Jimenez v. Dominguez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KRYSTLE BELEN JIMENEZ, Petitioner/Appellee,

v.

STEVEN MICHAEL DOMINGUEZ, Respondent/Appellant.

No. 1 CA-CV 23-0720 FC
FILED 07-02-2024

Appeal from the Superior Court in Maricopa County
No. FC2017-093015
The Honorable Charlene D. Jackson, Judge

AFFIRMED

COUNSEL

Arizona Family Law Solutions, PLC, Mesa
By Melissa Weiss-Riner, James E. Riner
Counsel for Respondent/Appellant

The Cavanagh Law Firm, P.A., Phoenix
By Nicholas J. Brown
Counsel for Petitioner/Appellee
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer B. Campbell joined.

B R O W N, Judge:

¶1 Steven Dominguez (“Father”) appeals the superior court’s
post-decree order reducing his parenting time and granting Krystle
Jimenez (“Mother”) retroactive child support. Because Father has not
shown the court abused its discretion or otherwise erred, we affirm.

BACKGROUND

¶2 Father and Mother married in 2008; they have one child in
common, who was born in 2012 (“Child”). In 2017, Mother petitioned for
dissolution of the marriage. In addition to other requests, each parent
confirmed the need to establish child support in accordance with the
Arizona Child Support Guidelines.

¶3 In 2018, the superior court entered its decree dissolving the
marriage. The decree, which included a parenting time agreement, ordered
joint legal decision-making authority and a relatively even parenting time
schedule. The decree was silent, however, on child support. About six
months later, Father petitioned to establish child support, but the court
dismissed the petition without prejudice for lack of prosecution.

¶4 In November 2022, Father petitioned to modify legal
decision-making, parenting time, and child support, asserting in part that
Child’s living conditions with Mother were unfit. Father claimed that Child
was suffering from lack of sleep and was experiencing “significant stress in
being forced to share a bed and room with others in Mother’s apartment.”
Father requested sole legal decision-making authority, two weekends
(daytime only) of parenting time a month for Mother, and that each party
pay nothing in child support. In response, Mother acknowledged living
with relatives in an apartment with two bedrooms and one bathroom due
to safety concerns and financial hardship but asserted that she provides
Child with his daily needs in a safe environment. Mother then alleged that
Father had violated the decree in various instances.

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¶5 In April 2023, the superior court ordered the parties to
participate in open negotiation on the issues of legal decision-making and
parenting time. The parties complied and signed an agreement
(“Agreement”) in which they assented to joint legal decision-making
authority and various provisions addressing their parenting time
arrangement, including exchanges and communication. The parties did not
agree on a parenting time schedule, a right of first refusal, or presumably,
child support. In June 2023, the court entered the Agreement as an order of
the court, to remain in effect unless modified by subsequent order.

¶6 Father then tried to unilaterally move Child to a new school.
Mother filed an expedited motion for an order to maintain school
enrollment, which the court granted, finding that because the parents had
joint legal decision-making authority, Father could not unilaterally decide
to change Child’s school.

¶7 In August 2023, Mother filed another response to Father’s
petition to modify legal decision-making, parenting time, and child support
as well as a counter-petition to modify legal decision-making, parenting
time, and child support. She asked the court to order child support,
including retroactive support “up to three years before date of filing.”
Mother also claimed that Father’s communications were becoming
increasingly hostile, and she pointed to Father’s interactions with law
enforcement, referencing several police reports documenting acts of
domestic violence between Father and his significant other. Mother alleged
a material change of circumstances had occurred and sought sole legal
decision-making and a reduction in Father’s parenting time. Father moved
to dismiss Mother’s filing, asserting she never sought to amend her
response, that her second response was untimely, and that no change in
circumstances justified Mother’s counter-petition.

¶8 The court granted Father’s motion to dismiss Mother’s second
response as untimely but denied the motion as to her counter-petition. The
court found that although the issues of parenting time and legal
decision-making had been resolved at the open negotiation three months
earlier, Mother’s counter-petition “include[d] a verification of the facts that
support . . . [a] reason to believe the child’s present environment may
seriously endanger the child’s physical, mental, moral, or emotional
health.” See A.R.S. § 25-411(A). The court then granted Mother’s motion to
consolidate Father’s petition with her counter-petition.

