Lopez v. Tinnean

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
ELOISE MURILLO LOPEZ, Petitioner/Appellant,

v.

JEFFREY DOUGLAS TINNEAN, Respondent/Appellee.

No. 1 CA-CV 24-0703 FC
FILED 04-22-2025

Appeal from the Superior Court in Maricopa County
No. FC2019-005392
The Honorable Amy Kalman, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Colburn Hintze Maletta, PLLC, Phoenix
By Henry Alzate
Counsel for Petitioner/Appellant
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 Eloise Murillo Lopez (“Mother”) appeals from a post-decree
order granting Jeffrey Douglas Tinnean (“Father”) final medical
decision-making authority for the parties’ children, awarding Father
reimbursement for overpaid child support, and prospectively sanctioning
Mother for her future failure to use a court-ordered co-parenting
communication application. Mother raises a debatable issue on the
sanctions, and Father confesses to reversible error by failing to file a
responsive brief. We vacate the prospective sanctions but affirm on all other
grounds.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father petitioned the superior court to establish
legal decision-making, parenting time, and child support in mid-2019. In
early 2020, the court entered a decree resolving the issues. The parties had
two children under five at the time of the judgment. Both parties originally
intended to follow a delayed schedule for vaccinating the children. Father
claimed that Mother did not plan to vaccinate them at all or would limit the
vaccinations. The judgment ordered Father to pay $504 monthly for child
support. It awarded the parties joint legal decision-making authority but
granted Mother final decision-making authority if, after good-faith efforts
to agree, the parties still disagreed. In mid-2022, the court retroactively
reduced child support payments to $0, starting the month before it entered
the order. The court required the parties to communicate through a
co-parenting application as part of the modification order.

¶3 In late 2023, Father petitioned for final decision-making
authority partly because Mother failed to respond to requests to vaccinate
the children. Father also requested that Mother reimburse him for the cost
of the co-parenting application as she refused to use it. Father petitioned to
reimburse for an overpayment of child support shortly afterward, alleging
Mother refused to repay overpaid child support payments made after the
2022 order. The overpayments occurred based on child support deducted

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by Father’s payroll processor after the court terminated his child support
obligation. Mother counter-petitioned for sole legal decision-making
authority.

¶4 The superior court held a trial in mid-2024 to resolve the
pending issues and, in the post-trial order, granted Father final
decision-making authority on medical issues, ordered Mother to reimburse
him for the overpaid child support, ordered Mother to reimburse him for
the cost of the co-parenting application, and prospectively sanctioned
Mother by ordering that she pay Father $50 each time she refused to use the
co-parenting application in the future. Mother appealed.1 We have
jurisdiction under Arizona Revised Statutes § 12-2101(A)(1) and Arizona
Rule of Family Law Procedure (“Rule”) 78(c).

DISCUSSION

¶5 Mother challenges three aspects of the court’s order: the order
to reimburse Father for the overpaid child support, the prospective sanction
of $50 every time she fails to use the co-parenting application, and the grant
of final medical decision-making authority to Father. Father did not file an
answering brief. When an appellee fails to file an answering brief and no
valid excuse is shown, we treat the failure to respond as a confession of
reversible error on any debatable issue raised. See, e.g., Tiller v. Tiller, 98
Ariz. 156, 157 (1965); Stover v. Kesmar, 84 Ariz. 387, 388 (1958). And contrary
to cases from this court suggesting the discretionary nature of the doctrine,
see, e.g., Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994), our supreme
court has never recognized that we may arbitrarily waive a confession of
error, see In re Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL
1282653, at *2, ¶¶ 9-10 (Ariz. App. Mar. 26, 2024) (mem. decision) (Morse,
J., specially concurring). An exception exists, however, when considering
the best interests of children. Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (1966),
cited with approval in Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003).

¶6 Debatable issues include those that “would require much
industry and independent research to refute,” Merill v. Wheeler, 17 Ariz. 348,
350 (1915), or those raising “at least grave doubt” about the court’s order,
Adkins v. Adkins, 39 Ariz. 530, 532 (1932). That said, an issue is not debatable

1 Father cross-appealed but did not comply with ARCAP 12(d)(1) and
this court dismissed his cross-appeal as a result.

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if the record resolves the question raised. See, e.g., Air E., Inc. v. Wheatley, 14
Ariz. App. 290, 294 (1971); Honsey v. Honsey, 126 Ariz. 336, 337 (App. 1980).

