Windschill v. Windschill

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL J. WINDSCHILL, Petitioner/Appellant,

v.

MOLLY A. WINDSCHILL, Respondent/Appellee.

No. 1 CA-CV 22-0717 FC
FILED 7-25-2023

Appeal from the Superior Court in Maricopa County
No. FC2021-094087
The Honorable John L. Blanchard, Judge

AFFIRMED

COUNSEL

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Kristi A. Reardon
Counsel for Petitioner/Appellant

Stanley David Murray, Attorney at Law, Scottsdale
By Stanley David Murray
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge David D. Weinzweig joined.

C A M P B E L L, Judge:

¶1 Daniel J. Windschill (Father) appeals the superior court’s
ruling allowing Molly A. Windschill (Mother) to relocate to South Dakota
with the parties’ two children. Finding no abuse of discretion, we affirm.

BACKGROUND

¶2 Both parties grew up in South Dakota where they married in
2013. The couple had two children, one born in 2018 and a second in 2020.
The family moved to Arizona in 2020 to allow Father to attend medical
school.

¶3 In 2021, Mother and the children returned to South Dakota.
The parties dispute whether Father agreed to this move. Four months later,
Father petitioned for dissolution, seeking temporary orders requiring
Mother to return the children to Arizona. Mother asked the court to allow
her to stay in South Dakota with the children.

¶4 The superior court issued temporary orders allowing the
children to stay in South Dakota. The court, in the temporary orders,
awarded Father parenting time one week a month in Arizona. His parents
agreed to facilitate the travel, and the parties were required to share the cost
equally. Father’s parents traveled with the children from South Dakota to
Arizona seven times between December 2021 and August 2022. In May
2022, Father started a three-year medical residency in Arizona.

¶5 In the final decree, the court found that Mother met her
burden of showing that relocation to South Dakota was in the children’s
best interests. The court awarded Father parenting time of one week a
month in Arizona and “reasonable parenting time when he travels to South
Dakota.” Father timely appealed.

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DISCUSSION

¶6 Father argues the superior court applied the wrong legal
standard when granting Mother’s relocation request. He also disputes
various factual findings made by the court on appeal. We review parenting
time orders for an abuse of discretion, Nold v. Nold, 232 Ariz. 270, 273, ¶ 11
(App. 2013), but review questions of statutory interpretation de novo,
Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 491, ¶ 9 (App. 2020). We view the
evidence in the light most favorable to upholding the superior court’s
ruling. In re Marriage of Friedman, 244 Ariz. 111, 113, ¶ 2 (2018).

I. The Children’s Best Interests Are Paramount Under A.R.S.
§§ 25-103, 25-403.02, and 25-408.

¶7 Father contends the court erred in permitting relocation
because it would impede his ability to exercise “frequent, meaningful, and
substantial parenting time.” In essence, Father contends Mother must prove
relocation is not only in the best interests of the children under A.R.S.
§ 25-408 but also that the advantages of relocation outweigh “the public
policy of maximizing parenting time.” See A.R.S. §§ 25-103(B)(1), -403.02(B).
However, as Father conceded at oral argument, this court recently declined
to subject parents seeking relocation to that heightened burden of proof. See
Woyton v. Ward (Woyton II), 1 CA-CV 21-0728 FC, 2023 WL 2770748, at *2,
¶ 10 (Ariz. App. Apr. 4, 2023) (mem. decision) (“The plain language of
Section 25-408(G), read in conjunction with Section 25-103(B)(1), does not
impose a heightened burden of proof on the parent seeking relocation.”).

¶8 Arizona’s public policy is that “absent evidence to the
contrary,” it is in children’s best interests “[t]o have substantial, frequent,
meaningful and continuing parenting time with both parents.” A.R.S.
§ 25-103(B); see also Baker v. Meyer, 237 Ariz. 112, 117, ¶ 12 (App. 2015). Such
parenting time is of “fundamental importance,” Baker, 237 Ariz. at 117, ¶ 12,
and courts are to adopt a parenting plan that maximizes both parents’
respective parenting time, A.R.S. § 25-403.02(B). Even so, our case law and
statutes are clear: the children’s best interests are paramount in determining
the appropriate parenting time schedule. J.F. v. Como, 253 Ariz. 400, 403–04,
¶¶ 14–19 (App. 2022) (“[A] child’s best interest represents the lens through
which Arizona courts must review and decide all custody disputes.”);
A.R.S. § 25-403.02(B) (requiring parenting plan to be “[c]onsistent with the
child’s best interests”).

