Murphy v. Stidham

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PATRICK T. MURPHY, Petitioner/Appellant/Cross-Appellee,

v.

SARA C. STIDHAM, Respondent/Appellee/Cross-Appellant.

No. 1 CA-CV 22-0692 FC
FILED 08-22-2024

Appeal from the Superior Court in Maricopa County
No. FC2018-007045
The Honorable Tracey Westerhausen, Judge

VACATED AND REMANDED

COUNSEL

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin
Counsel for Petitioner/Appellant/Cross-Appellee

Schmillen Law Firm PLLC, Scottsdale
By James R. Schmillen, Erica Leavitt
Counsel for Respondent/Appellee/Cross-Appellant
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MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Patrick Murphy (“Father”) appeals the denial of his petition
to modify parenting time. Sara Stidham (“Mother”) cross-appeals child
support orders. Because Father established that material changes of
circumstances affecting the children’s best interests occurred, we vacate the
court’s denial of Father’s petition. We also vacate the resulting child
support orders.

BACKGROUND

¶2 The parties were in a non-marital relationship for
approximately six years, and they are the biological parents of A.M. and
J.M., born in 2014 and 2019. When the parties met in 2011, Mother was a
massage therapist, and Father was a coach for the San Diego Padres. In
2015, Father became a coach for the Milwaukee Brewers, requiring him to
live in Wisconsin during the baseball season. For the next few years,
Mother and A.M. traveled with Father between Arizona and Wisconsin
each summer.

¶3 The parties’ relationship deteriorated, however, after Mother
was arrested in Wisconsin for shoplifting in August 2018. While she was in
custody, the parties had several recorded “jail call” conversations in which
she confessed to the shoplifting charges and admitted she had stolen from
Father throughout their relationship. For instance, Mother admitted (1)
selling stolen goods and doctoring her bank records to conceal her income
from Father; (2) cashing checks he gave her that were intended to pay for
her monthly health insurance premiums even though at the same time she
had been granted coverage under the Arizona Health Care Cost
Containment System; and (3) overcharging him for A.M.’s tuition each
month.

¶4 The following month, in Arizona, Father petitioned to
establish paternity, legal decision-making, parenting time, and child
support. Mother responded, and they proceeded to litigate custody issues

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for the next year. During this litigation, Mother and Father had their second
child, J.M.

¶5 The parties eventually agreed to a resolution, and in June 2019
they signed a consent decree and comprehensive parenting plan, which the
superior court entered as a final judgment (“Decree”). The Decree awarded
Father sole legal decision-making authority and provided for equal
parenting time under “a schedule that took into account Father’s coaching
schedule.” The Decree stated that the parties would “remain flexible with
respect to parenting time, especially during the offseason, when Father’s
schedule allows for more parenting time.” But the Decree also mandated
that the parties “shall reside within 20 miles of each other, so long as the
[c]hildren remain minors, unless otherwise agreed,” and that “Mother
agrees to relocate if Father’s employment requires him to relocate”
(“Relocation Provision”). Finally, the Decree ordered that if “Mother is
convicted of a crime, her parenting time shall be immediately supervised
by a mutually-agreed upon supervisor” (“Crime Clause”). Because Mother
agreed to live “dependent on Father’s employment at any given time[,]” the
parties agreed to a significant upward deviation from the Child Support
Guidelines, with Father paying $3,500 per month, subject to additional
increases if his income exceeded predetermined amounts.

¶6 During the 2020 baseball season, Mother refused to travel
with the children to Wisconsin. In June 2020, Father filed a petition to
modify child support and later that summer he filed a petition to modify
parenting time, alleging that since the Decree was entered the parties’
relationship had “broken down” and they had been unable to agree on the
terms of the parenting plan currently in place.

¶7 The superior court held an evidentiary hearing on child
support in August 2020, and reduced Father’s obligation to $1,924 per
month, effective July 1, 2020. The court also set a review hearing and
ordered the Family Conference Center (the court’s system for documenting
support and parenting time agreements) to provide an arrearage
calculation. Several weeks later, a Wisconsin court found Mother guilty on
three charges of shoplifting that had occurred in August 2019.

