IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

DEBORAH C. BAKER,

Petitioner/Appellant,

v.

MATTHEW M. MEYER,

Respondent/Appellee.

No. 2 CA-CV 2014-0107

Filed April 3, 2015

Appeal from the Superior Court in Pima County

No. D20073115

The Honorable Danelle B. Liwski, Judge

VACATED AND REMANDED

COUNSEL

Ann Nicholson Haralambie, Attorneys, P.C.

By Ann M. Nicholson Haralambie, Tucson

Law Offices of Robert G. Lewis, P.C.

By Robert G. Lewis, Tucson

Counsel for Petitioner/Appellant

Solyn & Lieberman, PLLC

By Melissa Solyn and Scott Lieberman, Tucson

Counsel for Respondent/Appellee
BAKER v. MEYER

Opinion of the Court

2

OPINION

Judge Espinosa authored the opinion of the Court, in which 

Presiding Judge Miller and Judge Howard concurred.

E S P I N O S A, Judge:

¶1 This appeal arises from a dispute over sending a child 

to an out-of-state boarding school and the resulting substantial 

reduction in the mother’s parenting time with that child. Appellant 

Deborah Baker argues the trial court erred in ruling in favor of her 

former husband, appellee Matthew Meyer, and ordering that their

son, N., attend a high school in California. For the following 

reasons, we vacate the order and remand the case for further 

proceedings.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to 

upholding the trial court’s decision. See Little v. Little, 193 Ariz. 518, 

¶ 5, 975 P.2d 108, 110 (1999). Baker and Meyer were married in 1995

and had three children: J., born in 1998, N., born in 2000, and B., 

born in 2004. In March 2008, a decree of dissolution of marriage was 

entered, which incorporated the “Meyer Family Parenting 

Agreement.” Under the decree and parenting agreement, Baker and

Meyer have joint legal and physical custody and “agree to share in 

key decisions related to the children’s education, healthcare, and 

religious upbringing.” The agreement further provides, “The 

children will be with each parent for seven consecutive days on an 

alternating basis,” and, “The parent that does not have parenting 

time with the children for seven consecutive days will pick them up 

at school on Tuesday and Thursday and will return them to the 

other parent at 7:00 p.m.” It also specifies which parent has the 

children for various birthdays and holidays, and prohibits “either 

parent . . . commit[ing] a child to an activity which . . . infringes 

upon the other parent’s parenting time without first obtaining the 

consent of the other parent.”
BAKER v. MEYER

Opinion of the Court

3

¶3 In February 2014, Meyer filed a motion “regarding [the]

children’s school enrollment,” requesting “that two of the minor 

children . . . be permitted to enroll and/or re-enroll in the school of 

their choice.” Specifically, J. would return for his junior year of high 

school to the Cate School, a boarding school in California, and N. 

would enroll at Cate for his freshman year. Although Baker first 

objected to J. returning to Cate, she later agreed because he already 

had been a Cate student for two years and wished to complete high 

school there.

¶4 Baker, however, continued to object to N. enrolling at 

Cate, preferring that he attend University High School (UHS) in 

Tucson so that she could maintain her parenting time with him. 

Meyer disagreed, pointing out that he and three of his siblings had 

attended Cate, that attending Cate was “turning into [a family 

tradition],” and that N. wished to attend there, a preference he later 

expressed to both the conciliation and trial courts.

¶5 In its ruling, the trial court determined the issue to be 

one of school placement, rather than relocation or modification of 

parenting time as urged by Baker. The court reviewed specific 

aspects of UHS and Cate and found “[n]either school is essential and 

neither is more beneficial as a whole for N[.]” The court then 

concluded it was in N.’s “best interest to attend Cate,” given his 

expressed wishes and the evidence of “strain on the children when 

they are back and forth between their parents’ homes” that was

“affecting the relationship between the children and their parents.” 

There was no question, however, as to the fitness of either parent. 

