Yacullo v. Cunniffe

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STACY KRISTINE YACULLO, Petitioner/Appellee,

v.

MICHAEL GAVAN CUNNIFFE, Respondent/Appellant.

No. 1 CA-CV 19-0537 FC
FILED 5-26-2020

Appeal from the Superior Court in Maricopa County
No. FC 2011-000715
The Honorable Michael C. Blair, Judge

AFFIRMED

COUNSEL

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Erica L. Gadberry, Alexandra Sandlin
Counsel for Respondent/Appellant

Hildebrand Law PC, Scottsdale
By Kip M. Micuda, Carlos Noel
Counsel for Petitioner/Appellee

YACULLO v. CUNNIFFEE
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Michael G. Cunniffe (“Father”) appeals from the superior
court’s modification of child support and parenting time and its award of
attorney’s fees to Stacy K. Yacullo (“Mother”). For the following reasons,
we affirm.

BACKGROUND

¶2 Father and Mother were divorced in 2011. Parents have two
children in common, Gavan, born in July 2006, and Aiden, born in
September 2009. In March 2014, the superior court entered new orders
awarding the parties joint legal decision-making. As of 2015, the children
resided primarily with Mother, and Father had parenting time every other
weekend and overnight one day during the week.

¶3 In May 2018, Mother filed a petition for temporary orders and
to modify decision-making, parenting, and child support. Mother sought
sole legal decision-making and asked the court to eliminate Father’s
overnight parenting time on school nights. The only change she sought for
child support was that the court should order her, not Father, to be
responsible for the children’s insurance. Father did not file a response to
Mother’s petition, nor did he file his own petition to modify child support.
In December 2018, the superior court awarded Mother temporary sole legal
decision-making authority and eliminated Father’s overnight parenting
time on school nights.

¶4 Dr. Raymond Branton, a psychologist, was appointed by the
court as an evaluator. Dr. Branton completed a comprehensive family
evaluation (“CFE”) in April 2019. He also conducted psychological testing
of each parent and interviewed the children, Mother, Father, Father’s
girlfriend, the children’s educators, Gavan’s therapist, and his
developmental and behavioral pediatrician. Dr. Branton opined that it was
in the children’s best interests for Mother to have sole legal-decision making
authority. He observed:

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These co-parents, unfortunately, are entrenched in their
conflict with one another. Even the various professionals
involved with the children (educators and medical providers)
have witnessed and agree that it is unfortunate that the
Parents have such tense and conflictual interactions,
especially in front of the children. In this Evaluator’s
professional opinion, a Joint Legal Decision-making
arrangement does not work for these Parents and has not
worked for some time, and is not likely to work in the future.

Dr. Branton noted that while Father and the children had close
relationships, they reported that Father frequently yelled at them when
they were with him, which caused them stress. Dr. Branton interviewed
Aiden’s headmaster, who reported that when Father brought Aiden to
school he was often tardy, which caused the boy unnecessary stress. In his
interview with Dr. Branton, Aiden stated that Father “gets me to school late
almost every day. Well he used to—but now because of the new schedule
. . . The new schedule is definitely a good thing . . . When mom takes me [I]
can expect to have some time before school. . . . [I] can’t remember being
late in [the] last three months [with Mother].” Gavan reported that Father
blamed the children for Aiden’s tardiness. In April 2019, Gavan was
allowed to return to school and was “flourishing” according to his
principal.

¶5 After a trial on Mother’s petition in April 2019, the superior
court entered a detailed minute entry order. The court awarded Mother sole
legal decision-making authority and gave Father parenting time every
other weekend ending at 6 p.m. on Sunday. After finding it was not in the
children’s best interests to modify Father’s monthly child support
obligation, the court ordered Father to continue paying $2100 per month to
Mother but ordered Mother to provide for the children’s insurance. The
court awarded attorney’s fees to Mother. Father timely appealed.1

1 Mother urges us to dismiss Father’s appeal pursuant to Stewart v.
Stewart, 91 Ariz. 356 (1962), because of Father’s unreasonable conduct both
before and after the trial resulting in this appeal. We decline to do so. The
superior court found that neither party had acted more unreasonably in the
instant matter. Although Mother argues that since trial, she has had to file
a third contempt petition against Father due to his misconduct and refusal
to follow the superior court’s orders, we do not consider facts that are not
part of the record on appeal. See ARCAP 11.

