Marlowe v. Mickelsen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TAWNYA MARLOWE, Petitioner/Appellee,

v.

DANIEL MICKELSEN, Respondent/Appellant.

No. 1 CA-CV 22-0093 FC
FILED 11-3-2022

Appeal from the Superior Court in Maricopa County
No. FC2017-096134
The Honorable Joshua D. Rogers, Judge

AFFIRMED

COUNSEL

Rubin & Ansel, PLLC, Scottsdale
By Yvette D. Ansel
Counsel for Petitioner/Appellee

Hoffman Legal, LLC, Phoenix
By Amy W. Hoffman
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.

G A S S, Vice Chief Judge:

¶1 Father appeals the superior court’s order denying his post-
decree petition to modify legal decision-making, granting mother’s petition
to enforce the original dissolution decree, and awarding mother attorney
fees. Because the record supports the superior court’s findings, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 The 2018 dissolution decree, entered after a contested trial,
awarded father and mother roughly equal parenting time with their minor
children. The superior court found father engaged in significant domestic
violence against mother. Because A.R.S. § 25-403.03.A prohibits awarding
joint legal decision-making on a finding of significant domestic violence,
the superior court awarded mother sole legal decision-making.

¶3 In January 2020, mother petitioned for enforcement and
contempt, claiming father failed to comply with some of the 2018 orders,
including counseling with a specific therapist.

¶4 Father subsequently applied for, and the superior court
granted, a protective order against mother based on her conduct after the
entry of the decree. Father’s application listed instances in 2019 when
mother physically pushed and verbally degraded him in front of the
children and others. The application also alleged mother installed tracking
applications on the children’s phones in 2020. Despite efforts, father did not
serve mother with the order so it never went into effect.

¶5 In May 2020, father counter-petitioned for enforcement and
contempt against mother. Father alleged mother used her sole decision-
making authority to interfere with his parenting time. Father also
petitioned to modify legal decision-making and child support, claiming
mother’s inappropriate conduct in 2019 created a change in circumstances.
Father did not petition to modify the parenting-time schedule.

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Decision of the Court

¶6 The superior court held a consolidated hearing in October
2021. Father presented evidence and argued the change in circumstances
involve events occurring after the entry of the decree, specifically mother
engaged in “fits of rage” in the children’s presence, tried to harm father’s
relationship with the children, and used sole legal decision-making to
undermine father’s involvement with the children.

¶7 After considering the testimony and exhibits from both
parents, the superior court found no significant and continuing change in
circumstances warranted modification. The superior court relied on several
factual findings to support its ruling:

(1) the passage of time was insufficient to “impact or effect . . . the
nature of the domestic violence which occurred here”;

(2) “[f]ather did not present any evidence or make any argument in
relation to the [superior c]ourt’s determination that there was
significant domestic violence”;

(3) father’s evidence of mother’s interference with his parenting time
“does not change the fact . . . that the statute absolutely precludes
an award of joint legal decision-making if there is a finding of
significant domestic violence”; and

(4) mother’s “poor behavior” was not “a continuing change of
circumstances” because mother’s animosity existed before the
decree and did not continue “in a significant manner and
certainly not to the disturbing levels manifested in 2019.”

¶8 The superior court granted mother’s petition to enforce the
decree. In doing so, it affirmed mother’s sole legal decision-making
authority, maintained equal parenting time, adjusted child support, and
awarded mother some of the attorney fees she requested. Father timely
appealed. This court has jurisdiction under article VI, section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21.A.1, -2101.A.2.

DISCUSSION

¶9 Father argues the superior court erred when it (1) found no
changed circumstances and denied his petition to modify legal decision-
making; (2) granted mother’s petition to enforce the decree; and
(3) awarded mother attorney fees.

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Decision of the Court

¶10 This court “will affirm the [superior] court’s order of
parenting time and legal decision-making absent an abuse of discretion.”
Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018). An abuse of
discretion occurs when the record is “devoid of competent evidence to
support the decision,” or when the superior court commits an error of law
in reaching a discretionary decision. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19
(App. 2009) (citations omitted). This court accepts the superior court’s
factual findings unless clearly erroneous but reviews de novo conclusions of
law. Nia v. Nia, 242 Ariz. 419, 422, ¶ 7 (App. 2017).

