NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of:

MICHAEL LEE JORDAN, Petitioner/Appellant,

v.

SARAH ELIZABETH SMITH, Respondent/Appellee.

No. 1 CA-CV 14-0365 FC

FILED 3-31-2015

Appeal from the Superior Court in Maricopa County

No. FC2012-007909

The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Michael Lee Jordan

Petitioner/Appellant

Steven R. Garcia, P.L.L.C., Phoenix

By Steven R. Garcia

Counsel for Respondent/Appellee
JORDAN v. SMITH

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in 

which Judge Kenton D. Jones and Judge Donn Kessler joined.

G E M M I L L, Judge:

¶1 Michael L. Jordan (“Father”) appeals the family court’s order 

authorizing relocation of minor child, A.S., with Sarah E. Smith (“Mother”), 

including the best interests finding. For the reasons that follow, we affirm.

FACTS

¶2 In October 2012, Father filed in Maricopa County Superior 

Court a petition for paternity, child custody, parenting time, and child 

support regarding A.S. Mother’s counsel accepted service on her behalf 

because Mother had moved to Pennsylvania with A.S. Mother filed a 

response in February 2013. Both parents requested sole custody of the 

minor child, reasonable parenting time for the other parent, and for child 

support to be paid by the non-custodial parent. Mother, however, asked 

the court to approve a “long distance” parenting plan because she lived in 

Pennsylvania.

¶3 In March 2013, the parties entered into an agreement, 

stipulating that Father was the biological father and each party would 

undergo a psychological evaluation. The family court appointed Dr. S.F. to 

conduct the evaluations and prepare a written report. The court also 

ordered that the report would be entered into evidence despite any 

evidentiary objections that could be made.

¶4 The court issued temporary orders in a May 2013 minute 

entry. The family court found that it had jurisdiction because A.S. resided 

in Arizona from the time of her birth until she relocated to Pennsylvania 

with Mother. The court issued orders regarding visitation, child support, 

and legal decision making. The court granted the parties joint legal decision 

making, allowed Mother to remain in Pennsylvania, and ordered her to 

provide Father with weekly updates regarding A.S. Father was ordered to 

pay child support and granted visitation time in Pennsylvania. Also, the 

court granted Father a downward deviation in child support because of his 

anticipated travel costs to visit A.S.
JORDAN v. SMITH

Decision of the Court

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¶5 In August 2013, the parties stipulated to follow Dr. S.F.’s

recommendations. The parties agreed that they would abstain from 

consuming alcohol, participate in ongoing treatment pursuant to the 

diagnostic hypotheses generated by Dr. S.F., and submit to weekly random 

urinalysis through TASC. Furthermore, Father agreed to seek treatment for 

alcohol abuse.

¶6 The family court conducted a trial in September 2013 and 

issued a paternity decree on October 1, 2013. In the paternity decree, the 

court made best interests findings pursuant to Arizona Revised Statutes 

(“A.R.S.”) § 25-408(H). The court found that both parties had failed to 

comply with certain portions of the stipulated agreements and court orders. 

Mother did not submit weekly urinalysis samples for testing. Father failed 

to pay child support and admitted to using his money for personal 

entertainment rather than saving it for travel to see A.S. The court did find

that the parties complied with other provisions of the agreements and 

orders. Father visited A.S. in Pennsylvania on one occasion. It was 

reported by a supervisor and Father’s mother that the visit went well. 

Mother emailed weekly updates to Father, through her counsel, and 

attached pictures of A.S.; Father, however, did not respond. The court was 

most concerned, though, with both parents’ history of substance abuse. 

Therefore, the court issued orders regarding relocation, legal decision 

making, and parenting time that could vary contingent upon Mother and 

Father’s completion by February 28, 2014 of a compliance plan ordered by 

the court. 

¶7 The compliance plan for both parents mandated that they 

participate in ongoing treatment pursuant to Dr. S.F.’s diagnostic 

hypotheses and in random urinalysis testing. Specifically for Father, the 

court required that: he abstain from consuming alcohol for twelve months;

wear a SCRAM bracelet detecting alcohol consumption for four months;

complete a parenting class and a 20-week class through Community 

Bridges; exercise parenting time every month in Pennsylvania; and comply 

with his financial obligations of child support and arrearages. The court 

required Mother to abstain from alcohol consumption during her parenting 

time.

