                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

                   MARCEL L. HYKES, Petitioner/Appellant,

                                         v.

              SIOBAN AMANDA PEAK, Respondent/Appellee.

                            No. 1 CA-CV 16-0465 FC
                              FILED 4-27-2017


            Appeal from the Superior Court in Maricopa County
                           No. FC2009-007480
                The Honorable Joseph P. Mikitish, Judge

                                   AFFIRMED


                                    COUNSEL

Marcel L. Hykes, Protected Address
Petitioner/Appellant

Ashley Donovan Law PLLC
By Ashley Donovan, Tempe
Counsel for Respondent/Appellee
                             HYKES v. PEAK
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.


B E E N E, Judge:

¶1           Marcel Hykes (“Father”) appeals from the superior court’s
order establishing legal decision-making, parenting time, and child
support. Finding no abuse of discretion, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Although never married, Father and Sioban Peak (“Mother”)
had a son together in 2004 and lived together for approximately five years
thereafter. After they separated in 2009, Mother moved out of state, taking
the son without Father’s knowledge or consent.

¶3             Father then filed a petition to establish paternity, parenting
time, and child support. As the superior court noted, Father’s petition was
also a “de facto petition to prevent Mother’s relocation out of state with the
child.” Following a hearing, the court ordered Mother to return the son to
Arizona. Since the son’s return, the parties have petitioned the court
multiple times to modify legal decision-making, parenting time, and/or
child support. In 2012, the court entered an order providing for joint legal
decision making authority and approximately equal parenting time.

¶4           In 2015, Father relocated to the state of Washington for work.
Mother petitioned to modify legal decision-making, parenting time, and
child support, seeking sole legal decision-making and requesting that
Father have parenting time during school breaks. Father counter-
petitioned seeking joint legal decision-making and proposing a year-on-
year-off parenting plan, which would begin with the son residing in
Washington with Father for the first year.

¶5             After a hearing, the superior court denied Father’s request to
relocate the son to Washington and made Mother the primary residential
parent. The court awarded joint legal decision-making but gave Mother
final legal decision-making authority over all issues. The order gave Father
parenting time for part of each summer, all of fall break, and half of winter



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                           Decision of the Court

break. Finally, the order directed Father to pay child support of $480 per
month.

¶6            Father appealed from the superior court’s rulings, and we
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12–2101(A)(2) (2017).1

                               DISCUSSION

¶7            On appeal, Father challenges the superior court’s decision
regarding legal decision-making, parenting time, and child support. We
review the court’s rulings for an abuse of discretion. See Nold v. Nold, 232
Ariz. 270, 273, ¶ 11 (App. 2013) (involving child custody and parenting
time); Fuentes v. Fuentes, 209 Ariz. 51, 54, ¶ 10 (App. 2004) (involving child
support). “An abuse of discretion exists when the record, viewed in the
light most favorable to upholding the trial court’s decision, is devoid of
competent evidence to support the decision.” Little v. Little, 193 Ariz. 518,
520, ¶ 5 (1999) (internal quotations omitted).

¶8            We note that Father has failed to provide this Court with a
transcript from the evidentiary hearing. See ARCAP 11(c)(1) (requiring the
appellant to “order transcripts of superior court proceedings not already in
the official record that the appellant deems necessary for proper
consideration of the issues on appeal.”). In the absence of a transcript, we
presume the evidence at the hearing “was sufficient to sustain the trial
court’s conclusion.” Fletcher v. Fletcher, 137 Ariz. 497, 498 (App. 1983).

I.     Parenting Time/Relocation

¶9            Father first challenges the superior court’s decision to make
Mother the primary residential parent and its corresponding denial of his
relocation request. Father claims that because he was “looking to continue
equal parenting time . . . on a yearly basis,” he did not “bear the usual
burden of proof for relocation.”2 We disagree.


1      Absent material revision after the relevant date, we cite the current
version of a statute unless otherwise stated.

2     Mother failed to file an answering brief, which we could regard as a
confession of error. See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).
Because the son’s best interests are at issue, we decline to do so. See In re
Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002).



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                             Decision of the Court

¶10            Section 25-408 governs relocation and sets forth the process
by which the superior court “may allow a parent who shares parenting time
or legal decision-making to relocate the child.” Murray v. Murray, 239 Ariz.
174, 176, ¶ 6 (App. 2016). Under this statute, the superior court must
determine whether relocation is in the child’s best interests by applying the
factors enumerated in § 25-408(I).3 See A.R.S. § 25–408(G), (I) (2017). “The
burden of proving what is in the child’s best interests is on the parent who
is seeking to relocate the child.” A.R.S. § 25–408(G). In this case, Father’s
proposed modification to parenting time required relocation; therefore,
Father had the burden of proving that relocation was in his son’s best
interests. See A.R.S. § 25–408(G).

¶11         Although we do not have a transcript from the hearing, we
know that the superior court heard testimony from both parties. In
addition, we know the court reviewed the Court-Appointed Advisor
Report (“Report”), which concluded that the son should remain at his


3      The factors are:

       1. The factors prescribed under § 25-403.
       2. Whether the relocation is being made or opposed in good
       faith and not to interfere with or to frustrate the relationship
       between the child and the other parent or the other parent’s
       right of access to the child.
       3. The prospective advantage of the move for improving the
       general quality of life for the custodial parent or for the child.
       4. The likelihood that the parent with whom the child will
       reside after the relocation will comply with parenting time
       orders.
       5. Whether the relocation will allow a realistic opportunity for
       parenting time with each parent.
       6. The extent to which moving or not moving will affect the
       emotional, physical or developmental needs of the child.
       7. The motives of the parents and the validity of the reasons
       given for moving or opposing the move including the extent
       to which either parent may intend to gain a financial
       advantage regarding continuing child support obligations.
       8. The potential effect of relocation on the child’s stability.

