Tinoco v. Tinoco

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CAMILYN LOIS TINOCO, Petitioner/Appellee,

v.

ISRAEL JACOB TINOCO, Respondent/Appellant.

No. 1 CA-CV 22-0618 FC
FILED 7-27-2023

Appeal from the Superior Court in Maricopa County
No. FC2018-096824
No. FC2018-097032
The Honorable Lisa Stelly Wahlin, Judge

REVERSED AND REMANDED

COUNSEL

Law Offices of Kevin Jensen PLLC, Mesa
By Kevin Jensen
Counsel for Petitioner/Appellee

Hoffman Legal, LLC, Phoenix
By Amy Wilkins Hoffman, Jason M. Ceola
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Andrew M. Jacobs joined.

P A T O N, Judge:

¶1 Israel Jacob Tinoco (“Father”) appeals the order dismissing
his petition to modify parenting time. We reverse and remand for
reconsideration.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Camilyn Lois Tinoco (“Mother”) divorced in 2020
and have twins who were born in 2018. In its dissolution decree, the court
awarded the parties joint legal decision-making authority, named Mother
the primary residential parent, and awarded Father parenting time every
other weekend from Friday to Sunday and two hours every Wednesday
evening. The court found both parents acted unreasonably, and warned
that “[s]peaking negatively to a child about a parent may harm the child[]
and it “may consider negative, insulting, bullying, or other inappropriate
behavior in determining whether legal decision-making or parenting time
should be changed.”

¶3 Two years later, Father petitioned to modify the parenting
time orders based on several alleged changed circumstances, including that
his relationship with the now four-year-old twins had “blossomed” with
the consistent parenting time he received via the decree. He also alleged
that Mother interfered with his parenting time in several ways, including
taking “random days . . . away from Father and call[ing] them her ‘vacation
day[s]’” and declining, interrupting, or ending his phone calls with the
children. Father claimed Mother’s new husband made disparaging
comments about Father when they exchanged the children, and once
prevented Father from comforting his crying son. Father alleged that
Mother refused to tell him about the children’s preschool location and
extracurricular activities which prevented him from attending or
participating in them. Finally, he alleged that Mother and her husband
insist that the children call her husband “dad.”

¶4 Mother moved to dismiss Father’s petition under Arizona
Rule of Family Law Procedure (“Rule”) 29(a)(6) for failure to state a claim.

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She argued that Father’s modification request failed to allege substantial
and continuing changed circumstances materially affecting the children—
specifically that Father’s improved relationship with the children, the
children’s attendance at preschool, and the children calling her husband
“dad,” did not constitute changed circumstances. She denied the
allegations that she interfered with Father’s parenting time or phone calls
and argued that, even if true, these allegations would be relevant to an
enforcement, not modification, petition.

¶5 The superior court expressed concern about Mother’s alleged
failure to follow the decree, but determined it was irrelevant to a request to
modify parenting time. The court found that “the only substantial and
continuing change Father alleged was that time had passed and the
children were a little older” and “without more,” was insufficient to
“constitute a substantial and continuing change of circumstances that
materially affects the minor children’s welfare.”

¶6 Father appealed, and we have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) Section 12-2101(A)(2).

DISCUSSION

I. We review the superior court’s order dismissing Father’s petition
to modify parenting time for an abuse of discretion.

¶7 We generally review an order granting a motion to dismiss de
novo. See Coleman v. City of Mesa, 230 Ariz. 352, 355–56, ¶¶ 7–9 (2012)
(When considering an Arizona Rule of Civil Procedure 12(b)(6) motion to
dismiss, the court assumes the truth of all well-pled factual allegations and
only grants it if the non-moving party “would not be entitled to relief under
any interpretation of the facts susceptible of proof.”) (citation omitted); Cox
v. Ponce, 251 Ariz. 302, 304, ¶ 7 (2021) (applying same standard of review to
Arizona Rule of Family Law Procedure 29(a)(6) motion to dismiss as
“family law equivalent” of Rule 12(b)(6) motion). Appellate courts apply a
de novo standard of review because the facts are accepted as true at this
stage, and the court must answer the legal question of whether the facts
state a claim.

