Kevin & Allison Mucthison Divorce Documents

Michael K. Jeanes, Clerk of Court*** Filed ***

03/16/2011 8:00 AMSUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

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Docket Code 903 Form D000C

CLERK OF THE COURTHONORABLE DANIEL J. KILEY Y. Gano

Deputy

IN RE THE MATTER OFKEVIN MUCTHISON JANET R FEELEY

AND

ALLISON JOHNSON ALLISON JOHNSONPO BOX 27545TEMPE AZ 85282

DOCKET-FAMILY COURT CCCFAMILY COURT SERVICES-CCC

MINUTE ENTRY

After an evidentiary hearing on January 21, 2011 at which Petitioner Kevin Mucthison (Father) and Respondent Allison Johnson (Mother) both testified, the Court has had under advisement the Petition to Modify Child Custody, Parenting Time and Child Support filed by Father on April 23, 2010. After considering the evidence presented, the Court finds and rules as follows:

I. Relevant Facts

The parties were divorced pursuant to a Decree of Dissolution of a Non-Covenant Marriage by Consent With Minor Children (Dissolution Decree) entered by stipulation of the parties on January 15, 2008. Mother resided in Arizona at the time the Dissolution Decree was entered; she continues to reside here. Father resided in New Jersey at the time the Dissolution Decree was entered; he continues to reside there.

SUPERIOR COURT OF ARIZONAMARICOPA COUNTY

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The parties are the parents of one minor child, Christian Mucthison (the Minor Child), a boy who was born on February 24, 1998. Their other child in common, Dwayne Mucthison, reached majority after the entry of Dissolution Decree.

According to the terms of the Dissolution Decree, the parties share joint legal custody of the Minor Child. See Dissolution Decree at p. 4. The Dissolution Decree and the accompanying parenting plan, which is entitled “Joint Parenting Plan,” provide that Mother has “care, custody and control of” the Minor Child, while Father has parenting time one weekend each month as well as during vacations and on specified holidays. Dissolution Decree at p. 4; Joint Parenting Plan at pp. 2-4. The Joint Parenting Plan entitles Father to approximately 75 days of parenting time per year. Joint Parenting Plan at pp. 2-4. The Dissolution Decree requires Father to pay Mother child support of $775.00 per month, to be reduced to $571.00 per month upon the emancipation of the parties’ older child. Dissolution Decree at p. 4.

By agreement of the parties, the Minor Child left Arizona and moved to Father’s home in December 2009 or January 2010. The circumstances leading up to the Minor Child’s relocation from Arizona to New Jersey are disputed. Father testified that Mother told him that, due to financial and personal problems she was experiencing, she could no longer care for the Minor Child. As a result, the parties agreed that the Minor Child would move to New Jersey to live with Father.

Mother, by contrast, testified the Minor Child’s relocation to New Jersey was intended as a temporary measure until Mother herself relocated from Arizona to New York. Mother testified that she was “furloughed” from her job with U.S. Airways in September 2009. After learning of a promising job opportunity in New York, Mother told Father she intended to relocate to New York. They reached an agreement that the Minor Child would relocate to New Jersey to reside with Father until Mother was able to make arrangements to relocate to her new home in New York, at which point the Minor Child would move to New York to live with her.

Father testified at the January 21st hearing that he did not want the Minor Child to relocate to New Jersey until the parties went to court to obtain a modification of the existing parenting plan, but that Mother was unwilling to wait. Mother did not dispute Father’s testimony on this point.

Mother learned, through a friend, of a school in New Jersey named St. Cecelia Interparochial School. It is undisputed that, in late 2009, Mother traveled to New Jersey, toured St. Cecelia’s, met the principal, and made the decision to enroll the Minor Child there. The Minor Child relocated to New Jersey and began attending St. Cecelia’s in January 2010.


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During the time that the Minor Child resided with Father, he traveled to Arizona a number of times to visit Mother. The Minor Child returned to Arizona, for example, on July 25, 2010 and stayed with Mother until July 31, 2010. Exhibit 1 at p. 6. Mother likewise testified that the Minor Child returned to Arizona in November 2010 to spend the Thanksgiving holiday with her. She also testified that she traveled out to New Jersey to visit him “every single week.”

Mother’s job opportunity in New York never came through. She changed her mind about relocating from Arizona to New York when U.S. Airways called her back to her old job.

On April 23, 2010, Father filed in his Petition to Modify Child Custody, Parenting Time, and Child Support (Father’s Petition to Modify). In Father’s Petition to Modify, Father asks that the Court modify the existing orders to grant him sole legal custody of the Minor Child, to provide that the Minor Child reside primarily with him, to grant Mother reasonable parenting time, and to modify child support. Father’s Petition to Modify at p. 4.