¶8 Father filed a compliance plan report in January 2014. He

asserted that he was compliant with most of the requirements except the 

SCRAM bracelet requirement, which he argued was because of the cost. He 

requested that the court exclude this requirement due to financial hardship 
JORDAN v. SMITH

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and because he had not consumed alcohol for six months. Mother also filed 

a compliance report that indicated she fully complied with the court’s 

orders. The court denied Father’s request and noted that he had not 

attempted to comply with the SCRAM bracelet requirement until December 

2013, which was two months after the court issued the compliance plan. 

Father then filed a second compliance plan report on February 18, 2014 

where he averred that he was in compliance with the SCRAM bracelet 

requirement. Finally, on February 25, Father moved to extend the time to 

complete the compliance plan acknowledging he would be unable to 

complete the plan’s requirements by the 28th. He argued that he overpaid

the arrearage obligation and had “third-party funding” that would give 

him the ability to comply with the financial requirements. By February 28, 

Mother was fully compliant. In a response to Father’s motion to extend, 

Mother contended that Father had not paid arrearages in full.

¶9 After reviewing the compliance plan reports and other 

documents filed by the parents, the court entered findings and orders in a 

signed ruling filed April 4, 2014 (“April 4 order”). The court found that 

Father did not enroll in individual counseling treatment until February 28, 

2014 and that despite the areas of compliance, Father’s efforts were “too 

little, too late.” The court also found that it was in the child’s best interests 

to be allowed to relocate with Mother. Furthermore, the court indicated 

that the October 1 paternity decree was self-executing and that the 

provisions of that order were final.

¶10 Father seeks appellate review of certain issues from both the 

paternity decree and the April 4 order. Mother contends this court lacks 

jurisdiction regarding the paternity decree because it was a final, 

appealable order and Father did not appeal within 30 days of the decree. If 

the paternity decree was final and appealable when entered on October 1, 

2013, then Mother is correct and Father cannot now raise issues settled 

therein. If the decree was not a final judgment, but rather the court’s 

memorialization of alternative outcomes that depended on the parties’ 

performance of the compliance plan and a further order of the court

regarding that compliance, then the April 4 order was the final, appealable 

order. Father’s notice of appeal within 30 days after the April 4 order would 

thus trigger appellate jurisdiction over the decree as well as any issues 

resolved in the April 4 order. To decide otherwise would require Father to 

have filed his Notice of Appeal prior to the trial court’s final order in which 

the contingent provisions were to be made applicable. While the trial court 

did refer to the October 1 decree as a final order, we conclude that in light

of the contingencies built into that decree, it was an interlocutory order and 
JORDAN v. SMITH

Decision of the Court

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the April 4 order was the final, appealable order. As a result, this court has 

jurisdiction under A.R.S. § 12-2101(A)(1). We also note that, as the 

following analysis reveals, the final result is the same either way. 

ANALYSIS

¶11 On appeal, Father challenges the order authorizing Mother’s 

relocation to Pennsylvania and the court’s best interests finding.

1

¶12 The relocation statute, A.R.S. § 25-408, applies when there is

(1) a written agreement or court order that provides for custody or 

parenting time by both parents, and (2) both parents reside in Arizona. 

Buencamino v. Noftsinger, 223 Ariz. 162, 164, ¶¶ 7–10, 221 P.3d 41, 43 (App. 

2009) (deciding when the family court is required to consider or make 

specific findings under the § 25-408(H) factors). We are not certain that, 

under Buencamino, the relocation statute applies in this case. But we need 

not make that determination. Even if there is no requirement to consider 

the statutory relocation factors, a family court judge has the discretion to 

consider them. Id. at 164 n.3, ¶ 10, 221 P.3d at 43. Additionally, we note 

that at the time Father initiated the action, Mother and A.S. were still in

Arizona. A temporary court order providing Father with visitation rights 

and joint legal decision-making was entered in May 2013, after Mother 

moved to Pennsylvania. In that order, the court acknowledged that at no 

time prior did there exist a court order for legal decision-making or custody. 

The court, however, allowed Mother to remain in Pennsylvania pending a 

final decision and indicated that the court would treat the move as a request 

for relocation. Therefore, although both elements identified in Buencamino

may not have been fully satisfied during this action, no error occurred when 

the family court chose to consider the relocation factors listed under A.R.S. 

§ 25-408(H).