We have jurisdiction over Baker’s appeal pursuant to A.R.S. 

§§ 12-120.21(A)(1) and 12-2101(A)(1).

Discussion

¶6 It is well established that parents have fundamental 

rights in the custody and control of their children under the Due 

Process Clause of the Fourteenth Amendment of the United States 

Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (“the 

interest of parents in the care, custody, and control of their children 

. . . is perhaps the oldest of the fundamental liberty interests 

recognized by this Court”); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 
BAKER v. MEYER

Opinion of the Court

4

Ariz. 246, ¶ 11, 995 P.2d 682, 684 (2000) (“This court and the United 

States Supreme Court have long recognized that the right to the 

control and custody of one’s children is a fundamental one.”). 

Arizona’s legislature similarly has observed that “[t]he liberty of 

parents to direct the upbringing, education, health care and mental 

health of their children is a fundamental right.” A.R.S. § 1–601(A); 

see also A.R.S. § 1–602. The outlines of that right are made clear 

under Arizona public policy and statutes, which direct that a child’s 

best interest includes “substantial, frequent, meaningful and 

continuing parenting time with both parents,” A.R.S. § 25-103(B), 

(C), and which protect that right absent exceptional circumstances.

See A.R.S. § 25-411(J) (“the court shall not restrict a parent’s 

parenting time rights unless it finds that the parenting time would 

endanger seriously the child’s physical, mental, moral or emotional 

health”);

1 cf. Woodworth v. Woodworth, 202 Ariz. 179, ¶ 9, 42 P.3d 610, 

611 (App. 2002) (visitation rights of parents contribute to child’s 

well-being and are therefore specially protected by legislature).

¶7 Joint custody 2 arrangements in Arizona require a 

parenting plan that addresses legal decision-making, each parent’s 

“rights and responsibilities for the personal care of the child,” and 

decisions regarding education, health care, and religious training. 

A.R.S. § 25-403.02(C)(1), (2). The plan also must contain “[a]

practical schedule of parenting time for the child, including holidays 

and school vacations.” § 25–403.02(C)(3); see also A.R.S. § 25–403.01. 

Courts are directed to “adopt a parenting plan that provides for both 

parents to share legal decision-making regarding their child and that 

maximizes their respective parenting time.” § 25-403.02(B). We 

review a parenting agreement de novo because it is incorporated 

 

1We are not presented here with the question of whether a 

reduction in the amount of parenting time constitutes a restriction of 

parenting time rights pursuant to § 25-411(J) and therefore do not 

address it.

2 In 2012, the legislature replaced the term “custody” with 

“legal decision-making and parenting time” in title 25. 2012 Ariz. 

Sess. Laws, ch. 309, §§ 4, 5.
BAKER v. MEYER

Opinion of the Court

5

into the dissolution decree and because it is “akin to a type of 

contractual agreement between the parties.” Jordan v. Rea, 221 Ariz. 

581, ¶ 15, 212 P.3d 919, 926 (App. 2009). As noted above, the parties’ 

parenting plan here provided that the children were to spend 

alternating weeks with their parents throughout the year. However, 

the trial court’s order that N. attend Cate and divide his time at 

home equally between his parents reduced Baker’s parenting time3

with N. from 182 to 61 days per year. 

¶8 The trial court viewed the issue whether to permit N. to 

enroll in an out-of-state school as one of school placement and 

applied the best interest factors set forth in Jordan. In that case, a 

father objected to his children continuing their education at a private 

religious school, and this court “dr[e]w upon the factors that the 

legislature has set forth for a determination of best interests as to 

custody in general as stated in A.R.S. § 25–403(A) and modif[ied] 

them to reflect school placement.” Jordan, 221 Ariz. 581, ¶ 23, 212 

P.3d at 928. We directed the trial court to “consider all relevant 

factors,” including the following modified § 25-403(A) factors:

“1) the wishes of the child’s parent or 

parents as to [school placement]

2) the wishes of the child as to [school 

placement]

3) the interaction and interrelationship 

of the child with [persons at the school] 

who may significantly affect the child’s best 

interests, and

 

3“Parenting time” is defined by statute as “the schedule of 

time during which each parent has access to a child at specified 

times.” A.R.S. § 25-401(5).
BAKER v. MEYER

Opinion of the Court

6

4) the child’s adjustment to [any present 

school placement].”4

Id., quoting § 25-403(A) (alterations in Jordan). We formulated these 

factors, however, in the context of a child’s placement at a local 

school, and neither parent had alleged a change in parenting time. 

