Baker v. Meyer

Citation237 Ariz. 112,346 P.3d 998,709 Ariz. Adv. Rep. 4
Decision Date03 April 2015
Docket NumberNo. 2 CA–CV 2014–0107.,2 CA–CV 2014–0107.
PartiesDeborah C. BAKER, Petitioner/Appellant, v. Matthew M. MEYER, Respondent/Appellee.
CourtCourt of Appeals of Arizona

Ann Nicholson Haralambie, Attorneys, P.C. By Ann M. Nicholson Haralambie, Tucson, Law Offices of Robert G. Lewis, P.C. By Robert G. Lewis, Tucson, for Petitioner/Appellant.

Solyn & Lieberman, PLLC By Melissa Solyn and Scott Lieberman, Tucson, for Respondent/Appellee.

Judge ESPINOSA authored the opinion of the Court, in which Presiding Judge MILLER and Judge HOWARD concurred.

OPINION

ESPINOSA, Judge:

¶ 1 This appeal arises from a dispute over sending a child to an out-of-state boarding school and the resulting substantial reduction in the mother's parenting time with that child. Appellant Deborah Baker argues the trial court erred in ruling in favor of her former husband, appellee Matthew Meyer, and ordering that their son, N., attend a high school in California. For the following reasons, we vacate the order and remand the case for further proceedings.

Factual and Procedural Background

¶ 2 We view the evidence in the light most favorable to upholding the trial court's decision. See Little v. Little, 193 Ariz. 518, ¶ 5, 975 P.2d 108, 110 (1999). Baker and Meyer were married in 1995 and had three children: J., born in 1998, N., born in 2000, and B., born in 2004. In March 2008, a decree of dissolution of marriage was entered, which incorporated the “Meyer Family Parenting Agreement.” Under the decree and parenting agreement, Baker and Meyer have joint legal and physical custody and “agree to share in key decisions related to the children's education, healthcare, and religious upbringing.” The agreement further provides, “The children will be with each parent for seven consecutive days on an alternating basis,” and, “The parent that does not have parenting time with the children for seven consecutive days will pick them up at school on Tuesday and Thursday and will return them to the other parent at 7:00 p.m.” It also specifies which parent has the children for various birthdays and holidays, and prohibits “either parent ... commit[ing] a child to an activity which ... infringes upon the other parent's parenting time without first obtaining the consent of the other parent.”

¶ 3 In February 2014, Meyer filed a motion “regarding [the] children's school enrollment,” requesting “that two of the minor children ... be permitted to enroll and/or re-enroll in the school of their choice.” Specifically, J. would return for his junior year of high school to the Cate School, a boarding school in California, and N. would enroll at Cate for his freshman year. Although Baker first objected to J. returning to Cate, she later agreed because he already had been a Cate student for two years and wished to complete high school there.

¶ 4 Baker, however, continued to object to N. enrolling at Cate, preferring that he attend University High School (UHS) in Tucson so that she could maintain her parenting time with him. Meyer disagreed, pointing out that he and three of his siblings had attended Cate, that attending Cate was “turning into [a family tradition],” and that N. wished to attend there, a preference he later expressed to both the conciliation and trial courts.

¶ 5 In its ruling, the trial court determined the issue to be one of school placement, rather than relocation or modification of parenting time as urged by Baker. The court reviewed specific aspects of UHS and Cate and found [n]either school is essential and neither is more beneficial as a whole for N [.] The court then concluded it was in N.'s “best interest to attend Cate,” given his expressed wishes and the evidence of “strain on the children when they are back and forth between their parents' homes” that was “affecting the relationship between the children and their parents.” There was no question, however, as to the fitness of either parent. We have jurisdiction over Baker's appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1).