¶8 At the October 2020 review hearing, the superior court
considered the arrears calculation, which showed that Father owed arrears
of $24,848 and interest of $804 for May 2019 through August 2020. This
calculation, however, did not include payments that Father had made
directly to Mother from January 2020 through August 2020. Ultimately, the
court found that Father was current on child support for July, August, and

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September 2020, but did not address Father’s assertion that he had overpaid
for the months of July and August by a total of $3,152. The court declined
to further address child support arrears issues because Father’s petition to
modify parenting time, which also involved child support, was pending
before a different judge.

¶9 In the parenting time matter, Father alleged that since entry
of the Decree, there had been substantial and continuing changes in
circumstances that required modification of the current orders. He
requested, inter alia, that Mother’s parenting time be supervised under the
Crime Clause. For example, he claimed she had engaged in criminal
activity since the Decree, resulting in the three 2019 shoplifting convictions
in Wisconsin (while A.M. was with her as she shoplifted) and a separate
arrest on felony theft and fraud charges in Arizona. He also asserted that
their ability to co-parent had changed substantially, and for the worse,
because of Mother’s continuing participation in criminal activity and her
refusal to follow the Relocation Provision.

¶10 Father also asked the court to reappoint Dr. David Weinstock
to “finish the full family assessment he started in 2019.” The court ordered
the parties to “file an agreement as to the evaluator or their separate
proposed evaluators.” Father recommended Dr. Weinstock and Mother
made an untimely recommendation of two evaluators. The court then
appointed Dr. Weinstock to conduct a comprehensive family evaluation.

¶11 In January 2021, Mother filed a response to Father’s petition
to modify parenting time and a counter-petition requesting the court
modify legal decision-making and enforce child support. Father then
served Mother with a letter stating his intent to relocate with the children
to Wisconsin, and she petitioned the court to prevent Father from
relocating.

¶12 After various pretrial filings, in February 2022, the superior
court held a two-day trial on the parties’ three pending petitions. During
the trial, Father questioned Dr. Weinstock about his findings in the family
assessment. Dr. Weinstock expressed concerns about Mother’s honesty,
mental health, shoplifting, and her relationship with R.S., her 17-year-old
son from a prior relationship. He opined that “if Mom doesn’t change
course, it does not bode well for [the children’s] futures.” He concluded,
however, that the children were not at an imminent risk of harm in Mother’s
care and recommended against supervised parenting time. His testimony
was consistent with his written assessment, which stated that “[g]iven what
appears to be a lack of imminent harm, supervision [is] not recommended.”

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¶13 Father acknowledged that he and Mother had been able to
work together each year to schedule his make-up parenting time during the
offseason. In his notice of intent to relocate, Father had asserted that he was
“Required to [relocate] by circumstances of [his] employment.” But as
Father explained at trial, Mother told him that “she didn’t have to go” to
Wisconsin for the baseball season.

¶14 Father also testified about Mother’s history of shoplifting and
that she had stolen from him. He stated that after she was arrested in 2018,
she told him about “everything,” including her illegal massage business,
which he described as “sex work.” He explained that he believed she was
remorseful for her actions, but that because things had begun “spiraling out
of control” and given “her history,” the parties included the Crime Clause
in the Decree. Father explained that when he found she was stealing again,
he realized the actions he was taking were not working and he was worried
Mother was “going to raise [the children] without the understanding of
what’s right and wrong.”

¶15 Mother testified she has a close relationship with the children.
She explained she was concerned that A.M. was falling behind in school
because of his travel to Wisconsin during baseball season. She complained
about Father not involving her in his decision to have A.M. see a therapist,
but spoke well of Father’s parenting and was generally supportive of the
children’s relationships with him. Mother did not contest the evidence
showing her shoplifting convictions, but instead emphasized that she
would not be serving any jail time. Although not disputing that she was
subject to the Relocation Provision, Mother explained that it was not in the
children’s best interests to relocate to Wisconsin on a permanent or
temporary basis.

