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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LUCAS ALEXANDER WOYTON, Petitioner/Appellant,

v.

TICIANE WARD, Respondent/Appellee.

No. 1 CA-CV 21-0728 FC

Appeal from the Superior Court in Yuma County

No. S1400-DO-2017-00838

The Honorable Patricia A. Green, Judge Pro Tempore

REVERSED IN PART; VACATED IN PART; AFFIRMED IN PART; 

REMANDED FOR RECONSIDERATION

COUNSEL

Berkshire Law Office PLLC, Tempe

By Keith Berkshire, Alexandra Sandlin

Counsel for Petitioner/Appellant

Stevens & Van Cott, PLLC Scottsdale

By Charles C Van Cott

Counsel for Respondent/Appellee

FILED 4-4-2023
WOYTON v. WARD

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in 

which Judge James B. Morse Jr. and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 This is the second appeal by Lucas Woyton (“Father”) 

challenging the superior court’s relocation order, child support order, and 

denial of several pending motions. We reverse the relocation order, vacate 

the first child support order and remand for recalculation, and affirm all 

other rulings.

FACTS AND PROCEDURAL BACKGROUND

¶2 A full factual history is set forth in this court’s earlier opinion, 

Woyton v. Ward, 247 Ariz. 529, 530–31, ¶¶ 2–4 (App. 2019). Father and 

Ticiane Ward (“Mother”) have one daughter (“Child”), born in 2016. They 

all lived in Yuma until Mother left with Child for Massachusetts in June 

2017, without Father’s consent. 

¶3 Father petitioned for legal separation and emergency primary 

parenting time without notice. The superior court granted the emergency 

motion and ordered that Child be returned to Arizona. The temporary 

orders named Father as the primary residential parent and allowed Mother

to exercise parenting time in Arizona or Massachusetts. The 2018 decree

awarded the parties joint legal decision-making authority, granted Mother

primary residential parent status, granted parenting time to Father, and 

ordered that Father pay child support effective April 1, 2018 (“first child 

support order”). Father appealed the decree, including the first child 

support order. While this appeal was pending, the parties filed several 

motions on various issues. 

¶4 In Father’s first appeal, this court held the superior court 

erred by failing to consider the relocation factors in A.R.S. § 25-408(I).

Woyton, 247 Ariz. at 533, ¶ 12. We vacated the parenting plan in the 2018 

decree and remanded for a new trial. Id. We also vacated the first child 

support order and remanded for recalculation, but concluded that the 

record evidence did not support the attribution of $650 in childcare costs to 

Mother. Id. at 534, ¶¶ 17, 19.
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¶5 The superior court conducted a four-day trial over several 

months. In its October 2021 ruling, the court found that relocation to 

Massachusetts was in Child’s best interests. The court entered a new child 

support order effective September 1, 2021 (“current child support order”). 

As for past support—between April 1, 2018, and August 31, 2021—the court

affirmed the first child support order, reasoning that the parties did not 

provide sufficient evidence for recalculation. Father appealed.

¶6 The superior court’s October 2021 ruling did not adequately 

explain the basis for its decision that relocation was in Child’s best interests,

as required by Section 25-403(B). We stayed Father’s appeal and ordered 

the court to state the reasons why, based on its findings, relocation was in 

Child’s best interests. The court entered a supplemental order in November 

2022. We have jurisdiction. A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Relocation and Parenting Time 

¶7 We review relocation orders for an abuse of discretion. Layne 

v. LaBianca, 249 Ariz. 301, 302, ¶ 5 (App. 2020). An abuse of discretion exists 

when the ruling lacks evidentiary support or when the court misapplies the 

law or a legal principle. Woyton, 247 Ariz. at 531, ¶ 5. 

¶8 When relocation is contested, the court must decide whether 

to allow the relocation “in accordance with the child’s best interests.” A.R.S. 

§ 25-408(G). In determining the child’s best interests, the court must 

consider the factors listed in Section 25-403(A) and Section 25-408(I).