On August 18, 2010, Mother filed a document entitled “Response to Petition to Modify Custody, Parenting Time, and Child Custody [sic]” (Mother’s Petition to Modify), in which she asks that she be awarded sole legal custody of the Minor Child and that the Minor Child return to Arizona to live with her. Mother’s Petition to Modify at p. 1. She alleged, inter alia, that Father “is not cooperating in returning” the Minor Child to Arizona and that Father is “making threats on my life.” Id.

At Mother’s request, Father allowed the Minor Child to travel to Arizona on December 19, 2010 to spend the Christmas holiday with Mother. Father testified that, when he sent the Minor Child to Mother in December 2010, he trusted that Mother would return the Minor Child to New Jersey at the end of the visit. He testified that he had no reason to suspect otherwise because, since he relocated to New Jersey, the Minor Child had returned to Arizona to visit Mother “numerous times, and has always been returned” to New Jersey.

After the Christmas 2010 holiday, however, Mother refused to return the Minor Child to New Jersey.

As Mother acknowledged in her testimony, she did not inform the Minor Child until after he arrived for the Christmas 2010 holiday that she intended to keep him in Arizona permanently. Likewise, as Father testified, Mother did not tell Father in advance that she intended to refuse to return the Minor Child to New Jersey. Instead, it was not until Father called Mother’s home to speak with the Minor Child over the holidays that he learned that Mother refused to send the Minor Child back to New Jersey.

II. Custody


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The Court has jurisdiction pursuant to A.R.S. § 25-1032 to address the issues raised by the parties.

A.R.S. § 25-403 requires the Court to consider the following factors in determining a contested request for modification of legal custody:

1. The wishes of the parents as to custody. As noted above, each party asks that he or she be granted sole legal custody of the Minor Child.

2. The wishes of the child as to custody. The Minor Child was interviewed in

connection with the parenting conference that was held on October 6, 2010. At the time, he was living with Father in New Jersey. He expressed the desire to continue to reside with Father. Exhibit 1 at p. 4. He further stated that, when he lived with Mother in Arizona, “I was always home alone and stuff. One time I didn’t have any food.” Id. While he expressed love for both parents, he also stated that Father “is just home a lot more” than Mother. Id. at p. 5.

At the January 21st hearing, Mother asserted that Father “coached” the Minor Child prior to the parenting conference. In support of her assertion, Mother testified that, during a recent visit with Mother’s sister, Mother’s sister asked the Minor Child whether Father had coached him prior to the parenting conference, and the Minor Child left the room without answering. Mother testified that the Minor Child’s silent departure from the room rather than answering his aunt’s question should be interpreted as an admission “that someone was telling him what to say” during the parenting conference.

In the Court’s view, the Minor Child’s failure to respond when the maternal aunt questioned him about alleged coaching by Father proves nothing except that the Minor Child was unwilling to discuss the parenting conference. Moreover, the Court is troubled by the fact that Mother’s testimony indicates that she sees nothing wrong with the fact that her sister questioned the Minor Child about the parenting conference. The Court’s concerns are heightened by Father’s testimony that the Minor Child has complained that Mother herself questioned him about statements attributed to him in the Parenting Conference Report. The Parenting Conference Report expressly states that the Minor Child “is never to be made aware, directly or indirectly, of the contents of this report.” Exhibit 1 at p. 13. In her testimony,


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Mother did not deny asking the Minor Child about statements he made during the parenting conference.1 Clearly, Mother has acted inappropriately, both in asking the Minor Child about the contents of the Parenting Conference Report and in condoning the maternal aunt’s questioning of the Minor Child about alleged coaching prior to the parenting conference. A child being interviewed during a parenting conference should feel free to speak candidly, and afterwards should not have to answer to anyone, especially the child’s parents, for anything he or she said during the conference.

3. The interaction and interrelationship of the child with his or her parents, siblings,

and any other person who may significantly affect the child’s best interests. At the parenting conference, the Minor Child reported having a good relationship with each party. Regarding Mother, the Minor Child stated, “I love her a lot. She is my mom.” Exhibit 1 at p. 5. Regarding Father, the Minor Child stated, “I’m really close with him. I feel like I can talk about anything with him.” Exhibit 1 at p. 5.

During the parenting conference, each party claimed to have a closer relationship with the Minor Child than the other party has. Each party reported that the Minor Child is afraid to be open and honest with the other party. Exhibit 1 at p. 4.

The Minor Child’s older brother Dwayne, who is now an adult, also resides in Arizona. The Minor Child reported during the parenting conference that he and Dwayne “get along very well,” and that he felt “sad” when Dwayne moved out of Mother’s home. Exhibit 1 at pp. 4-5. The Minor Child further reported that, during the time he lived in New Jersey, Dwayne traveled out to visit him. Id. at p. 5. Father testified at the hearing that Dwayne intends to relocate to the East Coast, possibly to Georgia or New York, within the next few months.

