Appeal
from the Superior Court in Yuma County No. S1400DO201501132
The Honorable Stephen J. Rouff, Judge Pro Tempore
Mary
Katherine Boyte, PC, Yuma By Mary K. Boyte Henderson Counsel
for Petitioner/Appellee
S.
Alan Cook, PC, Phoenix By S. Alan Cook, Sharon Ottenberg
Counsel for Respondent/Appellant
Presiding Judge Diane M. Johnsen delivered the opinion of the
Court, in which Judge Paul J. McMurdie and Judge David D.
Weinzweig joined.
OPINION
JOHNSEN, JUDGE
¶1
Paul Roger Barron appeals from the dissolution decree ending
his marriage to Shelly Rae Barron. We reverse and remand the
decree's parenting-time provisions because they are the
product of impermissible presumptions about equal parenting
time and gender. We also reverse portions of the decree that
violate federal law governing military retirement pay and
vacate and remand the attorney's fees award. In all other
respects, we affirm the decree.
FACTS
AND PROCEDURAL BACKGROUND
¶2
The parties ("Husband" and "Wife,"
respectively) were married in 2004 and have three children,
all girls, born in 2006, 2008 and 2010, respectively. The
family moved to Arizona in 2013, when Husband, a helicopter
pilot on active duty with the United States Marine Corps, was
transferred to Yuma. Wife filed a petition for dissolution in
August 2015, but the couple remained together in the marital
home until shortly after the superior court issued temporary
orders in March 2016.
¶3
Following a three-day trial, the superior court entered a
decree of dissolution in May 2017. Relevant to this appeal,
the decree continued joint legal decision-making but reduced
Husband's parenting time to 130 days a year, plus
specified holidays and a summer vacation, and divided the
community's interest in Husband's military
retirement. The court declined both parties' requests for
equalization payments and awarded attorney's fees to
Wife.
¶4
We have jurisdiction of Husband's timely appeal pursuant
to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes ("A.R.S.") sections
12-120.21(A)(1) (2018) and -2101(A)(1) (2018).[1]
DISCUSSION
A.
Parenting Time.
¶5
By agreement, the temporary orders had allowed Husband more
parenting time than Wife because Wife was in training to
become a firefighter/emergency medical technician. The
parties shared joint legal decision-making, but temporary
orders granted Husband parenting time every Thursday through
Sunday until Wife finished her training and "bec[ame]
employed." Wife completed her training within a few
months but did not take a full-time job and did not petition
the court for weekend parenting time. The dissolution decree,
entered 14 months after issuance of temporary orders, reduced
Husband's parenting time to one overnight a week plus
every other weekend from Friday afternoon through Monday
morning.
¶6
On appeal, Husband argues the superior court abused its
discretion in failing to order equal parenting time. We
review a parenting-time order for an abuse of discretion.
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013). An abuse of discretion occurs when the court commits
legal error, Arpaio v. Figueroa, 229 Ariz. 444, 447,
¶ 7 (App. 2012), or "when the record, viewed in the
light most favorable to upholding the trial court's
decision, is 'devoid of competent evidence to
support' the decision," Little v. Little,
193 Ariz. 518, 520, ¶ 5 (1999) (quoting Fought v.
Fought, 94 Ariz. 187, 188 (1963)).
¶7
As relevant here, A.R.S. § 25-403.02(B) (2018) requires
the superior court to adopt a parenting plan that is
"[consistent with the child's best interests in
§ 25-403" and that "maximizes [each
parent's] respective parenting time." Section 25-403
(A) (2018) requires the court to determine parenting time
"in accordance with the best interests of the
child." Further, § 25-403(A) states:
The court shall consider all factors that are relevant to the
child's physical and emotional well-being, including:
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 . . . .
3. The child's adjustment to home, school and community.
4. If the child is of a 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.
¶8
In findings and conclusions issued in support of the
decree's parenting-time provisions, the superior court
stated:
The primary focus concerning parenting time is the best
interest of the children and not the parents. If the
interests of parents are more important than children, then
children, like timeshares, would always be equally
time-shared.
A totality of circumstances tip the scales in favor of
designation of [Wife] as primary residential parent.
A. [Wife] has been the primary care provider for the children
prior to this action. The children have historically spent
more time with [Wife] than [Husband] since their birth.
B. The children have not fully adjusted to equal parenting
time during the pendency of the temporary orders. The court
finds the children want and need to spend more time with
[Wife].
C. The military duties of [Husband] often make him
unavailable during his parenting time resulting in the
children spending too much time with the paternal
grandparents ...