¶9 To allow relocation, the superior court must consider all
relevant factors under A.R.S. § 25-408(I), including the best-interests

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findings under A.R.S. § 25-403. A.R.S. § 25-408(G). In so doing, the court
must consider “[w]hether the relocation will allow a realistic opportunity
for parenting time with each parent,” and “[t]o 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), (I)(5).
The parent seeking relocation has the burden of proving, by a
preponderance of the evidence, that relocation is in the children’s best
interests. See A.R.S. §§ 25-103(B)(1), -408(G); Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶¶ 21–22 (2005) (declining to apply heightened evidentiary burden
absent express statutory language). In making this determination, the court
must weigh each of the enumerated factors.

¶10 Whereas A.R.S. §§ 25-103(B) and 25-403.02(B) contain a
general directive to maximize both parents’ meaningful parenting time,
A.R.S. § 25-408 addresses the scenario at hand: the impact relocation would
have on parenting time. See City of Phoenix v. Superior Court (Ariz. State
Hosp.), 139 Ariz. 175, 178 (1984) (noting “special or specific statutory
provisions will usually control over those that are general”). Read together,
the statutes require the court to weigh any proposed relocation in a manner
that considers the fundamental importance of parenting time and all other
relevant factors in light of what is in the children’s best interests. See A.R.S.
§§ 25-103(B), -403.02(B), -408; see also Pollock v. Pollock, 181 Ariz. 275, 277
(1995) (holding that parents’ competing rights “must be adjusted in
accordance with the best interests of the child”). Maximizing parenting time
is a priority, but the best interests of the children is paramount under A.R.S.
§§ 25-103, 25-403.02, and 25-408. Accordingly, the court is not required to
award Father the maximum parenting time possible, “particularly when
the [parents] live in different states or are separated by a considerable
distance,” if it would not be in the children’s best interests. See Woyton v.
Ward (Woyton I), 247 Ariz. 529, 531, ¶ 6 (App. 2019) (applying A.R.S.
§ 25-403.02 in context of relocation).

¶11 The necessary showing is set forth in A.R.S. § 25-408, which
requires Mother to prove, by a preponderance of the evidence and in light
of all relevant factors, that relocation was in the best interests of the
children. We next consider if Mother has met her burden.

II. Mother’s Burden Under A.R.S. § 25-408

¶12 Father contends Mother failed to show that relocation was in
the children’s best interests, given the adverse impact on his parenting time.
We disagree.

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¶13 After considering all the relevant statutory factors, the court
determined it was in the children’s best interests to relocate to South
Dakota. See A.R.S. § 25-408(I); cf. Woyton I, 247 Ariz. at 533, ¶ 12 (vacating
where court failed to apply A.R.S. § 25-408). The court explained that
Mother’s reduced work schedule in South Dakota and the presence of
extended family members would negate the children’s need for daycare,
resulting in increased time with Mother, frequent contact with extended
family, and a substantial reduction in Mother’s living expenses. If Mother
and the children lived in Arizona, full-time daycare would be necessary
given both parents’ work schedules, reducing the time the children spent
with Mother and also coming at a hefty cost. We find no error in the court’s
analysis and decision that relocation was in the children’s best interests.

A. The Court Properly Weighed Relationships with Family.

¶14 Father argues the court erroneously prioritized consideration
of the children’s relationship with other family members over his ability to
exercise parenting time. Not so. The children’s relationship with other
family members is a factor the court must consider in determining the
children’s best interests. See A.R.S. §§ 25-403(A)(2) (children’s relationship
with any other person who may significantly affect the children’s best
interests), 25-403(A)(3) (children’s adjustment to home, school, and
community), 25-408(I)(3) (advantage of move for improving children’s
general quality of life), 25-408(I)(8) (effect of move on children’s stability).