Apart from Mother and Dwayne, the Minor Child has no other relatives in Arizona. Exhibit 1 at pp. 4-5. Father testified without contradiction that the Minor Child has a “substantial amount of family” in New Jersey and New York on both sides of the

1 Mother stated during the parenting conference that the Minor Child “is not allowed to discuss anything that happens at his dad’s house,” complaining, “I am unable to ask questions about anything, for example, who stays or picks you up when your dad is traveling.” Exhibit 1 at p. 6. If Mother has questions about these issues, she should direct them to Father, not the Minor Child. As the Parenting Conference Report notes, it is inappropriate for Mother “to use [the Minor Child] to ‘investigate’ and ‘police’ Father’s parenting.” Id. at p. 6, n. 5. Mother simply has no business asking the Minor Child these questions in the first place.


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family, including Father’s sister, Father’s brother, Mother’s two sisters, and various cousins.

Father reported during the parenting conference that the Minor Child has a “very good” relationship with his girlfriend of the past four years. Exhibit 1 at p. 4. The Minor Child’s description of his relationship with Father’s girlfriend was consistent with Father’s statements. See id. at p. 5.

Mother reported during the parenting conference that the Minor Child has a “really good” relationship with her boyfriend of the past four years. Exhibit 1 at p. 4. The Minor Child’s description of his relationship with Mother’s boyfriend was not entirely consistent with Mother’s statements. See id. at p. 5. When asked at the parenting conference about Mother’s boyfriend, the Minor Child stated, “Sometimes he is nice to me and sometimes he is not.” Id.

4. The child’s adjustment to home, school and community. During the parenting

conference, the Minor Child reported that he is happier in New Jersey than he was in Arizona. Exhibit 1 at p. 7. He reported that he “only had one friend in Phoenix” and has “plenty in New Jersey,” and that he liked his school in New Jersey better. Id.

The Minor Child’s report cards from his schools in both Arizona and New Jersey reflect that his performance in at least certain subjects leaves room for improvement. See Exhibits 2, 3, 19. Both parties testified that the Minor Child has struggled in his math classes. Father testified that, after his relocation to New Jersey, Father enrolled the Minor Child in math tutoring. During his time at St. Cecelia’s, the Minor Child’s quarterly grades in math improved from a C+ to a B to a B+. Exhibits 2, 3.

Father reported during the parenting conference that, after relocating to New Jersey, the Minor Child was involved in basketball, soccer, and the school band. Exhibit 1 at p. 6; Exhibits 4, 5, and 6. Father testified that he attended the Minor Child’s sports games “all the time.”

Mother’s own statements give reason to question the Minor Child’s adjustment to living in Arizona. Mother testified at the January 21st hearing that the Minor Child was “aggressive” and “very pushy” after he returned from living with Father. Exhibit 1 at p. 7. In his testimony, Father denied that the Minor Child was “rebellious” with him, and suggested that the Minor Child is acting out at Mother’s home because he is unhappy that Mother has kept him in Arizona. Mother disagreed, suggesting that the Minor Child exhibited behavioral problems at his school in New Jersey. The Minor Child’s report cards do not, however, bear this


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out. His report cards show that his grades in such behavioral categories as “follows directions,” “works well in groups,” “obeys school rules,” and “exhibits positive attitude/behavior” were almost entirely “satisfactory” or even “outstanding.” Exhibits 2, 3.

Mother testified at the January 21st hearing that the Minor Child has made a number of friends since he returned to Arizona. The Parenting Conference Report, however, quotes Mother as saying that the Minor Child “doesn’t get along with other kids.” Exhibit 1 at p. 10. At the January 21st hearing, Mother did not deny stating that the Minor Child “doesn’t get along with other kids.” Instead, she stated that she could not remember what she was referring to when she made this statement, testifying, “I have no idea what this is about.”

5. The mental and physical health of all individuals involved. In these proceedings,

Mother has alleged that Father is bi-polar, an allegation Father denied. See Exhibit 1 at p. 7. Mother produced no documentary or other evidence to confirm her allegation. Father has alleged that Mother attempted suicide in 2005, an allegation Mother denied. See id. Father produced no documentary or other evidence to confirm his allegation.

Neither party presented evidence to establish that either party or the Minor Child has any mental or physical health condition that would have any bearing on a custody determination.

