father was granted parenting 

time every other weekend and a mid-week parenting period for two hours 

each Wednesday evening.

¶6 In his decision, Judge Foster noted that Father’s testimony 

was not credible5 and stated that Father had “unfounded delusions that 

Mother w[ould] abscond to Mexico with the child.” Mother’s new 

relationship with a Mexican national was not “in and of itself [] enough to 

prove by a preponderance of the evidence that Mother would kidnap the 

child to live in Mexico.”

¶7 Judge Foster also found that Father was “overbearing and 

aggressive” and “resort[ed] to hyperbole in an effort to control situations.” 

Further, the court noted that Father’s aggressiveness was “suggestive of a 

personality disorder.”

¶8 Father filed a motion for reconsideration,6 which was denied. 

Father did not appeal from the decree or the denial of the motion for 

reconsideration.

¶9 After Mother and Father were divorced, Mother remarried 

and had another child with her second husband, who resides in Mexico.

¶10 In April 2015, Mother filed a petition to modify parenting 

time, requesting permission to relocate to Mexico with the parties’ minor 

 

3 See Ariz. Rev. Stat. (“A.R.S.”) § 25-403(A).

4 The court awarded joint legal decision-making authority to Mother 

and Father, with Mother having presumptive decision-making authority.

5 Judge Foster stated that Father appeared to be “hiding his eyes from 

the Court” during his testimony and that “his body language [was] 

suggestive of a lack of candor.”

6 Father’s motion for reconsideration made no allegations that Mother 

had committed fraud in her sworn pleadings and/or testimony.
MARTINEZ v. GUTIERREZ

Decision of the Court

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child. Mother requested that Father’s two-hour window of visitation on

Wednesdays be restructured, with Father instead granted extra parenting 

time during the summer months. Mother asserted that she was willing to 

continue to transport the child from Mexico to Arizona every other 

weekend for Father’s parenting time. In his response, Father requested that 

he be made the primary caretaker of the child because Mother “has resided 

primarily in Mexico since the Decree of Divorce,” which has caused 

“considerable hardship” on the parties and child involved.

¶11 In November 2015, Judge Pamela Svoboda held an 

evidentiary hearing on Mother’s petition. Mother testified that she has a 

home in Glendale, Arizona and a home in Rocky Point, Mexico, and that, 

over time, her Mexican home has slowly become her primary home, with 

frequent visits after the birth of her second child. In his closing statement, 

Father’s attorney urged the court to deny Mother’s petition and to order 

that Father should be their child’s primary caretaker, arguing in part that 

Mother had perpetrated a fraud on the court by previously testifying at the 

2013 dissolution hearing that she lived in Arizona.

¶12 After the hearing, the court issued an under advisement 

ruling granting Mother’s petition. The court found that Father’s fears that 

Mother would kidnap the child were unwarranted because Mother 

“continues to travel to and from Mexico with [the child] so Father can have 

his parenting time.” Additionally, the child had been residing in Mexico 

with Mother during her parenting time and had already adjusted to life 

there. The court also found that Father had continued to engage in 

overbearing and aggressive behavior, and he had failed to appropriately 

respond to the child’s medical issues. Accordingly, the court found that 

Mother met her burden of showing that relocating to Rocky Point was in 

the child’s best interests.

¶13 Father timely appealed. We have jurisdiction pursuant to 

A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

ANALYSIS

I. Allegations of Fraud 

¶14 Father argues that the family court’s order should be set aside 

because Mother committed fraud upon the court in 2013. Father asserts that 

Mother lied at the December 2013 dissolution hearing by testifying that she 

lived in Buckeye when, at that time, she already resided in Rocky Point. 

Father also alleges that Mother continued to engage in fraudulent conduct
MARTINEZ v. GUTIERREZ

Decision of the Court

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after the dissolution hearing by not being honest with Father about where 

the child really lived.

¶15 The court’s dissolution decree and orders concerning legal 

decision-making and visitation in 2014 were not appealed, and became 

final. Further, Father has never filed a Rule 85 motion to set aside the decree 

or those orders on the basis of fraud or newly discovered evidence.

¶16 Further, to the extent Father is arguing a new claim of fraud 

upon the court subsequent to the dissolution decree, the record does not 

support Father’s allegations. Mother’s testimony at the relocation hearing 

in 2015 that her Rocky Point home became her primary home after the birth 

of her second child in March 2014 constituted affirmative evidence that she 

was not living in Rocky Point at the time of the dissolution hearing in 2013. 

Although Father, through counsel, argued against the court accepting such 

evidence, it was within the family court’s discretion to accept Mother’s 

testimony and/or otherwise reject Father’s argument that Mother had 

misled the court in 2013, or that the evidence did not otherwise support her 

petition. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 

(App. 1998) (noting that the appellate court defers to the trial court’s 

determination regarding the weight to give conflicting evidence).

¶17 Moreover, we defer to the trial court’s credibility 

determinations and the reasonable inferences to be drawn therefrom. See 

Reynolds v. United Producers & Consumers Co-op., 17 Ariz. App. 145, 147, 495 

P.2d 1352, 1354 (App. 1972). The trial court found that Father did not 

present any evidence that Mother had misled the court. Therefore, we find 

no abuse of discretion.

