Eglivitch v. Davis

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MINDY A. EGLIVITCH,
Petitioner/Appellee/Cross-Appellant,

v.

DOUGLAS A. DAVIS,
Respondent/Appellant/Cross-Appellee.

No. 1 CA-CV 24-0118 FC
FILED 04-08-2025

Appeal from the Superior Court in Maricopa County
No. FC2019-072033
The Honorable Stasy D. Avelar, Judge

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

COUNSEL

Douglas A. Davis, Wittmann
Respondent/Appellant/Cross-Appellee

Scottsdale Family Law, PLLC, Scottsdale
By Brian G. Winter
Petitioner/Appellee/Cross-Appellant
 EGLIVITCH v. DAVIS
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Angela K. Paton joined.

T H U M M A, Judge:

¶1 In this post-decree family court matter, Douglas A. Davis
(Father) appeals the superior court’s ruling on his petition to modify legal
decision-making, parenting time and child custody as well as an award of
attorneys’ fees to Mindy A. Eglivitch (Mother). Mother cross-appeals the
court’s ruling on child support arrearages and attorneys’ fees, as well as the
ruling on her petition to enforce child support orders. As discussed more
fully below, the court affirms in part, reverses in part and remands.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father married in 1992 and have three children in
common. The two divorced in 2020. The divorce decree granted Mother sole
legal decision-making and granted Father parenting time on alternating
weekends and one weekday agreed upon by both parties. Although the
child support worksheet attached to the decree showed that Father should
pay $938 in monthly child support, the parties agreed he would pay $850
in monthly child support.

¶3 In May 2022, Father filed a petition to modify legal decision-
making, parenting time and child support. Father sought to modify the
parenting plan because the oldest child, W.D. (who would turn 18 in
September 2022) had been living with Father full-time since December 2021.
Father apparently sought joint or sole legal decision-making for W.D. For
the two younger children, T.D. and M.D. (twins born in December 2008),
Father sought equal parenting time with a corresponding adjustment in
child support. Mother responded that there had been no substantial and
continuing change in circumstances warranting a modification of decision-
making for the children and opposed any change in parenting time for the
twins. She agreed, however, that child support should be recalculated. At
Father’s request, the court appointed a court appointed advisor (CAA) to

2
 EGLIVITCH v. DAVIS
Decision of the Court

perform an investigation and report. See Ariz. Rev. Stat. (A.R.S.) § 25-406
(2025).1

¶4 In August 2023, Mother filed a petition to enforce, seeking
payment of child support and unreimbursed medical expenses. She also
sought a contempt finding. In November 2023, Mother filed another
petition to enforce, addressing parenting time and asking that Father be
held in contempt for taking T.D. on an out-of-state trip during Mother’s
scheduled parenting time. The court ordered that Mother’s two petitions be
heard in conjunction with the evidentiary hearing on Father’s petition.

¶5 At the November 29, 2023 evidentiary hearing, the court
heard testimony from both parties and the CAA, received evidence and
heard arguments from both parties’ attorneys. After taking the matter
under advisement, on January 4, 2024, the court resolved all then-pending
matters in a 27-page judgment pursuant to Arizona Rules of Family
Procedure 78(b).

¶6 In addressing Father’s petition to modify, the court found a
substantial and material change in circumstances. After considering the
evidence presented, however, the court found it was not in the children’s
best interests to modify legal decision-making, leaving Mother with sole
legal decision-making authority. The court modified the parenting plan to
grant Father parenting time on alternating weekends and alternating weeks
during the summer. The court calculated back child support, starting the
month after Mother was served with Father’s petition to modify and
recognizing W.D. was emancipated in September 2022, and determined
Father owed Mother $6,627 in back child support from July 2022 through
December 2023. The court modified child support going forward to $1,114
per month.