¶16 In April 2022, the court issued an order denying Mother’s
petition to modify legal decision-making. The court also denied Father’s
petition to modify parenting time, noting that his allegations were
“generally the same or similar to those known and/or of concern to Father
prior to his entering the [Decree] in June 2019.” The court further noted that
“[t]he parties have used an essentially equal parenting time plan, with
‘make-up’ days for Father during the off-season.” The court concluded that
“[n]o one testified as to a qualifying change of circumstance[s] for parenting
time and the parties’ current plan is affirmed.” The court modified Father’s
monthly child support obligation to $846, effective May 1, 2022.

¶17 The parties filed post-trial motions to clarify and reconsider
the April 2022 order. In October 2022, the court entered rulings on the

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outstanding motions. As relevant to this appeal, the court found that Father
did not owe any child support arrears to Mother. The court also found that
the April 2022 child support order should not have included the children’s
travel expenses as “’extraordinary’ child-related expenses.” Based on these
rulings, the court issued a new child support order effective November 1,
2022. Father timely appealed, and Mother timely cross-appealed. We have
jurisdiction under A.R.S. § 12-2101(A)(2).

DISCUSSION

¶18 Father argues the superior court abused its discretion by
finding that he failed to demonstrate a “qualifying change of
circumstances” warranting a modification of the parenting plan. On
cross-appeal, Mother argues the court’s November 2022 child support order
contains clerical errors and Father’s evidence was insufficient to justify the
court’s ruling that he owed no child support arrears.

¶19 We review the superior court’s denial of Father’s petition to
modify parenting time for an abuse of discretion. See Backstrand v.
Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020). We also review child
support orders for an abuse of discretion, accepting the court’s findings of
fact unless clearly erroneous. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21
(App. 2009). We may affirm the court’s ruling for any reason supported by
the record. Forszt v. Rodriguez, 212 Ariz. 263, 265, ¶ 9 (App. 2006).

I. Petition to Modify Parenting Time

¶20 When considering a petition to modify parenting time orders,
the superior court engages in a two-step analysis by determining (1)
whether a change in circumstances occurred that materially affects the
children’s welfare and, if such a showing is made, (2) whether the children’s
best interests require a change in parenting time. Christopher K. v. Markaa
S., 233 Ariz. 297, 300, ¶ 15 (App. 2013) (citations omitted). The court has
broad discretion to determine whether such a change of circumstances has
occurred. See Backstrand, 250 Ariz. at 343, ¶ 14.

¶21 Father contends the court abused its discretion by denying his
petition because Mother’s response to his petition and her pretrial
statement agreed that the disputed issue was not whether the parenting plan
needed to be modified, but instead, how the parenting plan should be
modified. Nothing in the record shows the parties agreed that parenting
time orders needed to be modified. But even if there were an agreement,
neither the agreement nor the parties’ filings would have overridden the
court’s independent authority (and obligation) to determine whether there

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was a material change in circumstances affecting the children’s welfare. See
A.R.S. § 25-411(J); Christopher K., 233 Ariz. at 300, ¶ 15.

A. Mother’s Criminal Conduct

¶22 Turning to the merits, Father contends the superior court
abused its discretion because Mother’s continued involvement in illegal
activity merited a finding that the parties’ circumstances had changed since
2019 in a way that materially affected the children. Father points to
evidence showing that after the Decree was entered, Mother was found
guilty on three shoplifting charges in Wisconsin, including acts of
shoplifting committed while A.M. was physically present, and was charged
with felony theft in Arizona.

¶23 The parenting provisions of a decree create a snapshot in time
that forms a baseline to assess whether future actions will create a material
change of circumstances. See Backstrand, 250 Ariz. at 344, ¶ 18; Reid v. Reid, 222 Ariz. 204, 209, ¶ 18 (App. 2009) (explaining the requirement for findings
on the record is to provide a baseline for “any future petitions by either
party based on ‘changed circumstances”’). At trial, Father had the burden
to prove “that conditions and circumstances have so changed after the
original decree as to justify the modification.” Backstrand, 250 Ariz. at 343,
¶ 14 (citation omitted). He needed to show there was a change in
circumstances affecting the welfare of the children and prove that the
change justified a departure from the underlying order. Id. at ¶ 16.

