Tillman v. Smith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERICA NICOLE TILLMAN, Petitioner/Appellant,

v.

LYMAN MORRIS SMITH, Respondent/Appellee.

No. 1 CA-CV 24-0360 FC
FILED 08-07-2025

Appeal from the Superior Court in Maricopa County
No. FC2015-091669
The Honorable Christopher Coury, Judge
The Honorable Adele Ponce, Judge
The Honorable Keith A. Miller, Judge

AFFIRMED IN PART;
VACATED AND REMANDED IN PART WITH INSTRUCTIONS

COUNSEL

Pangerl Law Firm, P.L.L.C., Phoenix
By Regina M. Pangerl
Counsel for Petitioner/Appellant

Austin R. Martineau Law, Mesa
By Austin R. Martineau
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Daniel J. Kiley joined.

F U R U Y A, Judge:

¶1 Erica Nicole Tillman (“Mother”) appeals from the superior
court’s 2024 order modifying legal decision-making, parenting time, and
child support. For the following reasons, we affirm in part and vacate and
remand in part.

FACTS AND PROCEDURAL HISTORY

¶2 Lyman Morris Smith (“Father”) and Mother divorced in
December 2015 after 9 years of marriage. At the time, both parties and their
minor child (“Child”) resided in Arizona. The court found Arizona to be
Child’s “home state” under Arizona Revised Statute (“A.R.S.”) § 25-1031.

¶3 The parties’ dissolution decree (“Decree”) awarded Mother
sole legal decision-making authority (“LDM”) based on a history of
domestic violence, see A.R.S. § 25-403.03, and Father’s ongoing behavioral
health struggles. The Decree provided that Child would reside primarily
with Mother, awarding Father parenting time on a gradually increasing
basis. The Decree provided Father a graduated parenting-time schedule
under A.R.S. § 25-403.02(E), which he never fully exercised.

¶4 The Decree required Father to pay child support,
communicate regarding Child’s health matters, and prohibited parents
from relocating Child more than 100 miles or out of Arizona without
mutual consent or court approval. See A.R.S. § 25-408(A).

¶5 By 2018, Father had relocated to Maryland but occasionally
returned to Arizona—specifically to his mother’s home—to exercise
parenting time. Meanwhile, Mother lived in Chandler with Child and her
partner.

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¶6 Over time, Father’s visits to Arizona became increasingly
sporadic, and he often provided minimal notice to Mother of his intent to
exercise parenting time, causing significant schedule disruptions.

¶7 In March 2019, Mother filed a “Verified Petition to Modify
Parenting Time and Child Support” (“March 2019 Petition”). She requested
the court order Father to disclose his parenting time dates in advance, to
modify the parenting plan accordingly, and to adjust child support if
warranted. In response, Father requested a modification of parenting time
to account for his relocation to Maryland but did not initially request a
modification of LDM.

¶8 In June 2019, Father filed a dual-captioned document that
both requested temporary orders and modification of LDM to be joint. In
his request, Father alleged Mother had committed domestic violence
against him in the presence of Child. At a July 2019 hearing regarding
temporary orders, Mother described an escalating pattern of conflict,
including a domestic incident by Father involving her partner. Later that
month, the court entered temporary orders awarding the parties joint LDM
and establishing a new parenting plan in light of Father’s relocation to
Maryland.

¶9 Child was later diagnosed with ADHD, dysgraphia, and
developmental coordination disorder. After receiving the diagnosis,
Mother coordinated a neuropsychological evaluation and sought to obtain
school accommodations for Child. Father refused to participate in the
evaluation or complete the required paperwork and effectively delayed
Child from receiving special education services for more than a year. In
February 2022, Mother filed an emergency motion for temporary orders
requesting sole LDM to resolve these impasses. After a hearing in May 2022,
the court denied the motion and maintained the joint LDM provision of the
July 2019 temporary orders.

¶10 Resolution of Mother’s March 2019 Petition was delayed for a
variety of reasons. As relevant here, by mid-2022 Mother notified the court
that she was relocating to California for graduate school and was taking
Child with her. Father, who became aware of the relocation when his
counsel received a copy of the notification, objected to the move and
contacted law enforcement, though the record does not reflect any action
taken.