6. Which parent is more likely to allow the child frequent and meaningful continuing

contact with the other parent. Mother has asserted in these proceedings that Father wrongfully denied her access to the Minor Child after his relocation to New Jersey. It is undisputed, however, that the Minor Child was able to travel to Arizona to visit Mother on a number of occasions in 2010. Further, Mother herself testified that, during the time the Minor Child lived in New Jersey, she traveled “every single week to visit him.”

Mother testified that, after these proceedings began, Father blocked her cell phone access to the Minor Child. Father testified that he blocked the Minor Child’s cell phone because Mother was sending the Minor Child text messages to the effect that the police would be coming for him because Father was violating a custody order by refusing to return the Minor Child to Arizona. The texts were upsetting to the Minor Child, so Father blocked Mother’s number from the Minor Child’s cell phone. Father testified that he blocked Mother’s phone calls for only “approximately a month.” Father further testified that, even during this one-month


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period, Mother could have called his cell phone or his home phone to speak to the Minor Child at any time.

The Court does not find that Father unreasonably denied Mother access to the Minor Child.

The Court finds, however, that Mother’s refusal to return the Minor Child to New Jersey after he arrived in Arizona for what he and Father both understood to be merely a holiday vacation is an unreasonable denial of Father’s continuing contact with the Minor Child.

7. Whether one parent, both parents, or neither parent has provided primary care of the

child. The evidence indicates that the Minor Child has resided in the care of each party at different times, and that each party has provided significant care for the Minor Child.

8. The nature and extent of coercion or duress used by a parent in obtaining an

agreement regarding custody. The parties have reached no agreement regarding custody. This factor therefore does not apply.

9. Whether each party has complied with A.R.S. § 25-351 et. seq. The Court’s file

indicates that Mother attended the Parent Information Program class in October 2006. Father asserted at the January 21st haring that he attended a parenting class in New Jersey before the entry of the Dissolution Decree. The Court’s file indicates that, after the conclusion of the January 21st hearing, Father completed the Parenting Information Program class in Maricopa County on March 7, 2011.

10. Whether either party has been convicted of an act of false reporting of child abuse

or neglect under A.R.S. § 13-2907.02. There is no evidence, or even allegation, that either party has been convicted of any such offense. The Court therefore finds that this factor does not apply.

11. Whether there has been domestic violence or child abuse as defined in A.R.S. § 25-

403.03. Mother asserted at the January 21st hearing that Father was abusive during the parties’ relationship and that he “has a record of violence.” In his testimony, Father denied that there was any domestic violence in the parties’ relationship.

It is undisputed that the parties agreed to share joint legal custody in their Dissolution Decree. Mother did not allege that any domestic violence has occurred since the Dissolution Decree was issued in 2008. The Court therefore finds that no domestic violence has occurred since the entry of the existing custody order.


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Father appears to be supportive of the Minor Child’s relationship with Mother. Recognizing that “we both love him,” Father testified that he wants the Minor Child to “have a great relationship with both of us” and to “love both of us.”

Father’s support for Mother’s relationship with the Minor Child is not, however, reciprocated. When asked at the parenting conference about the Minor Child’s relationship with Father, Mother responded, “Sadly enough, he does love his dad.” Exhibit 1 at p. 4. The fact that Mother would cast the Minor Child’s love for his father in negative terms indicates that Mother is not supportive of the relationship between the two.

Mother has repeatedly asserted throughout these proceedings that Father violated the custody orders set forth in the Dissolution Decree when he refused to return the Minor Child to Arizona after Mother changed her mind about relocating to New York. Mother is correct in observing that the existing custody order provides that Mother shall have “care, custody and control of” the Minor Child except during Father’s parenting time. Joint Parenting Plan at p. 2. It is also true, however, that the custody order provides that the parties shall share joint legal custody of the Minor Child. Dissolution Decree at p. 4; Joint Parenting Plan at p. 2. Because they share joint legal custody, they are required to confer and reach joint decisions about major issues affecting the Minor Child’s life.

It is undisputed that the parties mutually agreed, in late 2009, that the Minor Child would relocate to New Jersey to live with Father. Even if Mother is correct in asserting that the Minor Child was to reside in New Jersey only until Mother relocated to New York (at which point he would relocate to New York to live with her), Mother’s own testimony establishes that neither party intended the Minor Child would return to live in Arizona. Because the parties jointly agreed that the Minor Child would relocate out of Arizona, Mother had no right to unilaterally decide to relocate him back to Arizona. While Mother certainly had the right to change her mind about her own relocation from Arizona, she had no right to unilaterally relocate the Minor Child back to Arizona without Father’s knowledge or consent. By doing so, Mother, not Father, acted in a manner inconsistent with the existing joint legal custody order.