See id. ¶¶ 9, 11, 16. That is not the situation here. 5 N.’s attendance at 

Cate will reduce Baker’s yearly time with him by at least 121 days, 

constituting sixty-six percent of the time she had been allocated in 

the decree and a profound curtailment of her parental rights.6 The 

trial court did not address that impact, applying Jordan to focus on 

the qualities of the schools, the wishes of the child, and “strain on 

the children when they are back and forth between their parents’ 

homes.”7

 

4We also suggested nine additional non-statutory factors to be 

assessed in determining a child’s school placement. Jordan, 221 Ariz. 

581, ¶ 24, 212 P.3d at 928.

5Since Jordan was decided in 2009, the legislature amended 

§ 25-403, altering several of the factors employed by the court. See

2012 Ariz. Sess. Laws, ch. 309, § 5. As the issue here is not one of 

local school placement, the Jordan factors are inapplicable, and we

express no opinion as to the effect of the legislature’s amendments 

on the Jordan analysis.

6We note that in view of Meyer’s testimony that he considered 

attendance at Cate a “family tradition,” this issue could have been 

broached at the time the parenting agreement was negotiated. See 

Jordan, 221 Ariz. 581, ¶ 16, 212 P.3d at 926 (issue of attendance at 

private religious school could have been addressed in parenting 

plan).

7The evidence of strain from moving between homes came 

from summarized in camera interviews with N. Baker, however, 

testified that family friction centered primarily on the boarding 

school issue. Although the child’s wishes may be considered by the 

court, it is but one factor among others and not decisive. § 25-
BAKER v. MEYER

Opinion of the Court

7

¶9 Baker argues, as she did below, that the issue in this 

case is a substantial and disputed modification of parenting time.

8 

We agree that an important issue in determining N.’s best interests,

and a principal point of contention between the parties, is the 

reduction in parenting time that would result from N. attending an 

out-of-state boarding school. See generally Thompson v. Thompson, 217 

Ariz. 524, ¶ 14, 176 P.3d 722, 725 (App. 2008) (relocation of child can 

“interfere with the custody or parenting time granted to the other 

parent”); T.D. v. F.X.A., 148 So. 3d 187, 194 (La. Ct. App. 2014) (order

that child attend boarding school a custody decision, not school 

choice; sending child to school in Utah against mother’s wishes 

essentially abrogated her parenting status and was change of 

custody); cf. Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 32, 304 P.3d 

1115, 1121-22 (App. 2013) (“parent entitled to reasonable parenting 

time ‘to ensure that the minor child has substantial, frequent, 

meaningful and continuing contact with the parent’”), quoting

§ 25-403.01(D). Accordingly, we conclude the trial court erred as a 

matter of law in determining this issue as one of school choice.

¶10 Nevertheless, we would not reverse the trial court’s 

decision if, despite choosing the wrong framework for the analysis, 

it considered the proper factors and made appropriate findings. In 

 

403(A)(4); cf. Ellis v. Ellis, 840 So.2d 806, 813 (Miss. Ct. App. 2003) 

(“‘While there is nothing wrong with the children being heard 

regarding their wishes, our law proceeds on the assumption that 

they are nevertheless children and, thus, more interested in the 

desire of the moment than in considering the long range needs for 

the development of a healthy relationship with both parents where 

that is possible.’” (citation omitted)).