¶7 As to Mother’s August 2023 petition to enforce, the court
found Father had paid his child support obligations in full through June
2022 and accordingly denied the petition as to child support. The court also
found, however, that Father owed Mother $1,368.65 in unpaid medical
expenses. For Mother’s November 2023 petition to enforce, the court found
Father in contempt for taking T.D. out-of-state during Mother’s parenting
time. Concluding that “Father ha[d] taken unreasonable positions

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

3
 EGLIVITCH v. DAVIS
Decision of the Court

throughout this litigation,” the court awarded Mother’s attorneys’ fees “as
to the Petitioner’s [sic] to Enforce ONLY.”

¶8 Meanwhile, on December 29, 2023, the court entered two Rule
78(c) child support orders for the twins. On January 25, 2024, Father filed a
notice of appeal “from the Order made and entered in this case on the 29th
of December, 2023.” On February 6, 2024, Mother filed a motion for
reconsideration, challenging the court’s rulings on parenting time, back
child support, enforcement of child support and attorneys’ fees. On
February 14, 2024, the court issued an order, which in the text purported to
be a judgment, awarding Mother $11,781.70 in attorneys’ fees. Later on
February 14, 2024, Mother filed a notice of cross-appeal from the January 4,
2024 Rule 78(b) judgment. On February 16, 2024, the court entered an
unsigned minute entry purporting to enter a judgment awarding Mother
the same $11,781.70 in attorneys’ fees. In a signed Rule 78(c) judgment
entered April 4, 2024, the court denied Mother’s motion for reconsideration.
Father filed a timely notice of appeal from the April 4, 2024 judgment.
Mother then filed a timely amended notice of cross-appeal.

DISCUSSION2

I. This Court Has Appellate Jurisdiction Over Father’s Appeal and
Mother’s Cross-Appeal.

¶9 This court’s appellate jurisdiction is set by statute, as
applicable here, A.R.S. § 12-2101(A). To invoke this court’s appellate
jurisdiction, a party seeking to appeal must (1) invoke a statutory basis for
appeal and (2) comply with any applicable procedural requirements, here
either Rule 78(b) (a partial final judgment) or 78(c) (a final judgment as to
all claims, issues and parties). A purported judgment also must comply
with form requirements. See Ariz. R. Fam. L.P. 78(g)(1). Although there may
be more than one Rule 78(b) partial final judgment resolving portions of a
petition, only one Rule 78(c) final judgment as to all claims, issues and
parties is proper in resolving a petition or consolidated petitions.

2 Mother argues the court should strike Father’s brief for failure to reference

the record as required by ARCAP 13(a)(5). Father’s brief is deficient because
it does not provide consistent citations to the record for his factual
assertions or arguments. The court will, nevertheless, address the merits of
this appeal given the best interests of minor children are involved. See
Candia v. Soza, 251 Ariz. 321, 323–24 ¶ 7 (App. 2021) (citation omitted).

4
 EGLIVITCH v. DAVIS
Decision of the Court

¶10 This case had six judgments entered during a four month
period: (a) the two December 29, 2023 purported Rule 78(c) judgments
addressing child support; (b) the January 4, 2024 Rule 78(b) judgment
resolving the petitions; (c) the February 14, 2024 order, stating it was a
judgment but without specifying any Rule; (d) the February 16, 2024
unsigned minute entry purporting to enter a judgment without specifying
any Rule and (e) the April 4, 2024 Rule 78(c) judgment.

¶11 The January 4, 2024 Rule 78(b) partial final judgment, and the
April 4, 2024 Rule 78(c) final judgment as to all claims, issues and parties,
were proper and in proper form. The others were not. The child support
orders did not resolve all claims and issues then pending, meaning they
could not be Rule 78(c) judgments. The February 2024 rulings were not in
the proper form under Rule 78(g)(1) and did not contain required language
under either Rule 78(b) or 78(c). The record suggests the parties were
confused by these multiple judgments.

¶12 As applied here, however, this court has appellate jurisdiction
over Father’s appeal and Mother’s cross-appeal pursuant to Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -
2101(A)(1).