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¶11 In September 2022, Mother asked the court to relinquish
jurisdiction because neither parent nor Child resided in Arizona. See A.R.S.
§§ 25-1032(A), -1037. The court, in a minute entry entered later in
September, stated it would treat Mother’s filing as a motion to dismiss. At
a November 2022 hearing, Wife conceded that Arizona courts had
continuing exclusive jurisdiction. She nonetheless indicated her intent to
initiate proceedings in California, and asked the court to make a finding
under Section 25-1037 that Arizona is an inconvenient forum because none
of the relevant parties continued to reside here. However, the court
declined to dismiss the matter, expressly refusing to relinquish jurisdiction.
The court reasoned that holding a trial to enter final orders served Child’s
best interests, would bring closure to an unduly drawn-out custody
dispute, and would prevent Mother from severing Father’s relationship
with Child.

¶12 In April 2023, Mother asked the court to hold a conference
under Arizona’s version of the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”), A.R.S. §§ 25-1001. The court scheduled such
a conference for May 2023. However, the California judicial officer was
unavailable at that time, and the conference was never rescheduled.

¶13 After the case was administratively reassigned due to
extended time between proceedings, Mother requested that the Arizona
court determine whether the parties resided in Arizona and delay
proceedings until the UCCJEA issue was resolved. In September 2023, those
motions were denied.

¶14 In February 2024, the court held the final trial on Mother’s
March 2019 Petition. At this time, the court found that Father’s primary
residence was Maryland and Mother’s primary residence was California,
but also found the evidence introduced at trial was insufficient to find that
Father’s domicile was Maryland. It determined that because “Arizona was
the child’s home state on the date that the current petition was filed [March
2019], and the most recent legal decision-making and parenting time
determinations with respect to the child were made by an Arizona court,
[the Arizona superior court] has continuing jurisdiction over legal decision-
making and parenting time determinations.”

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¶15 The court entered a final order in April 2024, making
permanent the joint LDM established in the temporary orders, establishing
a modified parenting time plan, and eliminating child support.

¶16 Mother timely filed a notice of appeal, and we have
jurisdiction under A.R.S. §§ 12-2101(A)(1), (2).

DISCUSSION

¶17 Mother challenges the superior court’s exercise of exclusive
continuing jurisdiction, denial of her motion to dismiss, refusal to conduct
a UCCJEA conference at her request, and ruling modifying LDM, parenting
time, and child support. We review each argument in turn.

I. The Superior Court Had Exclusive Continuing Jurisdiction Over
Mother’s Petition to Modify the Decree.

¶18 As with all legal issues, we review a court’s jurisdictional
authority de novo, and “to the extent a court’s jurisdictional determination
rests on disputed facts, we accept the court’s findings if reasonable evidence
and inferences support them.” Arturo D. v. Dep’t of Child Safety, 249 Ariz. 20,
23 ¶ 9 (App. 2020) (citation modified).

¶19 Under Arizona’s version of the UCCJEA, a court of this state
has exclusive continuing jurisdiction over a child custody determination it
has made until either:

(1) the same court determines that neither the child, nor the
child and a parent, nor the child and a person acting as a
parent have significant connection with Arizona and that
substantial evidence is no longer available here concerning
the child’s care, protection, training and personal
relationships; or

(2) the same court or a court of another state determines that
the child and all parents do not presently reside in this state.

A.R.S. § 25-1032(A).

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¶20 Here, it is undisputed Arizona had exclusive continuing
jurisdiction under A.R.S. § 25-1031 at the time Mother filed her 2019 petition
to modify because, although Father had moved to Maryland, she and Child
were still Arizona residents. See Greenbank v. Vanzant, 250 Ariz. 644, 649 ¶
22 (App. 2021). But Mother now argues the court lost exclusive continuing
jurisdiction once she and Child moved to California, even though her own
petition to modify was still pending. Mother’s argument misreads the
UCCJEA.

¶21 “In interpreting statutes . . ., we look first to the text itself,
applying common and ordinary meanings.” Barriga v. Dep’t of Econ. Sec.,
256 Ariz. 543, 547 ¶ 13 (2024). The statute’s use of the verb “determines” is
controlling. It indicates that, contrary to Mother’s argument, the court does
not automatically lose jurisdiction when all parties move to another state.
See Greenbank, 250 Ariz. at 649 ¶ 22. Rather, under the statute’s express
language, it retains jurisdiction until it—or a court in another state—makes
determinations sufficient to fulfill at least one of the conditions specified in
A.R.S. § 25-1032(A). In other words, affirmative court action is necessary to
divest a court of jurisdiction under the UCCJEA. Id.