I. The superior court did not abuse its discretion by finding no
material change in circumstances.

¶11 A petition to modify legal decision-making implicates a two-
step inquiry: (1) whether a change in circumstances materially affects the
child’s welfare, and (2) if so, whether modification is in the child’s best
interests. Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020). When
addressing a petition to modify, the superior court does not address best
interests unless it first finds a material change in circumstances affecting the
child’s welfare. Id. In the first step, the superior court has broad discretion
to decide whether any material change—positive or negative—has
occurred. Id. at ¶¶ 14–16.

¶12 The superior court concluded father’s evidence and argument
regarding his significant domestic violence and mother’s post-decree acts
missed the mark. Notably, the superior court said “[f]ather did not present
any evidence or make any argument in relation to the [superior c]ourt’s
determination that there was significant domestic violence.” And the
superior court said the evidence established mother’s poor behavior existed
before the decree and did not continue “in a significant manner and
certainly not to the disturbing levels manifested in 2019.”

¶13 Reasonable evidence supports those findings and the
superior court’s conclusion. This court will not reweigh the evidence. See
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004);
Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015) (“[T]he [superior]
court is in the best position to judge the credibility of witnesses and resolve
conflicting evidence, and appellate courts generally defer to the findings of
the [superior] court.”). Having found no change in circumstances, the
superior court correctly did not analyze any best-interests factors. See
Backstrand, 250 Ariz. at 343, ¶ 14.

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Decision of the Court

¶14 Father, nonetheless, argues the superior court should have
allowed him to present evidence on the best-interests factors to rebut § 25-
403.03.D’s presumption against awarding him sole or joint legal decision-
making, relying on Olesen v. Daniel, 251 Ariz. 25, 30, ¶ 23 (App. 2021).

¶15 Father misplaces his reliance on Olesen for two reasons. First,
the petition at issue in Olesen was to establish third party rights, so
Backstrand’s two-step analysis did not apply. See A.R.S. § 25-409. Father’s
petition here seeks to modify the decree’s legal decision-making provisions,
so it is subject to Backstrand’s two-step analysis. See 250 Ariz. at 343, ¶ 14.
Second, Olesen involves father’s request for sole legal decision-making. See
Olesen, 251 Ariz. at 27, ¶ 6; see also Hustrulid v. Stakebake, ___ Ariz. ___, ____,
¶ 16, 516 P.3d 18, 24 (App. 2022) (“[C]ourts cannot award joint ‘custody’ to
a legal parent and a third party.”). Father here seeks joint legal decision-
making with mother. Because § 25-403.03.A prohibits an award of joint legal
decision-making (even under subsection D), the superior court’s finding of
no material change as to father’s past significant domestic violence
prohibits the very award he seeks.

¶16 On this record, we need not—and do not reach—whether the
superior court could have found a material change as to the significance of
father’s past domestic violence such that father would be relieved of § 25-
403.03.A’s prohibition. See Olesen, 251 Ariz. at ¶¶ 19–21 (barring parent
from relitigating fact of earlier domestic violence).

II. This court lacks appellate jurisdiction over father’s challenge to
the validity of the decree.

¶17 Father argues the superior court exceeded its authority in
granting mother’s petition to enforce the decree. Father’s argument
challenges the validity of the decree’s orders. Because he did not appeal
from the decree, he cannot challenge the validity of those orders two years
later. See ARCAP 9(a) (appellant must file notice of appeal within 30 days
of entry of judgment).

III. The superior court did not abuse its discretion by awarding mother
attorney fees.

¶18 Father’s challenge to the award of attorney fees to mother is
based on his argument the decree was unenforceable and the superior
court’s orders were invalid. Because we affirm the superior court’s orders,
father has not shown any basis for reversing the award of attorney fees to
mother. We, thus, affirm the fee award.

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Decision of the Court

ATTORNEY FEES

¶19 Mother and father request attorney fees on appeal under
A.R.S. § 25-234 and ARCAP 21. This court may award attorney fees after
consideration of the financial resources and the reasonableness of the
parties’ legal positions. A.R.S. § 25-324. After considering the relevant
factors, we decline to award attorney fees to either party.

CONCLUSION

¶20 We affirm.

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

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