8Baker alternatively asserts N.’s attendance at boarding school 

is governed by A.R.S. § 25-408 because that statute addresses a 

parent’s request to “[r]elocate the child outside the state.” 

§ 25-408(A)(1). But we are unpersuaded of its application here, 

given the statute’s references to “the nonmoving parent” and “the 

parent with whom the child will reside after the relocation.” 

§ 25-408(C), (H)(4).
BAKER v. MEYER

Opinion of the Court

8

Arizona, the trial court may modify an order granting or denying 

parenting time whenever modification would serve the best interests

of the child. § 25-411(J). Those interests however, are informed, 

inter alia, by “parenting time with both parents.” § 25-103(B). We 

review an order modifying parenting time for an abuse of discretion, 

Owen v. Blackhawk, 206 Ariz. 418, ¶ 7, 79 P.3d 667, 669 (App. 2003), 

but questions of statutory interpretation are reviewed de novo, 

Palmer v. Palmer, 217 Ariz. 67, ¶ 7, 170 P.3d 676, 678 (App. 2007)

(applying de novo review “regarding the interpretation of statutes 

and decrees of dissolution”).

¶11 If parents are unable to agree on any element to be 

included in a parenting plan, the court must determine that element

“[c]onsistent with the child’s best interests.” § 25–403.02 (B), (D); see 

also § 25-403(A) (governing determination of parenting time, 

whether made “originally” or as modification); Jordan, 221 Ariz. 581, 

¶ 19, 212 P.3d at 927 (based on “clear statutory directive” of sections 

25-403 and 25-403.02 (A), (B), “we have no difficulty in concluding 

that when post-decree disputes arise under the specific terms of a 

parenting plan included as part of a joint custody order, a bestinterests standard should be applied”). In determining parenting 

time, a court “shall consider all factors that are relevant to the child’s 

physical and emotional well-being,” including:

1. The past, present and potential future 

relationship between the parent and the 

child.

2. The interaction and interrelationship of 

the child with the child’s parent or parents, 

the child’s siblings and any other person 

who may significantly affect the child’s best 

interest.

3. The child’s adjustment to home, school 

and community.

4. If the child is of suitable age and 

maturity, the wishes of the child as to legal 

decision-making and parenting time.
BAKER v. MEYER

Opinion of the Court

9

5. The mental and physical health of all 

individuals involved.

§ 25-403(A).

9 Absent evidence to the contrary, as earlier noted, it is 

generally in a child’s best interests to have “substantial, frequent, 

meaningful and continuing parenting time with both parents.” 

§ 25–103(B). When parenting time is at issue, the court must make 

“specific findings on the record about all relevant factors and the 

reasons for which the decision is in the best interests of the child.”

§ 25-403(B). Failure to make the requisite findings in an order or on 

the record constitutes an abuse of discretion. Nold v. Nold, 232 Ariz.

270, ¶ 11, 304 P.3d 1093, 1096 (App. 2013).

¶12 As Baker points out, title 25 has been amended to place 

new emphasis on the fundamental importance of parenting time. 

See 2010 Ariz. Sess. Laws., ch. 221, § 1. In 2010, the legislature 

required provisions of title 25 to be applied in a manner consistent 

with the purposes of the title, including the “declared public policy 

of this state” that a child’s best interests include “substantial, 

frequent, meaningful and continuing parenting time with both 

parents.” § 25-103(B), (C). And in 2012, additional provisions were 

adopted to the same effect throughout the title. See, e.g., A.R.S. § 25-

403(A)(1) (in determining legal decision-making and parenting time 

court considers “past, present and potential future relationship 

between the parent and the child”); see also 2012 Ariz. Sess. Laws, ch. 