¶22 No such court action divesting Arizona of jurisdiction
occurred in this case. Moreover, the court declined Mother’s requests to
hold a UCCJEA conference with California courts to cede jurisdiction. The
court also did not make the determination that all concerned parties had
moved out of Arizona, a prerequisite to loss of exclusive continuing
jurisdiction under A.R.S. § 25-1032(A). Instead, the court expressly chose to
retain and exercise continuing jurisdiction over this case through trial and
entry of modifications to the Decree. Only within its final modification
order—entered after the evidentiary hearing on Mother’s petition to
modify—did the court make the determination that all parties now
primarily reside outside Arizona, clearing a path for a court in another
jurisdiction to accept jurisdiction.

II. The Superior Court Did Not Err in Denying Mother’s Motion to
Dismiss.

¶23 Noting that her petition to modify asked the court to “[o]rder
Father to provide his 2019 parenting time dates and to modify parenting
time accordingly,” Mother asserts that her requested relief became moot
after 2019 had passed. Accordingly, she argues, the court erred by failing to
dismiss her petition as moot.

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¶24 We review the court’s refusal to dismiss Mother’s petition to
modify for an abuse of discretion. See Ariz. R. Fam. Law P. 46(A); Sundstrom
v. Flatt, 244 Ariz. 136, 137 ¶ 4 n. 2 (App. 2017).

¶25 Mother’s 2019 petition does not, by its terms, mandate a
conclusion that it was limited to parenting time in “2019-only.” Moreover,
Mother did not raise her “2019-only” argument for dismissal until years
after she filed her petition in March 2019, after extensive litigation of that
petition had already occurred. To the extent that she continued litigation
for years ,after 2019 had come and gone, her conduct constitutes waiver of
her argument. Cf. City of Phoenix v. Fields, 219 Ariz. 568, 574 ¶ 29 (2009)
(“Even when a party preserves an affirmative defense in an answer or a
Rule 12(b) motion, . . . it may waive that defense by its subsequent conduct
in the litigation.”).

III. The Superior Court Did Not Err by Refusing to Conduct a UCCJEA
Conference or Evidentiary Hearing on Jurisdiction.

¶26 Mother further contends that the court erred by refusing her
requests to reschedule a UCCJEA conference before issuing final orders.
Specifically, she argues the Arizona court was required to confer with the
California court when she domesticated orders in California after she
moved there with Child. She also argues the court erred in refusing to hold
a hearing to take evidence about Child’s significant connections to Arizona,
or lack thereof.

¶27 “This court reviews a decision on whether to hold an
evidentiary hearing for an abuse of discretion.” Murray v. Murray, No. 1
CA-CV 22-0678 FC, 2023 WL 8281710, at *3 ¶ 17 (Ariz. App. Nov. 30, 2023)
(mem. decision) (citing State v. Wassenaar, 215 Ariz. 565, 576 ¶ 48 (App.
2007)). Here, the court was under no obligation to either conduct a UCCJEA
conference or to hold an evidentiary hearing on its jurisdiction. Under
A.R.S. § 25-1036(B), a UCCJEA conference is only mandated when custody
proceedings are simultaneously pending in another state. The record
reflects that no such concurrent proceedings existed here. Arizona issued
the Decree in 2015 containing custody determinations and no other state
had assumed jurisdiction over the Decree or Child. Where no concurrent
proceeding existed, the superior court would not have a California court
with which to confer until Mother initiated proceedings there. See Sha’quia
G. v. Dep’t of Child Safety, 251 Ariz. 212, 215 ¶ 14 (App. 2021).

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¶28 The court did not err in refusing to hold a UCCJEA conference
or an evidentiary hearing on its jurisdiction because neither party disputed
Mother and Child’s residence in Arizona at the time jurisdiction attached
to Mother’s 2019 petition for modification and no concurrent proceeding
regarding Child was pending in another state. See A.R.S. § 25-1036(B) (the
court is required to communicate with the court of another state only when
a proceeding has commenced in that other state). And Mother’s mere
domestication of the Arizona orders in California—years later and while
her Arizona petition remained pending—did not necessitate a UCCJEA
conference or hearing. The court’s actions were not error. Therefore, we
affirm the court’s exercise of its own exclusive continuing jurisdiction in
this case and discern no abuse of discretion in its decisions to deny Mother’s
requests for a UCCJEA conference and an evidentiary hearing on
jurisdiction.