Woyton, 247 Ariz. at 533, ¶ 12. The parent seeking relocation has the burden 

of proving that relocation is in the child’s best interests. A.R.S. § 25-408(G).

¶9 Father argues the superior court found nearly all of the 

statutory factors to be neutral, and thus Mother failed to meet her “high 

burden” of showing that relocation was in Child’s best interests. According 

to Father, Mother has a heightened burden, given Arizona’s stated public 

policy that it is in a child’s best interests “[t]o have substantial, frequent, 

meaningful and continuing parenting time with both parents.” A.R.S. § 25-

103(B)(1). But this policy also recognizes that evidence may show 

substantial parenting time is not in the child’s best interests. Id. As this court

recognized in Father’s first appeal, equal parenting time is not always 

possible, “particularly when the parties live in different states or are 

separated by a considerable distance.” Woyton, 247 Ariz. at 531, ¶ 6. 
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¶10 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. Absent an express statement of a clear and 

convincing evidence standard or other higher burden of proof, we apply a 

preponderance of the evidence standard. See Kent K. v. Bobby M., 210 Ariz. 

279, 284, ¶ 21 (2005) (“Had the legislature desired to apply the clear and 

convincing evidence standard to the finding of best interests of the child, it 

easily could have done so.”). To be sure, Mother must show it is in Child’s

best interests to relocate instead of staying in Yuma. But the burden of proof 

is a preponderance of the evidence standard.

¶11 Father challenges the superior court’s relocation decision on 

several grounds. He contends the court made findings in its supplemental 

ruling that conflict with its previous ruling. He also argues the court’s

findings are not supported by the record and fail to show relocation is in 

Child’s best interests.

¶12 In its October 2021 ruling, the court did not explain how it 

balanced Child’s relationships with Mother’s extended family in 

Massachusetts, and with Father’s girlfriend and son in California. See A.R.S. 

§ 25-403(A)(2) (child’s relationship with parents, siblings, and others who 

may significantly affect the child’s best interests). The court found Mother’s 

extended family provided financial, childcare, and travel assistance. The 

ruling stated that Father’s son visited with him half of the time. But in its 

supplemental order, the court found that Father’s son lived only 

“sometimes” with Father and “mostly” with his mother in California.

Although the court made inconsistent findings on this matter, Father’s 

testimony was also inconsistent. 

¶13 The October 2021 ruling also included varied findings about 

whether Mother relocated, and whether Father opposed her relocation, in 

good faith. See A.R.S. § 25-408(I)(2). The court referred to its earlier finding

that the parties did not act in Child’s best interests, but then found that the

parties acted in good faith at the time of the new trial. The court also found 

that Mother left Yuma in 2017 without Father’s knowledge or consent, 

thereby disrupting his planned deployment. To explain these mixed 

findings, the court stated that Mother’s unauthorized move was not in bad 

faith because the parties previously agreed Mother would move to Boston 

during Father’s anticipated deployment. 

¶14 But contrary to its finding in the October 2021 ruling, the 

court’s supplemental order stated that Father was not acting in good faith

when he opposed relocation. The court based this new and contradictory 
WOYTON v. WARD

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finding on its conclusion that Father was not credible when he said he 

intended to remain in Yuma. The court cited Father’s testimony that he only 

stayed in Yuma because of the ongoing legal proceedings and because his 

girlfriend and son had not moved to Yuma with him. 

¶15 Generally, we defer to the superior court’s credibility 

determinations. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 

2019). But the credibility decision here is based on a misstatement of the 

evidence. Father testified that he planned to stay in Yuma long term. He 

testified that the legal proceedings were “one reason” he stayed in Yuma, 

but he also stayed because he has a job, a girlfriend, community 

involvement, and because Child had grown up in Yuma. He also testified 

that his girlfriend and son would move to Yuma permanently “when things 

get back to normal.” The court erred in finding that the legal proceedings 

were the only reason Father remained in Yuma. Consequently, the court’s 

credibility determination is not supported by the record.