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DISCUSSION

I. Parenting Time

¶6 Father argues that the superior court erred by reducing his
parenting time to 85 days a year. We review the court’s parenting time
order for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App.
2013). The superior court is in the best position to make credibility
determinations and we will not reweigh conflicting evidence. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).

¶7 As relevant here, the court may modify an existing parenting
time order only if it first determines there has been a material change in
circumstances affecting the welfare of the children. Canty v. Canty, 178 Ariz.
443, 448 (App. 1994). “Consistent with the child’s best interests,” the
superior court must adopt a parenting plan that maximizes the parents’
respective parenting time. A.R.S. § 25-403.02(B). In determining legal
decision-making and parenting time, the court must consider all relevant
factors regarding the child’s physical and emotional well-being, including
the 11 factors listed in A.R.S. § 25-403(A). In a contested parenting time case,
the court must make specific findings “about all relevant factors and the
reasons for which the decision is in the best interests of the child.” A.R.S.
§ 25-403(B).

¶8 “A parent who is not granted sole or joint legal decision-
making is entitled to reasonable parenting time to ensure that the minor
child has substantial, frequent, meaningful and continuing contact with the
parent unless the court finds, after a hearing, that parenting time would
endanger the child’s physical, mental, moral or emotional health.” A.R.S.
§ 25-403.01(D); see also A.R.S. § 25-103(B) (“It . . . is the declared public policy
of this state . . . that absent evidence to the contrary, it is in a child’s best
interest . . . [t]o have substantial, frequent, meaningful and continuing
parenting time with both parents . . . .”). The best interests of the child is the
primary consideration in awarding parenting time. Hays v. Gama, 205 Ariz.
99, 102, ¶ 18 (2003).

¶9 Here, the superior court found a material change of
circumstances affecting the welfare of the children—“[s]pecifically, but not
exclusively” that one child was frequently acting out in school and the other
was frequently late on mornings Father dropped him off at school. Citing
A.R.S. § 25-103(B), the court stated that it was mindful that absent evidence
to the contrary, it is in a children’s best interests “[t]o have substantial,
frequent, meaningful and continuing parenting time with both parents.”

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The superior court went on to specifically address each of the A.R.S.
§ 25-403 best interests factors, and concluded its modification “maximizes
each parent’s parenting time to the extent it is in the children’s best
interests” and would allow the children “to have substantial, frequent,
meaningful, and continuing contact with Father while protecting their
physical, mental, moral, and emotional health.” See A.R.S. § 25-403.01.

¶10 Father acknowledges that the superior court found
“differences in parenting styles between Mother and Father, such as Father
was more prone to yelling, Father struggles to interact with the children
appropriately due to their special needs,” and “the children were late to
school when in the care of Father,” but nevertheless argues he should have
been awarded more parenting time.

¶11 The superior court’s best interests findings and its parenting
time order are supported by the record. One child had been temporarily
expelled from school for misconduct and the other was chronically tardy
on the mornings Father dropped him off at school following overnight
visitation, which caused the child stress. After the temporary orders
eliminating Father’s weekday parenting time, both children were “back on
track” emotionally and academically by the time of trial.

¶12 Even though the superior court reduced Father’s parenting
time, the court’s order still afforded Father “substantial, frequent, [and]
meaningful” parenting time. We find no abuse of discretion.

II. Child Support

¶13 We review the superior court’s ruling on a petition for
modification of child support for an abuse of discretion. Milinovich v.
Womack, 236 Ariz. 612, 615, ¶ 7 (App. 2015). An abuse of discretion occurs
when the record, viewed in the light most favorable to upholding the
superior court’s decision, does not support the decision or when the court
commits an error of law. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999); Birnstihl
v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018). We will uphold the award
unless it is devoid of competent evidence and for any reason supported by
the record. Nia v. Nia, 242 Ariz. 419, 422, ¶ 7 (App. 2017).

¶14 A child support order can only be modified “on a showing of
changed circumstances that are substantial and continuing.” A.R.S.
§ 25-327(A). “In exercising its discretion, the superior court shall consider
the nature of the changes and the reasons for the changes.” Nia, 242 Ariz. at
423, ¶ 9 (internal quotation omitted). “The burden of showing changed

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circumstances is on the party seeking modification.” Amadore v. Lifgren, 245
Ariz. 509, 513-14, ¶ 5 (App. 2018).