 

1 Father presented additional issues regarding the psychologist’s 

recommendations and the denial of his motion to extend the compliance 

deadline. The brief provides no citation to the record or relevant 

supporting authority; therefore we will not review those issues. See 

ARCAP 13(a)(6) (an appellant’s brief shall contain arguments “with 

citations to the authorities, statutes and parts of the record relied on”);

Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 

(App. 2007) (finding an argument waived because appellant failed to cite 

relevant supporting authority and did not adequately develop the 

argument).
JORDAN v. SMITH

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¶13 This court reviews a relocation decision for an abuse of 

discretion. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19, 219 P.3d 258, 262 (App. 

2009). An abuse of discretion exists when there is no competent evidence 

supporting the decision or if the court commits an error of law. Id.; Fuentes 

v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004). This court 

will accept the trial court’s factual findings unless clearly erroneous or 

unsupported by credible evidence. Federoff v. Pioneer Title & Trust Co. of 

Ariz., 166 Ariz. 383, 388, 803 P.2d 104, 109 (1990). 

¶14 The family court may allow relocation when it is in the child’s 

best interests. A.R.S. § 25-408(F). The burden of proving relocation is in the 

child’s best interests is on the parent seeking to relocate. Id. The family 

court is required to make specific findings on the record supporting its 

decision that relocation is in the best interests of the child. Hurd, 223 Ariz. 

at 52, ¶ 20, 219 P.3d at 263; see also Owen v. Blackhawk, 206 Ariz. 418, 420–22, 

¶¶ 8, 12, 79 P.3d 667, 669–71 (App. 2003) (requiring the family court to 

explain how it weighed the relocation factors). The family court is required 

to consider “all relevant factors” in accordance with A.R.S. § 25-408(H), 

including:

1. The factors prescribed under § 25–403.

2. Whether the relocation is being made or opposed in 

good faith and not to interfere with or to frustrate the 

relationship between the child and the other parent or 

the other parent’s right of access to the child.

3. The prospective advantage of the move for 

improving the general quality of life for the custodial 

parent or for the child.

4. The likelihood that the parent with whom the child 

will reside after the relocation will comply with 

parenting time orders.

5. Whether the relocation will allow a realistic 

opportunity for parenting time with each parent.

6. The extent to which moving or not moving will 

affect the emotional, physical or developmental needs 

of the child.
JORDAN v. SMITH

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7. The motives of the parents and the validity of the 

reasons given for moving or opposing the move 

including the extent to which either parent may intend 

to gain a financial advantage regarding continuing 

child support obligations.

8. The potential effect of relocation on the child’s 

stability.

A. October 2013 Paternity Decree

¶15 In the October 2013 paternity decree, the family court made 

specific findings pursuant to § 25-408(H). The court found that Mother 

relocated to Pennsylvania for safety concerns and to be closer to family, but 

that given the distance Father’s ability to visit A.S. was limited. See A.R.S. 

§ 25-408(H)(2)–(3) & (5). The court indicated there were concerns with 

“Mother’s willingness to involve Father in decision-making.” See A.R.S. § 

25-408(H)(4). It further found that each parent’s motivation was a “genuine 

desire to spend time with the child” and that relocating to Pennsylvania 

would not undermine A.S.’s stability if the relocation occurred before the 

child turned two-years old. See A.R.S. § 25-408(H)(7)–(8). Testimony and 

documentary evidence supported the court’s factual findings. See Federoff, 

166 Ariz. at 388, 803 P.2d at 109. 

¶16 In accordance with A.R.S. § 25-408(H)(1), the family court is 

required to perform further factual analysis by evaluating the factors found 

within A.R.S. § 25-403(A) in order to determine the child’s best interests. 

The factors in § 25-403(A) include:

1. The past, present and potential future relationship 

between the parent and the child.

2. The interaction and interrelationship of the child 

with the child’s parent or parents, the child’s siblings 

and any other person who may significantly affect the 

child’s best interest.

3. The child’s adjustment to home, school and 

community.
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4. If the child is of suitable age and maturity, the 

wishes of the child as to legal decision-making and 

parenting time.

5. The mental and physical health of all individuals 

involved.

6. Which parent is more likely to allow the child 

frequent, meaningful and continuing contact with the 

other parent. This paragraph does not apply if the 

court determines that a parent is acting in good faith to 

protect the child from witnessing an act of domestic 

violence or being a victim of domestic violence or child 

abuse.

