Heuchan v. Lipko ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
CHARLES JACOB HEUCHAN, Petitioner/Appellee,
v.
ASHLEY N. LIPKO, Respondent/Appellant.
No. 1 CA-CV 17-0046 FC
FILED 1-30-2018
Appeal from the Superior Court in Yuma County
No. S1400DO201400270
The Honorable John P. Plante, Judge
VACATED AND REMANDED
COUNSEL
Mary Katherine Boyte PC, Yuma
By Mary K. Boyte Henderson
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Jennifer M. Perkins joined.
HEUCHAN v. LIPKO
Decision of the Court
B R O W N, Judge:
¶1 Ashley Lipko (“Mother”) appeals the superior court’s orders
modifying parenting time and denying her motion for new trial. For the
following reasons, we vacate the court’s May 2016 parenting time order and
remand for proceedings consistent with this decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Charles Jacob Heuchan (“Father”) are the parents
of one child, born in 2012. In March 2014, Father filed a petition to establish,
as relevant here, legal decision-making and parenting time. At an
evidentiary hearing in August 2015, the parties agreed that Mother would
have sole legal decision-making authority. As to parenting time, the
superior found that (1) “the domestic violence and abuse of Ms. Lipko [is]
significant in calculating risk to the child,” (2) “Ms. Lipko left the home due
to domestic violence,” and (3) “Father was brutal to her and to the dog.”
Notwithstanding the domestic violence, the court determined “a few
hours” of supervised parenting time on alternating Saturdays would not
endanger the child.
¶3 In March 2016, Mother filed a notice of intent to relocate with
the child to Colorado. Father filed a petition to prevent relocation,
contending it would not allow a realistic opportunity for parenting time.
Father requested that the superior court prohibit relocation and affirm the
November 2015 parenting time order.
¶4 In May 2016, after a 30-minute hearing, the superior court
allowed relocation of the child, and over Mother’s objection, ordered that
Father have two (non-consecutive) weeks per year of unsupervised
parenting time in Arizona. The court warned Father, “if there’s any bad
behavior on your part, [the twice-a-year visits] probably aren’t going to
happen the following year.” Father indicated he understood and stated,
“I’m just – I - I mean . . . coming from the supervised visits every other week
is - and then going to that is - it’s great. It’s amazing.” Mother implored that
parenting time be supervised “for [the child’s] safety,” which was followed
by the following exchange:
THE COURT: Well, I think [the child’s] old enough
now that you don’t need supervision. He can call you at any
point in time. You can call him. You can check on him. He can
talk. He'll be able to tell you if there's a problem, and there
won't be any further --
2
HEUCHAN v. LIPKO
Decision of the Court
MS. LIPKO: He is four, and he’s not going to
understand what it means if [Father’s] knocking his girlfriend
around. He shouldn’t have to see that or even be put in a
situation to where he can see that.
THE COURT: Well, you better not be seeing it with ---
while the child’s there.
The court denied Mother’s motion for a new trial, and her timely appeal
followed.
DISCUSSION
¶5 Mother argues the superior court erred by modifying
parenting time because Father did not request modification. When a court
order establishes joint legal decision-making authority or parenting time for
two Arizona parents, and one of the parents seeks to relocate the child
outside of the state, the relocation is governed by Arizona Revised Statutes
(“A.R.S.”) section 25-408(A). See Vincent v. Nelson, 238 Ariz. 150, 153,
¶¶ 9-10 (App. 2015). In assessing a relocation request, the superior court
must, to the extent practicable, “make appropriate arrangements to ensure
the continuation of a meaningful relationship between the child and both
parents.” A.R.S. § 25-408(G). Mother concedes the issue of relocation may
require modification of parenting time. See Owen v. Blackhawk, 206 Ariz.
418, 420–21, ¶¶ 8–12 (App. 2003). Although Mother suggests that her
relocation “did not absolutely require a modification of parenting time,”
she should have been “prepared for the possibility” the court would not
agree with her. Cf. Sundstrom v. Flatt, 776 Ariz. Adv. Rep. 23, ¶ 7 (App. Oct.
17, 2017) (rejecting mother’s argument that the superior court erred by
awarding husband legal decision-making when he had not filed his own
petition to modify legal decision-making).
¶6 That said, we agree with Mother that the superior court erred
by modifying the parenting time order without making specific findings
regarding the child’s best interests. Because this case involved a contested
issue of parenting time, the court was required to consider best interests
factors and “make specific findings on the record about all relevant factors
and the reasons for which the decision is in the best interests of the child.”
A.R.S. § 25-403(A), (B); see Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11 (App. 2009).
Although we review a parenting time order for an abuse of discretion, Nold
v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013), a parenting time order without
the required best interests findings is deficient as a matter of law, Reid v.
Reid, 222 Ariz. 204, 210, ¶ 20 (App. 2009). We therefore vacate the court’s
3
HEUCHAN v. LIPKO
Decision of the Court
order and remand for further proceedings. Because a decision concerning
parenting time rests on the child’s best interests, on remand the parties must
be allowed sufficient time to prepare and present all relevant evidence to
the court. See Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11 (App. 2016).
¶7 The superior court also erred in failing to account for
Father’s domestic violence (past and present) in determining a new
parenting time arrangement. See A.R.S. § 25-403.03(F) (“If the court finds
that a parent has committed an act of domestic violence, that parent has the
burden of proving to the court’s satisfaction that parenting time will not
endanger the child or significantly impair the child’s emotional
development.”). Given the superior court’s 2015 findings relating to
Father’s domestic violence, together with the allegations Mother briefly
raised at the May 2016 relocation hearing, the record does not reflect that
the court held Father to his burden. Father offered no evidence to prove
the child would no longer be endangered or his emotional development
impaired by unsupervised parenting time. See A.R.S. § 25–403.03(F).
Instead, the court found credible Mother’s testimony that Father “yell[s]
and yell[s] obscenities to me and my husband” over the telephone. The
court explained to Father: “You have a history, at least. That’s the history.
You know, when you have a history, sometimes you get wrongly accused.
. . . That’s kind of the way it works, but she has no reason to lie about this,
that you’re not pleasant on the phone.” And to the extent the court
concluded that Father carried his burden under § 25-403.03(F) because the
child was four years old and could “tell you if there’s a problem,” the court
erred.
¶8 Finally, in determining whether to allow a contested
relocation, the superior court must consider the child’s best interests by
reference to the relevant factors listed in A.R.S. §§ 25–408(I) and–403. See
A.R.S. § 25–408(G), (I); see also Owen, 206 Ariz. at 420–21, ¶¶ 8–12. It was
Mother’s burden to prove that moving to Colorado was in the child’s best
interests. See A.R.S. § 25–408(G); Pollock v. Pollock, 181 Ariz. 275, 277 (App.
1995). The record does not reflect the superior court evaluated the child’s
best interests in allowing Mother to relocate to Colorado, but Father did not
appeal or otherwise challenge the relocation order. Accordingly, we
consider the issue waived. See State v. Carver, 160 Ariz. 167, 175 (1989)
(“Failure to argue a claim usually constitutes abandonment and waiver of
that claim.”)
4
HEUCHAN v. LIPKO
Decision of the Court
CONCLUSION
¶9 For the foregoing reasons, we vacate the May 2016 parenting
time order and remand so the superior court can “perform the necessary
statutory analysis.” See Nold, 232 Ariz. at 274, ¶ 15.
AMY M. WOOD • Clerk of the Court
FILED: AA
5