II. Applicable Standards of Review.

¶13 The court reviews the superior court’s decision regarding
legal decision-making, parenting time and child support for an abuse of
discretion. See In re Marriage of Diezsi, 201 Ariz. 524, 525 ¶ 3 (App. 2002)
(“We will not disturb a trial court’s decision on child custody absent a clear
abuse of discretion.”) (citation omitted); Nold v. Nold, 232 Ariz. 270, 273 ¶ 11
(App. 2013) (“On appeal, we will not disturb the family court’s custody or
parenting time orders absent an abuse of discretion.”) (citations omitted).
An award of attorneys’ fees and costs is also reviewed for an abuse of
discretion. Tucson Ests. Prop. Owners Ass’n v. Est. of Jenkins, 247 Ariz. 475,
478 ¶ 8 (App. 2019) (citing cases).

5
 EGLIVITCH v. DAVIS
Decision of the Court

III. The Superior Court Did Not Err in Affirming Mother’s Sole
Decision-Making Authority and Denying Father’s Request for
More Parenting Time.

¶14 Father claims the superior court erred in “revert[ing back] to
the 2020 divorce decree in awarding Mother sole decision-making and
Father parenting time only on alternating weekends.” Father argues the
decision “fails to consider the evidence that points to a significantly
dysfunctional relationship between Mother and her children.”

¶15 To modify a final legal decision making or parenting time
order, “the court must first determine whether there has been a material
change in circumstances affecting the welfare of the child[ren].” See Canty
v. Canty, 178 Ariz. 443, 448 (App. 1994). “Only after the court finds a change
has occurred does the court reach the question of whether a change in
custody would be in the child's best interest.” Pridgeon v. Superior Ct., 134
Ariz. 177, 179 (1982) (citing cases). When determining legal decision-
making and parenting time, the court must consider all factors that are
relevant to the child’s physical and emotional well-being, including eleven
factors enumerated in A.R.S. § 25-403(A). The court is required to “make
specific findings on the record about all relevant factors and the reasons for
which the decision is in the best interests of the child.” A.R.S. § 25-403(B).

¶16 Father argues the superior court failed to consider (1) T.D.’s
requests to live with Father full-time, (2) W.D.’s comments to the CAA that
Mother was “cruel” and “overly punitive” and (3) Father’s testimony that
Mother directed Father to spank the children. Not so. The superior court
found that there was a “significant and continuing change of circumstances
that materially affect the welfare of the children” and thus addressed the
best interests analysis. The superior court’s specific findings about all
relevant factors, including those enumerated in A.R.S. § 25-403(A), show
the court considered the testimony by the parties’ and the CAA, the CAA’s
report and all other evidence presented at the evidentiary hearing. The
court’s findings explicitly acknowledge T.D.’s desire to live with Father
full-time. Furthermore, there was no evidence offered that “Mother
directed [] Father to spank [the children] on numerous occasions.” Instead,
Father’s only mention of spanking his children involved an incident in
which Mother “called [him] . . . to handle” M.D., in which he stated that it
was not until M.D. “got really rough” with Father that he decided he “was
going to spank him.” The evidence shows Mother then came in, broke them
up and called the police on Father.

6
 EGLIVITCH v. DAVIS
Decision of the Court

¶17 Father also argues the court erred by not interviewing T.D. By
statute, a court “may interview the child in chambers to ascertain the child’s
wishes as to the child’s custodian and as to parenting time,” and may also
“seek the advice of professional personnel,” which the court here did at
Father’s request. See A.R.S § 25-405. Moreover, the court noted T.D.’s desire
to live with Father full time, negating the need to interview T.D. on that
point. Father has shown no error in the court not interviewing T.D.

¶18 Father argues the CAA report that the court relied on was
faulty because the CAA “failed to pursue or fill in the facts about the
situations which shed an entirely different light on [Mother’s] comments”
regarding Father. But Father admitted reading the CAA report before trial
and never raised any issue about the report’s accuracy in superior court. By
failing to press this argument at trial, he has waived it on appeal. See Odom
v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App. 2007) (citing cases).

