Jaen v. Hoag

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AMARILIS DELCARMEN JAEN, Petitioner/Appellee,

v.

JEFFREY R. HOAG, Respondent/Appellant.

No. 1 CA-CV 22-0431 FC
FILED 6-1-2023

Appeal from the Superior Court in Mohave County
No. L8015DO202107011
The Honorable Megan A. McCoy, Judge

VACATED AND REMANDED

COUNSEL

Thomas A. Morton PLLC, Phoenix
By Thomas A. Morton
Counsel for Petitioner/Appellee

Schiefer Law Firm PLC, Mesa
By Spencer T. Schiefer
Counsel for Respondent/Appellant
 JAEN v. HOAG
Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which Vice
Chief Judge David B. Gass and Judge Brian Y. Furuya joined.

J A C O B S, Judge:

¶1 Jeffrey Hoag (Father) appeals from several rulings in the
decree dissolving his marriage to Amarilis DelCarmen Jaen (Mother).
Because the superior court did not make certain findings required by
statute and rule, we vacate the legal decision-making, parenting time,
relocation, spousal maintenance, and child support orders and remand for
further proceedings.

FACTS AND PROCEDURAL BACKGROUND

A. The Parties’ Marriage

¶2 Mother and Father met online when Mother lived in Panama
and Father lived in the United States. Father visited Panama in 2012, and
they decided to marry. In February 2014, Mother moved to the United
States, and they got married. They had a son in 2014 and a daughter in
2016. Their son has autism and an individualized education program (IEP).
He has also received services from speech and occupational therapists.

¶3 When Mother arrived in the United States, she had completed
her education and training to become a medical doctor in Panama. She
spoke little English and did not work after moving to the United States.
Father has a college degree and worked in commercial property
management until 2019. At the time of trial, he was working part-time on
a golf course maintenance crew earning $13.50 an hour.

B. The Dissolution Proceeding

¶4 Mother petitioned for dissolution in January 2021. She
wanted to return to Panama with the children where she testified she has a
job waiting for her as a doctor earning $1500 a month. According to Mother,
$1500 provides a good standard of living in Panama. Despite that
testimony, she also requested $1000 a month in spousal maintenance for
five years and child support. Father opposed the relocation and spousal
maintenance requests.

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¶5 The superior court proceedings focused substantially on
competing allegations of domestic violence. Both parties sought sole legal
decision-making authority based, in part, on allegations that the other
committed domestic violence. In particular, both parties alleged the other
was abusive and obtained orders of protection against each other in
December 2020.

¶6 Father’s assertions of domestic violence were to some extent
undisputed. Mother pled guilty to criminal damage in 2021 for damaging
Father’s car after an argument. And while Father also alleged that Mother
threw a coffee cup at him, Mother claimed this was in self-defense.

¶7 For her part, Mother claimed that Father controlled where she
went, who she spoke to, and all finances, leaving her completely dependent
on him. She also stated that he threatened her with deportation when she
did not comply. Mother filed police reports alleging that Father physically
and sexually assaulted her. Based on these allegations, Mother’s
immigration application was pre-approved under the Violence Against
Women Act (VAWA).

¶8 After a two-day trial, the superior court found it was in the
children’s best interests to move to Panama with Mother. Although the
court recognized that the relocation would be detrimental to Father’s
relationship, it determined that Father could maintain his relationship by
regular video and phone calls and travel to Panama to exercise his
parenting time. The court attributed minimum wage income to Father
while finding that he had a higher earning capacity. The court awarded
Mother $750 a month in spousal maintenance for five years. Under the
Child Support Guidelines, A.R.S. § 25-320 app. (Guidelines), Father’s child
support obligation was zero, but the court found an upward deviation was
warranted and ordered Father to pay $250 a month in child support.

¶9 Father timely appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(1).

DISCUSSION

I. The Superior Court Did Not Make Findings of Domestic Violence
That Are Necessary Under A.R.S. § 25-403.03(D) and Required By
A.R.S. § 25-403(B) and Arizona Rule of Family Law Procedure 82.

¶10 We review the superior court’s legal decision-making and
parenting time orders, including relocation rulings, for an abuse of
discretion. Layne v. LaBianca, 249 Ariz. 301, 302 ¶ 5 (App. 2020). “[A]n abuse

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of discretion ‘is discretion manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.’” Lashonda M. v. Ariz. Dep’t of
Econ. Sec., 210 Ariz. 77, 83 ¶ 19 (App. 2005) (citation omitted). An abuse of
discretion also exists when the ruling lacks evidentiary support or when the
court misapplies the law or a legal principle. See Woyton v. Ward, 247 Ariz.
529, 531 ¶ 5 (App. 2019).