¶9 After an evidentiary hearing, the superior court determined
that the new information Mother provided about Father’s contacts with law

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enforcement justified modifying the Agreement. The court then ruled that
the parties would continue to exercise joint legal decision-making
authority, with Mother as the primary residential parent (resulting in a
significant reduction in Father’s parenting time), and Father being
obligated to pay child support of $565 per month plus $9,964 for three years
of retroactive support. Father timely appealed, and we have jurisdiction
under A.R.S. § 12-2101(A)(2).

DISCUSSION

A. Parenting time

¶10 We will not disturb the superior court’s legal decision-making
or parenting time orders absent an abuse of discretion. Nold v. Nold, 232
Ariz. 270, 273, ¶ 11 (App. 2013). Father argues the court should not have
allowed Mother’s counter-petition to proceed because it had been less than
one year since the entry of the last parenting time and decision-making
order, entered on June 19, 2023. Father points to A.R.S. § 25-411(A), which
states,

[a] person shall not make a motion to modify a legal decision-
making or parenting time decree earlier than one year after its
date, unless the court permits it to be made on the basis of
affidavits that there is reason to believe the child’s present
environment may seriously endanger the child’s physical,
mental, moral or emotional health.

The superior court correctly acknowledged that Mother’s counter-petition
was subject to the Agreement. The court then determined Mother’s filing
included verified facts sufficient to bypass the one-year threshold under
§ 25-411(A).

¶11 Father disagrees, asserting the evidence Mother presented
was available before the Agreement was entered. However, as the court
pointed out, some of the incidents between Father and the police included
in Mother’s counter-petition happened after the Agreement. Additionally,
Father admitted that Child was present during one of the occasions that
required police involvement. Father has not shown the court abused its
discretion in finding that under the circumstances there was reason to
believe Child’s physical, mental, moral, or emotional health could be
seriously endangered.

¶12 Next, Father argues the court erred in allowing Mother to file
an untimely counterclaim because she did not comply with Arizona Rules

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of Family Law Procedure (“Rule”) 28 and 33. Father summarily contends
that Mother “failed to comply significantly” with these provisions, but
given his failure to sufficiently develop this argument, it is waived. See
ARCAP 13(a)(7) (requiring references to the record and citations
supporting legal authority in Appellant’s opening brief); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (holding that failure to comply with
ARCAP 13(a)(7) resulted in waiver of an argument). His argument also
fails on the merits. Rule 28 applies to amended and supplemental
pleadings. Father’s argument could apply to Mother’s filing of an amended
response past the deadline without asking for leave to amend. But the court
dismissed Mother’s amended response. Similar to Rule 28, Father’s reliance
on Rule 33 is misplaced. Rule 33 deals exclusively with third-party rights,
other parties or claims, and state intervention, none of which are applicable
here.

¶13 Father also asserts that Mother’s counter-petition was
improper because it did not comply with Rule 91. He argues that, had
Mother complied with that rule, he “would have been afforded at least (30)
days before an [evidentiary hearing] was to be set.” Again, Father has failed
to properly develop this argument. See ARCAP 13(a)(7). Moreover, the
portion of Rule 91 Father cites applies when a court rejects a petition to
modify. See ARFLP 91(i)(1). In that situation, the court must provide the
petitioner “an opportunity to correct the deficiency within 30 days.” Id.
Nothing else in the text of Rule 91 supports the 30-day period Father
advocates for on appeal. The court did not abuse its discretion in modifying
the parties’ parenting time.

B. Due Process

¶14 Father argues his due process rights were violated because he
“had no way of knowing that [Mother’s] intention was to reinstitute . . .
previously disclosed Police Reports as first-time knowledge or newly
discovered evidence.” We review de novo “[w]hether the superior court
afforded [Father] due process.” Backstrand v. Backstrand, 250 Ariz. 339, 346,
¶ 28 (App. 2020).

