McAvoy v. Logan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAIME DIANE MCAVOY, Petitioner/Appellee,

v.

GEOFFREY FORDE LOGAN, Respondent/Appellant.

No. 1 CA-CV 25-0186 FC
FILED 11-25-2025

Appeal from the Superior Court in Maricopa County
No. FC2015-070821
The Honorable Jillian Francis, Judge

AFFIRMED

COUNSEL

Cantor Law Group PLLC, Phoenix
By Lisa L. Monnette
Counsel for Respondent/Appellant

Jaime Diane McAvoy, Surprise
Petitioner/Appellee
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MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Angela K. Paton and Judge Brian Y. Furuya joined.

K I L E Y, Judge:

¶1 Geoffrey Logan (“Father”) challenges the superior court’s
parenting time order. Because he has shown no abuse of discretion, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Jaime McAvoy (“Mother”) were married in 2008
and have one child, C.L., who was born in 2010. Their marriage was
dissolved in 2015 by a dissolution decree which, inter alia, awarded the
parties joint legal decision-making authority (“LDM”) and equal parenting
time.

¶3 Viewed in the light most favorable to upholding the superior
court’s ruling, Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015) (citation
omitted), the evidence shows that the parties stopped following their
“equal time” parenting schedule in 2017 when, Mother later explained,
Father’s exercise of parenting time “dwindled.” By “about 2020,” Mother
went on, Father’s exercise of parenting time had declined to “basically
every other weekend.”

¶4 C.L. was diagnosed with autism in 2023 and has an
Individualized Education Program (“IEP”) to address his special
educational needs.

¶5 In early 2024, Mother filed a petition to modify the dissolution
decree, requesting, among other things, that she be awarded sole LDM and
designated C.L.’s primary residential parent, with Father having parenting
time on weekends and certain holidays. An evidentiary hearing was set in
November 2024.

¶6 The parties attended a pre-hearing parenting conference at
which they agreed to continue to share joint LDM. The written agreement
that they signed at the conference expressly provided that they “will make
major educational decisions together.” Meanwhile, C.L. was interviewed

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by a representative of the court’s Conciliation Services program. C.L.
indicated that he wanted to spend equal time with each parent, stating, “I
just want to make it . . . even.”

¶7 At the evidentiary hearing, Mother and Father both asked to
be designated C.L.’s primary residential parent. In her testimony, Mother
indicated that the parenting time schedule she proposed was consistent
with the schedule that the parties had been following for the past several
years. Father did not dispute Mother’s testimony on that point, but
explained that his exercise of parenting time was “inhibited” by the
distance between his home and C.L.’s school, which, he stated, is “like a 45
to 50 minute drive in rush hour.”

¶8 In support of her request to be C.L.’s primary residential
parent, Mother stated that she and C.L. “have a very, very close
relationship” and that they “do a lot of things together.” She also stated that
C.L. is close to her older son (who is not common to the parties) and to his
maternal grandparents, who live in Arizona during the winter. She did not
dispute, however, that C.L. and Father have a positive relationship, too. On
the contrary, she testified that C.L. “loves being with his father, for sure.”

¶9 Father acknowledged that Mother “is an amazing mother”
who has “done a great job.” He testified, however, that C.L. should now
reside primarily with him, with Mother having parenting time on alternate
weekends and during school breaks. He stated that he and C.L. have a close
relationship and that they “talk all the time.” Moreover, he added, C.L.
“tells me things that . . . he might not be comfortable telling [Mother].”
Father also stated that C.L. has a good relationship with Father’s longtime
girlfriend.

¶10 When the court asked about C.L.’s expressed wish for equal
parenting time, Mother attributed the child’s statement to his unwillingness
to “hurt” either of his parents. C.L. “is a pleaser,” she stated, and “wouldn’t
want to hurt either one of us.” Father, for his part, testified that he asked
C.L. about his preference, and C.L. told him “[h]e wanted to move” in with
Father. “[H]e’s not going to tell Mom that,” Father said, because “he loves
his mother.”