¶11 To consider the superior court’s legal decision-making and
parenting time order, it is helpful to briefly review the statutory framework,
under which adjudicated acts of domestic violence guide orders of
decision-making and parenting time. Three points are relevant. First,
under § 25-403.03(A), the court shall not award joint legal decision-making
if it finds “significant domestic violence.” Second, under § 25-403.03(D), if
the court finds a parent has committed an act of domestic violence, a
presumption arises that awarding sole or joint legal decision-making to that
parent is not in the children’s best interests. Importantly here, the
presumption in § 25-403.03(D) does not apply if the superior court finds
that both parents committed an act of domestic violence. See A.R.S. § 25-
403.03(D). Third, under § 25-403(B), in a case like this one, in which legal
decision-making or parenting time are contested, the court must make
specific findings on the record. For these reasons, the operation of the
statutory presumptions for or against awarding Father or Mother legal
decision-making or parenting time depend on express findings.

¶12 Father does not appeal the superior court’s finding that “the
[parties’ respective] allegations [of domestic violence] do not rise to the
level of ‘significant’ abuse” under § 25-403.03(A). While Father’s
allegations included the charge that Mother threatened him with a knife,
we defer to the superior court’s conclusion that whatever the parties proved
is not “significant” domestic violence. As such, the mandatory preclusion
of joint legal decision-making in § 25-403.03(A) does not apply to either
parent. Thus, Father’s appeal turns instead exclusively on the superior
court’s application of § 25-403.03(D). And here, the court’s legal decision-
making and parenting time order stops short of making findings as to
which party or parties committed domestic violence.

¶13 As noted, § 25-403.03(D) contains presumptions that operate
differently if one parent but not the other has committed acts of domestic
violence. The superior court called Father’s and Mother’s evidence of
domestic violence “allegations,” but made no findings as to who, if anyone,
committed acts of domestic violence. Were that the end of the story, we
would reverse and remand for the superior court to make the required
findings as to who committed acts of domestic violence. See DeLuna v.

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Petitto, 247 Ariz. 420, 425 ¶¶ 18–19 (App. 2019) (noting that § 25-403(B)
requires findings on the record of all relevant factors in legal decision-
making and parenting time cases); see also Stein v. Stein, 238 Ariz. 548, 551 ¶
10 (App. 2015) (explaining that we cannot “infer additional findings
necessary to sustain the award” where one party requested Arizona Rule
of Family Law Procedure 82 findings the court did not make).

¶14 Here, the record establishes that Mother keyed Father’s car
and slashed his tires, and that Mother pleaded guilty to violating A.R.S. §
13-1602(A)(1) by that conduct. Mother asserts that the court’s acceptance
of her guilty plea did not expressly characterize her conduct as domestic
violence. However, A.R.S. § 13-3601(A) defines violations of § 13-1602 as
domestic violence. The superior court thus erred by failing to find that
Mother committed an act of domestic violence under A.R.S. § 25-403.03(D).
Although the court’s finding that Mother’s conduct did not rise to the level
of “significant” domestic violence does not altogether preclude it from
awarding joint legal decision-making, it does not resolve the rebuttable
presumption that arises from that conduct per § 25-403.03(D). This is
particularly so, given the court’s acknowledgment of competing
“allegations” of such conduct on the part of both parties and the lack of
findings to sufficiently address those allegations and their effect upon the
presumption.

¶15 On remand, we instruct the superior court to consider
whether both parties committed domestic violence, thus negating the
rebuttable presumption in § 25-403.03(D) against awarding legal decision-
making to Mother. The court must make findings as to the allegations to
complete the analysis required under § 25-403.03(D). See A.R.S. § 25-403(B).

¶16 For these reasons, we vacate the legal decision-making and
parenting time rulings and remand for further proceedings consistent with
these instructions. Additionally, if only Mother committed an act of
domestic violence, then the court must also make written findings as to §
25-403.03(D), (E), and (F) on remand. See DeLuna, 247 Ariz. at 424–25 ¶¶
16–19.

II. The Relocation, Spousal Maintenance, and Child Support Rulings
Are Based on Unsupported Conclusions That Father Can Afford
Regular International Travel and Mother Requires Support in
Panama.

¶17 Because we vacate the legal decision-making and parenting
time orders, the superior court must also reconsider the relocation and child

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support orders on remand. Father’s appeal raised challenges to these
rulings that are likely to arise on remand, so we address them here.

