                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                        DEBORAH C. BAKER,
                        Petitioner/Appellant,

                                 v.

                       MATTHEW M. MEYER,
                       Respondent/Appellee.

                      No. 2 CA-CV 2014-0107
                        Filed April 3, 2015

          Appeal from the Superior Court in Pima County
                         No. D20073115
             The Honorable Danelle B. Liwski, Judge

                  VACATED AND REMANDED


                            COUNSEL

Ann Nicholson Haralambie, Attorneys, P.C.
By Ann M. Nicholson Haralambie, Tucson

Law Offices of Robert G. Lewis, P.C.
By Robert G. Lewis, Tucson
Counsel for Petitioner/Appellant

Solyn & Lieberman, PLLC
By Melissa Solyn and Scott Lieberman, Tucson
Counsel for Respondent/Appellee
                           BAKER v. MEYER
                          Opinion of the Court


                               OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Miller and Judge Howard concurred.


E S P I N O S A, Judge:

¶1          This appeal arises from a dispute over sending a child
to an out-of-state boarding school and the resulting substantial
reduction in the mother’s parenting time with that child. Appellant
Deborah Baker argues the trial court erred in ruling in favor of her
former husband, appellee Matthew Meyer, and ordering that their
son, N., attend a high school in California. For the following
reasons, we vacate the order and remand the case for further
proceedings.

                 Factual and Procedural Background

¶2           We view the evidence in the light most favorable to
upholding the trial court’s decision. See Little v. Little, 193 Ariz. 518,
¶ 5, 975 P.2d 108, 110 (1999). Baker and Meyer were married in 1995
and had three children: J., born in 1998, N., born in 2000, and B.,
born in 2004. In March 2008, a decree of dissolution of marriage was
entered, which incorporated the “Meyer Family Parenting
Agreement.” Under the decree and parenting agreement, Baker and
Meyer have joint legal and physical custody and “agree to share in
key decisions related to the children’s education, healthcare, and
religious upbringing.” The agreement further provides, “The
children will be with each parent for seven consecutive days on an
alternating basis,” and, “The parent that does not have parenting
time with the children for seven consecutive days will pick them up
at school on Tuesday and Thursday and will return them to the
other parent at 7:00 p.m.” It also specifies which parent has the
children for various birthdays and holidays, and prohibits “either
parent . . . commit[ing] a child to an activity which . . . infringes
upon the other parent’s parenting time without first obtaining the
consent of the other parent.”


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                         Opinion of the Court

¶3             In February 2014, Meyer filed a motion “regarding [the]
children’s school enrollment,” requesting “that two of the minor
children . . . be permitted to enroll and/or re-enroll in the school of
their choice.” Specifically, J. would return for his junior year of high
school to the Cate School, a boarding school in California, and N.
would enroll at Cate for his freshman year. Although Baker first
objected to J. returning to Cate, she later agreed because he already
had been a Cate student for two years and wished to complete high
school there.

¶4            Baker, however, continued to object to N. enrolling at
Cate, preferring that he attend University High School (UHS) in
Tucson so that she could maintain her parenting time with him.
Meyer disagreed, pointing out that he and three of his siblings had
attended Cate, that attending Cate was “turning into [a family
tradition],” and that N. wished to attend there, a preference he later
expressed to both the conciliation and trial courts.

¶5           In its ruling, the trial court determined the issue to be
one of school placement, rather than relocation or modification of
parenting time as urged by Baker. The court reviewed specific
aspects of UHS and Cate and found “[n]either school is essential and
neither is more beneficial as a whole for N[.]” The court then
concluded it was in N.’s “best interest to attend Cate,” given his
expressed wishes and the evidence of “strain on the children when
they are back and forth between their parents’ homes” that was
“affecting the relationship between the children and their parents.”
There was no question, however, as to the fitness of either parent.
We have jurisdiction over Baker’s appeal pursuant to A.R.S.
§§ 12-120.21(A)(1) and 12-2101(A)(1).

                              Discussion

¶6            It is well established that parents have fundamental
rights in the custody and control of their children under the Due
Process Clause of the Fourteenth Amendment of the United States
Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (“the
interest of parents in the care, custody, and control of their children
. . . is perhaps the oldest of the fundamental liberty interests
recognized by this Court”); Michael J. v. Ariz. Dep’t of Econ. Sec., 196


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                        Opinion of the Court