¶7 Father appeared in this court, filing a cross-appeal opening
brief after Mother filed her opening brief. The only issue he addressed in
his cross-appeal was whether the court erred by affirming an equal division
of court-appointed advisor fees. Father did not include a response to the
issues raised by Mother. From this, we infer that Father knew about
Mother’s appeal and decided to pursue his claim no longer or defend
against Mother’s. We find no good reason for his failure to answer Mother’s
claims. Thus, Father confessed error to any debatable issues raised by
Mother. If it is clear, however, that the superior court did not err, we will
still affirm regardless of the confession of error. See Honsey, 126 Ariz. at 337.

A. Mother Raised No Debatable Issue with the Court Awarding
Father Reimbursement for Child Support Overpayments.

¶8 Mother argues that the court erred by requiring her to
reimburse Father for overpaid child support because the court disregarded
the requirements for a petition for civil contempt. We note that if Father’s
petition were a contempt petition, as Mother alleges, it would divest this
court of jurisdiction to hear Mother’s argument. Generally, a contempt
order is appealable only by special action, meaning we only have
jurisdiction if we treat the appeal as a special action and accept jurisdiction.
See Peace v. Peace, 234 Ariz. 546, 547, ¶ 4 (App. 2014). Our jurisdiction is not
in doubt here because Father’s petition was mischaracterized as contempt.

¶9 A civil contempt finding may only be used in the context of
family law to compel compliance with a court order or to compensate for a
failure to comply with a court order. Ariz. R. Fam. L.P. 92(a)(1). “Civil
contempt arises when a party refuses to do an act he is lawfully ordered to
do . . . .” Holt v. Hotham, 197 Ariz. 614, 616, ¶ 11 (App. 2000). As Mother
correctly points out, she was under no lawful order to reimburse Father for
the overpayment. But Father, in his petition, was neither seeking that the
court find Mother in contempt nor alleging a willful failure to comply with
a court order. Instead, he sought to enforce the changed child support term
that had been entered in 2022, making his petition a Petition to Enforce a
Judgment under Rule 91. We treat it as such. See Ariz. R. Fam. L.P. 24(d)
(“Pleadings must be construed so as to do substantial justice.”); Genardini v.
Kline, 19 Ariz. 558, 562 (1918) (“[I]t is the duty of the courts to look to the
substance [of a document], the record made, and disregard the mere name
given to [an] action.”).

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¶10 Father presented evidence supporting his claim that he
overpaid, and Mother did not contest the overpayment. Rather, she argues
that Father disregarded the service rules for a contempt petition and that
the court erred because she presented evidence Father owed her child
support.2 Even assuming Mother was improperly served under the
requirements for a petition to enforce, she waived that argument by
substantively responding to the petition in the superior court. Cf. Tarr v.
Superior Court (Jensen), 142 Ariz. 349, 351 (1984) (In a civil suit, filing a
responsive pleading constitutes a general appearance evidencing an intent
to submit to the court’s jurisdiction.); Nat’l Homes Corp. v. Totem Mobile
Homes Sales, Inc., 140 Ariz. 434, 437 (1984) (same). Similarly, although
Mother alleged that Father owed her child support, she did not petition to
enforce payment or contest Father’s overpayment. The record shows Father
overpaid after the 2022 order. Thus, neither ground raises an issue with the
court’s ruling. See Air E., Inc., 14 Ariz. App. at 294 (When the record resolves
an issue, it is not debatable.).

¶11 Construing Father’s petition as a petition to enforce, the
record supports the court’s reimbursement award. Mother raised no
debatable issue, and we affirm the reimbursement order.

B. It Is Debatable Whether the Court Can Impose a Prospective
Sanction Against Mother.

¶12 Mother contends the court erred by imposing a prospective
fine for future failures to use the court-ordered co-parenting application.
Mother argues the order, which reads, “for every incident where Mother
refuses to use Our Family Wizard for nonemergency legal decision-making
or parenting time issues, Mother will be fined $50.00 to be paid to Father
. . . . includ[ing] not reading Father’s messages,” gives coercive power to
Father and contains no safeguard or way to purge the fine.

