Dineyazhe v. Onco-Ingyadet ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
TERRELL DINEYAZHE, Petitioner/Appellee,
v.
DIANA ONCO-INGYADET, Respondent/Appellant.
No. 1 CA-CV 21-0122 FC
FILED 12-21-2021
Appeal from the Superior Court in Maricopa County
No. FC2020-004283
The Honorable Gregory Como, Judge
AFFIRMED
COUNSEL
Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Kristi Reardon
Counsel for Petitioner/Appellee
Pangerl Law Firm, PLLC, Phoenix
By Regina M. Pangerl
Counsel for Respondent/Appellant
DINEYAZHE v. ONCO-INGYADET
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.
G A S S, Judge:
¶1 Mother appeals three issues: the superior court’s denial of her
petition to relocate her child to Connecticut, the award of long-distance
parenting time, and the denial of her request for attorney fees. Mother’s
challenges require this court to reweigh evidence, which we cannot do.
Because the superior court did not abuse its discretion, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to
sustaining the superior court’s orders. See Lehn v. Al-Thanayyan, 246 Ariz.
277, 283, ¶ 14 (App. 2019).
¶3 Mother and father are the unmarried parents of a special
needs child, E.D., born in 2014. For approximately the first six years of
E.D.’s life, mother lived in Flagstaff, and father lived in Phoenix. Before
mother decided to move to Connecticut, the parties successfully co-
parented without judicial intervention. E.D. alternated “living with each
parent, while visiting the other on a long-distance schedule.”
¶4 In March 2019, mother relocated to Connecticut to work at
Yale University. Because of the COVID-19 pandemic, mother returned to
Arizona to work remotely. E.D. never went to Connecticut. Around this
time in 2019—and before father sought court intervention—father sent
mother a text message informally agreeing to E.D.’s relocation. Father later
changed his mind, but he did not tell mother until July 2020.
¶5 From the end of March 2020 through July 2020, E.D. resided
with mother in Show Low, after which he returned to spend most of his
time in father’s care. During this period in 2020, the parents disagreed about
child support and parenting time. Father claimed mother intentionally kept
him from having contact with E.D. Mother denied it.
¶6 In July 2020, father petitioned for paternity, legal decision-
making, parenting time, and child support. Mother responded, seeking to
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relocate E.D. to Connecticut. Father opposed relocation. The parties
stipulated to E.D.’s parentage and joint legal decision-making. In January
2021, the superior court held an evidentiary hearing during which both
parents and two other witnesses testified.
¶7 The superior court found relocation would not be in E.D.’s
best interests and ordered E.D. to live primarily with father in Arizona.
Mother received a long-distance parenting schedule. Under that schedule,
mother would have in-person parenting time in Connecticut during school
breaks and during her visits to Arizona. The superior court did not award
either mother or father attorney fees. Mother timely appealed. This court
has jurisdiction under article VI, section 9, of the Arizona Constitution, and
A.R.S. §§ 12-120.21.A.1 and 12-2101.A.1.
ANALYSIS
I. Relocation
¶8 Mother challenges the denial of her petition to relocate E.D.
to Connecticut. In determining whether to allow a parent to relocate with
the parents’ child, the superior court must consider all the relevant factors
set forth in §§ 25-408.I and -403.A. Relocation must be in “the child’s best
interests.” A.R.S. § 25-408.G. “The burden of proving what is in the child’s
best interests is on the parent who is seeking to relocate the child.” Id.
¶9 This court reviews relocation and parenting time orders for
abuse of discretion. Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App.
2018). An abuse of discretion occurs when the superior court commits an
error of law in drawing a discretionary conclusion or when no competent
evidence supports the superior court’s decision. Id.; see also Pridgeon v. Sup.
Ct., 134 Ariz. 177, 179 (1982) (reversal warranted only upon “a clear absence
of evidence”).
¶10 In reviewing the superior court’s findings of fact, this court
“examines the record to determine only whether substantial evidence exists
to support” the superior court’s action. In re Estate of Pouser, 193 Ariz. 574,
579, ¶ 13 (1999). This court defers to the superior court’s findings of fact
unless clearly erroneous. Alvarado v. Thomson, 240 Ariz. 12, 14, ¶ 11 (App.
2016).