IV. The Superior Court Did Not Err by Modifying LDM.

A. The court had authority to resolve Father’s request to
modify LDM.

¶29 Mother contends that the court erred in modifying LDM
because Father did not file a document captioned as a petition to modify
pursuant to A.R.S. § 25-411 and her own March 2019 petition did not
request modification of LDM. She claims that because neither party filed a
“petition” seeking that relief, that issue was never validly joined and the
court lacked authority to modify the original LDM orders. Not so.

¶30 We review the court’s orders regarding LDM for an abuse of
discretion. Gish v. Greyson, 253 Ariz. 437, 444 ¶ 31 (App. 2022). The court’s
primary consideration in awarding LDM and parenting time is the best
interests of the child. Hays v. Gama, 205 Ariz. 99, 102 ¶ 18 (2003). As a matter
of public policy, the court considers that, absent evidence to the contrary,
“it is in a child’s best interest: (1) To have substantial, frequent, and
continuing parenting time with both parents[; and] (2) To have both parents
participate in decision-making about the child.” A.R.S. § 25-103(B).

¶31 A request to modify LDM may be made by motion or petition
and is to include sworn facts warranting the requested modification. A.R.S.
§ 25-411(L). Any alleged errors in compliance with A.R.S. § 25-411
procedures must be addressed prior to a resolution on the merits, or we
deem them waived. In re the Marriage of Dorman, 198 Ariz. 298, 302 ¶ 11
(App. 2000). And we will not reverse on appeal for alleged noncompliance

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with A.R.S. § 25-411 without a showing of prejudice. Sundstrom, 244 Ariz.
at 138 ¶ 8.

¶32 Here, Father raised the issue of modifying LDM when, in June
2019, he filed a verified motion for temporary orders that included a request
to modify LDM (“Father’s motion”). Though not captioned as a “petition,”
the verified filing of this cross-motion satisfied the statutory requirements
for a petition, and the court did not err in treating it as such. See A.R.S. § 25-
411(A) (“A motion or petition to modify an order shall meet the
requirements of this section.” (emphasis added)). Father’s motion notified
Mother about his requested modification of LDM and included the sworn
facts necessary to satisfy the requirements of A.R.S. § 25-411. The superior
court could properly conclude that Father’s motion validly joined the issue
of LDM under the statute.

¶33 Even assuming Father’s motion for temporary orders had not
complied with A.R.S. § 25-411, Mother did not object to the court’s
entertaining modification of LDM until years after the court issued
temporary orders changing LDM under the Decree. Her first objection to
the court’s authority to modify LDM came in 2023, after four years of
accepting, and even requesting, the court’s authority over LDM. Her delay
constitutes waiver. Dorman, 198 Ariz. at 302 ¶ 11. Nor does our review of
this record reveal any cognizable prejudice to Mother’s position during the
proceedings under Father’s motion. Sundstrom, 244 Ariz. at 138 ¶ 8.

¶34 In sum, the court was authorized to hear and resolve the LDM
issue, and it did not err by doing so.

B. The court’s modification was supported by evidence and
the law.

¶35 The court will not award joint LDM if it finds significant
domestic violence existed pursuant to A.R.S. § 13-3601. A.R.S. § 25-
403.03(A). “If the court determines that a parent who is seeking sole or joint
legal decision-making has committed an act of domestic violence against
the other parent, there is a rebuttable presumption that an award of sole or
joint legal decision-making to the parent who committed the act of domestic
violence is contrary to the child’s best interests.” A.R.S. § 25-403.03(D).
When reviewing such findings on appeal, we will not reweigh the evidence
and, instead, defer to the court’s findings of fact when not clearly erroneous.
Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009).

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¶36 Mother argues the court’s LDM modification was not
supported by the evidence and its orders are contrary to law because, she
maintains, the court established in its original Decree that husband had a
significant history of domestic violence. She argues this finding precluded
Father from seeking modification of LDM. Mother misconstrues the court’s
Decree and its effect on Father’s request.

¶37 In the Decree, the court found that some of the evidence could
establish a significant history of domestic violence. But it did not make any
definitive finding to that effect. Instead, the court applied the A.R.S. § 25-
403.03 presumption and found that Father had not overcome it. As we have
explained, the A.R.S. § 25-403.03(D) presumption analysis can only be
applied when the court does not find a significant history of domestic
violence by one party. In re the Marriage of Morris, 255 Ariz. 158, 162 ¶ 15–
16 (App. 2023). The court’s engaging in Section 25-403.03(D) analysis
implies that the original Decree did not bar Father from seeking future joint
LDM under A.R.S. § 25-403.03(A).