¶24 The Crime Clause, which Mother agreed to, created a baseline
for evaluating whether Mother’s future criminal conduct would violate the
Decree. Mother’s 2020 shoplifting convictions expressly triggered the
provision requiring supervised visitation. In agreeing to the Crime Clause,
Mother knew precisely what consequences could follow if she violated it
by engaging in criminal activity. And to prove that violation, all Father
needed to show was that Mother was “convicted of a crime.” He met that
burden by presenting evidence of Mother’s 2020 shoplifting convictions,
which the court addressed and characterized as “disturbing” but
determined that her behavior was “generally the same or similar to those
known and/or of concern to Father” before he entered the Decree. The
court erred in failing to recognize that Mother’s 2020 shoplifting convictions
constituted a material change in circumstances.

¶25 Moreover, Mother’s criminal behavior had a detrimental
impact on the children’s best interests and allowing her to continue that
behavior without any consequence to her parenting time rights diminishes,

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if not eliminates, the Crime Clause. See Id. at 344, ¶ 18 (noting that a “change
that materially reduces or eliminates the effect of a parenting-plan
provision constitutes a change of circumstances because that provision no
longer advances the child’s best interests”). Thus, the court erred in finding
that Father failed to meet his burden because it failed to account for the
consequences of Mother’s post-decree criminal activity.

¶26 Finally, Mother does not dispute that the Crime Clause is in
the children’s best interests. Nonetheless, the court failed to hold Mother
accountable for her criminal behavior, i.e., conviction for shoplifting in
2020, and her later arrest for four felony offenses. Even without the Crime
Clause, Mother’s participation in criminal conduct itself constitutes a
material change of circumstances because it is not in a child’s best interests.
This is especially so given that Mother conducted at least some of these
activities with at least one of the children present. We conclude that Father
met his burden of showing a material change in circumstances affecting the
children’s welfare. The court therefore erred in failing to enter appropriate
orders to address Mother’s continued behavior that violated the Decree and
was contrary to the children’s best interests.

B. Breakdown in Ability to Co-Parent

¶27 Father also contends that the breakdown in their ability to
co-parent under the parenting plan constitutes a material change in
circumstances. For example, Father argues that Mother’s refusal to
“relocate with Father or travel during the baseball season” qualifies as such
a change.

¶28 The superior court found that “Mother’s refusal to travel to
Wisconsin for the 2020 baseball season pretty much triggered the current
controversy. Her refusal was contrary to the [R]elocation Clause of the
[Decree] and she did it without first seeking a modification of that clause.”
Nonetheless, the court rejected Father’s assertion that Mother’s refusal
constituted a material change in circumstances.

¶29 Similar to the provision imposing consequences if Mother
violated the Crime Clause, the Decree imposed a condition that the parents
“shall reside within 20 miles of each other” and Mother needed to “relocate
if Father’s employment required him to relocate.” Although Mother
presented evidence that Father was given adequate make-up parenting
time for her refusal to relocate to Wisconsin, that does not change the
Decree’s plain language.

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¶30 The court erred in concluding that Father failed to show a
material change in circumstances affecting the children’s welfare. In doing
so, the court necessarily failed to enforce the Crime Clause and the
Relocation Provision. See Id. at 344, ¶ 18. If Mother believed that those two
conditions should have been modified based on a material change of
circumstances, she needed to seek to modify them before she violated those
conditions. Stated differently, Mother could not simply ignore what she
expressly bargained for by continuing to engage in conduct that violates the
Decree. See A.R.S. § 25-411. Because the Decree requires that Mother face
the consequences of her decisions when those decisions violate the Decree
and materially affect the children’s best interests, we vacate the order
denying Father’s petition to modify.

C. Harmless Error

¶31 Mother contends that even if the superior court erred by
finding there was no material change in circumstances, the error was
harmless because the court made written findings on each best interests
factor related to its order affirming the 2019 parenting plan. Father counters
that both he and Mother had submitted proposed parenting plans in their
pretrial statements, and that the court’s role was limited to deciding which
of their parenting plans was in the children’s best interests.