¶16 To warrant reversal, the court’s factual error must be 

prejudicial. See Creach v. Angulo, 189 Ariz. 212, 214 (1997). “Reversible error 

is, ‘[i]n appellate practice, such an error as warrants the appellate court in 

reversing the judgment before it; substantial error, that which reasonably 

might have prejudiced the party complaining.’” Id. (citing Black’s Law 

Dictionary 543 (6th ed. 1990)).

¶17 Here, the court’s factual error was compounded because it 

affected its credibility determination. The error caused the court to find that, 

contrary to its earlier finding, Father opposed relocation in bad faith. By 

reaching a conclusion opposite to its earlier ruling, the superior court 

exceeded our directive, which asked the court to state the reasons for its 

relocation decision. Instead of explaining its findings, the superior court 

gave a different reason for its ruling based on a misstatement of the record.

Thus, the error was prejudicial.

¶18 The superior court found that the “prospective advantage of 

the move for improving the general quality of life” for Mother and Child,

as well as its potential effect on Child’s stability, weighed in favor of 

relocation. See A.R.S. § 25-408(I)(3), (8). As for whether relocation would 

allow “a realistic opportunity for parenting time with each parent,” the 

court found this to be a neutral factor. See A.R.S. § 25-408(I)(5). 

¶19 The evidence shows that Mother has extended family in 

Massachusetts and Father’s relatives live in New York. Both parties had 

jobs and owned homes in their respective states. The court found there were 
WOYTON v. WARD

Decision of the Court

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“greater educational options” in Massachusetts. But greater does not 

necessarily mean better, and the record did not show any qualitative 

difference between the educational opportunities in the two locations. The 

court referenced an email from Father to Mother “acknowledging that 

‘there aren’t many schools in Yuma.’” But this statement does not support 

the inference that the schools in Yuma are inferior to those in 

Massachusetts, only that there are less schools to choose from. The evidence

supporting these statutory factors is neutral to both parties.

¶20 In considering the effect of relocation on Child’s stability and 

the realistic opportunity for parenting time, the court again relied on the 

mistaken fact that Father did not intend to stay in Yuma permanently. This

factual error was prejudicial, see supra ¶ 17, and thus Section 25-408(I)(5) 

and (8) do not support relocation. 

¶21 In fact, most statutory factors were neutral. For example, the 

court found:

• the child has a good relationship with both parents, 

§ 25-403(A)(1);

• the child has spent time in both locations and has not yet adjusted 

to either due to her young age, § 25-403(A)(3);

• the child is too young to consider her wishes, § 25-403(A)(4);

• there are no mental or physical health concerns as to either 

parent, § 25-403(A)(5);

• both parents were “equally likely or unlikely to allow the child 

frequent, meaningful, and continuing contact with the other[,]” 

§ 25-403(A)(6);

• no domestic violence, § 25-403(A)(8);

• domestic relations education requirements were met, 

§ 25-403(A)(10);

• there was insufficient evidence that moving or not will negatively 

impact the child, § 25-408(I)(6);

• no evidence that either parent intended to gain a financial 

advantage as to child support, § 25-408(I)(7). 
WOYTON v. WARD

Decision of the Court

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Other factors were irrelevant. See A.R.S. §§ 25-403(A)(7), (9), (11); 25-403.03;

25-403.05.

¶22 Viewing the record evidence that supports the court’s 

decision, we are left with the finding that Mother has extended family in 

Massachusetts and Father has extended family in New York. See A.R.S. §§ 

25-403(A)(2), 25-408(I)(3). We reiterate that Mother has the burden of 

showing that relocation is in Child’s best interests. A.R.S. § 25-408(G). This 

is significant here, because Mother acknowledged that the benefits Child

has living in Massachusetts do not outweigh Child’s relationship with 

Father. 