¶38 Regarding the court’s modification awarding the parties joint
LDM, Mother argues the decision was in error because Father did not
overcome the presumption, as it was applied in the original Decree. But the
presumption does not apply if both parents have committed an act of
domestic violence. A.R.S. § 25-403.03(D). Later in the proceedings—after
hearing substantial evidence on the issue—the court found mutual
domestic violence between Mother and Father had occurred, rendering the
presumption against joint LDM inapplicable. The statute and the record
support this finding. Id.

¶39 Because Mother has shown no error, the court’s LDM orders
are affirmed.

V. Child Support Award

¶40 We review child support awards for an abuse of discretion.
Engel v. Landman, 221 Ariz. 504, 510 ¶ 21 (App. 2009). We view the record
in the light most favorable to the court’s decision and only find an abuse of
discretion when the record is entirely devoid of evidence to support it.
Milinovich v. Womack, 236 Ariz. 612, 615 ¶ 7 (App. 2015). We review de novo
the court’s conclusions of law and interpretations of the Arizona Child
Support Guidelines. See A.R.S. § 25-320, appx. (“Guidelines”); Sherman v.
Sherman, 241 Ariz. 110, 113 ¶ 9 (App. 2016). In reading the Guidelines, we
view the “plain language as the most reliable indicator of the supreme
court’s intent.” Milinovich, 236 Ariz. at 615 ¶ 10. Our review of the

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Guidelines is consistent with the purpose of the document as a whole—to
establish a consistent standard of child support awards among similar
circumstances before the court. Sherman, 241 Ariz. at 113 ¶ 9–10; Cummings
v. Cummings, 182 Ariz. 383, 385 (App. 1994).

¶41 The Guidelines consider the income of both parents to
approximate the amount they would have spent on the children if the
parents and children were all living together. Guidelines § (I)(A). The
Guidelines allow a court to attribute hypothetical income and expenses to
parents who may be under- or unemployed due to their own choices. Engel,
221 Ariz. at 511 ¶¶ 21–24. Child support modification requests require the
parent seeking modification to show a substantial and continuing change
in circumstances. Guidelines § XIV(A).

A. “Retroactive” Modification of Father’s Child Support
Obligation

¶42 “Modifications and terminations are effective on the first day
of the month following notice of the petition for modification or termination
unless the court, for good cause shown, orders the change to become
effective at a different date but not earlier than the date of filing the petition
for modification or termination.” A.R.S. §§ 25-327(A), -503(E). The court
may only modify a child support award after notice of the petition to modify
is given to the other parent. Guerra v. Bejarano, 212 Ariz. 442, 443–446 ¶¶, 6–
15 (App. 2006).

¶43 Mother argues the court abused its discretion when
modifying Father’s child support in its final orders to retroactively cover
the time since she filed the petition to modify. She filed her petition to
modify at the end of March 2019 and the court modified child support in
July 2019, retroactive to April 1, 2019, the month after Mother’s request for
modification was filed. The court correctly applied the statute’s
requirement to apply the change in child support retroactively to the month
following filing of Mother’s petition to modify. Thus, we reject Mother’s
argument to the contrary.

B. Father’s Imputed Wages to Calculate Child Support
Obligation

¶44 “The court shall presume, in the absence of contrary
testimony, that a parent is capable of full-time employment at least at the
applicable state or federal adult minimum wage, whichever is higher.”
A.R.S. § 25-320(N). The court generally presumes full-time employment to
be 40 hours a week. Guidelines § II(A)(4)(b). “If the court attributes income

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for purposes of calculating child support, the Child Support Worksheet and
the court order must state that all or a portion of the income is attributed.”
Id. at (c).

¶45 Any child support order different from those determined by
the Guidelines are a deviation. Id. § (IX)(A). Before deviating, the court must
consider the child’s best interests and find that a strict application of the
Guidelines would be inappropriate or unjust. Id. § (I)(A). Section IX of the
Guidelines lists the criteria allowing or mandating the court to make a
deviation.