¶15 Here, the court properly considered the children’s
relationship with both sets of grandparents and extended family in South
Dakota as it relates to a best-interests determination. The court also
considered that Father would exercise a similar amount of parenting time
regardless of the children’s location, whereas staying in Arizona would
significantly reduce how much time the children spent with grandparents
and other family members.

¶16 Given these findings, the Woyton cases are not analogous. In
Woyton I, the superior court looked only to A.R.S. § 25-403, failing to apply
the A.R.S. § 25-408 factors. 247 Ariz. at 533, ¶ 12. And in Woyton II, the
mother who sought relocation failed to meet her burden of proof.
1 CA-CV 21-0728 FC, at *4, ¶¶ 22–23. She also acknowledged that the
benefits of the child’s relocation did not “outweigh” the child’s relationship
with her father. Id. at ¶ 22. Here, the court made findings regarding all
relevant factors under A.R.S. § 25-408(I), including the best-interests factors,
and found those factors weighed in favor of granting Mother’s relocation
request.

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¶17 Father goes on to argue the court committed error by placing
the travel burden on him instead of grandparents. But that mischaracterizes
the court’s determination. Upon weighing factors including frequent and
meaningful contact with extended family, the court concluded relocation
was in the children’s best interests. That travel is now necessary for Father
to exercise parenting time does not override this conclusion. In essence,
Father is asking this court to weigh these factors differently, but balancing
the competing considerations is the province of the superior court. See Hurd
v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). Finding no abuse of that
discretion or legal error, we affirm.

B. Evidence Supports the Cost-of-Living Findings.

¶18 Next, Father argues the evidence does not support the court’s
finding that Mother’s cost of living is far lower in South Dakota. Although
Father did not refute this at trial, he now contends Mother failed to prove
what her living expenses would be in Arizona or whether she could work
similar part-time jobs to minimize the need for daycare should the court
deny her relocation request. A comparison of the parties’ financial
affidavits confirms that Father’s overall cost of living is higher in Arizona.
Mother testified that her housing costs would increase, even though she
could not pinpoint the exact amount, and this fact was uncontested at trial.
When coupling the increased housing costs with the additional
requirement of daycare expenses, the higher cost of living for Mother in
Arizona is undisputed by evidence in the record.

¶19 Father also contends that the higher cost of living in Arizona
would be offset by the lack of travel expenses. But that ignores the need for
full-time daycare in Arizona, which would negate any savings on travel
expenses. Indeed, Father estimated the cost of full-time daycare to be $1,624
a month. The evidence supports the court’s finding that Mother’s cost of
living is lower in South Dakota.

C. Mother’s Willingness to Relocate is Immaterial.

¶20 Finally, Father contends that because Mother testified she
would return to Arizona if the court denied her relocation request, the court
should have denied her relocation request and required her to return to
Arizona.

¶21 He would have us read A.R.S. § 25-403.02 as barring
relocation unless a parent has “no choice” but to move. But whether the
move is voluntary is not a factor the court must consider under A.R.S.
§ 25-408. In any case, we need not extrapolate a rule from A.R.S. § 25-403.02:

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the legislature has accounted for relocation’s impact on parenting time
within the inquiry required under A.R.S. § 25-408. See A.R.S. § 25-408(G),
(I)(5); City of Phoenix, 139 Ariz. at 178 (noting specific controls over general).
Were we to adopt Father’s reading, we would arrive at an illogical result—
namely, the court must penalize Mother for being candid that her utmost
priority was being with her children and that should the court deny
relocation, she would return to Arizona. See Patches v. Indus. Comm’n of
Ariz., 220 Ariz. 179, 182, ¶ 10 (App. 2009) (encouraging courts to construe
statutes to avoid “absurd” results). Mother’s willingness to return to
Arizona is not determinative of whether relocation to South Dakota was in
the children’s best interests. We therefore decline to adopt Father’s reading
of A.R.S. § 25-403.02.

