Woyton v. Ward

• Citation: 247 Ariz. 529,453 P.3d 808
• Decision Date: 24 October 2019
• Docket Number: No. 1 CA-CV 18-0677 FC,1 CA-CV 18-0677 FC
• Parties: In re the Marriage of: Lucas Alexander WOYTON, Petitioner/Appellant, v. Ticiane WARD, Respondent/Appellee.
• Court: Court of Appeals of Arizona

247 Ariz. 529

453 P.3d 808

In re the Marriage of: Lucas Alexander WOYTON, Petitioner/Appellant,

v.Ticiane WARD, Respondent/Appellee.

No. 1 CA-CV 18-0677 FC

Court of Appeals of Arizona, Division 1.

FILED October 24, 2019

Berkshire Law Office, PLLC, Tempe, By Keith Berkshire, Erica Gadberry, Counsel for Petitioner/Appellant

Cantor Law Group, PLLC, Phoenix, By Lisa A. Whalen, Counsel for Respondent/Appellee

Judge Jennifer M. Perkins delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.

PERKINS, Judge:

¶1 Lucas Woyton ("Father") appeals the trial court’s parenting time and child support orders in its decree of dissolution. Father argues the court erred by improperly considering the factors in A.R.S. § 25-403. Father also contends the court erred by failing to consider the factors set forth in A.R.S. § 25-408 relating to the relocation of a child. Finally, Father argues the court erred in making evidentiary rulings and in its child support calculation. We hold that A.R.S. § 25-408 applies to parenting plans that necessarily relocate the child out of state, over the other parent’s objection, whether entered as part of a dissolution decree or a post-decree modification. For these reasons and those that follow, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Father and Ticiane Ward ("Mother") married in August 2015 and have one child, born in 2016. Father and Mother serve, or have served, in the military and lived in Yuma with their child for at least six months before Father filed for legal separation. In early June 2017, Mother left Arizona for Massachusetts with the child without Father’s consent. Two days later, Father filed a petition for legal separation and motion for emergency temporary orders without notice. Based on Father’s allegations, the court granted Father’s motion the day it was filed and awarded him sole legal decision-making on a temporary basis. The court also temporarily ordered primary parenting time to Father and allowed Mother supervised visitation in Yuma. Around the same time, a Massachusetts court granted Mother and the child an order of protection against Father. Father then petitioned the Arizona court seeking an order directing law enforcement to return the child to Arizona. Father traveled to Massachusetts and successfully requested that a local court enforce a custody warrant. While he was in Massachusetts, law enforcement took custody of the child and the court later released her to Father’s care.

¶3 In Arizona, Mother filed a petition for dissolution, responded to Father’s petition for legal separation and challenged the temporary orders. The court held a three-day temporary orders hearing ending in September 2017 and modified the temporary orders to grant joint legal decision-making, with Father as the temporary primary residential parent in Arizona. The court also granted Mother additional parenting time.

¶4 After a February 2018 dissolution trial, the court awarded Mother and Father joint legal decision-making. The court further ordered that Mother, still living in Boston, be the child’s primary residential parent and awarded Father parenting time. The court denied Father’s subsequent motion for a new trial. Father now appeals.

DISCUSSION

¶5 We review parenting time orders for an abuse of discretion. Nold v. Nold , 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013). The trial court abuses its discretion when it commits legal error, State v. Bernstein , 237 Ariz. 226, 228, ¶ 9, 349 P.3d 200, 202 (2015), or when the record is "devoid of competent evidence to support" the court’s decision, Little v. Little , 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999). We review matters of law, including the interpretation of statutes and court rules, de novo . Duckstein v. Wolf , 230 Ariz. 227, 231, ¶ 8, 282 P.3d 428, 432 (App. 2012).

I. Presumptively Equal Parenting Time

¶6 When entering a decree of dissolution involving minor children, the "court shall determine ... parenting time ... in accordance with the best interests of the child." A.R.S. § 25-403(A). When the parties contest parenting time, "the court shall adopt a parenting plan that ... maximizes [the parents’] respective parenting time." A.R.S. § 25-403.02(B). Section 25-403 provides a non-exhaustive list of factors the court must consider when determining parenting time orders. See A.R.S. § 25-403(A)(1)–(11). As a general rule equal or near-equal parenting time is presumed to be in a child’s best interests. See Maricopa Cty. Juv. Action No. JD-4974 , 163 Ariz. 60, 62, 785 P.2d 1248, 1250 (App. 1990) ("A father has a right to co-equal custody of his child but not exclusive custody absent a court order to that effect."). Thus, the court errs, as a matter of law, when it applies a presumption against equal parenting time. Barron v. Barron , 246 Ariz. 580, 584, ¶ 10, 443 P.3d 977, 981 (App. 2018) ("Barron I "), vacated in part on other grounds by Barron v. Barron , 246 Ariz. 449, 452, ¶ 21, 440 P.3d 1136, 1139 (2019). Equal parenting time, however, may not always be possible, particularly when the parties live in different states or are separated by a considerable distance.