¶11 When asked about C.L.’s adjustment to school, Mother
acknowledged that C.L. has always struggled academically. Because he’s
on “the spectrum,” she stated, he has difficulty “comprehending things.”
She testified that she was dissatisfied with the elementary school he
attended, so she attempted to enroll him in schools in other districts, but

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those schools “wouldn’t accept” him because they didn’t “have enough
space.” After searching for “a different school,” she finally enrolled him in
a “charter school” that offered “smaller classes.” C.L., who is now in eighth
grade, has attended his current school since the fifth grade, and while
Mother admitted that the school is “not the best,” she stated that it is “the
one school so far that has . . . met all his needs.” She acknowledged that
C.L.’s “not getting the best of grades” and that she “spend[s] hours each
night” helping him with his homework. She also noted, however, that C.L.
has begun seeking help from his teachers “after hours” and his grades have
improved.

¶12 Father denied that C.L.’s autism is a significant obstacle to
academic success. C.L. is only “slight[ly] on the spectrum,” he stated, later
reiterating, “I just don’t think his autism is that prevalent.” Describing C.L.
as “highly intelligent,” Father attributed C.L.’s struggles in school to
difficulties in “getting him focused” and “keeping distractions away.”

¶13 Noting that he attended a private high school that prepared
him well for college, Father expressed the view that C.L. would benefit from
attending a similar school. He identified Brophy Preparatory Academy
(“Brophy”) as his preferred choice, explaining that it is “an all-boys school”
with an impressive “pedigree” and “level of education.” When asked if he
believed C.L. met that school’s admission standards, Father did not directly
answer. Instead, he stated, “Brophy is not the ‘end all, be all,’” and then
identified by name several other high schools which he considers
comparable to Brophy.

¶14 Mother testified that she doubted that the parties could afford
private school tuition and, in any event, doubted that C.L. could gain
admission to private school due to “the grades that he has.” When asked if
she would agree to enroll C.L. in private school if Father agreed to pay for
it, Mother testified that she would need more information about the
proposed school before deciding.

¶15 Father expressed the view that, as a boy “going through
adolescence,” C.L.’s best interests would be served “being with his father”
at “this point in his life.” “[A] teenage son,” Father opined, benefits from
“being with [his] father,” “learning from him,” and developing
“discipline,” “commitment,” and “drive.” C.L. is “a great kid” with “a ton
of potential,” Father concluded, and “living with me will allow him to put
his best foot forward and have that opportunity at success.”

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¶16 After taking the matter under advisement, the court issued a
lengthy ruling in which it adopted the parties’ pre-hearing agreement to
continue to share joint LDM, designated Mother C.L.’s primary residential
parent, and awarded Father parenting time three weekends of each month
during the school year and on certain holidays. The court further ordered
that, during the summer, the parties would exercise equal parenting time
on a “week on/week off” basis. The court also modified child support to
account for the modified schedule.

¶17 Father timely appealed. We have jurisdiction under A.R.S. §
12-120.21(A)(1).

DISCUSSION

¶18 Father asserts that the court erred in “designat[ing] Mother as
the primary residential parent” and “limit[ing] Father’s parenting time” to
three weekends each month during the school year. Mother’s answering
brief asks us “to uphold the [superior court’s] decision” which, she states,
“still allows [Father] ample opportunity to take a more active role in [C.L.’s]
development.”1

¶19 We review orders of parenting time for an abuse of discretion.
Baker v. Meyer, 237 Ariz. 112, 116, ¶ 10 (App. 2015) (citation omitted). An
abuse of discretion occurs “when the record is devoid of competent
evidence to support the decision.” Smith v. Smith, 253 Ariz. 43, 45, ¶ 9 (App.
2022) (citation modified). We will not re-weigh evidence. Clark v. Kreamer, 243 Ariz. 272, 276, ¶ 14 (App. 2017) (citation omitted).