¶46 Here, though neither parent made the Arizona adult
minimum wage, Mother was attributed that income, while Father was
attributed a lesser amount. Mother was a full-time college student
throughout the proceedings and did not earn a wage. Father was working
in an apprenticeship-like program earning less than Arizona minimum
wage. At the time of the final orders, both parents were similarly situated.
The court itself found “no substantial disparity of financial resources
between the parties.” Nonetheless, the court attributed income of $2,600 per
month to Mother and only $1,200 per month to Father, with no explanation
for that disparity.

¶47 While a trial court has discretion to deviate from the
Guidelines if strict application would be “inappropriate or unjust,” that
discretion is limited. Guidelines § IX(B)(1). A deviation requires express
findings addressing the deviation, the amount of child support before and
after the deviation, and why the deviation serves the best interests of the
child. Guidelines § IX(B); see Patterson v. Patterson, 226 Ariz. 356, 358 ¶ 5
(App. 2011). The court provided no such findings. The court’s worksheet
reflects a final support obligation of $0 for Father due to the Self Support
Reserve Test, but this outcome does not cure the underlying defect: the
disparate income attribution itself lacked evidentiary findings and legal
justification. See Engel, 221 Ariz. at 512 ¶ 28 n.6 (“Where circumstances
require, deviation from the support prescribed by the Guidelines may be
accomplished pursuant to § 20, not through the fiction of attribution.”).

¶48 Without any specific findings to explain this discrepancy, we
cannot, without speculating, discern the court’s rationale in attributing the
parents’ different wages. Thus, we vacate the child support modification
and remand for the court to recompute, with instructions to enter specific
findings justifying any discrepancy in Father’s and Mother’s attributed
income.

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¶49 The court also found neither parent had the ability to obtain
health insurance at the time of the final orders and ordered the parents to
split the uninsured/unreimbursed health insurance expenses for Child.
A.R.S. §§ 25-320(J), (K)(3). The final child support order, however,
attributed 80% of those expenses to Mother and 20% to Father. The court
made no findings or determinations to account for the disparate treatment.
Therefore, we also vacate this order and remand with instructions for the
court to recompute and make specific findings to support its determination
on this issue.

VI. A.R.S. § 25-408

¶50 Mother appeals the court’s order preventing her from
relocating Child outside Arizona or more than 100 miles from his current
home within California. State law allows courts to restrict a parent from
moving their child except when one parent already resides outside the state.
A.R.S. § 25-408(A). Both parties agree the language in the order requiring
compliance with A.R.S. § 25-408(A) should be removed from the court’s
final orders because Father does not live in the same state as Child. We
agree. Therefore, we vacate this portion of the court’s order modifying the
Decree.

VII. Attorneys’ Fees

¶51 If there is a disparity in financial resources and/or if a party
takes unreasonable positions, the court may order that party to pay
reasonable attorneys’ fees. A.R.S. § 25-324. We review denial of a request
for award of attorneys’ fees for an abuse of discretion. Tanner v. Marwil, 250
Ariz. 43, 47 ¶ 16 (App. 2020). We view the record in the light most favorable
to upholding the court’s ruling and only find an abuse of discretion when
the record is devoid of any evidence to support its ruling. Id.

¶52 Here, after it considered both parties’ financial resources and
the reasonableness of their positions, the court declined to award fees to
either party. As discussed above, the record reflects no financial disparity
in the parties’ financial resources. Moreover, the court specifically found
that both parties had acted unreasonably during the litigation and the
record supports that finding. Given the record supports the court’s denial,
Mother has shown no abuse of discretion.

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¶53 Both parties request attorneys’ fees and costs incurred in this
appeal. In our discretion, and after considering the evidence regarding their
financial resources and the reasonableness of their positions, we decline to
award fees to either party. However, as the prevailing party, Mother is
awarded her costs upon compliance with Arizona Rule of Civil Appellate
Procedure 21.

CONCLUSION

¶54 For the foregoing reasons, we vacate the court’s child support
modification. On remand, we direct the court to enter child support orders
based upon application of the Guidelines and instruct the court to enter
appropriate factual findings to expressly support any disparate attribution
of income between Mother and Father and any deviations from calculations
of child support under the Guidelines. We further vacate the court’s
allocation of the uninsured/unreimbursed health insurance expenses for
Child and instruct the court, upon its reconsideration of this issue, to enter
appropriate factual findings to support its distribution. Finally, we vacate
the court’s order pursuant to A.R.S. § 25-408.

¶55 We affirm the court’s orders in all other respects.

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

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