Discussion

¶ 6 It is well established that parents have fundamental rights in the custody and control of their children under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (“the interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this Court); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 11, 995 P.2d 682, 684 (2000) (This court and the United States Supreme Court have long recognized that the right to the control and custody of one's children is a fundamental one.”). Arizona's legislature similarly has observed that [t]he liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right.” A.R.S. § 1–601(A) ; see also A.R.S. § 1–602. The outlines of that right are made clear under Arizona public policy and statutes, which direct that a child's best interest includes “substantial, frequent, meaningful and continuing parenting time with both parents,” A.R.S. § 25–103(B), (C), and which protect that right absent exceptional circumstances. See A.R.S. § 25–411(J) (“the court shall not restrict a parent's parenting time rights unless it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional health”);1 cf. Woodworth v. Woodworth, 202 Ariz. 179, ¶ 9, 42 P.3d 610, 611 (App.2002) (visitation rights of parents contribute to child's well-being and are therefore specially protected by legislature).

¶ 7 Joint custody2 arrangements in Arizona require a parenting plan that addresses legal decision-making, each parent's “rights and responsibilities for the personal care of the child,” and decisions regarding education, health care, and religious training. A.R.S. § 25–403.02(C)(1), (2). The plan also must contain [a] practical schedule of parenting time for the child, including holidays and school vacations.” § 25–403.02(C)(3) ; see also A.R.S. § 25–403.01. Courts are directed to “adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time.”

§ 25–403.02(B). We review a parenting agreement de novo because it is incorporated into the dissolution decree and because it is “akin to a type of contractual agreement between the parties.” Jordan v. Rea, 221 Ariz. 581, ¶ 15, 212 P.3d 919, 926 (App.2009). As noted above, the parties' parenting plan here provided that the children were to spend alternating weeks with their parents throughout the year. However, the trial court's order that N. attend Cate and divide his time at home equally between his parents reduced Baker's parenting time3 with N. from 182 to 61 days per year.

¶ 8 The trial court viewed the issue whether to permit N. to enroll in an out-of-state school as one of school placement and applied the best interest factors set forth in Jordan. In that case, a father objected to his children continuing their education at a private religious school, and this court “dr[e]w upon the factors that the legislature has set forth for a determination of best interests as to custody in general as stated in A.R.S. § 25–403(A) and modif[ied] them to reflect school placement.” Jordan, 221 Ariz. 581, ¶ 23, 212 P.3d at 928. We directed the trial court to “consider all relevant factors,” including the following modified § 25–403(A) factors:

“1) the wishes of the child's parent or parents as to [school placement]
2) the wishes of the child as to [school placement]
3) the interaction and interrelationship of the child with [persons at the school] who may significantly affect the child's best interests, and
4) the child's adjustment to [any present school placement].”4

Id., quoting § 25–403(A) (alterations in Jordan ). We formulated these factors, however, in the context of a child's placement at a local school, and neither parent had alleged a change in parenting time. See id. ¶¶ 9, 11, 16. That is not the situation here.5 N.'s attendance at Cate will reduce Baker's yearly time with him by at least 121 days, constituting sixty-six percent of the time she had been allocated in the decree and a profound curtailment of her parental rights.6 The trial court did not address that impact, applying Jordan to focus on the qualities of the schools, the wishes of the child, and “strain on the children when they are back and forth between their parents' homes.”7

¶ 9 Baker argues, as she did below, that the issue in this case is a substantial and disputed modification of parenting time.8 We agree that an important issue in determining N.'s best interests, and a principal point of contention between the parties, is the reduction in parenting time that would result from N. attending an out-of-state boarding school. See generally Thompson v. Thompson, 217 Ariz. 524, ¶ 14, 176 P.3d 722, 725 (App.2008) (relocation of child can “interfere with the custody or parenting time granted to the other parent”); T.D. v. F.X.A., 148 So.3d 187, 194 (La.Ct.App.2014) (order that child attend boarding school a custody decision, not school choice; sending child to school in Utah against mother's wishes essentially abrogated her parenting status and was change of custody); cf. Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 32, 304 P.3d 1115, 1121–22 (App.2013) (“parent entitled to reasonable parenting time ‘to ensure that the minor child has substantial, frequent, meaningful and continuing contact with the parent’), quoting § 25–403.01(D). Accordingly, we conclude the trial court erred as a matter of law in determining this issue as one of school choice.

¶ 10 Nevertheless, we would not reverse the trial court's decision if, despite choosing the wrong framework for the analysis, it considered the proper factors and made...

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