¶11 Mother contends the superior court erred in concluding
certain statutory factors under §§ 25-408 and -403 weighed in favor of E.D.
remaining in Arizona. For each of the challenged factors, mother maintains
the superior court’s findings are contrary to the evidence, based on
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unsupportable beliefs, and constitute an abuse of discretion. And,
throughout, mother contends the superior court should have given greater
weight to father’s initial agreement to the relocation. Because this court
does not reweigh evidence, we reject mother’s arguments. See Hurd v. Hurd,
223 Ariz. 48, 52, ¶ 16 (App. 2009).
A. Father’s Opposition to Relocation
¶12 Mother first argues the superior court abused its discretion in
finding father opposed the relocation in good faith. Mother asserts father’s
bad faith is evidenced by his “repeatedly reassur[ing] Mother that [E.D.]
could relocate with her, only to back out of the agreement after Mother
accepted the job and relocated.” Though the superior court could have
reached mother’s proffered inference, the evidence also supports the
superior court’s contrary conclusion. See Pouser, 193 Ariz. at 580, ¶ 18.
Mother’s argument contravenes this court’s deferential approach to the
superior court under an abuse of discretion standard.
¶13 During trial, father admitted he told mother she could
relocate, but he explained his change of heart. During their separation in
2020—while E.D. was in Show Low—father felt “emotional” and worried
mother might again restrict his contact if E.D. relocated to Connecticut. The
superior court found:
Father is not opposing the relocation in bad faith. Although
he initially agreed that Mother could take [E.D.] with her he
had a change of heart after realizing the consequences of this
decision. While it is unfortunate that Father did not state this
position initially, the court believes that Father did not change
his position to mislead Mother or for any improper reason.
¶14 The parents presented the superior court with conflicting
evidence. Mother asks us to reweigh the evidence to find bad faith, but this
court does not reweigh conflicting evidence. See Hurd, 223 Ariz. at 52, ¶ 16.
Father’s testimony regarding his change of heart was evidence supporting
the superior court’s finding he acted in good faith. See id. at 53, ¶ 22; Vincent
v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015) (the superior court “is in the
best position to judge the credibility of witnesses and resolve conflicting
evidence”). The superior court did not abuse its discretion.
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B. The Prospective Advantages to the Relocating Parent and
Child
¶15 Mother next asserts the superior court abused its discretion in
concluding living in Arizona would provide E.D. with “stability” and
moving to Connecticut “would not improve [E.D.’s] quality of life.” See
A.R.S. § 25-408.I.3. Mother presented evidence at trial—including the
availability of programs offered by Yale University for children with special
needs—to show relocating to Connecticut would benefit E.D.
¶16 On the other hand, Arizona is E.D.’s “home state” and E.D.
has lived in Arizona since birth. Father testified about E.D.’s current living
situation, relationships with nearby relatives, and special needs. Father also
testified about E.D.’s school life, the child’s ongoing medical services, and
why remaining in Arizona would be beneficial to E.D. Father explained
why he believed relocation would be “a drastic change” for E.D. The
superior court found mother had legitimate professional and financial
reasons to relocate, but relocation was not in E.D.’s best interests.
¶17 Again, the superior court heard conflicting evidence. Mother
said E.D. would be better off relocating, while father said otherwise. Mother
bore the burden of proof, and because father’s testimony supported the
superior court’s findings on this factor, the superior court did not abuse its
discretion. See A.R.S. § 25-408.G; Lehn, 246 Ariz. at 284, ¶ 20.
C. Mother’s Remaining Challenges to the Superior Court’s
Factual Findings on Relocation
¶18 Mother challenges three additional relocation findings. See
A.R.S. § 25-408.I.5–7. Because each of these challenges is subject to the same
evidentiary analysis as the two factual findings above, we resolve them in
short order.
¶19 The superior court found relocation could not realistically
allow each parent an opportunity for full parenting time. See A.R.S. § 25-
408.I.5. Arizona is E.D.’s home state and relocating would reduce father’s
parenting time. Accordingly, mother bore the burden of proof to show
relocating was still in E.D.’s best interests. See A.R.S. § 25-408.G. Both parties
recognized—with mother in Connecticut and father in Arizona—a long-
distance parenting schedule was inevitable for at least one parent. Mother’s
suggested schedule was only a couple days longer than her final award.
Father’s testimony supports the impracticability of full parenting time for
both parents. See supra at ¶ 16.
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¶20 The superior court also found moving would negatively
affect E.D.’s emotional, physical, or developmental needs. See A.R.S. § 25-
408.I.6. The superior court said “[a]lthough [E.D.] would likely enjoy living
with Mother in [Connecticut], the lack of time with Father and other
paternal relatives would ultimately be detrimental to [the child’s]
development. This is particularly true in light of his special needs” and the
attendant prospects of changing schools and starting anew with special
needs services. Though mother disagrees, father’s testimony and E.D.’s
conditions support this finding. See supra at ¶¶ 16–17.