¶20 In determining parenting time, the court must consider
eleven specific factors set forth in A.R.S. § 25-403(A). The court’s lengthy

1 Mother’s answering brief does not directly respond to any of Father’s

specific arguments, nor does it cite to the record or to legal authority.
Failure to respond to debatable issues or cite to legal or factual support in
an answering brief can be deemed a confession of error or may result in the
waiver of the appellee’s arguments. See Hecla Mining Co. v. Indus. Comm’n,
119 Ariz. 313, 314 (App. 1978) (finding confession of error in answering brief
that failed to respond to debatable issue); Varco, Inc. v. UNS Elec., Inc. 242
Ariz. 166, 170, ¶ 12 n.5 (App. 2017) (declining to apply waiver for answering
brief even though it did not cite to the record as required by ARCAP 13(b)).
Because the best interests of a child are at issue here, however, we will
overlook the deficiencies in Mother’s answering brief in resolving this
appeal. See Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (App. 1966).

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ruling establishes that it considered each of these factors. Father disputes
the court’s findings on only two: “[t]he child’s adjustment to . . . school”
and “the wishes of the child.” A.R.S. § 25-403(A)(3), (4).

¶21 Father argues, first, that C.L.’s academic “struggles” indicate
that he “has not adjusted to [his] current school.” Indeed, Father notes,
Mother herself admitted that C.L.’s current school is “not the best.” Father
asserts that if C.L. resided primarily with him, he would enroll him in “a
different school with a higher level of education,” and that his work-from-
home schedule would allow him “to help the child with [schoolwork] every
day.”

¶22 In his opening brief, Father does not identify any particular
school in which he believes C.L. should be enrolled. Although Father
testified at the evidentiary hearing that he would like C.L. to attend Brophy
or another private school with a comparable “level of education,” he
presented no evidence at the hearing of the curriculum offered at any
school, nor did he present any reason to believe that a school other than the
one C.L. currently attends would better meet his educational needs.
Further, he offered no response to Mother’s testimony expressing doubt
about C.L.’s chances of being admitted to a private school, or to her
concerns about the parties’ ability to afford private school tuition. Although
Father testified that he would be willing to help the child with schoolwork
on a daily basis, the court found that Mother already helps C.L. with his
homework every day. The court further found that C.L. has recently “been
getting after-hours help” at school and that “his grades have improved,”
findings which the evidence supports. And Father’s contention that “a
change” to a different school “may give the child a better chance at success”
is based on nothing more than speculation that is entitled to no weight
when determining parenting time. See Dodd v. Boies, 88 Ariz. 401, 404 (1960)
(“[P]urely speculative inferences or conclusions do not constitute
substantial evidence[.]” (citation omitted)). The evidence supports the
court’s implicit determination that the child’s adjustment to school does not
require a change in his primary residence.

¶23 Father argues that the court “abused its discretion [by] not
considering the school choice factors” set forth in Jordan v. Rea, 221 Ariz. 581
(App. 2009). In Jordan, we set forth the factors a court must consider in
determining a child’s school placement when the parents who share joint
LDM “are unable to agree.” Id. at 584, 590, ¶¶ 1, 23-24. Jordan is irrelevant
here, however, because neither party raised the issue of school placement
in the superior court. On the contrary, they agreed at a pre-hearing
conference to continue to share joint LDM and that they “will make major

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educational decisions together” rather than asking the court to make those
decisions for them.

¶24 In any event, a court cannot resolve a school placement
dispute unless each party first identifies his or her preferred school and
presents evidence to show that attending the party’s preferred school
would be in the child’s best interests. See John E. Shaffer Enters. v. City of
Yuma, 183 Ariz. 428, 431 (App. 1995) (“Generally, the party who asserts the
affirmative of an issue has the burden of proving it.”); Jordan, 221 Ariz. at
590, ¶ 22 (holding that a court must apply “[t]he best-interests standard”
when fit parents “are unable to agree” on “the upbringing of the child”). A
party should present evidence, in other words, of the advantages that
attending the parent’s preferred school would offer to the child. See Jordan,
221 Ariz at 590, ¶ 24 (noting that when resolving school choice dispute,
court should consider, when applicable, such factors as “the qualifications
of the teachers at each school” and “the curriculum used and method of
teaching at each school”). Here, Father presented no evidence of any benefit
offered by his preferred school except vague references to its “pedigree”
and “level of education.” Since the parties neither asked the court to resolve
a school placement dispute nor presented the evidence necessary to do so,
the court did not err in not applying the Jordan factors. See Baker, 237 Ariz.
at 115-116, ¶¶ 8-9 (concluding that trial court erred as a matter of law when
it applied the Jordan school choice factors when the issue was not one of
school choice, but of parenting time).