A. Relocation

¶18 When relocation is contested, the superior 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 children’s best interests,
the court must consider the factors listed in §§ 25-403(A) and -408(I).
Woyton, 247 Ariz. at 533 ¶ 12. The parent seeking to relocate has the burden
of proving the relocation is in the children’s best interests. A.R.S. § 25-
408(G). Because the court must consider § 25-403.03 when making its
relocation determination, the flawed domestic violence findings also
require us to vacate the relocation ruling.

¶19 The superior court found the following factors weighed in
favor of allowing the relocation:

• the children have a good relationship with Mother, whereas they
have a “consistent relationship” and the potential for a good future
relationship with Father under § 25-403(A)(1);

• the move would improve Mother’s and the children’s quality of life
under § 25-408(I)(3);

• Mother is likely to comply with parenting time orders under § 25-
408(I)(4);

• a long-distance parenting plan is necessary because Mother cannot
support herself in Arizona and Father can maintain consistent
contact via telephone and video calls and travel under § 25-408(I)(5);

• the children’s physical and mental health needs are met in both
communities and “[t]he detriment of moving is in disrupting the
relationship to [Father]” under § 25-408(I)(6); and

• relocation will not affect the children’s stability because they can stay
in contact with Father through in-person and remote visits under §
25-408(I)(8).

The sole factor weighing against the relocation was the finding that the
children were adjusted to their home, school, and community in Arizona.
Most of the best interests and relocation factors were neutral or did not

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apply. See A.R.S. §§ 25-403(A)(2), (5), (6), (10) and -408(I)(2) (neutral); A.R.S.
§§ 25-403(A)(4), (7), (9), (11) and -408(I)(7) (did not apply).

¶20 The superior court based its relocation decision in part on
Father’s ability to travel to Panama to maintain his relationship with the
children. Father argues the evidence does not support this assumption,
particularly because the court also ordered him to pay $750 a month in
spousal maintenance for five years and $250 a month in child support
instead of the Guideline amount of zero. In the absence of more explicit
findings establishing voluntary underemployment, we agree.

¶21 The superior court attributed minimum wage to both parties
but found that Father could earn more without indicating how much more.
Mother argues Father’s testimony that he “once earned an income of
$50,000 to $60,000” in property management in California supports the
court’s orders. But the parties’ tax returns showed that the most Father
earned since 2018 was $25,000. And according to Father, he could not make
that much in Arizona because there are no similar sized properties to
manage in Lake Havasu City.

¶22 To be sure, evidence showed that Father was underemployed
based on his past employment and education. And there was (disputed)
evidence that Father had no housing expenses. But we cannot infer the
specific findings necessary to affirm because Father requested written
findings of fact. Where a party requests factual findings, as Father did here
under Rule 82(a), the “appellate court must be able to discern more than a
permissible interpretation of the trial court’s analysis.” Miller v. Bd. of
Supervisors of Pinal Cnty., 175 Ariz. 296, 299–300 (1993) (explaining that the
superior court’s findings must state “at least ‘the essential and
determinative facts on which the conclusion was reached.’”) (citation
omitted).

¶23 Significantly, Mother agreed that neither party could afford
the travel based on their current income levels. She testified that her family
would help pay for half the travel costs. In fact, Mother was willing to
forego spousal maintenance and child support to allow more opportunity
for Father to visit the children. The superior court did not address Mother’s
concession. Instead, it premised its relocation decision on a finding that
Father could earn some unspecified amount more than minimum wage.
Compounding the error, the court ordered him to pay $1000 a month in
support. Without findings clearly establishing Father’s voluntary
underemployment and the specific impact thereof, his current financial

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circumstances severely limit Father’s ability to travel to Panama to exercise
parenting time.

¶24 Father also challenged the findings that relocation would
improve the children’s quality of life and would not be detrimental to the
children’s emotional, physical, developmental needs, or stability. See A.R.S.
§ 25-408(I)(3), (6), (8). The parties disputed the impact a move to Panama
would have on the children, particularly access to the special services their
son needs. The absence of specific findings to support resolution of this
conflicting evidence, as would satisfy a request under Rule 82, undermines
the court’s conclusion.

¶25 As to whether the move would improve Mother’s and the
children’s lives, see § 25-408(I)(3), the superior court found Mother would
have better employment prospects and that she “considered the quality of
living in a small town, [and] what opportunities exist for herself and the
children.” Mother’s testimony supports the finding. Although Father
disagreed, we do not reweigh conflicting testimony. Hurd v. Hurd, 223 Ariz.
48, 51 ¶ 16 (App. 2009).

