In re the Marriage of: LUCAS ALEXANDER WOYTON, Petitioner/Appellant,
TICIANE WARD, Respondent/Appellee.
from the Superior Court in Yuma County No.
S1400-DO-2017-00838 The Honorable John Paul Plante, Judge.
Berkshire Law Office, PLLC, Tempe By Keith Berkshire, Erica
Gadberry Counsel for Petitioner/Appellant
Law Group, PLLC, Phoenix By Lisa A. Whalen Counsel for
Jennifer M. Perkins delivered the opinion of the Court, in
which Presiding Judge Samuel A. Thumma and Judge Paul J.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
We review parenting time orders for an abuse of discretion.
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013). The trial court abuses its discretion when it commits
legal error, State v. Bernstein, 237 Ariz. 226, 228,
¶ 9 (2015), or when the record is "devoid of
competent evidence to support" the court's decision,
Little v. Little, 193 Ariz. 518, 520, ¶ 5
(1999). We review matters of law, including the
interpretation of statutes and court rules, de novo.
Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App.
Presumptively Equal Parenting Time
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 (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
(App. 2018) ("Barron I"), vacated in