¶25 Father further contends that the court did not consider that
C.L. said that he wants “to spend more time with Father.” In a best-interest
analysis, the court must take the “wishes of the child” into consideration
“[i]f the child is of suitable age and maturity[.]” A.R.S. § 25-403(A)(4). The
court noted that C.L. expressed that he “wants equal parenting time[]”
during his pre-hearing interview. The court was not, however, required to
give this fact dispositive weight. Baker, 237 Ariz. at 115, ¶ 8 n.7 (“Although
the child’s wishes may be considered by the court, it is but one factor among
others and not decisive.”). Moreover, the court discounted C.L.’s statement
by finding that C.L. “wants to please both parents,” a finding that is
supported by Mother’s testimony at the hearing. Father’s contention that
the court ignored the child’s wishes is not borne out by the record. To the
extent Father complains that the court gave the child’s wishes insufficient
weight, he is entitled to no relief. An appellate court does not re-weigh the
evidence. Clark, 243 Ariz. at 276, ¶ 14.

¶26 Father argues that the court’s parenting time orders violated
the statutory mandate to provide the child with “substantial, frequent,

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meaningful and continuing parenting time with both parents.” A.R.S. § 25-
103(B)(1); see also A.R.S. § 25-403.02(B) (providing that, “[c]onsistent with
the child’s best interests[,]” the court “shall adopt a parenting plan
that . . . maximizes” each parent’s “parenting time”) “At a minimum,”
Father argues, the court should have “maintain[ed]” the orders in the
decree providing “for equal parenting [time.]”

¶27 The court awarded the parties equal parenting time during
the summer, but not during the school year. Although, “[a]s a general rule[,]
equal or near-equal parenting time is presumed to be in a child’s best
interests[,]” Woyton v. Ward, 247 Ariz. 529, 531, ¶ 6 (App. 2019), Arizona law
does not mandate it. Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 492, ¶ 11
(App. 2020) (as amended). On the contrary, the superior court has
“discretion to determine parenting time based on all the evidence before it.”
Id.

¶28 The record shows that although the decree entered in 2015
awarded the parties equal parenting time, they stopped exercising equal
parenting time within two years because the distance between their homes
made an “equal time” schedule impracticable. At the November 2024
hearing, neither party asked the court to order an “equal time” schedule.
Instead, each party asked to be designated C.L.’s primary residential
parent. Since the parties agreed that the “equal time” parenting time
schedule set forth in the decree had not been followed and should be
modified, Father cannot obtain relief on appeal by arguing, for the first
time, that the court abused its discretion by failing to order an “equal time”
schedule that no party requested. See Woodworth v. Woodworth, 202 Ariz.
179, 184, ¶ 29 (App. 2002) (holding that argument not raised at trial was
waived on appeal).

¶29 In support of his position, Father asserts that the superior
court abused its discretion by giving insufficient weight to his testimony
that it “would be beneficial for a teenage son going through adolescence to
live with his father so he could learn and grow from him.” This argument
asks us to re-weigh the evidence, which we will not do. Clark, 243 Ariz. at
276, ¶ 14. And in any event, the record refutes Father’s suggestion that the
court disregarded his testimony about his “duty” to “teach his son.” On the
contrary, the court expressly stated that it found Father’s testimony on this
point to be ”compelling.” The court also found, however, that Mother, too,
loves C.L. and that the two “have a very close relationship.” The court thus
concluded, and the evidence shows, that C.L. has a loving relationship with
both parties. The superior court has “broad authority to establish parenting-
time orders[,]” Smith, 253 Ariz. at 49, ¶ 26, and did not abuse its discretion

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by entering a parenting time order that essentially formalized, during the
school year, the schedule the parties had already been following, while
giving the parties equal time during the summer.

CONCLUSION

¶30 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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