The successful exercise of joint legal custody requires, among other things, that the parties communicate openly and honestly. There was nothing open or honest about Mother’s conduct in refusing to send the Minor Child back to New Jersey after he traveled to Arizona in December 2010 for what he and Father both believed to be merely a holiday vacation. Parents cannot effectively work together if they do not trust each other, and Mother has given Father cause to believe he cannot trust her.

Mother appears to be unwilling to co-parent with Father, or even to recognize that Father has any right to participate in making decisions for the Minor Child. In a letter Mother sent to


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the Minor Child’s school on September 30, 2010, Mother asserted that “there is an order that [the Minor Child] should live with me and I make the decisions for him.” Exhibit 12 at p. 2 (emphasis added). This is simply not true; the existing order for joint legal custody requires that both parties jointly make decisions for the Minor Child. The Joint Parenting Plan could not be more clear: “Both parents shall participate in making major decisions concerning the Minor Children’s education.” Joint Parenting Plan at p. 5 (emphasis added). Mother unquestionably violated this provision by unilaterally enrolling the Minor Child in school in Arizona in January 2011 without even informing Father. The Court therefore has doubts about whether joint legal custody is feasible in this matter.

At the same time, the Court is mindful that the parties agreed to share joint legal custody when they entered their Dissolution Decree three years ago. This suggests that, at least at the time, the parties themselves believed that they had the ability to communicate constructively to reach joint decisions. A High Conflict Resolution class may assist the parties in re-establishing their ability to communicate constructively.

Further, the Court is concerned that granting either party sole legal custody may result in the exclusion of the other party from decision-making for the Minor Child. The Court sees no reason why either party should be excluded from participating in making decisions affecting the Minor Child. Whatever their differences, there is no question that both parties love the Minor Child. In any event, allowing both parties to participate in decision-making on the Minor Child’s behalf is consistent with Arizona public policy. See A.R.S. § 25-101. It must be made clear to both parties, however, that Mother cannot, as she has done, unilaterally transfer the Minor Child from one school to another without Father’s knowledge or consent. Accordingly,

IT IS ORDERED that the parties shall continue to share joint legal custody of Christian Mucthison.

IT IS FURTHER ORDERED that, in the event that the parties are unable to reach a joint decision about an issue relating to the Minor Child’s education, Father shall be permitted to make the final decision about the issue after consultation with Mother.

IT IS FURTHER ORDERED that the parties shall participate in a High Conflict Resolution class no later than June 1, 2011. Information about this class appears at the end of this order.

III. Relocation and Parenting Time

A.R.S. § 25-408(I) requires the Court to consider the following factors in determining relocation requests:


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1. The factors prescribed under § 25-403. Those factors are discussed above.

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. When asked at the January 21st hearing to explain why he wants the Minor Child to reside with him in New Jersey, Father testified that the Minor Child is “a great kid, and I want to give him the opportunity to excel” and “explore different things.” In an apparent reference to the Minor Child’s statement during the parenting conference that Mother would be “an even better mother” if she were “more involved in my school and sports games” and was “home some more,” see Exhibit 1 at p. 5, Father testified,

I don’t want him sitting in a house wasting his time, I want him to be actively going out, I want his brain to grow, I want his body to grow.

The Court finds that Father is acting in good faith in seeking to have the Minor Child live in New Jersey, and not out of any desire to restrict Mother’s access to the Minor Child. The Parenting Conference Report quotes Mother as stating, “I want to have [the Minor Child] live with me. I love my son. I want to be with him. I have to live with my two children.” Exhibit 1 at p. 9. While this statement explains why it may be in Mother’s best interests for the Minor Child to live in Arizona, it says nothing about why it would be in the Minor Child’s best interests to live here.

The Court questions whether Mother has acted in good faith over the course of these proceedings. It is undisputed that Mother did not inform Father in advance of her intent not to allow the Minor Child to return to Arizona when the Minor Child traveled to Arizona in December 2010 for what both Father and the Minor Child believed to be simply a holiday vacation. Mother’s use of a ruse to secure the Minor Child’s permanent return to Arizona can hardly be considered acting in good faith.

Mother’s lack of good faith is further shown by the unsupported allegations she has repeatedly leveled at Father throughout the course of these proceedings. In Mother’s Petition to Modify, for example, Mother accused Father of “making threats on my life.” Mother’s Petition to Modify at p. 1. She produced no evidence at the January 21st hearing, not even her own testimony, to support this allegation.


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Similarly, Mother testified on January 21st that Father “has a marijuana problem,” emphasizing, “He smokes a lot.” When asked to produce evidence to support her allegation, Mother testified, “I don’t have any evidence to show that he smokes. But he smokes. You can ask him. He’ll tell you.” In his testimony, Father denied smoking marijuana.

