Granted in part February 05, 2019
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the Superior Court in Yuma County; No. S1400DO201501132;
The Honorable Stephen J. Rouff, Judge Pro Tempore . AFFIRMED
IN PART; REVERSED AND VACATED AND REMANDED IN PART
Katherine Boyte, PC, Yuma, By Mary K. Boyte Henderson,
Counsel for Petitioner/Appellee
Cook, PC, Phoenix, By S. Alan Cook, Sharon Ottenberg, Counsel
Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig
1] Paul Roger Barron appeals from the dissolution
decree ending his marriage to Shelly Rae Barron. We reverse
and remand the decrees 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 attorneys 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 Husbands parenting time to 130 days a year, plus
specified holidays and a summer vacation, and divided the
communitys interest in Husbands military retirement. The
court declined both parties requests for equalization
payments and awarded attorneys fees to Wife.
4] We have jurisdiction of Husbands 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).
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 Husbands 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
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11, 304 P.3d
1093, 1096 (App. 2013). An abuse of discretion occurs when
the court commits legal error, Arpaio v. Figueroa,
229 Ariz. 444, 447, ¶ 7, 276 P.3d 513, 516 (App. 2012), or
"when the record, viewed in the light most favorable to
upholding the trial courts decision, is devoid of competent
evidence to support the decision," Little v.
Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110
(1999) (quoting Fought v. Fought, 94 Ariz. 187, 188,
382 P.2d 667 (1963) ).
7] As relevant here, A.R.S. § 25-403.02(B) (2018)
requires the superior court to adopt a parenting plan that is
"[c]onsistent with the childs best interests in §
25-403" and that "maximizes [each parents]
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
childs 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 childs parent or parents ....
3. The childs 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
8] In findings and conclusions issued in support of
the decrees parenting-time provisions, the superior court
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 ...