¶23 Overall, the evidence that relocation was in Child’s best 

interests leads to neutral findings. Given Mother’s own statement that 

maintaining a relationship with Father outweighed the benefits in 

Massachusetts, the evidence does not support the court’s finding that 

Mother met her burden of proof. We vacate the relocation order and 

remand for the court to issue parenting time orders with Father as the 

primary residential parent if Mother does not intend to return to Yuma.

II. First Child Support Order

¶24 The first child support order attributed $650 in childcare costs 

to Mother. Because these costs lacked any evidentiary support, we vacated 

the child support order in Father’s first appeal. Woyton, 247 Ariz. at 534, ¶¶ 

19–20. But on remand, the superior court affirmed the first child support 

order because the parties did not provide sufficient information for 

recalculation. This was error. At the new trial, Mother again failed to 

provide evidence of her childcare expenses. On remand, the superior court 

only needed to remove the unsupported childcare amount and recalculate 

child support using the same figures.

¶25 We vacate the first child support order—covering April 1, 

2018, to August 31, 2021—and instruct the court to enter a corrected child 

support order on remand. See A.R.S. § 25-320 app. (“Guidelines”) § XVII(A) 

(2022) (courts shall apply the 2022 Guidelines to all orders entered after 

January 1, 2022, and only use the Guidelines in effect when the action was 

filed if the parties agree or the court determines there is good cause to do 

so).

III. Current Child Support Order

¶26 In determining the current child support order, the superior 

court found that Mother’s monthly income remained $6,919. Father argues
WOYTON v. WARD

Decision of the Court

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Mother’s income averaged approximately $15,000 to $21,000 per month. We 

review child support orders for an abuse of discretion, accepting the 

superior court’s findings of fact unless clearly erroneous. Engel v. Landman,

221 Ariz. 504, 510, ¶ 21 (App. 2009). 

¶27 Father offered Mother’s bank statements for six months in 

2020 into evidence. These statements showed several deposits into Mother’s

bank accounts, in addition to her regular salary and monthly veteran 

benefits. On appeal, Father suggests that these additional deposits came 

from Mother’s part-time work as a realtor, but the statements show the 

deposits came from varied sources. 

¶28 Gross income for child support purposes is broadly defined 

to include “income from any source.” Guidelines § 5(A) (2018); compare 

Guidelines § II(A)(1)(b) (2022) (same). Income under the Guidelines is not 

limited to recurring income, such as wages. See Cummings v. Cummings, 182 

Ariz. 383, 386 (App. 1994) (“The statute does not specify or limit the items 

that the court may consider in determining a parent’s ‘financial 

resources.’”). But “[i]ncome from any source which is not continuing or 

recurring in nature need not necessarily be deemed gross income for child 

support purposes.” Guidelines § 5(A) (2018); compare Guidelines § 

II(A)(1)(d) (2022) (the court has discretion in how it considers “noncontinuing or non-recurring income.”). 

¶29 Mother’s bank records show deposits from unspecified 

sources, in addition to her regular salary and veteran benefits. In particular, 

there is one $20,000 electronic deposit from an unknown source in March 

2020. There are other deposits from different sources in varied amounts, 

including two deposits totaling $7,412 from a realty company in July 2020.

These deposits do not recur; they vary in source, amount, and frequency.

The superior court was within its discretion to exclude these deposits as 

income for child support purposes. Guidelines § II(A)(1)(d) (2022). See also 

Milinovich v. Womack, 236 Ariz. 612, 615, 617, ¶¶ 7, 16 (App. 2015) (the 

court’s decision to include a particular source of funds as income for child 

support is reviewed for an abuse of discretion). 

¶30 We reject Father’s contention that Mother’s income as a parttime realtor must be included as income. The evidence showed two 

deposits—arguably from real estate commissions—in one six-month 

period. The record does not show Mother has historically earned income as 

a realtor or that these deposits are expected to continue. See Guidelines § 

5(A) (2018) (authorizing the court to consider income that is greater than a 

parent would earn working full-time “if that income was historically 
WOYTON v. WARD

Decision of the Court

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earned from a regular schedule and is anticipated to continue into the 

future”); compare § II(A)(3)(b) (2022) (same but omitting “from a regular 

schedule”). 