Mother’s testimony that Father frequently smokes marijuana is contrary to the statement in the Parenting Conference Report that “[t]he parents agreed that substance abuse was not an issue or factor since the divorce decree.” Exhibit 1 at p. 8. Moreover, if Mother believed that Father uses an illicit substance that renders him unfit to have physical custody of the Minor Child, why did she leave the Minor Child in his care in January 2010? In light of the fact that Mother voluntarily left the Minor Child in Father’s care in January 2010, the Court finds Mother’s claim at the January 21st hearing that Father “smokes” marijuana “a lot” to be nothing more than an unsupported and irresponsible allegation launched in an effort to bolster Mother’s position on the relocation issue.

3. The prospective advantage of the move for improving the general quality of life for

the custodial parent or for the child. The Minor Child appears to have done well, and to have been happy, when he lived with Father in New Jersey in 2010. He reported during the parenting conference that he enjoys school more, and has more friends, in New Jersey than in Arizona.

As noted above, Father testified without contradiction that the Minor Child has a “substantial amount” of relatives in New Jersey and New York on both sides of the family, including Mother’s two sisters who live in or near New York City. Because Father’s home in New Jersey is located close to the New York state line, living in New Jersey would afford the Minor Child the opportunity to spend time with relatives in both states. The Minor Child has no relatives in Arizona other than Mother and Dwayne, and, as Father testified, Dwayne has indicated an intent to leave Arizona.

4. The likelihood that the parent with whom the child will reside after the relocation

will comply with parenting time orders. As noted above, the Court finds that Mother failed to comply with the existing order for joint legal custody. Once the parties jointly agreed to relocate the Minor Child out of Arizona, Mother had no right to relocate him back over Father’s objection.

Further evidence of Mother’s violation of the existing joint legal custody order is found in Mother’s unilateral decision to withdraw the Minor Child from St. Cecelia’s and enroll him at a different school in Arizona. The Joint Parenting Plan


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expressly states that “[b]oth parties shall participate in making major decisions concerning the Minor Children’s education.” Joint Parenting Plan at p. 5. What school the Minor Child would attend is undoubtedly a “major decision concerning” his education. The parties mutually agreed in late 2009 that the Minor Child would attend St. Cecelia’s (or, more accurately, Mother selected St. Cecelia’s as the Minor Child’s school, and Father acquiesced). Once the Minor Child was enrolled at St. Cecelia’s, neither party had the right to unilaterally withdraw him from that school over the objection of the other party. That is precisely what Mother did.

5. Whether the relocation will allow a realistic opportunity for parenting time with

each parent. If the Minor Child were allowed to relocate from Mother’s home state to Father’s, Mother would have at least the same opportunity for parenting time that Father had at the time the Dissolution Decree was entered. Travel between Arizona and New Jersey is facilitated by Mother’s travel benefits through her employer, an airline.

Notwithstanding her testimony that she traveled to New Jersey “every single week” to visit the Minor Child in 2010, Mother claimed at the January 21st hearing that she would be unable to visit with the Minor Child if he lived in New Jersey. When asked to explain why she was able to visit the Minor Child in New Jersey before but would be unable to do so now, Mother stated, “That was before. Today’s a different day.” The Court finds Mother’s testimony to be completely unconvincing. If she could visit the Minor Child in New Jersey in 2010, she can do so in 2011.

6. The extent to which moving or not moving will affect the emotional, physical or

developmental needs of the child. The Minor Child reported that he did not like his school in Arizona, and had only one friend in the state. By contrast, he likes his school in New Jersey and has lots of friends. Members of the Minor Child’s extended family live in New Jersey and New York, but not Arizona. New Jersey appears to offer a stronger support network for the Minor Child than Arizona does.

7. The motives of the parents and the validity of the reasons given for moving or

opposing the move. This factor is addressed in Paragraphs 2 and 3 above.

8. The potential effect of relocation on the child’s stability. The Minor Child adjusted well to living in New Jersey. Allowing him to return there would have no negative effect on his stability.

As noted above, the parties agreed in late 2009 that the Minor Child would relocate from

Arizona to New Jersey. Mother had no right to unilaterally relocate him back to Arizona in December 2010 without even telling Father of her plans.


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Mother asserted that the Minor Child should reside with her because she is his mother. “Every child,” Mother testified, “should be with their mother, unless there’s a problem, mother’s a drug addict, and even so, they still, you know, recommend, kids should grow up with their mother.” Mother’s assertion that her gender entitles her to greater parental rights is contrary to Arizona law. See A.R.S. § 25-403.01(A) (“The court in determining custody shall not prefer a parent as custodian because of that parent’s sex.”). The Court rejects Mother’s request to decide this case based on the gender of the parties.