¶19 Father also argues the court “overlooked” decisions from
other jurisdictions “that clearly find good cause to award decision-making
and parenting time based [on] the specific request of the child.” But those
cases are neither binding nor persuasive. Under Arizona law, “the wishes
of the child” are one of many factors the court considers in determining
what is in the best interests of the child. See A.R.S. § 25-403(A). As noted
above, the court here considered T.D.’s desire to live with Father full-time,
but found, considering all the factors, it was in T.D.’s best interests for
Mother to remain as the sole decision-making figure and for Father to have
parenting time on alternating weekends.

¶20 Father repeatedly argues the superior court’s decision is
based on inaccurate and prejudicial facts, essentially asking the court to
reweigh the evidence. This court, however, does not reweigh evidence on
appeal. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282 ¶ 12 (App.
2002) (citing cases). On this record, Father has failed to show how the court
erred in affirming Mother’s sole decision-making authority and denying
Father’s request for modification of parenting time.

IV. Child Support.

¶21 “[S]upport may be modified or terminated only on a showing
of changed circumstances that are substantial and continuing.” A.R.S. § 25-
327(A). The superior court found, and neither party disputes, that there had
been “a substantial and continuing change of circumstances relevant to the
calculation of child support.” But the parties dispute various findings by
the superior court regarding child support, including: (1) whether Father

7
 EGLIVITCH v. DAVIS
Decision of the Court

was current with his court ordered $850 monthly child support payments,
(2) how the court calculated income for purposes of adjusting child support
payments and (3) how the court calculated back child support.

A. The Superior Court Erred in Denying Mother’s Petition for
Non-Payment of Child Support and Finding Father Current
in All His Child Support.

¶22 Mother argues the superior court “improperly credited Father
with making all his child support payment[s]” and thus erred in not finding
Father failed to pay his child support obligations. Mother alleges she
presented evidence that Father (1) was not current with his child support
obligations as of June 2022 and (2) did not make child support payments
for May, August and October 2023. This court’s review is limited to the
record on appeal. Nat’l Advert. Co. v. Ariz. Dep’t. of Transp., 126 Ariz. 542,
543 (App. 1980) (citing cases).

¶23 Father owed Mother a total of $18,700 for child support for
the period from September 1, 2020 through June 30, 2022. Citing “Exhibit
115,” the court found Father made “$19,064 in payments to Mother” during
that period, meaning he was current for that period. Exhibit 115, however,
was a demonstrative exhibit that is not part of the record on appeal. The
missing portions of the record are presumed to support the court’s findings.
Cullison v. City of Peoria, 120 Ariz. 165, 168 n.2 (1978) (citations omitted).
Moreover, Mother has not otherwise shown how this finding was error.
Accordingly, on the record presented, the court properly found Father had
fully paid child support from September 1, 2020 through June 30, 2022.

¶24 Turning to Mother’s arguments about child support
payments in 2023, in denying her motion to reconsider, the superior court
noted Mother’s “pretrial statement specifically gave Father credit for 13
months of child support payments of $850 for the time period of October 1,
2022 to December of 2023.” It is true that Mother, in describing disputed
issues when discussing Father’s arrearages in child support payments in
the November 2023 joint pretrial statement, wrote Father “was paying child
support in the amount of $850.00 per month” from October 2022 to present.
Two pages later, however, in describing her petition to enforce, Mother said
she filed the petition “due to Father’s failure to pay court-ordered child
support” as well as failing to reimburse medical expenses. Noting the $850
per month obligation in the decree, Mother then described that, over her
objection, Father “unilaterally reduce[d] some of his monthly child support
payments.”

8
 EGLIVITCH v. DAVIS
Decision of the Court

¶25 Given the relief Mother sought in her filings, including the
joint pretrial statement in context, her statement about Father’s payment
history cannot work as a waiver of her claims for arrearages. See Ray v.
Mangum, 163 Ariz. 329, 333 (1989) (holding that clear and compelling
evidence is necessary to establish waiver of a claim for child support
arrearages and stating “[w]here conflicting testimony exists and the parties’
unspoken assumptions and intentions conflict, one party’s belief cannot
provide clear and convincing evidence of the parties agreement.”); cf.
Schnepp v. State ex rel. Dep’t of Econ. Sec., 183 Ariz. 24, 28 (App. 1995) (“If the
evidence reflects a dispute between the parties over their unspoken
assumptions and intentions, one party’s belief that the other waived child
support cannot provide clear and convincing evidence of waiver.”).

