Rosenberg v. Conzoner

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAMANTHA LEIGH ROSENBERG, Petitioner/Appellant,

v.

JAYSON ROBERT CONZONER, Respondent/Appellee.

No. 1 CA-CV 23-0321 FC
FILED 06-27-2024

Appeal from the Superior Court in Maricopa County
No. FC2006-053796
No. FC2008-005445
The Honorable Andrew J. Russell, Judge

VACATED IN PART, AFFIRMED IN PART, REMANDED

COUNSEL

Samantha Leigh Rosenberg, Ladysmith, VA
Petitioner/Appellant

The Valley Law Group PLLC, Phoenix
By Cory B. Keith
Counsel for Respondent
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Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding
Judge Anni Hill Foster and Vice Chief Judge Randall M. Howe joined.

F U R U Y A, Judge:

¶1 Appellant Samantha Leigh Rosenberg (“Mother”) challenges
the superior court’s denial of her petition to modify legal decision-making
authority on due process grounds. We vacate and remand without
addressing her due process arguments because the superior court did not
explain the deficiencies in her petition and give her an opportunity to
correct them as required by Arizona Rule of Family Law Procedure
(“Rule”) 91(i)(1).

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties’ marriage was dissolved by consent decree in
2009. They have one minor child. The child lives with Father, who has sole
legal decision-making authority. Mother, who lives in Virginia, had long-
distance parenting time over school breaks.

¶3 In August 2019, Father petitioned to modify parenting time
and child support, alleging Mother had been “verbally and emotionally
abusive” to the child “nearly every day” during a six-week stay in Virginia.
Following trial, the superior court granted Father’s petition and entered
new orders limiting Mother to supervised parenting time in Arizona.
Mother appealed. We vacated those parenting time orders and remanded
because the superior court did not make written findings on the Arizona
Revised Statute (“A.R.S.”) § 25-403 best-interests factors. Rosenberg v.
Conzoner, 1 CA-CV 20-0514 FC, 2022 WL 53407, at *1 ¶ 1 (Ariz. App. Jan. 6,
2022) (mem. decision). We expressed no opinion on the orders themselves:

Our ruling suggests neither whether the superior court
should hold a new evidentiary hearing nor what findings the
superior court should make on remand. We require only the
superior court make the statutorily-required findings based
upon record evidence. We defer to the superior court to
address parenting time orders for the parents until it does so.

Id. at *3 ¶ 15.

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Decision of the Court

¶4 The superior court set an additional evidentiary hearing on
Father’s petition. That hearing was postponed to February 23, 2023. The day
before the hearing, Mother filed a motion for post-decree temporary orders
without notice and a petition to modify legal decision-making authority.
She alleged she had received an “alarming communication from a family
friend looking at the minor child’s social media accounts” a few days earlier
indicating that the child’s accounts “include[d] inappropriate sexual
content.” On that basis, she requested sole legal decision-making authority.

¶5 After the hearing on Father’s petition, the court denied
Mother’s temporary orders motion without explanation. Approximately
one month later, it denied her petition to modify, again without
explanation. It then issued new orders in which it reaffirmed Father’s sole
legal decision-making authority and reduced Mother’s supervised
parenting time (the “April 2023 Orders”).

¶6 Mother filed two notices of appeal, one challenging the April
2023 Orders and one challenging the denial of her petition to modify. We
dismissed the first as untimely and stayed the second to allow her to obtain
a final order denying her petition to modify. Mother did so and moved for
reconsideration in this court, contending she timely filed her notice of
appeal challenging the April 2023 Orders.

¶7 We revested jurisdiction in the superior court so that it could
determine whether the April 2023 Orders notice of appeal was timely. The
superior court determined it was, and we reinstated Mother’s challenge to
the April 2023 Orders. Mother also filed amended notices of appeal.

¶8 We have jurisdiction over both appeals under Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) and -
2101(A)(1). Thus, we need not address Mother’s request that we accept
special action jurisdiction.

DISCUSSION

I. The Superior Court Did Not Comply with Rule 91(i)(1) When It
Denied Mother’s Petition.

¶9 Mother contends the superior court violated her due process
rights when it denied her petition to modify without first conducting an

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Decision of the Court

evidentiary hearing.1 We do not address her due process arguments
because the court did not comply with Rule 91(i)(1) when it denied her
petition.

¶10 Upon receipt of a petition to modify, the superior court must
review it and either (1) reject it for failure to state grounds upon which relief
can be granted or (2) issue an order to appear. Ariz. R. Fam. Law P. 91(i)(1).
If the court rejects the petition, it “must provide the applicant with an
explanation of the deficiency and provide an opportunity to correct the
deficiency within 30 days after the date of the rejection notice.” Id.

¶11 Mother’s petition was pending for more than thirty days
before the superior court denied it, but the denial order did not explain any
deficiencies or give Mother an opportunity to correct any such deficiencies.
And while the parties participated in an evidentiary hearing the day after
Mother filed her petition, the minute entry from that hearing does not
mention her petition and no transcripts were provided. Approximately
three months later, the court stated that it denied Mother’s petition because
it “did not meet the requirements for modification under A.R.S. § 25-
411(A).” But it did not explain any specific deficiencies or give Mother an
opportunity to correct them. We therefore vacate the order denying
Mother’s petition to modify.

II. Mother Raises No Challenges to the April 2023 Orders.

¶12 Mother does not challenge the April 2023 Orders in her
opening brief. It appears she intends to raise her arguments in a separate
appeal, stating that she filed “two Notices of Appeal . . . for two separate
actions” and that her “other Notice of Appeal has not been assigned a [case]
number.”

1 Father did not file an answering brief. Where debatable issues exist,
the failure to file an answering brief can constitute a confession of error.
Savord v. Morton, 235 Ariz. 256, 259 ¶ 9 (App. 2014). But we do not apply
confession of error if a child’s best interests are at issue, as they are in this
case. See Hays v. Gama, 205 Ariz. 99, 102 ¶ 18 (2003) (“We have repeatedly
stressed that the child’s best interest is paramount in custody
determinations.”) (citing Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (1966)); see
also Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653, at *1 ¶
5 (Ariz. App. March 26, 2024) (mem. decision) (Morse, J., specially
concurring). We therefore consider the merits of Mother’s appeal.

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Decision of the Court

¶13 We reinstated Mother’s challenges to the superior court’s
“ruling on [Father’s] petition for modification of legal decision-making
authority, parenting time, and child support” as part of this appeal when
we granted her motion for reconsideration. Notwithstanding this
clarification of the scope of this appeal as inclusive of the April 2023 Orders,
Mother failed to make any arguments regarding them, and therefore has
waived any challenges to the April 2023 Orders. See Robert Schalkenbach
Found. v. Lincoln Found., Inc., 208 Ariz. 176, 180 ¶ 17 (App. 2004) (“Generally,
we will consider an issue not raised in an appellant’s opening brief as
abandoned or conceded.”).

CONCLUSION

¶14 We vacate the order denying Mother’s petition to modify and
remand for further proceedings. We express no opinion on the merits of
that petition. We affirm the April 2023 Orders.

¶15 Mother requests attorneys’ fees and costs incurred in this
appeal. She cannot recover attorneys’ fees because she is representing
herself. See Munger Chadwick, P.L.C. v. Farwest Dev. and Constr. of the Sw.,
LLC, 235 Ariz. 125, 126 ¶ 5 (App. 2014). She may, however, recover taxable
costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.

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

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