¶13 Whether the court erred by imposing the sanction would
require substantial independent research. It is not immediately apparent
that the superior court complied with the procurement requirements for the
specific co-parenting communication service ordered. See Ariz. Code of Jud.
Admin. § 1-402; Maricopa County Superior Ct. Admin. Ord. No. 2013-183
(The superior court adopted the Judicial Branch Procurement Code.). And
it is not apparent whether the court holds the authority to issue such a

2 Mother does not argue that the reimbursement order violated A.R.S.
§ 25-527(B). Any error about that issue is waived.

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sanction barring a finding of contempt, Kelly v. Kelly, 252 Ariz. 371, 376, ¶ 21
(App. 2021) (“The superior court may . . . impose a progression of monetary
sanctions on contemptuous parents . . . .” (emphasis added)), or whether the
court has the authority to enforce a prospective sanction without a
judgment, cf. A.R.S. § 25-503(I) (The legislature established, by statute, that
each child support payment becomes an enforceable final judgment when
it is due.). And the order violates the statutory requirement that
contemptuous fines be paid to the alternative dispute resolution fund. See
A.R.S. § 25-414(A)(5).

¶14 Whether the court can authorize the use of the specific
co-parenting application, authorize the sanctions, or enforce the sanctions
is debatable, and Father confesses the court’s error. As a result, we vacate
the order.

C. The Court Did Not Err by Assigning Father Medical
Decision-Making Authority.

¶15 Mother finally argues the court abused its discretion by
awarding Father final medical decision-making authority for the parties’
children. We do not consider Father’s failure to respond to this argument a
confession of error because to do so may be contrary to the children’s best
interests. See Hoffman, 4 Ariz. App. at 85. Instead, we review the court’s
award to ensure that the record is not “devoid of competent evidence to
support [its] decision” and that the court committed no errors of law in
reaching a discretionary decision. Engstrom v. McCarthy, 243 Ariz. 469, 471,
¶ 4 (App. 2018) (citation omitted). We defer to a court’s factual findings
unless they are clearly erroneous. Id.

¶16 Mother contends the court should not have awarded Father
final medical decision-making authority because there was neither a change
in circumstance nor was granting Father medical decision-making in the
children’s best interests. See Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14
(App. 2020) (To modify a decision-making order, the court must first
determine a material change of circumstance, then determine the child’s
best interests.). We find no error in either determination.

¶17 When the court first granted Mother final medical
decision-making authority to delay vaccinations, the parties’ children were
ages four and one. But at the time of the current order, the children were
ages eight and six, still unvaccinated, and Mother had never provided a
vaccination schedule. The court cited Mother’s complete refusal to
vaccinate the children, rather than her wish to delay their vaccinations, as

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the change in circumstance, and the record supports this. See Backstrand, 250
Ariz. at 343, ¶ 14 (The trial court’s changed-circumstance determination
will not be reversed without supporting evidence.). As for the children’s
best interests, Mother argues the testimony was unreliable and biased
against her. In so doing, she concedes the court heard testimony supporting
its best-interests determination. We do not reweigh evidence on appeal but
defer to the superior court’s credibility and evidentiary weight
determinations. Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019).

¶18 When the record shows competent evidence supports the
court’s decision, as here, we must affirm. See Engstrom, 243 Ariz. at 471, ¶ 4.
We affirm the medical decision-making order.

ATTORNEY’S FEES AND COSTS

¶19 Mother requests her attorney’s fees and costs on appeal under
A.R.S. § 25-324 and ARCAP 21. Neither party presented evidence of their
relative financial situations, and Father has not acted unreasonably by
failing to file an answering brief. Per our discretion, we decline to award
Mother her attorney’s fees. As Father prevailed on more issues, Mother is
not the prevailing party on appeal and is not entitled to recover costs. In re
Marriage of Morris & Mandel, 255 Ariz. 158, 165, ¶ 36 (App. 2023).

CONCLUSION

¶20 We vacate the court’s prospective sanctions but affirm on all
other grounds.

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

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