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In re Marriage of Woyton

Court of Appeals of Arizona, First Division

October 24, 2019

In re the Marriage of: LUCAS ALEXANDER WOYTON, Petitioner/Appellant,
v.
TICIANE WARD, Respondent/Appellee.

          Appeal 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

          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.

          OPINION

          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 (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. 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 (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 part ...


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