Opinion
No. 1 CA-CV 18-0786 FC
09-24-2019
In re the Marriage of: CHRISTIANA MOORE, Petitioner/Appellee, v. JOSHUA MOORE, Respondent/Appellant.
APPEARANCES Joshua J. Moore, Laveen Respondent/Appellant Suzette Lorrey-Wiggs, PC, Tempe By Suzette Belle Lorrey-Wiggs Counsel for Petitioner/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. FC2016-091590
The Honorable Joshua D. Rogers, Judge
AFFIRMED
APPEARANCES
Joshua J. Moore, Laveen
Respondent/Appellant
Suzette Lorrey-Wiggs, PC, Tempe
By Suzette Belle Lorrey-Wiggs
Counsel for Petitioner/Appellee
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge David D. Weinzweig joined.
MORSE, Judge:
¶1 Joshua Moore ("Father") appeals the superior court's decision denying his petition to modify legal decision-making and parenting time and awarding Christiana Moore ("Mother") attorney fees. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother filed for dissolution of her marriage to Father in February 2016, when their daughter ("Child") was five-months old. In early October 2016, the superior court entered a consent decree of dissolution signed by the parties.
¶3 The decree provided that Father's parenting time would progress according to a five-step plan. On the first step, Father would have a few hours of supervised parenting time per week. By the fifth and final step, Father would have unsupervised parenting time every other weekend, and every Wednesday night. The decree provided that the parties had joint legal decision-making authority, with Mother having final legal decision-making authority "[i]n the event of an impasse."
¶4 In September 2017, Mother filed a petition to modify child support, alleging that Father's income had doubled since the entry of the decree. The following month, Father filed a petition to modify legal decision-making authority, parenting time, and child support. He also sought to enforce parenting time. He alleged that he improperly only received parenting time pursuant to step-two of the parenting plan. He also asked the superior court to modify the parenting schedule so that he could have equal parenting time. Finally, he asked the superior court to remove Mother's final legal decision-making authority.
¶5 In April 2018, Mother notified Father of an opening in a daycare for Child. Mother and Father had placed Child on a waitlist for this daycare before Child was born. Mother and Father toured the facilities separately and communicated about the daycare over email. Although
Father voiced no particular objection to the daycare itself, he refused to give consent for the daycare without first discussing the issue with Mother in person. Mother insisted on discussing the matter only over email and enrolled Child in the daycare without Father's consent. Father then tried to discuss enrolling Child in a "supplemental learning program" together with daycare, and asked Mother to work with him so that Child could attend, but Mother did not engage.
¶6 Three months before the superior court held an evidentiary hearing, Father progressed to step five of the parenting plan. Three weeks before the hearing, Father moved out of his apartment and into a larger house with a girlfriend.
¶7 At the hearing, the parties agreed on the amount of income and expenses. The superior court received exhibits and heard testimony and granted Mother's petition, but denied Father's, finding that there had not been a significant and continuing change of circumstances that materially affects Child's welfare. Father timely appealed, and we have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
I. Change in Circumstances
¶8 Father argues that the superior court erred when it denied his petition based on insufficient evidence of a change in circumstances.
¶9 "To change a previous custody order, the family court must determine that there has been a material change in circumstances affecting the welfare of the child." Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015) (internal quotation marks omitted). This is a "fact-intensive . . . inquiry." Engstrom v. McCarthy, 243 Ariz. 469, 472, ¶ 10 (App. 2018). The superior court has "broad discretion to determine whether a change of circumstances has occurred." Hendricks v. Mortensen, 153 Ariz. 241, 243 (App. 1987). We will therefore affirm "absent an abuse of that discretion." Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999).
¶10 Father argues that the superior court failed to consider various facts, including his claims that (1) Mother refused to speak to Father about alternative daycares; (2) Father moved into a different and bigger residence; (3) Child had grown older; and (4) Father's allegations that Mother "abused her final decision-making authority." However, the superior court addressed each of these issues in its ruling. See Vincent, 238 Ariz. at 155, ¶ 18 ("Although Father argues the family court did not
properly consider the evidence before it, the record reveals the family court carefully and comprehensively considered the evidence and issues.").
¶11 Father further argues that "the major objection to [F]ather having more time at the time of the decree w[as] mental health concerns," which he had since alleviated. However, Father does not argue that he resolved the mental health problems. Instead, he argues that the concerns for his mental health were unfounded. But any change in mental health concerns was contemplated by the five-step parenting plan, which required Father's "compliance with treatment," and is not a changed circumstance. See Ward v. Ward, 88 Ariz. 130, 135 (1960) ("[The decree] became final, upon the facts then before the court, and no alteration will be made without a showing that the factual situation has changed to such an extent that the original decree can no longer reasonably be expected to serve the purpose.").
¶12 Father also alleges that Mother missed two of Child's immunization appointments. But anomalous missed appointments are to be expected in the ordinary course of life and do not rise to the level of a material change in circumstances without a showing of detriment to Child. See Johnson v. Johnson, 13 Ariz. App. 574, 576 (App. 1971) (rejecting argument that a temporary change in the children's environment was a material change in circumstances "absent a showing that such change was substantial and detrimental").
¶13 Father also presents many legal arguments: (1) a change of circumstances for modification of child support is the same as a change of circumstances for modification of legal decision-making; (2) the standard for modification of parenting time is different from the standard for modification of legal decision-making; (3) parenting time must be reevaluated whenever child support is modified; (4) the parenting plan in the decree is modifiable under A.R.S. § 25-411 due to Mother's failure to comply; and (5) the parenting plan is modifiable by its own terms. None of these arguments were raised in the superior court, and we therefore decline to address them for the first time on appeal. See Marco C. v. Sean C., 218 Ariz. 216, 218, ¶ 6 (App. 2008) (we "may refuse to consider" issues raised for the first time on appeal).
II. Attorney Fees
¶14 Father states that the superior court erred by awarding Mother attorney fees. The superior court certified its ruling on the parties' petitions as a final, appealable order pursuant to Arizona Rule of Family
Law Procedure ("ARFLP") 78(b) because of the "outstanding attorney fees and costs issue." Though the superior court granted Mother's request for attorney fees in the same minute entry, it did not decide on an amount or enter judgment as to attorney fees. ARFLP 78(b) explicitly states that "a claim for attorney fees is considered a separate claim from the related judgment regarding the merits of the action." Father filed his notice of appeal after the judgment on the petitions, but before judgment on the attorney fees. He did not subsequently file an amended or new notice of appeal, and therefore we are without jurisdiction over the attorney fees issue. See Camasura v. Camasura, 238 Ariz. 179, 183, ¶ 15 (App. 2015) ("To preserve his appeal, Husband should have filed another notice of appeal after entry of the Decree . . .."). Moreover, even if we had appellate jurisdiction, Father has shown no reversible error in the superior court's award of attorney fees to Mother.
CONCLUSION
¶15 For the foregoing reasons, we affirm the judgment of the superior court. Mother asks for her attorney fees on appeal pursuant to A.R.S. § 25-324, ARCAP 21, and ARCAP 25. After considering the parties' relative financial resources, we exercise our discretion and decline to award Mother her attorney fees. However, as the prevailing party, Mother is awarded her costs incurred on appeal upon compliance with ARCAP 21(b).