¶32 Error is harmless where this court “can say beyond a
reasonable doubt that the error did not contribute” to the court’s decision.
Alice M. v. Dep’t of Child Safety, 237 Ariz. 70, 73, ¶ 12 (App. 2015) (citation
omitted). After finding there was no qualifying change in circumstances,
and affirming the parenting plan on that ground, the court proceeded to
make written findings on the best interests factors under A.R.S.
§§ 25-403(A), -403.03, -403.04, -403.05 & -408 as they relate to legal
decision-making and parenting time. The court’s findings as to the
children’s best interests, however, were conditioned on there being no
material change in circumstances. Because the court erred in finding there
was not a material change in circumstances, on remand the court must
reweigh the best-interests factors through that lens. Thus, the error here
was not harmless.

II. Child Support

A. Clerical Errors

¶33 Mother argues the superior court made two clerical mistakes
in calculating child support: (1) the November 2022 child support order
incorrectly required her to pay 13% of the children’s travel expenses, and

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(2) the order had the wrong effective date. The April 2022 child support
order went into effect on May 1, 2022. The November 2022 order corrected
the errors in the April 2022 order and should have had the same effective
date as the April 2022 order. Because Father concedes that these errors
occurred, on remand the court must correct them. And to the extent a
change in the parenting time has an effect on child support, a new
calculation of child support may be required.

B. Child Support Arrears

¶34 Mother next argues the superior court abused its discretion
when it found Father owed her no child support arrears. At the evidentiary
hearing, Father presented canceled checks reflecting his direct child
support payments to Mother. He also testified about an unsigned lease
agreement, which the court admitted into evidence “[t]o the extent that it
might pertain to reasonableness[.]” The agreement required Mother to pay
Father $1,000 in rent each month for the use of his guesthouse. Father’s
canceled checks show that he deducted $1,000 from his child support from
January 2020 through May 2020 for “rent.” Mother testified that she did
not agree to him reducing child support, but she still deposited these checks
because she was not working.

¶35 In its April 2022 order, the superior court did not rule on
whether Father owed child support arrears. Father moved to clarify, and
the court ruled that “[b]ased on testimony and supporting evidence . . .
Father owes Mother no arrearages.”

¶36 Parents are required to pay child support through the child
support clearinghouse. A.R.S. § 25-510(A); A.R.S. § 46-441(B), (H). The
superior court may, however, give credit for direct payments that the
paying parent made as, and the receiving parent knowingly accepted as,
child support payments. Schultz v. Schultz, 243 Ariz. 16, 18–19, ¶¶ 5, 9 (App.
2017). By statute:

Any direct payments not paid through the clearinghouse or
any equitable credits of principal or interest permitted by law
and allowed by the court after a hearing shall be applied to
support arrearages as directed in the court order. The court
shall make specific findings in support of any payments or credits
allowed. If the court order does not expressly state the dates
the payments or credits are to be applied, the payments or
credits shall be applied on the date of the entry of the order
that allows the payments or credits.

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A.R.S. § 25-510(G) (emphasis added). Here, the court erred by concluding
that Father owed no child support arrears without making specific findings
to support its decision.

¶37 On remand, the superior court should determine whether to
credit Father with $1,000 per month for Mother’s use of the guesthouse
from January through May 2020. The court should also address Father’s
assertion that he overpaid child support in July and August 2020 by $3,152.
Finally, the court should consider the arrears that will result from our
holding that the effective date for the November 2022 child support order
was May 1, 2022. And, to the extent A.R.S. § 25-510(G) applies, the court
will need to make specific findings to support its decision.

III. Attorneys’ Fees and Costs on Appeal

¶38 Both parties request attorneys’ fees under A.R.S. § 25-324.
After considering the relative financial resources of the parties and the
reasonableness of the positions they asserted on appeal, A.R.S. § 25-324(A),
we decline to award attorneys’ fees to either party. As the successful party
on appeal, Father is awarded taxable costs subject to compliance with
ARCAP 21.

CONCLUSION

¶39 We vacate the superior court’s order denying Father’s petition
to modify parenting time and the child support orders. We remand for
further proceedings to address Father’s petition to modify parenting time
and for recalculation of child support consistent with this decision.

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

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