Ariz. 246, ¶ 11, 995 P.2d 682, 684 (2000) (“This court and the United
States Supreme Court have long recognized that the right to the
control and custody of one’s children is a fundamental one.”).
Arizona’s legislature similarly has observed that “[t]he liberty of
parents to direct the upbringing, education, health care and mental
health of their children is a fundamental right.” A.R.S. § 1–601(A);
see also A.R.S. § 1–602. The outlines of that right are made clear
under Arizona public policy and statutes, which direct that a child’s
best interest includes “substantial, frequent, meaningful and
continuing parenting time with both parents,” A.R.S. § 25-103(B),
(C), and which protect that right absent exceptional circumstances.
See A.R.S. § 25-411(J) (“the court shall not restrict a parent’s
parenting time rights unless it finds that the parenting time would
endanger seriously the child’s physical, mental, moral or emotional
health”);1 cf. Woodworth v. Woodworth, 202 Ariz. 179, ¶ 9, 42 P.3d 610,
611 (App. 2002) (visitation rights of parents contribute to child’s
well-being and are therefore specially protected by legislature).

¶7           Joint custody 2 arrangements in Arizona require a
parenting plan that addresses legal decision-making, each parent’s
“rights and responsibilities for the personal care of the child,” and
decisions regarding education, health care, and religious training.
A.R.S. § 25-403.02(C)(1), (2). The plan also must contain “[a]
practical schedule of parenting time for the child, including holidays
and school vacations.” § 25–403.02(C)(3); see also A.R.S. § 25–403.01.
Courts are directed to “adopt a parenting plan that provides for both
parents to share legal decision-making regarding their child and that
maximizes their respective parenting time.” § 25-403.02(B). We
review a parenting agreement de novo because it is incorporated

      1We   are not presented here with the question of whether a
reduction in the amount of parenting time constitutes a restriction of
parenting time rights pursuant to § 25-411(J) and therefore do not
address it.
      2 In2012, the legislature replaced the term “custody” with
“legal decision-making and parenting time” in title 25. 2012 Ariz.
Sess. Laws, ch. 309, §§ 4, 5.



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                         BAKER v. MEYER
                        Opinion of the Court

into the dissolution decree and because it is “akin to a type of
contractual agreement between the parties.” Jordan v. Rea, 221 Ariz.
581, ¶ 15, 212 P.3d 919, 926 (App. 2009). As noted above, the parties’
parenting plan here provided that the children were to spend
alternating weeks with their parents throughout the year. However,
the trial court’s order that N. attend Cate and divide his time at
home equally between his parents reduced Baker’s parenting time3
with N. from 182 to 61 days per year.

¶8            The trial court viewed the issue whether to permit N. to
enroll in an out-of-state school as one of school placement and
applied the best interest factors set forth in Jordan. In that case, a
father objected to his children continuing their education at a private
religious school, and this court “dr[e]w upon the factors that the
legislature has set forth for a determination of best interests as to
custody in general as stated in A.R.S. § 25–403(A) and modif[ied]
them to reflect school placement.” Jordan, 221 Ariz. 581, ¶ 23, 212
P.3d at 928. We directed the trial court to “consider all relevant
factors,” including the following modified § 25-403(A) factors:

            “1) the wishes of the child’s parent or
            parents as to [school placement]

            2)   the wishes of the child as to [school
            placement]

            3)    the interaction and interrelationship
            of the child with [persons at the school]
            who may significantly affect the child’s best
            interests, and




      3 “Parenting time” is defined by statute as “the schedule of
time during which each parent has access to a child at specified
times.” A.R.S. § 25-401(5).



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                            BAKER v. MEYER
                           Opinion of the Court

                4)   the child’s adjustment to [any present
                school placement].”4

Id., quoting § 25-403(A) (alterations in Jordan). We formulated these
factors, however, in the context of a child’s placement at a local
school, and neither parent had alleged a change in parenting time.
See id. ¶¶ 9, 11, 16. That is not the situation here. 5 N.’s attendance at
Cate will reduce Baker’s yearly time with him by at least 121 days,
constituting sixty-six percent of the time she had been allocated in
the decree and a profound curtailment of her parental rights. 6 The
trial court did not address that impact, applying Jordan to focus on
the qualities of the schools, the wishes of the child, and “strain on
the children when they are back and forth between their parents’
homes.”7



      4We   also suggested nine additional non-statutory factors to be
assessed in determining a child’s school placement. Jordan, 221 Ariz.
581, ¶ 24, 212 P.3d at 928.
      5 Since Jordan was decided in 2009, the legislature amended
§ 25-403, altering several of the factors employed by the court. See
2012 Ariz. Sess. Laws, ch. 309, § 5. As the issue here is not one of
local school placement, the Jordan factors are inapplicable, and we
express no opinion as to the effect of the legislature’s amendments
on the Jordan analysis.
      6We  note that in view of Meyer’s testimony that he considered
attendance at Cate a “family tradition,” this issue could have been
broached at the time the parenting agreement was negotiated. See
Jordan, 221 Ariz. 581, ¶ 16, 212 P.3d at 926 (issue of attendance at
private religious school could have been addressed in parenting
plan).
      7 The  evidence of strain from moving between homes came
from summarized in camera interviews with N. Baker, however,
testified that family friction centered primarily on the boarding
school issue. Although the child’s wishes may be considered by the
court, it is but one factor among others and not decisive. § 25-