II. Relocation Determination

¶18 Father next argues that the family court abused its discretion 

by granting Mother’s request to relocate with the child to Rocky Point. We 

review a trial court’s grant of relocation for abuse of discretion. Hurd v. 

Hurd, 223 Ariz. 48, 52, 219 P.3d 258, 262 (App. 2009).

¶19 A.R.S. § 25-408(I) sets forth the factors a court must consider

pertaining to a relocation request and incorporates by reference the best 

interest factors from A.R.S. § 25-403. A court’s decision on a relocation 

request must contain specific findings as to all relevant factors and the 

reasons its decision is in the child’s best interests. See A.R.S. § 25-408(G); 

Owen v. Blackhawk, 206 Ariz. 418, 421, ¶ 9, 79 P.3d 667, 670 (App. 2003). “No 

single factor is controlling” and all “should be weighed collectively.” 

Pollock v. Pollock, 181 Ariz. 275, 278, 889 P.2d 633, 636 (1995).
MARTINEZ v. GUTIERREZ

Decision of the Court

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¶20 Here, as an initial matter, the court acknowledged that joint 

legal decision-making was “logistically possible but more difficult if 

Mother relocates to Rocky Point.” However, after making findings 

regarding the relevant statutory factors, the court concluded that Mother 

met her burden of showing that moving to Rocky Point with the child was 

in the child’s best interests.

¶21 Specifically, the court found that although “Father testified 

that he loves the Child very much[,] . . . Mother has been historically, and 

remains, the primary caretaker of the Child.” See A.R.S. § 25-403(A)(1) 

(requiring the court to consider the “past, present and potential future 

relationship between the parent and the child”). Additionally, “Father’s 

only objection to the relocation is he is afraid [Mother] will kidnap the 

Child,” but Father “offers no evidence [Mother] has engaged in any 

concerning behavior which would lead him to this conclusion.”

¶22 The court also found that, since the parties’ divorce, Mother 

has travelled weekly between Mexico and Arizona so that Father could see 

the child, and that relocation as proposed would in fact give Father more 

parenting time by allowing him extra time with the child in the summer. 

See A.R.S. § 25-408(I)(4)-(5) (requiring the court to consider the likelihood 

that the parent with whom the child will reside after the relocation will 

comply with parenting time orders and whether the relocation will allow a 

realistic opportunity for parenting time with each parent); A.R.S. § 25-

408(G) (“To the extent practicable the court shall also make appropriate 

arrangements to ensure the continuation of a meaningful relationship 

between the child and both parents.”).

¶23 The court noted Father’s concerns about the child learning 

English, but found that the child could learn English and Spanish at the 

bilingual school at which Mother proposed to enroll her in Rocky Point. See

A.R.S. § 25-408(I)(3) (the court must consider “the prospective advantage of 

the move for improving the general quality of life for the custodial parent 

or for the child”).

¶24 In addition to its findings regarding the factors set forth in 

A.R.S. §§ 25-403 and 25-408, the court also noted that “despite being told 

about his overbearing and aggressive personality . . . Father continued to 

engage in similar behavior since, including engaging in very verbally 

abusive exchanges with Mother.” Those findings were based on the 

documentary and video evidence presented at the hearing. In his 

testimony, Father acknowledged this behavior, and it was reasonable for 

the court to rely on such evidence in reaching its conclusions.
MARTINEZ v. GUTIERREZ

Decision of the Court

7

¶25 On the record before us, we find no clear error in the family 

court’s findings. See Ariz. R. Fam. Law P. 82(A). Accordingly, because the 

evidence supports the court’s relocation decision, the court did not abuse 

its discretion in granting Mother’s petition.

III. Negative Findings Regarding Father

¶26 Finally, Father argues that the trial court abused its discretion 

by adopting Judge Foster’s negative findings about Father’s credibility, 

personality, and conduct.

¶27 We do not read the trial court’s ruling to indicate that it 

adopted or relied on Judge Foster’s findings.7 To the extent the court did 

so, however, the court did not abuse its discretion. Judge Foster’s 

observations regarding Father were findings of fact that supported the 

parties’ dissolution decree. Those findings and conclusions were not 

appealed, and the trial court is entitled to rely on them during the pendency 

of the case. Further, as previously noted, the court in 2015 had the 

opportunity to review Father’s correspondence and verbal interactions

with Mother, and to evaluate Father’s demeanor, and its observations 

regarding Father were consistent with those noted by Judge Foster.

¶28 Finally, we note Father failed to provide this court with a 

transcript of the 2013 dissolution hearing. See ARCAP 11(c)(1)(A) (“The 

appellant must order transcripts of superior court proceedings not already 

in the official record that the appellant deems necessary for proper 

consideration of the issues on appeal.”). In the absence of such a transcript, 

we will presume the evidence supports the court’s factual findings and 

conclusions of law. See State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 

30, ¶ 16, 66 P.3d 70, 73 (App. 2003).

 

7 The court’s ruling states that “Mother testified that she adopts, and 

wants the Court to adopt, the A.R.S. § 25-403 findings Judge Foster made in 

the dissolution trial.” However, the court does not state it granted Mother’s 

request.
MARTINEZ v. GUTIERREZ

Decision of the Court

8

CONCLUSION

¶29 The family court’s order is affirmed.