7. Whether one parent intentionally misled the court 

to cause an unnecessary delay, to increase the cost of 

litigation or to persuade the court to give a legal 

decision-making or a parenting time preference to that 

parent.

8. Whether there has been domestic violence or child 

abuse pursuant to § 25-403.03.

9. The nature and extent of coercion or duress used 

by a parent in obtaining an agreement regarding legal 

decision-making or parenting time.

10. Whether a parent has complied with chapter 3, 

article 5 of this title.

11. Whether either parent was convicted of an act of 

false reporting of child abuse or neglect under § 13-

2907.02.

¶17 The court made specific findings regarding each of these 

factors and credible evidence supported those findings. It found that A.S. 

was thriving in Pennsylvania and has a good relationship with Mother, 

Father, and extended family. A.R.S. § 25-403(A)(1)–(3). Mother provided 

Father with updates regarding A.S. but she has not allowed Father to 

participate in decision-making. A.R.S. § 25-403(A)(6).
JORDAN v. SMITH

Decision of the Court

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¶18 The court was most concerned with Father and Mother’s 

mental health and history of alcohol use. See A.R.S. § 25-403(A)(5); see also 

A.R.S. § 25-403.04. The court concluded, based on Dr. S.F.’s report and 

testimony, that each parent had a history of alcohol abuse. Credible 

evidence supported that conclusion. Dr. S.F. examined both parents in May 

2013. In June 2013, Father was discharged from his employment for 

“showing up under the influence” of alcohol. The court found that Mother 

had worked in a bar for ten years and that she has also driven under the 

influence. Because of the parents’ history of alcohol abuse, Dr. S.F. made 

recommendations to resolve those issues and the parties stipulated to 

follow them. The court found that neither parent had “followed-up” with 

all of Dr. S.F.’s recommendations. As to Mother, the court found that she 

had failed to undergo alcohol screenings. Regarding Father, the family

court found that he had not complied with the court’s orders to pay child 

support. The court found, instead, that Father used this money for other 

entertainment activities rather than paying child support or saving money 

for travel to visit A.S. The evidence supported the court’s findings. The 

court, however, offered Father and Mother another opportunity to remedy 

these issues by instituting the compliance plan to be completed by February

28, 2014. 

¶19 The court concluded, in the October 2013 paternity decree,

that “determining the best interests of the Child at [the] time require[d]

balancing a number of considerations.” The record supports this 

conclusion. Neither parent clearly proved to the court that they could 

comply with court orders. Nor had the parents persuaded the court that 

their history of alcohol abuse should no longer be a concern. The court 

found that if Father could remedy the concerns raised by Dr. S.F., then a 

return to Arizona would be in the child’s best interests; however, if he could 

not, then the court would authorize relocation. The court indicated similar 

concerns regarding Mother and her ability to parent.

B. April 4 Order

¶20 After the February 28 deadline passed, the court entered its 

findings in the April 4 order. The court concluded that Father made efforts 

to adhere to the compliance plan but ultimately failed to complete all the 

terms. Specifically, the court found that Father failed to enroll in treatment 

that he had agreed to and the court had ordered after Dr. S.F. recommended 

it. As a result, the family court authorized relocation because it concluded 

it was in the child’s best interests to achieve permanency and stability. The 

evidence supporting that determination, and the findings from §§ 25-
JORDAN v. SMITH

Decision of the Court

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403(A) and -408(H) included in the October 2013 paternity decree, support 

the conclusion in the April 4 order that relocation with Mother was in the 

child’s best interests. 

ATTORNEY FEES ON APPEAL

¶21 Mother requested an award of attorney fees on appeal, citing 

A.R.S. §§ 12-349 and 25-324. We conclude that § 12-349 is not applicable. 

Section 25-324, however, is applicable. But having considered the factors 

set forth in A.R.S. § 25-324 and in the exercise of our discretion, we deny 

Mother’s request for an award of fees. As the prevailing party on appeal,

Mother is entitled to an award of taxable costs incurred on appeal upon her

compliance with ARCAP 21.

CONCLUSION

¶22 The family court made the specific findings necessary under 

the law, and those findings are supported by credible evidence and not 

clearly erroneous. We conclude that the family court did not abuse its 

discretion, and for these reasons we affirm.