¶31 Father argues the superior court was obligated to consider the 

factors in Little v. Little, 193 Ariz. 518 (1999). Not so. The Little factors apply 

when a parent voluntarily reduces her income, and the evidence here does 

not show that Mother was underemployed. See Guidelines § 5(A) 

(“Generally, the court should not attribute income greater than what would 

have been earned from full-time employment.”); compare Guidelines § 

II(A)(3)(a) (2022) (same, reworded). The record supports the finding that 

Mother had a monthly income of $6,919. 

IV. Due Process Claims

¶32 In its October 2021 ruling, the superior court summarily 

denied any pending motions that had not been decided. Father argues the 

court violated his due process rights by resolving several pending motions 

without a hearing to determine credibility issues.

¶33 Due process claims are issues of law, which we review de 

novo. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999). Due process 

requires that the court “afford the parties ‘an opportunity to be heard at a 

meaningful time in a meaningful manner.’” Volk v. Brame, 235 Ariz. 462, 

468, ¶ 20 (App. 2014) (citation omitted). 

¶34 The superior court spent significant time at a July 2019 status 

conference determining which motions were pending and concluded the

following remained: (1) Father’s request for attorneys’ fees incurred in 

responding to an earlier contempt petition that Mother withdrew; (2) 

paternal grandparents’ petition for third-party rights; (3) motions related to 

Father’s request for a protected address; (4) Father’s January 2019 contempt 

petition; (5) Father’s motion to reconsider the payment schedule for a fee 

award to Mother; and Mother’s request for attorneys’ fees related to 

Father’s motion to reconsider.

¶35 The court set a later hearing to resolve all issues except for the 

third-party petition; this hearing never occurred because of multiple 

judicial oversight changes. At a second status conference, the parties 

instead agreed to address the pending issues at the trial. Despite this

agreement, on the first day of trial, the parties accepted the court’s offer to 

“set additional time” to address the other issues in the pretrial statement.

Father’s pretrial statement listed eight pending motions, along with the 

relocation issue. Our review of the record shows that the pending issues 
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identified at the July 2019 status conference developed to include new 

issues related to Father’s petition to modify child support, as well as a 

passport and foreign travel dispute. 

¶36 At the end of the first day of trial, the parties needed more 

time to present their evidence, so the court granted another day. The trial 

eventually lasted four days. Neither party raised these motions at trial, 

besides Father generally asking the court to rule on the “pending motions.”

The October 2021 ruling denied any affirmative relief previously requested 

that was not expressly granted. Although Father lists the child support 

modification, passport, and foreign travel issues as summarily decided, the 

October 2021 ruling expressly addressed these issues. 

¶37 The superior court did not deprive either party of an 

opportunity to address the pending motions at the four-day trial. And 

Father did not ask for a separate hearing to address these issues at the end 

of trial; he only asked the court to rule on the motions. His pretrial 

statement adequately presented his positions on the various motions, and 

the court generously extended the one-day trial to four days. The 

responsibility for failing to address these issues in that amount of time lies 

with the parties, not the court. Father’s inefficient use of trial time does not 

violate due process. See Volk, 235 Ariz. at 469, ¶ 22.

ATTORNEYS’ FEES AND COSTS

¶38 Both parties request attorneys’ fees under Section 25-324.

After considering the parties’ financial resources and the reasonableness of 

their positions throughout these proceedings, we decline to award fees on 

appeal. As the successful party on appeal, Father is entitled to an award of 

taxable costs upon compliance with ARCAP 21. 

CONCLUSION

¶39 We reverse the relocation order. On remand, the superior 

court mustreconsider the parenting time orders in light of this decision. We 

vacate the first child support order and remand for recalculation as 

instructed. We affirm all other rulings.