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                          BAKER v. MEYER
                         Opinion of the Court

¶9           Baker argues, as she did below, that the issue in this
case is a substantial and disputed modification of parenting time. 8
We agree that an important issue in determining N.’s best interests,
and a principal point of contention between the parties, is the
reduction in parenting time that would result from N. attending an
out-of-state boarding school. See generally Thompson v. Thompson, 217
Ariz. 524, ¶ 14, 176 P.3d 722, 725 (App. 2008) (relocation of child can
“interfere with the custody or parenting time granted to the other
parent”); T.D. v. F.X.A., 148 So. 3d 187, 194 (La. Ct. App. 2014) (order
that child attend boarding school a custody decision, not school
choice; sending child to school in Utah against mother’s wishes
essentially abrogated her parenting status and was change of
custody); cf. Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 32, 304 P.3d
1115, 1121-22 (App. 2013) (“parent entitled to reasonable parenting
time ‘to ensure that the minor child has substantial, frequent,
meaningful and continuing contact with the parent’”), quoting
§ 25-403.01(D). Accordingly, we conclude the trial court erred as a
matter of law in determining this issue as one of school choice.

¶10           Nevertheless, we would not reverse the trial court’s
decision if, despite choosing the wrong framework for the analysis,
it considered the proper factors and made appropriate findings. In

403(A)(4); cf. Ellis v. Ellis, 840 So.2d 806, 813 (Miss. Ct. App. 2003)
(“‘While there is nothing wrong with the children being heard
regarding their wishes, our law proceeds on the assumption that
they are nevertheless children and, thus, more interested in the
desire of the moment than in considering the long range needs for
the development of a healthy relationship with both parents where
that is possible.’” (citation omitted)).
      8Baker  alternatively asserts N.’s attendance at boarding school
is governed by A.R.S. § 25-408 because that statute addresses a
parent’s request to “[r]elocate the child outside the state.”
§ 25-408(A)(1). But we are unpersuaded of its application here,
given the statute’s references to “the nonmoving parent” and “the
parent with whom the child will reside after the relocation.”
§ 25-408(C), (H)(4).



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                          BAKER v. MEYER
                         Opinion of the Court

Arizona, the trial court may modify an order granting or denying
parenting time whenever modification would serve the best interests
of the child. § 25-411(J). Those interests however, are informed,
inter alia, by “parenting time with both parents.” § 25-103(B). We
review an order modifying parenting time for an abuse of discretion,
Owen v. Blackhawk, 206 Ariz. 418, ¶ 7, 79 P.3d 667, 669 (App. 2003),
but questions of statutory interpretation are reviewed de novo,
Palmer v. Palmer, 217 Ariz. 67, ¶ 7, 170 P.3d 676, 678 (App. 2007)
(applying de novo review “regarding the interpretation of statutes
and decrees of dissolution”).

¶11          If parents are unable to agree on any element to be
included in a parenting plan, the court must determine that element
“[c]onsistent with the child’s best interests.” § 25–403.02 (B), (D); see
also § 25-403(A) (governing determination of parenting time,
whether made “originally” or as modification); Jordan, 221 Ariz. 581,
¶ 19, 212 P.3d at 927 (based on “clear statutory directive” of sections
25-403 and 25-403.02 (A), (B), “we have no difficulty in concluding
that when post-decree disputes arise under the specific terms of a
parenting plan included as part of a joint custody order, a best-
interests standard should be applied”). In determining parenting
time, a court “shall consider all factors that are relevant to the child’s
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 child’s parent or parents,
             the child’s siblings and any other person
             who may significantly affect the child’s best
             interest.

             3. The child’s adjustment to home, school
             and community.

             4. If the child is of suitable age and
             maturity, the wishes of the child as to legal
             decision-making and parenting time.


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                         Opinion of the Court

             5. The mental and physical health of all
             individuals involved.

 § 25-403(A). 9 Absent evidence to the contrary, as earlier noted, it is
generally in a child’s best interests to have “substantial, frequent,
meaningful and continuing parenting time with both parents.”
§ 25–103(B). When parenting time is at issue, the court must 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.”
§ 25-403(B). Failure to make the requisite findings in an order or on
the record constitutes an abuse of discretion. Nold v. Nold, 232 Ariz.
270, ¶ 11, 304 P.3d 1093, 1096 (App. 2013).