¶26 The transcript at the evidentiary hearing shows Mother
testified Father failed to make all his child support payments. The record
also includes bank records Father provided, which Father testified “reflect
the amounts that [he] paid to Mother” and corroborate he failed to make
child support payments in May, August and October 2023. Mother also
cites Exhibit 115 as supporting her argument. Even though Exhibit 115 is
not part of the record, given Father’s bank record evidence and testimony,
the court erred in finding Father was current with his 2023 child support
payments. Accordingly, the denial of Mother’s motion to enforce is vacated
in part and remanded for the court to address Father’s alleged failure to pay
required child support payments in May, August and October 2023.

B. The Superior Court Properly Calculated the Parties’
Incomes for Purposes of Child Support.

¶27 Father argues the court “incorrectly computed and awarded
child support based on inaccurate, missing information.” Father specifically
challenges the court’s decision to “round[] up Father’s [child support
income] to $10,888.00 without indicating where that figure came from.”
Child support income “is not determined by the gross income shown on the
parties’ income tax returns, but rather on the actual money or cash-like
benefits received by the household which is available for expenditures.”
Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994). Child support
income may include salaries, wages, commissions, military pay and
military disability benefits. A.R.S. § 25-320 app. (“Guidelines”) § II.A.1.b.

¶28 In an Affidavit of Financial Information (AFI) provided a
month before the November 2023 hearing, Father stated he earns $3,635.47
in monthly wages and $3,625 in disability income, for a total of $7,260.47.
At the hearing, Father testified he receives an additional $3,625 in

9
 EGLIVITCH v. DAVIS
Decision of the Court

retirement benefits. Collectively, these three sources show Father receives
$10,885.47 each month. Moreover, the information Father provided with his
AFI shows that he received $1,920 in “other income” in 2022. The superior
court determined Father’s gross monthly income for purposes of
calculating child support was $10,888, $2.53 less than the three primary
sources of income, but without accounting for the “other income” he
disclosed. On this record, Father has shown no error in the court using
$10,888 to calculate child support.

¶29 Father also argues the court mistakenly averaged Mother’s
income to $10,077 per month, when the average from the time periods
submitted by Mother was $10,194. But Father uses the average of four
periods summarized by Mother (some of which are two months long, while
others are many months long), not an average by month. In fact, calculating
the average by month (from June 2022 through October 2023), Mother’s
income averaged $10,061.59 a month during that period, less than what
Father claims the court should have used and, in fact, less than what the
court actually used. See Guidelines § II.A.1.c (“[F]luctuating income within
a year [is] annualized to determine the average monthly Child Support
Income.”); id. § II.A.1.d. (“The court also has discretion to average
fluctuating income over periods exceeding 1 year.”). On this record, Father
has shown no error.

C. The Superior Court Erred in Calculating Back Child
Support for 2023.

¶30 The superior court calculated back child support assuming
Father was current on his $850 court ordered child support. Father claims
the court’s order on back child support was erroneous because it used
incorrect amounts that do not match the $850 monthly child support
obligation in the consent decree. As the court explained in its ruling,
however, child support modifications are effective the first month
following the date of service. See A.R.S. § 25-503(E). Because Father served
Mother with his petition to modify in June 2022, the modifications became
effective July 1, 2022 and after. The court explained its calculations, in detail,
including how child support obligations changed during various time
periods. And Father should have expected the child support to increase
given that the $850 payment obligation in the decree was by agreement and
was less than what the Guidelines directed. The court did not err in using
amounts that differ from the previously stipulated $850 because Father
himself requested the court modify the child support calculation starting
July 1, 2022.