¶15 Father does not direct us to the portion of the record where he
raised this argument in the superior court; it is therefore waived. See Ritchie,
221 Ariz. at 305, ¶ 62 (holding that failure to cite to parts of the record relied
on “can constitute abandonment and waiver of that claim”). Waiver aside,
he has shown no error. The superior court has “broad discretion over the
management of its docket.” Findlay v. Lewis, 172 Ariz. 343, 346 (1992). This
discretion must be balanced against the due process right that litigants be

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heard “at a meaningful time and in a meaningful manner.” Backstrand, 250
Ariz. at 346, ¶ 29 (citation omitted). Father contends that Mother disclosing
the police reports on the day of the disclosure deadline stripped him of his
due process rights. For her part, Mother contends it was Father’s duty to
disclose these reports under Rule 49.

¶16 In support of his due process argument, Father cites Cruz v.
Garcia, 240 Ariz. 233 (App. 2016), for the principle that the parties must be
afforded due process before parenting time orders are modified. In Cruz,
however, the superior court modified legal decision-making authority
without providing notice that legal decision-making was an issue for the
hearing. Id. at 236, 237, ¶¶ 8, 14. Additionally, the court based its findings
on “documents not admitted in evidence or subjected to adversar[ial]
testing.” Id. at 237–38, ¶ 17. Here, all police reports were admitted into
evidence. And the reports previously disclosed at the open negotiation
were “admitted and given [the] weight [they] deserve[d] in light of the
objection[s].” The parties were properly advised of what would be
discussed at the hearing.

¶17 Father also contends a new evidentiary hearing was
warranted “because of [d]iscovery deficiencies and an inability to be heard
or confront [or present] witnesses in a meaningful manner,” citing Coffee v.
Ryan-Touhill, 247 Ariz. 68 (App. 2019). Coffee dealt with whether there was
a right to a change of judge, which is not at issue here.

¶18 Father was given the opportunity to be heard at a meaningful
time and in a meaningful manner. He had notice that Mother intended to
use the recent police reports, as confirmed by her counter-petition filed two
weeks before the hearing. When testifying about the police reports at the
evidentiary hearing, Father focused on there being no criminal charges, that
they did not “pertain to this case,” and that the child was not around during
those incidents. How Father used his allotted time at the hearing was
within his control. See Backstrand, 250 Ariz. at 347, ¶ 32 (explaining that
counsel has the duty to manage time and balance strategy). Father has not
established any denial of his due process rights.

C. Child Support

¶19 Father argues the superior court erred in awarding Mother
retroactive child support. We review an award of child support for an
abuse of discretion. McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6 (App. 2002).

¶20 According to Father, Mother waived her right to request
retroactive child support because the issue was inactive for five years.

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Father relies on Cordova v. Lucero, 129 Ariz. 184 (App. 1981). In that case, in
the decree the superior court ordered husband to pay child support, but
after failing to pay mother petitioned for calculation of and payment of
arrearages. Id. at 184–85. The court found that because wife had not sought
the nonpayment for several years, and advised husband she did not want
the payments, she waived her entitlement to those payments. Id. at 186.
Cordova is not persuasive here because child support was never established.
Accordingly, Mother could not have waived child support under the
reasoning applied in Cordova.

¶21 Father claims the court was not permitted to make a
retroactive child support order “five years after the fact,” suggesting in part
that the court lacked subject matter jurisdiction to consider the issue. In
relevant part, A.R.S. § 25-320 provides: “If the parties lived apart before the
date of the filing [the petition to modify] . . . and if child support has not
been ordered by a child support order, the court may order child support
retroactively . . . but not more than three years before the date of the filing.”
A.R.S. § 25-320(C) (emphasis added). In this case, the parties lived apart
before Father filed his petition in November 2022 and child support had
never been ordered. Thus, the court acted under its jurisdictional authority
and within its discretion in awarding child support to Mother going back
to November 28, 2019, three years before Father’s petition.

D. Attorneys’ Fees and Costs

¶22 Mother requests attorneys’ fees incurred on appeal under
A.R.S. § 25-324, which authorizes a court to award fees after considering the
parties’ financial resources and the reasonableness of their positions. In our
discretion, we award Mother her reasonable attorneys’ fees, plus taxable
costs, subject to compliance with ARCAP 21. See id.; A.R.S. § 12-342.

CONCLUSION

¶23 For the reasons set forth above, we affirm.

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

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