¶8 As relevant here, however, we review the superior court’s
ruling as to whether changed circumstances exist in deciding a modification
petition for an abuse of discretion. Pridgeon v. LaMarca, 134 Ariz. 177, 179
(1982). When considering a motion to modify parenting time, the court
must first determine whether the petition alleged changed circumstances
materially affecting the children’s welfare. Backstrand v. Backstrand, 250

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Ariz. 339, 343, ¶ 14. “Only if it finds such a change in circumstances may it
‘then proceed to determine whether a change in custody will be in the best
interests of the child.’” Id. (quoting Black v. Black, 114 Ariz. 282, 283 (1977)).
We thus review the superior court’s decision regarding whether changed
circumstances exist for an abuse of discretion because it is a factual inquiry,
see id., and defer to the superior court sitting as fact finder, see Gutierrez v.
Gutierrez, 193 Ariz. 343, 347–48, ¶ 13 (App. 1998).

¶9 Although Mother moved to dismiss under Rule 29(a)(6), her
motion essentially responded to the allegations in the petition to modify.
And the superior court granted Mother’s Rule 29 motion to dismiss only
after finding that Father’s petition failed to allege changed circumstances
materially affecting the children’s welfare. That ruling is reviewed for
abuse of discretion. See Backstrand, 250 Ariz. at 343, ¶ 14. The court abuses
its discretion when it makes a decision unsupported by the record or
commits an error of law in reaching a discretionary conclusion. Engstrom
v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018).

II. The superior court erred by only considering whether the
children’s ages were a changed circumstance sufficient to support
Father’s petition to modify parenting time.

¶10 Father argues the superior court erred when it failed to
consider the totality of the allegations he raised in his petition to modify
parenting time. The superior court concluded that Father’s only allegation
of a changed circumstance was the children’s age, and “without more,”
“[did] not constitute a substantial and continuing change of circumstances
that materially affect[ed] the children’s welfare.” But, as discussed supra
¶ 3, Father raised several other allegations of changed circumstances
materially affecting the children, including Mother’s remarriage and her
new husband’s interactions with the children, and that the children were
now in preschool and other activities that he was not kept apprised of.

¶11 While remarriage alone may not be a changed circumstance
sufficient for modification, it may be considered one in combination with
other changes. See Black, 114 Ariz. at 284 (holding that several changes of
circumstance, including a parent’s remarriage, collectively had a material
effect on the children’s welfare, even though any one of those changes alone
may not have); Stapley v. Stapley, 15 Ariz. App. 64, 71 (1971) (holding that
mother’s remarriage alone was not a basis for custody modification but
“was a factor to consider in combination with other circumstances”). Here,
the court did not consider whether this allegation was a change in

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circumstance materially affecting the children’s interests and should do so
in combination with Father’s other alleged circumstances on remand.

¶12 Father also alleged that Mother failed to comply with the
court’s express language in the dissolution decree that it may consider any
“inappropriate behavior” by either parent in deciding whether to modify
parenting time in the future. The dissolution decree recognized Mother’s
efforts to thwart Father’s parenting time and cautioned it may consider
“inappropriate behavior” by either parent in deciding whether to modify
parenting time in the future. Here, the superior court determined that
Mother’s alleged noncompliance with the decree was “not relevant” to
Father’s petition. Given the specific and express directive in the decree as
to parenting time, and Father’s allegation that Mother violated it, the court
should consider this allegation in combination with the other alleged
circumstances on remand. See Stapley, 15 Ariz. App. at 70–71 (holding it is
appropriate to consider a parent’s violation of court orders “as a change of
condition and as a factor in determining the child’s welfare”).

¶13 The court further erred to the extent it required Father to
show a “substantial and continuing change of circumstances” materially
affecting the welfare of the children (emphasis added). A parent seeking
modification need only show a “change of circumstances materially
affecting the welfare of the child.” Backstrand, 250 Ariz. at 343, ¶ 14 & n.1
(noting that courts are bound by this judicial precedent even though the
statute requires no such change or showing). But cf. A.R.S. § 25-503(E)
(requiring a petitioner for child support modification to show a “changed
circumstance that is substantial and continuing”).

ATTORNEYS’ FEES ON APPEAL

¶14 Both parties request attorneys’ fees and costs on appeal under
Section 25-324. We have no evidence of the parties’ current financial
resources, and neither party took unreasonable positions. In the exercise of
our discretion, we decline to award either party attorneys’ fees on appeal.
As the successful party on appeal, Father is entitled to his reasonable costs
under Section 12-342.

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CONCLUSION

¶15 We reverse the order dismissing Father’s petition to modify
parenting time and remand for reconsideration consistent with this
decision.

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