A.R.S. § 25–408(I) (2017).




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                            Decision of the Court

current school, in Arizona, to maintain stability. After considering the
proper § 25–408(I) factors, the court determined that Father had “not met
his burden of showing that moving to Washington” was in the son’s best
interests. The Report supported this conclusion, and we presume the
testimony did as well. See State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz.
27, 30, ¶ 16 (App. 2003) (holding that when a party fails to produce
“transcripts or other documents necessary” for the appellate court “to
consider the issues raised on appeal,” the appellate court assumes that the
missing portions support the superior court’s findings and conclusions);
Fletcher, 137 Ariz. at 498.

¶12           Accordingly, the superior court did not abuse its discretion in
making Mother the primary residential parent and denying Father’s
request to relocate the son.

II.    Legal Decision-Making

¶13           Father next argues that because he “provided insurance for
the child without pause or lapse since 2009,” he should have final decision-
making authority when it comes to health care.4

¶14           In making decisions regarding legal decision-making and
parenting time, the superior court must consider the best interest factors set
forth in A.R.S. § 25–403(A) (2017); see also Reid v. Reid, 222 Ariz. 204, 209, ¶
20 (App. 2009) (“[T]he most important issue in custody disputes is the best
interests of the child[.]”). Section 25–403(B) requires the court to 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.”

¶15           Here, the superior court complied with § 25–403 and made
written findings regarding all relevant factors. Importantly, the court noted
that although “[i]n the past, the parties have cooperated in making
decisions” regarding the son, “[t]hey have little or no ability to do so now.”
Evidence in the record supports this conclusion. The court also remarked
that “[t]he parties now live in different states, which makes joint legal
decision making logistically difficult.” Ultimately, the court awarded joint
legal decision-making but gave Mother, who is the primary residential
parent, “final legal decision-making authority over all issues.” Although
Father contends he should have been awarded final decision-making


4     Father appears to concede that “the parent who has the child
primarily would be best to have final decision making authority in respect
to education.”


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                            Decision of the Court

authority over health-care issues, the court’s decision to grant that authority
to Mother was not improper, given that the child will be living primarily
with Mother.

¶16           On this record, we cannot say the superior court abused its
discretion.

III.   Child Support

¶17          Father also challenges the superior court’s calculation of child
support, arguing that Mother provided “misinformation and conflicting
information” regarding child care costs. He further argues that he should
not have to pay “back support” to the date of Mother’s petition.

¶18            The superior court calculated child support in compliance
with the Arizona Child Support Guidelines (“Guidelines”), which
“establish a standard of support for children consistent with their
reasonable needs and the ability of parents to pay by providing a formula
for calculation of child support based, in significant part, on the parties’
gross incomes.” Mead v. Holzmann, 198 Ariz. 219, 220, ¶ 5 (App. 2000); see
also A.R.S. § 25–320 app., § 1. The court relied on Father’s 2015 tax return
for his gross monthly income and attributed income of $12 per hour to
Mother, who reported earning considerably less.5 From Mother’s adjusted
gross income, the court subtracted child care expenses of $70 per month,
although her affidavit of financial information reflected costs of $100 per
month. We presume the hearing testimony supported that reduction. See
Fletcher, 137 Ariz. at 498.

¶19           Modifications of child support are “effective on the first day
of the month following notice of the petition for modification[.]” A.R.S. §
25–503(E) (2017); see also A.R.S. § 25–327(A) (2017). In this case, Mother filed
notice of her petition on January 14, 2016. Accordingly, the superior court
properly selected February 1, 2016, as the effective date for the
modification.

¶20           We find no abuse of discretion in the superior court’s
calculation of child support or its determination of the effective date for the
modification.



5     Father’s 2015 tax return reflected annual gross income of $51,129.00,
which divided by twelve equates to $4,260.75 per month. Mother reported
income of $400 per month.


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                             HYKES v. PEAK
                           Decision of the Court

IV.    Protected Address

¶21            Finally, Father challenges the superior court’s denial of his
request for a protected address. After Mother filed her petition, Father filed
a request for protected address, stating that he was assaulted by Mother’s
“friends or acquaintances” several years earlier during an exchange of their
son. The court initially granted Father’s request “until further hearing of
the court.”

¶22           Arizona Rule of Family Law Procedure 7(A) provides:

       Any person filing an initial or post-judgment petition, motion
       or response, whose address is not known to the other party
       and who reasonably believes that physical or emotional harm
       may result to the person or a minor child if the person’s
       address is not protected from disclosure, may request the
       court to designate that party’s address as protected[.]

After granting a protected address, the superior court may later revoke that
status “after a hearing and upon a finding that there is no reasonable belief
that physical or emotional harm may result to the person with the protected
address.” Ariz. R. Fam. L. P. 7(B)(2).

¶23          After the evidentiary hearing on Mother’s petition, the
superior court found:

       Upon further consideration, and the distance from [Mother’s]
       home, the Court finds there is insufficient evidence to support
       the granting of [Father’s] protected address in the Court
       system. Any altercation alleged from years past is not likely
       to affect [Father].

The court’s finding is supported by the record. The alleged assault that
formed the basis for Father’s request occurred in Glendale, Arizona in
2012.6 Father now resides in Washington. We cannot say the court erred in
denying Father’s request for a protected address.




6    There is no indication in the police report that the assailant was
Mother’s friend or acquaintance.


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                          HYKES v. PEAK
                        Decision of the Court

                           CONCLUSION

¶24          For the foregoing reasons, we affirm the decision of the
superior court.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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