D. Consideration of All Possible Parenting Scenarios

¶22 Father also contends the court had to compare all possible
“parenting scenarios” and then select the option that maximizes his
parenting time. He argues, because Mother was willing to return to Arizona
the court had two options: (1) both parents in Arizona (i.e., no relocation),
and (2) Mother as the primary residential parent in South Dakota while
Father remained in Arizona (i.e., relocation). Father posits that because the
latter option restricts his parenting time, the court had to deny relocation.1
We disagree.

¶23 At oral argument, Father cited Baker v. Meyer, 237 Ariz. 112
(App. 2015), for the proposition that frequent parenting time pursuant to
A.R.S. § 25-403.02 is the “overriding factor” in the court’s decision
regarding relocation. He mischaracterizes the court’s required analysis.
Although this court noted the legislature’s “new emphasis on the
fundamental importance of parenting time,” it also underscored that the
court must adopt a parenting plan “[c]onsistent with the child’s best
interests.” Baker, 237 Ariz. at 116–17, ¶¶ 11–12 (quoting A.R.S.
§ 25-403.02(B)).

¶24 The facts of Baker are also distinguishable. There, a superior
court order approving out-of-state boarding school for one child effectively
reduced the mother’s parenting time from 182 to 61 days per year. Id. at 115,
¶ 7. Even so, the superior court in Baker erroneously “failed to consider the

1 Father maintained at oral argument that the court did not consider a
scenario with both parents in Arizona. Because the court made various
findings applicable only if Mother and the children “return[ed] to Arizona,”
we reject this contention.

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child’s interests in having ‘substantial, frequent, meaningful and
continuing parenting time’ with his mother” under A.R.S. § 25-103(B), or
make “any related findings pursuant to” A.R.S. § 25-403. Id. at 117, ¶ 12.
That is, the court drastically reduced the mother’s parenting time without
making any findings on the relevant statutory factors.

¶25 In this case, the court expressly noted that “absent evidence
to the contrary, ‘it is in a child’s best interests . . . [t]o have substantial,
frequent, meaningful and continuing parenting time with both parents[,’]”
and repeatedly contemplated how relocation would impact Father’s
parenting time in its express factual findings pursuant to A.R.S. § 25-408.
Under the current parenting plan, Father receives seven consecutive
parenting days a month in Arizona and “reasonable parenting time when
he travels to South Dakota.” Had the court denied relocation, Father would
have been entitled to an overnight and two six-hour visits per week. In
granting relocation, Father’s parenting time was reduced by one day per
month at most, and should he travel to South Dakota, could actually result
in more time with the children.

¶26 Father argues the court considered only whether his
parenting time would be “substantial” and not whether it would be
“frequent and meaningful.” In support of his argument that he can only
exercise frequent and meaningful parenting time if the children live in
Arizona, Father testified that he could “drop in” on sporting events and
other activities. He testified it would be easier for him to exercise parenting
time with the children in Arizona, which means he could resume the day-
to-day parenting tasks he enjoyed before the relocation. However, Mother
testified that Father did not do these things when they lived together.
Indeed, the children accompanied Mother to Arizona for the trial. Mother
made the children available to Father to exercise parenting time, however
Father spent no time with the children over that week. Viewing the
evidence in the light most favorable to upholding the decree, the court
could have discredited Father’s testimony about how much time he would
spend with the children should they return to Arizona.

¶27 The court considered Father’s contention that he could not
exercise long-distance parenting time because of his demanding work
schedule, but found he would face similar challenges even if the children
lived in Arizona. The court also found that even if the children returned to
Arizona, Father would not have significantly more time with them based
on the demands of his work schedule.

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¶28 On the other hand, based on the family support and lower
cost of living Mother enjoyed in South Dakota, the court found that she
would be more able to spend time parenting the children if permitted to
remain there. The evidence supports those findings. See A.R.S.
§ 25-408(I)(5).

¶29 We find no abuse of discretion and affirm the parenting time
and relocation order.

CONCLUSION

¶30 For the foregoing reasons, we affirm. Both parties request an
award of attorneys’ fees on appeal under A.R.S. § 25-324. After considering
the parties’ financial resources and the reasonableness of their positions, we
order the parties to pay their own attorneys’ fees on appeal. As the
successful party, Mother is entitled to her costs on appeal upon compliance
with ARCAP 21.

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

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