The evidence indicates that the parties made a good decision when they mutually agreed in late 2009 that the Minor Child should move to New Jersey. When the Minor Child relocated to New Jersey, he adjusted well and was happier than when he lived in Arizona. In addition to enjoying his school and his new friends, the Minor Child has a far greater opportunity to enjoy the company and care of his extended family in New Jersey than in Arizona. The Court finds that the evidence clearly establishes that the best interests of the Minor Child would be served by allowing him to live in New Jersey, where he would still be today were it not for Mother’s ruse in inviting him to Arizona for Christmas 2010 and then refusing to return him. Accordingly,

IT IS ORDERED granting Father’s request to relocate the Minor Child to New Jersey.

IT IS FURTHER ORDERED that Father shall be the Minor Child’s primary residential parent.

At the January 21st hearing, neither party proposed a specific parenting time schedule for Mother if the Minor Child resided with Father. The Court sees no reason why the schedule for Father’s parenting time set forth in the Dissolution Decree should not govern Mother’s parenting time now that the Minor Child is to live primarily in Father’s care. Accordingly,

IT IS ORDERED that Mother shall have parenting time with the Minor Child one weekend each month, from Friday at 6:00 p.m. until the following Monday at 8:00 a.m.

IT IS FURTHER ORDERED that the parties shall continue to adhere to the holiday and vacation parenting time schedule set forth on pages 2 through 4 of the Joint Parenting Plan filed on January 15, 2008 in this matter, except that Mother, not Father, shall be entitled to parenting time during the Minor Child’s spring break every year.

IT IS FURTHER ORDERED reaffirming all other provisions of the Joint Parenting Plan filed on January 15, 2008 that are not inconsistent with this order.

IV. Child Support


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Father testified that he is a “brand ambassador” and “chief marketing officer” for Monster Cable, a consumer electronics manufacturer and distributor. He testified that he currently earns “about $120,000 a year.” The Court therefore finds that Father’s gross monthly income is $10,000 per month.

Mother is a customer service agent with U.S. Airways. Mother testified that she earns $11.74 per hour. Exhibit 10. She further testified that she works twelve hour shifts each Saturday and Sunday, and works an additional five hours per day on Mondays, Tuesdays, and Fridays, with Wednesdays and Thursdays off. Although Mother described her schedule as “part time,” the working hours she described total 39 hours a week.

Mother also testified that she receives $1,900 in monthly rental income for a rental house she owns in Tempe, but asserted that the monthly rent is insufficient to cover the amount of the monthly mortgage payment on the house. Although, as Father correctly pointed out at the January 21st hearing, Mother failed to produce documentation to support her assertions about the amount of her monthly mortgage payment and rental income, the Court accepts those assertions for the time being and will make no additional adjustment to Mother’s gross monthly income for rental income. The Court therefore finds that Mother’s gross monthly income is $1,982.53 ($11.74/hr. x 39 hrs. x 4.33 = $1,982.52).

There is no evidence that either party supports any other minor child.

Mother testified that Father provides health insurance for the Minor Child. Father testified he pays $250 per month for the Minor Child’s health insurance.

Each party testified that he or she incurs no child care costs for the Minor Child. The Court therefore makes no adjustment for child care expenses.

After making an adjustment of 75 days for Mother’s parenting time, the Arizona Child Support Guidelines indicate that Mother should pay Father child support of $134.91. Accordingly,

IT IS ORDERED that Mother shall pay Father child support of $135.00 per month commencing April 1, 2011 and continuing on the first day of each month thereafter.

IT IS FURTHER ORDERED an Electronic Order of Assignment be issued this date (Child Support $135.00 per month; and the applicable Clearinghouse fee).

All support payments must be made payable to and sent to:


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SUPPORT PAYMENT CLEARINGHOUSEP.O. BOX 52107

PHOENIX, ARIZONA 85072-2107

Until the wage assignment becomes effective, it is the responsibility of the party obligated to pay support/maintenance to pay the support to Support Payment Clearinghouse, P. O. Box 52107, Phoenix, Arizona 85072-2107. The payment should show the case number and/or ATLAS case number and the name of the party paying support and the name of the party who will receive the payment.

Any change in the paying party's employment and any change in the residential address of either party must be submitted to the Clerk's Office, in writing, within ten (10) days of the change (A.R.S. 25-322(C)). Failure to notify the Clerk's Office of any change may be considered contempt of Court.

Obligor is personally responsible for the timely payment of support as well as the applicable Clearinghouse fee. At any time an employer and/or Obligor are not paying pursuant to the Order of Assignment, Obligor must make timely payment of support and fees directly to the Support Payment Clearinghouse. Failure to make timely payment of support may result in a finding of contempt which may result in sanctions, including incarceration.