A. Relocation Factors Under Section 25-408

¶7 Father argues that because this is a relocation case, the court erred by failing to consider the best interest factors of A.R.S. § 25-408(I). This court has previously held that compliance with A.R.S. § 25-408(I) is not required absent satisfaction of § 25-408(A) ’s conditions that: (1) the parties’ have a written agreement or pre-existing orders about legal decision-making or parenting time, and (2) both parties reside in the state. Buencamino v. Noftsinger , 223 Ariz. 162, 163, ¶¶ 8–10, 221 P.3d 41, 42 (App. 2009). The Buencamino court held that although an analysis of § 25-408 is not required in the absence of the § 25-408(A) conditions, a court may consider those factors where appropriate. Id. at ¶ 10 n.3. Father asserts that failing to apply § 25-408(I) ’s factors when allowing the relocation of a child from the home state during an initial custody decision is inconsistent with the statute’s plain language and denies parents equal protection under the law.

¶8 Whether § 25-408 applies is an issue of statutory interpretation that we review de novo . See Duckstein , 230 Ariz. at 231, ¶ 8, 282 P.3d at 432. When interpreting a statute, we begin with its plain language. Silver v. Pueblo Del Sol Water Co. , 244 Ariz. 553, 559–60, ¶ 22, 423 P.3d 348, 354–55 (2018). Buencamino limited § 25-408 ’s application based on the language in § 25-408(A),¹ which states:

A. If by written agreement or court order both parents are entitled to joint legal decision-making or parenting time and both parents reside in the state, at least forty-five days’ advance written notice shall be provided to the other parent before a parent may do either of the following: 1. Relocate the child outside the state. 2. Relocate the child more than one hundred miles within the state.

By its terms, this subsection does not limit the court’s authority to determine relocation issues or define what constitutes a "relocation" under § 25-408. See Berrier v. Rountree , 245 Ariz. 604, 606, ¶ 9 n.2, 433 P.3d 8, 10 (App. 2018) ( Section 25-408(A) ’s condition that both parties reside in the same state "describes the circumstances under which a party must give notice before effecting certain types of relocations. Nothing in the statute provides that subsection (A) limits the types of relocation issues that the court may decide."). Thus, the court may resolve relocation issues regardless of whether both parents reside in the state or have pre-existing orders or agreements. Here, Father asserts the court must apply § 25-408 before changing the child’s primary residence over Father’s objection. We agree.

¶9 "The court shall determine whether to allow the parent to relocate the child in accordance with the child’s best interests. The burden of proving what is in the child’s best interests is on the parent who is seeking to relocate the child." A.R.S. § 25-408(G). In assessing the child’s best interests, the court "shall consider," inter alia , the reasons for the relocation, the potential advantages of the relocation to both the parent and the child, and "[w]hether the relocation will allow a realistic opportunity for parenting time with each parent." § 25-408(I). Based on this language, the legislature has placed the burden of proving that a proposed relocation is in the child’s best interests on the parent seeking relocation. Thus, the court must apply § 25-408(G) and § 25-408(I) when resolving any contested relocation, regardless of whether § 25-408(A) requires particular notice.

¶10 Our conclusion that § 25-408 applies is consistent with our published decisions since Buencamino . First, Gutierrez v. Fox recognized that it is not error for the trial court to consider § 25-408 ’s relocation factors even when not required to consider those factors under Buencamino . 242 Ariz. 259, 270, ¶ 44, 394 P.3d 1096, 1107 (App. 2017). Later, in Berrier , this Court addressed the viability of Buencamino directly, albeit in a different context. See Berrier , 245 Ariz. at 605–06, ¶¶ 2–7, 433 P.3d at 9–10. In Berrier , the parties, who lived in separate states, shared roughly equal parenting time until the child started school. Id. at 605, ¶ 3, 433 P.3d at 9. At that point, Father petitioned to modify the parenting plan so that the child could attend school in Arizona. Id. at 605, ¶ 4, 433 P.3d at 9. On appeal, this Court held that the change in the parenting schedule was effectively a relocation because it required the trial court to establish a single home state and primary residence for the child. Id. at 606, ¶ 8, 433 P.3d at 10. "When deciding a relocation issue that implicates a change in parenting time, the court must determine whether relocation would serve the child’s best interests by considering and making...