309, §§ 5, 7-8. Here, the trial court failed to consider the child’s 

interest in having “substantial, frequent, meaningful and continuing 

parenting time” with his mother, § 25-103(B), or make any related 

 

9 Meyer argues “a strict modification of parenting time 

analysis” would “not even make sense” in this case given that some 

§ 25-403 factors would be inapplicable, such as § 25-403(A)(6) 

(requiring court to consider which parent more likely to allow “the 

child frequent, meaningful and continuing contact with the other 

parent”). To the extent we understand this argument, however, 

§ 25-403 requires that a court consider “all factors that are relevant”; 

not those that are obviously inapplicable such as, in this case, 

§ 25-403(A)(8) (domestic violence or child abuse).
BAKER v. MEYER

Opinion of the Court

10

findings pursuant to § 25-403. It also did not make any findings

about the past and future relationship between N. and Baker, § 25-

403(A)(1); the interaction and interrelationship of N. with both

parents, his two brothers, and others who might affect his best 

interest, § 25-403(A)(2); N.’s adjustment to home and community, 

§ 25-403(A)(3); and “[t]he mental and physical health of all 

individuals involved,” § 25-403(A)(5).

¶13 Significantly, although the trial court issued a detailed 

and comprehensive six-page ruling, it did not directly address, or 

even mention, the central concern raised by Baker: the substantial

effect on her parenting time. Instead, the court focused almost 

exclusively on the question of school placement and the Jordan 

choice-of-school analysis factors. Its only acknowledgment of the 

abrogation of Baker’s time with N. was a fleeting observance that the 

child’s out-of-state schooling would affect the parents equally.10 We 

reject any notion that because the decision affected both parents, and 

the child’s relocation was accepted, indeed initiated and advanced, 

by Meyer, Baker’s rights and the mandate of § 25-103(B) and (C)

could be disregarded. Cf. Thompson, 217 Ariz. 524, ¶ 14, 176 P.3d at 

725 (in context of relocation statute, noting legislature intended to 

ensure that when both parents are granted custody or parenting 

 

10Baker testified about the importance to her growing sons of 

ongoing, day-to-day interaction with both parents, as the parties’ 

parenting plan provided. She told the court,

[E]veryday[,] teenagers have challenges, 

and we have such a sound-bite of time . . . 

that anything that may be challenging is 

really hard to manage in a way that you 

would do if you had day-in and day-out 

contact with your kid. . . . Being around 

parents to help speak to your values and to 

help support and love you day-in and dayout as you’re emerging into the adult that 

you’re going to become, we only have a 

tiny period of time to make a difference.
BAKER v. MEYER

Opinion of the Court

11

time, “neither parent will interfere with the custody or parenting 

time granted to the other parent”); § 25–403.02(E) (no requirement 

for equal parenting time between shared legal decision-makers).

¶14 In sum, while we recognize the trial court was faced 

with a close and difficult question, we conclude its failure to 

consider crucial statutory factors and to make the mandated 

findings as they pertain to the best interests of the child, was an 

error of law and requires that we remand the matter for the court to 

address those factors, pursuant to § 25-403. See Nold, 232 Ariz. 270, 

¶ 15, 304 P.3d at 1097.

Attorney Fees and Costs on Appeal

¶15 Citing A.R.S. § 25-324 and Rule 21, Ariz. R. Civ. App. P., 

Meyer requests an award of his attorney fees and costs on appeal, 

asserting Baker’s “arguments are without merit and contrary to 

Arizona law.” As made clear in our discussion, we do not find 

Baker’s position on appeal unreasonable but, in fact, meritorious, 

and Meyer’s request for fees is therefore denied. See In re Marriage of 

Gibbs, 227 Ariz. 403, ¶ 23, 258 P.3d 221, 229 (App. 2011). We likewise

decline his request for costs, as he has not prevailed on appeal and, 

therefore, is not the “successful party” under A.R.S. § 12-341.

Disposition

¶16 For the foregoing reasons, the trial court’s order is 

vacated and the case is remanded for further proceedings consistent 

with this opinion. Baker is entitled to her costs on appeal pursuant 

to § 12-341 and upon compliance with Rule 21.