Father’s Petition to Modify was filed on April 23, 2010. Any modification of child support would normally be effective as of May 1, 2010. See A.R.S. § 25-327(A) (providing that a modification of child support shall become effective “not earlier than the date of filing the petition for modification”). Citing Cole v. Cole, 101 Ariz. 382, 420 P.2d 167 (1966), Father argues that equity requires that child support be recalculated back to December 2009, when the Minor Child relocated to Father’s home in New Jersey. See Notice of Supplemental Citation filed January 31, 2011 at p. 1.

In the Court’s view, Cole is inapposite. Cole was decided prior to the enactment of A.R.S. § 25-327(A), which expressly prohibits the Court from modifying child support prior to the date of the filing of the petition for modification. The Court’s equitable powers do not extend to ignoring or re-writing the express provisions of a statute. See Stokes v. Stokes, 143 Ariz. 590, 594, 694 P.2d 1204, 1208 (App. 1984). Moreover, the facts of Cole are distinguishable. In Cole, the parties’ divorce decree required the father to pay child support to the mother. The decree was later modified by minute entry to reflect that physical custody of the parties’ son changed from the mother to the father. Subsequently, the mother asserted a claim for back child support, asserting that the minute entry changing physical custody did not eliminate the father’s obligation, pursuant to the divorce decree, to pay child support. The Arizona Supreme Court disagreed, finding that the mother was not entitled to collect child


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support after physical custody of the child was changed by court order. Cole, 101 Ariz. at 384, 420 P.2d at 169. In the case at bar, there was no court order in December 2009 changing the Minor Child’s primary residential parent. The absence of such an order distinguishes Cole from the case at bar. The Court therefore finds that child support should be modified as of May 1, 2010.

Calculating child support owed from May 1, 2010 to the present is difficult, for a number of reasons. First, although Father testified that he earns $10,000 per month, he did not testify that his income has remained the same throughout the entire period from May 1, 2010 to the present. On the contrary, he testified that he received a raise during that time period, but did not specify how much the raise was or when he received it. Second, it is not entirely clear how much parenting time either party has exercised from May 1, 2010 to the present. Third, it is unclear how much Father paid for the Minor Child’s health insurance during that time period. Although Father testified that he currently pays $250 per month for the Minor Child’s health insurance, the child support worksheet that Father filed along with Father’s Petition to Modify on April 23, 2010 indicates that he paid $191 per month at the time. It appears, therefore, that, at some unknown point after the filing of Father’s Petition to Modify, the amount Father pays for the Minor Child’s health insurance increased from $191 to $250.

Even if the Court makes financial assumptions favorable to Mother, however, it is clear that Mother owed Father child support in some amount for the period from May 2010 to the present. Assuming that Father’s income was $10,000 per month for the entire period and that Father paid only $191 per month for the Minor Child’s health insurance, and making an adjustment of 102 days for Mother’s parenting time based on her testimony that she saw the Minor Child “every single week” (which the Court assumes occurred during Mother’s two days off each week), the Arizona Child Support Guidelines indicate that Mother should pay Father $57.11 per month during this time period.

These assumptions are, as noted, favorable to Mother. If, for example, Father’s income was less than $10,000 per month for part of the period from May 2010 to the present, if Father paid $250 per month rather than $191 per month for the Minor Child’s health insurance, or if Mother exercised parenting time on a less frequent basis than what she testified to, Mother’s child support obligation would be higher than $57.11 per month, perhaps considerably so. The Court cannot, however, base a child support award on assumptions or guesses. In light of the uncertainties in the relevant data, the Court is not prepared to order Mother to pay child support to Father in any amount for the period from May 2010 to the present.

It is clear, however, that Mother was not entitled to continue to collect child support from Father during this time period. Mother owed Father child support in some amount during the time the Minor Child resided at Father’s home. The fact that the Court cannot determine that


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amount with certainty is no justification for allowing Mother to pocket the child support payments Father made to her during the same time period. Mother should therefore be required to refund the child support payments she received from Father since May 1, 2010. Accordingly,

IT IS ORDERED entering judgment against Mother and in favor of Father in the amount of $6,281.00, representing the child support in the amount of $571 per month that Mother received from Father for the time period from May 2010 through March 2011, along with interest at the statutory rate from the date of this order.

IT IS FURTHER ORDERED signing this Minute Entry as a formal written order of the Court pursuant to Rule 81, Arizona Rules of Family Law Procedure.

/s/ HONORABLE DANIEL J. KILEY_______________________________________HONORABLE DANIEL J. KILEYJUDGE OF THE SUPERIOR COURT

FILED: Exhibit Worksheet; Child Support Worksheet

All parties representing themselves must keep the Court updated with address changes. A form may be downloaded at: http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter.

Kevin & Allison Mucthison Divorce Documents

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