¶26 Unlike the § 25-408(I)(3) findings, the superior court’s
findings that the children’s needs will be met and they will have stability in
Panama, see § 25-408(I)(6) and (8), are conclusory and do not include
pertinent or comprehensive findings of fact. See Miller, 175 Ariz. at 299. We
cannot infer these reasons because Father requested written findings. See
id. On remand the court must provide written findings of fact and
conclusions of law consistent with this decision and Rule 82(a).

B. Spousal Maintenance

¶27 The superior court ordered Father to pay $750 a month in
spousal maintenance to Mother for five years. To support these orders, the
court again found Father was underemployed, has financial resources
available to him, and has no housing costs. The court did not state how
much more Father could earn or explain what additional resources are
available to Father. It made no finding as to the value of the rent-free
housing. The parties disputed the rental value of the house Father lived in.

¶28 Furthermore, Mother maintains the relocation was justified
because she had a job as a medical doctor with a good salary waiting for
her in Panama where she planned to live with her family. At trial and again
on appeal, she offered to forego spousal maintenance and child support
because the salary she could earn in Panama as a doctor was enough to

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provide a good living. The superior court also omitted to address this
evidence.

¶29 The superior court found that Mother will need time to
transition to employment in either location. Still, the findings do not
sufficiently explain why Mother needs $750 a month for five years based on
her testimony that, in Panama, she could work as a doctor immediately and
her waiver of financial support if she could relocate. More detailed findings
are necessary. Given Father’s Rule 82 request, we cannot infer that the court
made necessary factual findings. See Miller, 175 Ariz. at 299–300.
Accordingly, we vacate the spousal maintenance order and remand for
further findings.

C. Child Support

¶30 Given the disposition in this case, the superior court must
reconsider the child support order on remand. If the court again determines
that relocation is in the children’s best interests, Rule 82(a) requires the
court to support any deviation from the Guidelines with written findings.

¶31 The superior court determined that under the Guidelines,
Father’s child support obligation was zero, but it ordered an upward
deviation to $250 a month. The basis for the deviation was that (1) “the
Guidelines do not appropriately account for the varied [parenting time]
Father may or may not exercise”; (2) a zero order is not appropriate based
on the spousal maintenance award; and (3) Father does not actually pay for
his housing and so the self-support reserve test does not accurately reflect
Father’s ability to pay child support.

¶32 The first two findings are conclusory and do not support the
upward deviation. The superior court could, however, consider that Father
has no housing expense in determining his ability to pay a higher child
support amount. See Guidelines §§ IX(B)(1) (court may deviate when
applying the Guidelines is unjust or inappropriate); II(A)(1)(b) (defining
“[c]hild [s]upport [i]ncome” broadly to include “income from any source”
including “recurring gifts”); Cummings v. Cummings, 182 Ariz. 383, 386
(App. 1994) (affirming attribution of mortgage payments as income for
mother living in a house rent-free).

¶33 Father also argues that the superior court failed to consider
Guidelines § IX(D)(4), which allows a deviation when the cost of travel to
exercise parenting time in combination with the child support may impede
the parent’s ability to exercise parenting time. Though not raised by Father
in the superior court as such, this argument is properly before us because

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Mother conceded at trial that the cost of travel to Panama was prohibitive
and offered to forego support for that reason. See Jones v. Respect the Will of
the People, 254 Ariz. 73, 83–84 ¶ 42 (App. 2022) (stating rule of waiver is
discretionary). Again, the superior court did not account for Mother’s
concession in ordering an upward deviation. On remand, the court must
consider the cost of travel when determining the appropriate child support
order.

ATTORNEYS’ FEES AND COSTS ON APPEAL

¶34 Both parties request attorneys’ fees on appeal under A.R.S. §
25-324. In the exercise of our discretion and after considering the parties’
financial resources and the reasonableness of the parties’ positions
throughout these proceedings, we decline to award fees on appeal.
However, as the successful party on appeal, Father is entitled to his taxable
costs upon compliance with ARCAP 21.

CONCLUSION

¶35 We vacate the relocation, legal decision-making, parenting
time, spousal maintenance, and child support orders and remand for
reconsideration and written findings that comply with A.R.S. § 25-403(B),
Rule 82(a), and A.R.S. § 25-403.03(D), (E), and (F), if necessary.

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

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