10
 EGLIVITCH v. DAVIS
Decision of the Court

¶31 On the other hand, Mother argues on cross-appeal that the
court erred in calculating Father’s parenting days with M.D. for back child
support because Father had not exercised parenting time with M.D. since
January 2023. Noting Father was given credit for parenting days Mother
did not exercise with W.D., Mother argues she should receive credit for the
parenting time Father did not exercise with M.D.

¶32 Parenting time costs are determined by averaging the total
number of parenting time days (the sum of the days with each child,
divided by the number of children). See Guidelines § V(F). The total annual
amount of parenting time may be based on the “parenting time indicated
in a court order, a parenting plan, by the parents’ expectation, or by
historical practice.” Id. at § V(C).

¶33 For October 2022 through December 2023, the court found the
parenting time in the decree “had not changed, . . . and therefore the Court
will credit Father with his [c]ourt ordered parenting time of 79 days.” At
the hearing, however, Mother provided a spreadsheet showing that,
although Father exercised 71 days of parenting time with M.D. in 2022, just
20 of those days occurred in October, November and December. In 2023, at
the time of the November 2023 hearing, Father had only exercised 7 days of
parenting time with M.D. Father confirmed this during his testimony. As a
result, from October 2022 through December 2023, Father had 27 days of
parenting time with M.D., not 79. Mother’s spreadsheet also showed that,
although Father had exercised 89 days of parenting time with T.D. in 2022,
just 33 of those days occurred in October, November and December. Father
exercised 93 days of parenting time with T.D. in 2023.

¶34 Father exercised 77.5 days of parenting time with M.D. and
T.D. combined in 2022, and thus, the superior court did not err in granting
Father credit for 79 days of parenting time between October and December
of 2022. See Guidelines § V(D) (establishing an adjustment of .10 for 70-84
parenting days). In 2023, however, Father only exercised a total of 50 days
of parenting time with M.D. and T.D. by the end of November of 2023. The
adjustment for 50-69 parenting days is .075, unlike the .10 the court used.
See Guidelines § V(D). As a result, the court erred in crediting Father with
79 days of parenting time in 2023. Accordingly, the portion of the court’s
order regarding back child support in 2023 is vacated and remanded for
entry of a new order using the .075 adjustment.

11
 EGLIVITCH v. DAVIS
Decision of the Court

V. The Superior Court Properly Granted Mother’s Petition Seeking
Unreimbursed Medical Expenses.

¶35 After trial, the superior court found Mother had incurred
$6,237.28 in medical expenses and Father was responsible for half, or
$3,118.65. Because Father already paid Mother $1,386 and overpaid $364 in
child support, the court ordered Father to pay Mother $1,368.64 to
reimburse her for his share. Father argues the court erred in calculating
unpaid medical expenses because Mother did not supply receipts, and
instead only supplied a spreadsheet that stated unsupported costs.3 The
superior court “is in the best position to evaluate credibility and accuracy,
as well as draw inferences, weigh, and balance” the evidence presented at
trial. State v. Hoskins, 199 Ariz. 127, 149 ¶ 97 (2000) (citations omitted). This
court “examine[s] the record only to determine whether substantial
evidence exists to support” the superior court’s findings of fact. In re Est. of
Pouser, 193 Ariz. 574, 579 ¶ 13 (1999) (citations omitted). This court defers
to the superior court’s findings of fact unless clearly erroneous. Alvarado v.
Thomson, 240 Ariz. 12, 14 ¶ 11 (App. 2016).

¶36 Mother provided a chart detailing the medical expenses she
had incurred for the children since August 2021, including dates and
descriptions of each expense. She also included periodic emails she sent to
Father starting in April 2022 where she allegedly attached receipts and
updated charts regarding the medical expenses she had incurred. She
testified at trial that she had provided Father the receipts of the expenses,
but that he had failed to pay most of them. Father confirmed he had
received receipts in the past and claimed he reviewed Mother’s emails and
had reimbursed Mother for receipts he had received. This provides
substantial record evidence to support the court’s finding that Father had
failed to reimburse Mother for medical expenses and to calculate the
amount he owed. Accordingly, Father has failed to show the court erred in
addressing Mother’s request for unpaid medical expenses.

