Woolwine v. Abdallah

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRISTOPHER WOOLWINE, Petitioner/Appellee,

v.

ROBERTA ABDALLAH, Respondent/Appellant.

No. 1 CA-CV 24-0775 FC
FILED 05-20-2025

Appeal from the Superior Court in Maricopa County
No. FC2020-002822
The Honorable Melissa Zabor, Judge

VACATED IN PART, REMANDED

COUNSEL

Christopher Woolwine, Phoenix
Petitioner/Appellee

Burt Feldman Grenier, Scottsdale
By Sandra Burt, Ashley Ponzo
Co-Counsel for Respondent/Appellant

Reardon House Colton PLC, Scottsdale
By Kristi A. Reardon
Co-Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael S. Catlett and Judge David D. Weinzweig joined.

K I L E Y, Judge:

¶1 Roberta Abdallah (“Mother”) and Christopher Woolwine
(“Father”) had equal parenting time with their children, and Mother was
required to pay Father child support. The superior court entered temporary
orders that drastically limited Father’s parenting time and suspended
Mother’s child support obligation. Two months later, the court vacated its
temporary orders without modifying Mother’s child support obligation
during the time that the temporary orders were in effect. Mother now
argues that the court should have redetermined child support during the
two months that the children were primarily in her care. We agree.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to upholding the
family court’s findings. Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App.
2015) (citation omitted). Mother and Father, who were never married, have
two minor children in common. In early 2023, the superior court issued a
decree (the “Decree”) awarding Mother sole legal decision-making
authority for the children and granting the parties equal parenting time.
The Decree required Mother to pay Father child support of $2,250 per
month.

¶3 In mid-May 2024, Mother petitioned to modify parenting time
and child support, asserting that Father had exercised virtually no
parenting time since November 2023, leaving the children “almost
exclusively with Mother.” Mother asked that the court reduce Father’s
parenting time and redetermine child support in accordance with the
Arizona Child Support Guidelines. Along with her petition, Mother filed a
motion for temporary orders requesting the same relief on an expedited
basis.

¶4 After an evidentiary hearing in June 2024, the superior court
issued temporary orders designating Mother as the children’s primary
residential parent, limiting Father’s parenting time to three hours on

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Decision of the Court

Wednesday afternoons and ten hours on alternate Saturdays. Instead of
redetermining child support, the court simply “suspend[ed] all child
support, effective immediately, going forward.”

¶5 After an evidentiary hearing on Mother’s petition to modify
in August 2024, the court found that Mother’s claim that Father stopped
exercising parenting time in November 2023 was “not credible.”
Concluding that Mother was trying to “manipulate[] the legal process to
punish Father,” the court denied Mother’s petition to modify, and
reinstated the Decree’s “equal time” parenting plan. The court further
stated that because it “has not modified the parenting plan,” no
modification of child support was warranted.

¶6 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), -2101(A)(1).

DISCUSSION

¶7 Mother does not challenge the court’s denial of her petition to
modify. Instead, she argues that the court abused its discretion by
reinstating her $2,250-per-month child support obligation for the two
months when the temporary orders were in effect. Noting that the Decree’s
child support provision was premised on an “equal time” parenting plan,
Mother contends that the court erred by “suspending” her child support
obligation and then “reinstat[ing]” it two months later. During the two-
month period when the temporary orders were in effect, she argues,
Father’s parenting time was severely limited. Reinstating the prior child
support order without “adjust[ing]” her obligation to account for the two-
month modification of the parenting time schedule, she concludes, unfairly
leaves her obligated to pay Father child support for the two months that the
children were, by court order, almost exclusively in her care. We review
child support awards for an abuse of discretion. Sherman v. Sherman, 241
Ariz. 110, 112, ¶ 9 (App. 2016) (citation omitted).