¶21 The superior court found both parents had valid reasons for
either moving or opposing the move and neither was acting to gain a
financial advantage. See A.R.S. § 25-408.I.7. Mother disagrees, arguing
father’s initial agreement and subsequent opposition to relocation were
self-serving and financially benefited him. No evidence suggests father’s
motive was financial gain. Father’s “good faith” testimony supports the
superior court’s finding. See supra at ¶¶ 13–14.
¶22 Father’s testimony supported all the superior court’s factual
findings on the relocation factors. Mother has shown no abuse of discretion
by the superior court. See Hurd, 223 Ariz. at 52, ¶ 19 (an abuse of discretion
occurs only “when the record, viewed in the light most favorable to
upholding the [superior] court’s decision, is devoid of competent evidence
to support the decision”).
D. The Child’s Best Interests
¶23 Mother argues the superior court abused its discretion in
making its best-interests finding under § 25-403.A.1 regarding “the past,
present, and potential future relationship between parent and child” and
under .A.3 regarding “the child’s adjustment to home, school, and
community.” She contends her close bond with E.D. would grow stronger
if the child relocated with her, E.D. would adapt to the new environment,
and she could keep E.D. close to their Navajo culture. After considering
father’s testimony, the superior court determined otherwise. Father
testified E.D. was established, was going to school, and had family in
Arizona. The record supports the superior court’s finding changing schools,
homes, and communities and relocating away from father were not in
E.D.’s best interests.
¶24 Mother complains the superior court exceeded the bounds of
the evidence when it stated mother would likely return to Arizona. But the
superior court’s best-interests findings did not turn on her potential return
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to Arizona. Mother’s potential to return to Arizona does not alter the
superior court’s ultimate weighing of whether relocation was in E.D.’s best
interests. See Pollock v. Pollock, 181 Ariz. 275, 278 (App. 1995) (no single best-
interests factor is dispositive, and all factors should be weighed
collectively).
¶25 Father’s testimony supported the superior court’s best-
interests findings. Mother has shown no abuse of discretion.
E. Mother’s Reliance Argument
¶26 Mother argues father agreed to her relocation through text
messages, she relied on his statements, and their agreement should be
enforceable. Father does not dispute his initial agreement to relocation. But
even assuming father’s pre-litigation agreement to allow mother to relocate
constitutes a written agreement, it would not be dispositive. See A.R.S. § 25-
408.H (“The court shall not deviate from a provision of any . . . written
agreement by which the parents specifically have agreed to allow or
prohibit relocation of the child unless the court finds that the provision is no
longer in the child’s best interests” (emphasis added)); see also Murray v.
Murray, 239 Ariz. 174, 178, ¶ 17 (App. 2016) (pre-litigation agreements for
parenting time must still be approved by the superior court and be in the
child’s best interests); Anderson v. Anderson, 14 Ariz. App. 195, 198 (1971)
(same). And, as discussed above, the superior court did not abuse its
discretion in finding relocation would not be in E.D.’s best interests. See
supra at ¶¶ 12–25.
II. Mother’s Long-Distance Parenting Schedule
¶27 Mother challenges the superior court’s long-distance
parenting plan. The long-distance parenting schedule allocates 63 days each
year in Connecticut to mother, an additional 10 days during winter break
on alternating years, and any available weekends during the school year
she can spend in Arizona. Mother contends the award denies her
substantial, frequent, and meaningful parenting time and she specifically
objects to the number of days during E.D.’s winter, fall, and spring breaks.
She asks us to vacate the parenting order and remand for a new schedule.
¶28 Because both parents indicated equal parenting time is
presumed in Arizona, we address the issue. This court has said “equal
parenting time is presumed to be in a child’s best interests.” See, e.g., Woyton
v. Ward, 247 Ariz. 529, 531, ¶ 6 (App. 2019). But that statement does not end
the analysis.
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¶29 Legal presumptions generally are tied to the burden of proof
to establish the presumption, are identified as rebuttable or not, and
identify what is required to rebut the presumption. See Seiler v. Whiting, 52
Ariz. 542, 548–49 (1938) (discussing legal presumptions). The legislature
knows how to establish presumptions and impose burdens of proof and did
not do so for equal parenting time—or legal-decision making for that
matter. Cf. Hart v. Hart, 220 Ariz. 183, 187, ¶ 17 (App. 2009) (principles of
statutory construction require this court to “not judicially impose a
requirement the legislature has intentionally chosen not to require”). The
legislature has imposed such a presumption in relocation matters, saying
the parent who seeks to relocate a child bears the burden of showing
relocation is in the child’s best interests. See A.R.S. § 25-408.G; see also § 25-
403.03.D (establishing parenting-time presumption regarding domestic
violence).