¶12          As Baker points out, title 25 has been amended to place
new emphasis on the fundamental importance of parenting time.
See 2010 Ariz. Sess. Laws., ch. 221, § 1. In 2010, the legislature
required provisions of title 25 to be applied in a manner consistent
with the purposes of the title, including the “declared public policy
of this state” that a child’s best interests include “substantial,
frequent, meaningful and continuing parenting time with both
parents.” § 25-103(B), (C). And in 2012, additional provisions were
adopted to the same effect throughout the title. See, e.g., A.R.S. § 25-
403(A)(1) (in determining legal decision-making and parenting time
court considers “past, present and potential future relationship
between the parent and the child”); see also 2012 Ariz. Sess. Laws, ch.
309, §§ 5, 7-8. Here, the trial court failed to consider the child’s
interest in having “substantial, frequent, meaningful and continuing
parenting time” with his mother, § 25-103(B), or make any related

      9 Meyer argues “a strict modification of parenting time
analysis” would “not even make sense” in this case given that some
§ 25-403 factors would be inapplicable, such as § 25-403(A)(6)
(requiring court to consider which parent more likely to allow “the
child frequent, meaningful and continuing contact with the other
parent”). To the extent we understand this argument, however,
§ 25-403 requires that a court consider “all factors that are relevant”;
not those that are obviously inapplicable such as, in this case,
§ 25-403(A)(8) (domestic violence or child abuse).



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                         BAKER v. MEYER
                        Opinion of the Court

findings pursuant to § 25-403. It also did not make any findings
about the past and future relationship between N. and Baker, § 25-
403(A)(1); the interaction and interrelationship of N. with both
parents, his two brothers, and others who might affect his best
interest, § 25-403(A)(2); N.’s adjustment to home and community,
§ 25-403(A)(3); and “[t]he mental and physical health of all
individuals involved,” § 25-403(A)(5).

¶13          Significantly, although the trial court issued a detailed
and comprehensive six-page ruling, it did not directly address, or
even mention, the central concern raised by Baker: the substantial
effect on her parenting time. Instead, the court focused almost
exclusively on the question of school placement and the Jordan
choice-of-school analysis factors. Its only acknowledgment of the
abrogation of Baker’s time with N. was a fleeting observance that the
child’s out-of-state schooling would affect the parents equally.10 We
reject any notion that because the decision affected both parents, and
the child’s relocation was accepted, indeed initiated and advanced,
by Meyer, Baker’s rights and the mandate of § 25-103(B) and (C)
could be disregarded. Cf. Thompson, 217 Ariz. 524, ¶ 14, 176 P.3d at
725 (in context of relocation statute, noting legislature intended to
ensure that when both parents are granted custody or parenting

      10Baker testified about the importance to her growing sons of
ongoing, day-to-day interaction with both parents, as the parties’
parenting plan provided. She told the court,

            [E]veryday[,] teenagers have challenges,
            and we have such a sound-bite of time . . .
            that anything that may be challenging is
            really hard to manage in a way that you
            would do if you had day-in and day-out
            contact with your kid. . . . Being around
            parents to help speak to your values and to
            help support and love you day-in and day-
            out as you’re emerging into the adult that
            you’re going to become, we only have a
            tiny period of time to make a difference.



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                          BAKER v. MEYER
                         Opinion of the Court

time, “neither parent will interfere with the custody or parenting
time granted to the other parent”); § 25–403.02(E) (no requirement
for equal parenting time between shared legal decision-makers).

¶14          In sum, while we recognize the trial court was faced
with a close and difficult question, we conclude its failure to
consider crucial statutory factors and to make the mandated
findings as they pertain to the best interests of the child, was an
error of law and requires that we remand the matter for the court to
address those factors, pursuant to § 25-403. See Nold, 232 Ariz. 270,
¶ 15, 304 P.3d at 1097.

                 Attorney Fees and Costs on Appeal

¶15           Citing A.R.S. § 25-324 and Rule 21, Ariz. R. Civ. App. P.,
Meyer requests an award of his attorney fees and costs on appeal,
asserting Baker’s “arguments are without merit and contrary to
Arizona law.” As made clear in our discussion, we do not find
Baker’s position on appeal unreasonable but, in fact, meritorious,
and Meyer’s request for fees is therefore denied. See In re Marriage of
Gibbs, 227 Ariz. 403, ¶ 23, 258 P.3d 221, 229 (App. 2011). We likewise
decline his request for costs, as he has not prevailed on appeal and,
therefore, is not the “successful party” under A.R.S. § 12-341.

                             Disposition

¶16          For the foregoing reasons, the trial court’s order is
vacated and the case is remanded for further proceedings consistent
with this opinion. Baker is entitled to her costs on appeal pursuant
to § 12-341 and upon compliance with Rule 21.




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