¶15 Father argues that he established substantial and continuing
changed circumstances warranting modification of child support. We
agree. “A fifteen percent variation in the amount of the order will be
considered evidence of substantial and continuing change of
circumstances.” Birnstihl, 243 Ariz. at 592-93, ¶ 16 (citing Ariz. Rev. Stat.
(A.R.S. § 25-320 app. § 24(B)). However, the support guidelines do not
replace the exercise of the superior court’s discretion, but rather focus it.
Burnette v. Bender, 184 Ariz. 301, 304 (App. 1995), superseded by statute on
other grounds as recognized in Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8 (App.
2014). Father points to the superior court’s child-support worksheet, which
noted (1) that his income had fallen to $9332 from $12,500 a month, (2) that
Mother’s income had fallen by $89 a month to $3100, (3) that, as Mother had
requested, she would assume responsibility for the children’s insurance,
saving Father $778.67 per month, and (4) that his parenting time days had
decreased to 85 days a year from 140 days per year. This does indeed
evidence a substantial change in circumstance warranting the court’s
reevaluation of the child support order. This showing however does not
remove the court’s discretion to deviate from the child support guidelines.

¶16 Father is correct that “child support is always modifiable
when a party establishes a change in circumstances.” In Nia, we affirmed
the superior court’s discretionary determination that changes in the parties’
income constituted a substantial and continuing change warranting a
modification of child support. 242 Ariz. at 423-24, ¶¶ 10-16. There, as here,
the parties had previously agreed to an upward deviation in child support.
Id. at 422, ¶ 2. We held that “once a court finds there has been a significant
and continuing change in circumstances from a previous child support
order, the court must review the parties’ situation anew; no presumption
from a previous order exists.” Id. at 425, ¶ 25. See also Amadore, 245 Ariz. at
515, ¶ 16 (once Father established a substantial and continuing change in
circumstances due to Mother’s new employment, Mother bore the burden
of proving that an upward deviation was in the children’s best interests—
there was no presumption for a previously imposed deviation) (citing Nia,
242 Ariz. at 421, 425, ¶¶ 1, 24).

¶17 However, the court is free to determine the child support
amount anew. The court stated that it was in the children’s best interests to
deviate from the child support guidelines but then entered a finding of
“. . . no substantial and continuing change to justify modifying the monthly
child support amount.” While we disagree about whether there was a

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substantial change in circumstance, the record supports the court’s other
findings. We will affirm the superior court’s decision if it is correct for any
reason. Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986).

¶18 The court’s conclusion that the previous upward deviation
should remain in place is supported by the record. Given the substantial
savings Father will incur by being relieved of the monthly insurance
premium, weighed with the imposition of that burden on Mother, the
reduction of her monthly income and the change in parenting time, the
superior court did not abuse its discretion by finding that the upward
deviation from the child support guidelines continued to be justified and
that the change in all circumstances warranted a continued upward
deviation. See Pearson v. Pearson, 190 Ariz. 231, 234 (App. 1997) (court may
deviate from the guidelines if “application of the guidelines is
inappropriate or unjust in a particular case” and deviation is in the best
interests of the child.) (internal quotation omitted). That determination was
a question of fact and was within the court’s “sound discretion.” Nia, 242
Ariz. at 423, ¶ 9.

III. Attorney’s Fees

¶18 Father argues that the superior court erred by awarding
Mother attorney’s fees and by denying his request for fees. We review
attorney’s fees awards for an abuse of discretion. Magee v. Magee, 206 Ariz.
589, 590, ¶ 6 (App. 2004).

¶19 After finding that A.R.S. § 25-324(B) did not apply and that
neither party had acted more unreasonably than the other, the superior
court awarded Mother attorney’s fees and costs based on the disparity in
their income. Father’s income is approximately three times greater than that
of Mother’s. We find no abuse of discretion.

¶20 Both sides request attorneys’ fees and costs on appeal
pursuant to A.R.S. § 25-324. Neither party has taken an unreasonable
position in this appeal. Because of the financial disparity between the
parties, we award Mother reasonable attorneys’ fees and costs on appeal
subject to compliance with ARCAP 21.

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Decision of the Court

CONCLUSION

¶21 For the foregoing reasons, we affirm the decision of the
superior court.

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

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