¶30 Unlike the legal presumption for relocation matters, the use
of “presumed” in Woyton and similar cases does not suggest a parent bears
a specific burden of proof to overcome presumed equal parenting time.
Instead, when Woyton and other cases said “equal parenting time is
presumed to be in a child’s best interests,” this court was recognizing equal
parenting time operates as a starting point in the superior court’s best-
interests analysis. The evidence—not a presumption linked to a burden of
proof—guides the court in deciding the appropriate parenting-time
schedule. See A.R.S. § 25-103.B.1 (“It also is the declared public policy of this
state and the general purpose of this title that absent evidence to the contrary,
it is in a child’s best interest . . . [t]o have substantial, frequent, meaningful
and continuing parenting time with both parents.” (emphasis added)).
¶31 The words of the statute are significant and guide our
interpretation. See Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 323,
¶ 11 (App. 2017) (this court first looks “to the statute’s plain language as the
best indicator of [legislative] intent”). If the language is clear and
unambiguous, courts “must give effect to that language without employing
other rules of statutory construction.” Id.
¶32 The statute on which the reference to a presumption relies
does not reference “a presumption,” instead saying “absent evidence to the
contrary.” See A.R.S. § 25-103.B. And § 25-103.B.1 does not refer to “equal
parenting time,” instead saying “it is in a child’s best interest . . . [t]o have
substantial, frequent, meaningful and continuing parenting time with both
parents.” Again, in contrast, a parent seeking to relocate—as mother does
here—bears the burden to show relocation is in the child’s best interests. See
A.R.S. § 25-408.G. No such burden of proof applies to deviate from equal
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parenting time. See A.R.S. § 25-103.B.1; see also Parsons, 242 Ariz. at 323, ¶ 11
(a statute’s plain language guides its interpretation).
¶33 Consistent with that point, Arizona’s public policy statute
says, absent evidence to the contrary, “it is in a child’s best interest . . . [t]o
have substantial, frequent, meaningful and continuing parenting time with
both parents” and to have “both parents participate in decision-making
about the child.” A.R.S. § 25-103.B.1–2. Here, the parents share joint legal
decision-making. But “[s]hared legal decision-making does not necessarily
mean equal parenting time,” and § 25-103.B does not require it. A.R.S. § 25-
403.02; see also Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 492, ¶ 12 (App.
2020).
¶34 Equal or near equal parenting time is often impossible in
long-distance parenting. See Gutierrez v. Fox, 242 Ariz. 259, 271, ¶ 47 (App.
2017). The relocation statute contemplates this reality by qualifying the
continuation of a meaningful relationship between the child and both
parents with the phrase “[t]o the extent practicable.” See A.R.S. § 25-408.G.
With long-distance parenting, “one of the parties will be burdened
regardless of which state the [superior court] selects” as the child’s primary
residential location. Gutierrez, 242 Ariz. at 271, ¶ 47.
¶35 The superior court “has discretion to determine parenting
time based on all the evidence before it” and should maximize parenting
time only to the extent it is in the child’s best interests. Gonzalez-Gunter, 249
Ariz. at 492, ¶¶ 11–12. This schedule does, to the extent practicable, ensure
mother continues to have a meaningful relationship with E.D. We also note
the superior court made a downward deviation in mother’s child support
obligation from $645 to $350 a month to help encourage mother to visit E.D.
and make travelling more affordable. After review, the superior court did
not abuse its discretion when it ordered the long-distance parenting
schedule.
III. Attorney Fees in the Superior Court
¶36 Finally, mother argues the superior court erred in denying her
request for attorney fees under § 25-324 because father was unreasonable.
Again, she bases this argument on father’s agreement to allow E.D. to
relocate.
¶37 The superior court may award attorney fees after
consideration of the financial resources and the reasonableness of the
parties’ legal positions. A.R.S. § 25-324. Here, the superior court found no
substantial disparity in financial resources between the parents and found
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neither mother nor father acted unreasonably. An award of attorney fees
under § 25-324.A is discretionary. Magee v. Magee, 206 Ariz. 589, 593, ¶ 18
(App. 2004). After review, the superior court’s decision not to award either
party attorney fees did not constitute an abuse of discretion. See Lehn, 246
Ariz. at 286, ¶ 29.
ATTORNEY FEES ON APPEAL
¶38 Both mother and father request attorney fees on appeal under
§ 25-324. Neither party took unreasonable positions in this appeal. After
considering the relevant factors, we decline to award either party attorney
fees. As the successful party, we award father his costs on appeal upon
compliance with ARCAP 21. See A.R.S. § 12-341.
CONCLUSION
¶39 We affirm the superior court’s orders.
AMY M. WOOD • Clerk of the Court
FILED: AA
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