¶8 Father did not file an answering brief. While an appellee’s
failure to file an answering brief is generally deemed a confession of error
if the appeal raises debatable issues, Tiller v. Tiller, 98 Ariz. 156, 157 (1965)
(citations omitted), this principle does not apply to issues relating to a
child’s best interests. Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (1966); see also
Matter of Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653 at
*5, ¶ 19 (Ariz. App. Mar. 26, 2024) (mem. decision) (Morse, J., specially
concurring) (citing case law recognizing a “child’s-best-interest exception

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Decision of the Court

to the mandatory-confession-of-error rule”). Because the determination of
child support is a matter affecting children’s best interests, we do not
construe Father’s failure to file an answering brief as a confession of error.

¶9 When entering or modifying a parenting time order, the court
must also “determine an amount of child support in accordance with
[A.R.S.] § 25-320 and [the] guidelines established pursuant to that section.”
A.R.S. § 25-403.09; see also Appendix to A.R.S. § 25-320, Arizona Child
Support Guidelines (“Guidelines”) § 1(D) (“The court must consider child
support in any action to establish or modify legal decision-making,
parenting time, and child support or past support, whether temporary or
final, and whether intrastate or interstate.” (emphasis added)). The factors
set forth in the Guidelines that are relevant to calculating child support
include “[t]he duration of parenting time and related expenses.” A.R.S. §
25-320(D)(8); see also Guidelines § 5(A)(2) (“When parenting time is or is
expected to be exercised by both parents, an adjustment is made to the
proportionate share of the Combined Child Support Obligation.”).

¶10 Once established, a child support order may be modified
upon a finding of a “changed circumstance that is substantial and
continuing.” A.R.S. § 25-503(E). If a court modifies a parenting time
schedule, the court must also consider whether the modification constitutes
a substantial and continuing change in circumstances requiring a
modification of child support. A.R.S. § 25-403.09(A) (“For any parenting
time entered under this article, the court shall determine an amount of child
support in accordance with [Section] 25-320 and [the] guidelines
established pursuant to that section.”) (emphasis added); see also Heidbreder
v. Heidbreder, 230 Ariz. 377, 379-80, ¶ 7 (App. 2012) (“[O]nce the court
granted Mother’s petition to modify custody, it was required to address
child support.”).

¶11 Of course, a court is not required to revisit the issue of child
support at the same time it modifies parenting time. After all, a parenting
time order may be modified on short notice under exigent circumstances
that do not allow time for a contemporaneous redetermination of child
support. But whenever a court modifies parenting time, the court must at
some point determine whether the modification constitutes a substantial and
continuing change in circumstances warranting a modification of child
support. And if so, the court must redetermine child support to account for
the change in the parenting time schedule (while, of course, taking into
account all other relevant facts, including any changes in the parties’
respective incomes since child support was last calculated).

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¶12 Here, the court’s June 2024 temporary orders drastically
reduced Father’s parenting time. Although the court later determined that
the modification was based on Mother’s false allegations, that
determination did not permit the court to simply reinstate Mother’s $2,250-
per-month child support obligation during the two months that the
children were, by court order, primarily in her care.

¶13 Nothing in the record indicates that, when the court restored
Father’s pre-June 2024 parenting time in August 2024, it considered
whether the two-month temporary modification of the parenting time
schedule was a substantial and continuing change in circumstances
requiring a redetermination of child support during the time the temporary
orders were in effect. See A.R.S. § 25-403.09(A). Accordingly, we vacate the
court’s August 2024 order to the extent that it reinstated Mother’s $2,250-
per-month child support obligation during the two months that the
temporary orders were in effect. We remand for the court to determine
whether the court’s modification to the parenting time schedule effected a
“substantial and continuing” change in circumstances under Section 25-
503(E) while the modified schedule was in effect. If so, the court must
redetermine child support for the period during which the modified
parenting time schedule was in effect.

¶14 Mother requests an award of attorney fees and costs on
appeal pursuant to A.R.S. § 25-324. In our discretion, we decline to award
attorney fees. As the prevailing party, Mother may recover her costs on
appeal upon compliance with ARCAP 21(b).

CONCLUSION

¶15 We vacate the court’s August 2024 order to the extent that it
reinstated Mother’s $2,250-per-month child support obligation during the
two months that the June 2024 temporary orders were in effect, and remand
for further proceedings consistent with this decision.

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

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