3 To the extent either party seeks to challenge the court’s rulings regarding

requests for contempt findings, including Mother’s request that Father be
held in contempt for non-payment of child support and unreimbursed
medical expenses, this court lacks appellate jurisdiction to consider those
rulings. See, e.g., In re Marriage of Chapman, 251 Ariz. 40, 42 ¶ 8 (App. 2021);
Danielson v. Evans, 201 Ariz. 401, 411 ¶ 35 (App. 2001).

12
 EGLIVITCH v. DAVIS
Decision of the Court

VI. The Superior Court Properly Awarded Mother Attorneys’ Fees.

¶37 The superior court awarded Mother’s attorneys’ fees as to the
petitions to enforce under A.R.S. § 25-324, which allows the court to “order
a party to pay a reasonable amount to the other party for the costs and
expenses of maintaining or defending any proceeding” after “considering
the financial resources of both parties and the reasonableness of the
positions each party has taken throughout the proceedings.”

¶38 Both parties challenge the fee award. Father claims the court
erred in finding he “ha[d] taken unreasonable positions throughout [the]
litigation.” Father alleges he filed his petition to modify in good faith “due
to the extreme change [of] circumstance with his oldest [child]” and “did
not unnecessarily delay any part of the case.” But the court granted
attorneys’ fees based on Father’s positions in response to Mother’s petitions
to enforce, and not for Father’s positions in pressing his petition to modify.

¶39 In discussing Mother’s petitions to enforce, the court found
Father failed to pay medical expenses he was required to pay under the
decree, “violated the terms of the [d]ecree in unilaterally declaring that he
was entitled to the fall break” and was ”in contempt for his actions in taking
the child out of [s]tate during Mother’s parenting time without her
permission.” To the extent this court has jurisdiction to review these
findings, Father has not shown the superior court erred in making them or
in granting Mother’s request for fees.

¶40 Mother, on the other hand, alleges the court erred in limiting
the fees awarded to those relating to her petitions to enforce because the
court’s finding of Father’s unreasonableness applied broadly. But the
superior court was more limited in its findings and has broad discretion to
award attorneys’ fees, with such awards being affirmed unless not
supported by any reasonable basis. Hale v. Amphitheater Sch. Dist. No. 10,
192 Ariz. 111, 117 ¶ 20 (App. 1998). Although the superior court found
“Father ha[d] taken unreasonable positions throughout [the] litigation,”
most of the findings of misconduct related to Mother’s petitions to enforce.
The only mention of Father’s unreasonable actions in addressing his
petition to modify is the finding that Father “claimed the children were
failing school and that [] Mother unilaterally made decisions for [W.D.]”
when there was no evidence presented to prove either claim. On this record,
Mother has failed to show error in the court awarding her fees limited to
the petitions to enforce.

13
 EGLIVITCH v. DAVIS
Decision of the Court

ATTORNEYS’ FEES AND COSTS ON APPEAL

¶41 Mother requests attorneys’ fees and costs incurred on appeal
pursuant to A.R.S. § 25-324 and ARCAP 21(a). ARCAP 21 is not an
independent basis for an award of fees, ARCAP 21(a)(2), and Mother does
not specify whether she seeks fees under A.R.S. § 25-324(A) or (B).
Construing her request as seeking fees under A.R.S. § 25-324(A) alone,
having considered the financial positions of the parties and the
reasonableness of their positions on appeal, in the exercise of its discretion,
the court awards Mother a portion of her reasonable attorneys’ fees and
taxable costs incurred on appeal, contingent upon Mother’s compliance
with ARCAP 21.

CONCLUSION

¶42 The court affirms in part, reverses in part, and remands for
further proceedings addressing Father’s failure to make child support
payments in May, August and October 2023 and calculating back child
support in 2023 using the proper .075 adjustment for parenting time.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

14