Wilcox v. Wilcox

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS C. WILCOX, Petitioner/Appellee,

v.

CARRIE M. WILCOX, Respondent/Appellant.

No. 1 CA-CV 25-0014 FC
FILED 08-12-2025

Appeal from the Superior Court in Mohave County
No. L8015DO201707187
The Honorable Megan A. McCoy, Judge

AFFIRMED

COUNSEL

Thomas C. Wilcox, Lake Havasu City
Petitioner/Appellee

Community Legal Services, Kingman
By Charles R. Seyffer, Carlene H. Lacy
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Anni Hill Foster and Judge Veronika Fabian joined.

M O R S E, Judge:

¶1 Carrie M. Wilcox ("Mother") challenges the superior court's
order denying her Petition to Modify. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Thomas C. Wilcox ("Father"), divorced in 2018,
share three children. The initial dissolution decree awarded substantially
equal parenting time and joint legal decision-making authority. Following
a 2020 mediation, the superior court slightly modified the parties' parenting
time and legal decision-making authority.

¶3 Mother obtained an order of protection against Father which
restricted their communication to legal process and the "OurFamilyWizard
App." In March 2024, authorities arrested Father for violating that order of
protection. He pled guilty to misdemeanor interference with judicial
proceedings.

¶4 In September 2024, Mother petitioned to modify parenting
time, legal decision-making, and child support. She alleged Father's
violation of the order of protection constituted domestic violence, and that
he generally fell short in his parental duties.

¶5 The superior court held a hearing during which Father
opposed the petition to modify, and a trial date was set.

¶6 At trial, Mother, Father, and two witnesses testified. After
trial, the superior court ordered Mother and Father to attend a parenting
program, but found Mother did not establish a "substantial change in
circumstances" and that changes to parenting time, legal decision-making,
and child support were unwarranted. The superior court specifically found
domestic violence was a factor but that Father had rebutted any
presumption.

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¶7 Mother timely appealed. Mother also filed a notice in which
she indicated that she did not order a copy of the hearing transcript. Father
did not file an answering brief. We have jurisdiction under A.R.S. § 12-
2101(A)(1). See Ariz. R. Fam. Law P. 78(a).

DISCUSSION

¶8 Mother argues the superior court abused its discretion by: (1)
applying the wrong legal standard prescribed by A.R.S. § 25-411(L); (2)
summarily dismissing Mother's petition after granting a hearing; and (3)
failing to make specific findings pursuant to A.R.S. § 25-403.03(E).

¶9 When an appellant raises a debatable issue and the appellee
does not file an answering brief, we treat the failure to respond as a
confession of error unless a child's best interests are at issue. Hoffman v.
Hoffman, 4 Ariz. App. 83, 85 (1966); see also Hays v. Gama, 205 Ariz. 99, 102,
¶ 18 (2003) ("We have repeatedly stressed that the child's best interest is
paramount in custody determinations."). Because children's best interests
are at issue here, we do not treat Father's lack of response as a confession of
error and consider the merits of Mother's appeal. See Hoffman, 4 Ariz. App.
at 85.

¶10 "We review the superior court's award of legal decision-
making and parenting time for an abuse of discretion. An abuse of
discretion occurs when the court commits an error of law in reaching a
discretionary decision or the record is devoid of competent evidence to
support the decision." Mesa v. O'Connor, ___ Ariz. ___, ___, ¶ 14 (App. 2025)
(cleaned up). "[W]e do not reweigh evidence" on appeal and defer to the
superior court's credibility determinations. Lehn v. Al-Thanayyan, 246 Ariz.
277, 284, ¶ 20 (App. 2019).

¶11 When the superior court finds there is adequate cause to hear
a petition to modify legal decision-making or parenting time orders, "it shall
set a date for hearing on why the requested modification should not be
granted." A.R.S. § 25-411(L). "[T]he court may modify or reduce parenting
time by (1) determining 'whether a change of circumstances materially
affecting the welfare of the child' exists, then (2) determining 'whether a
change in custody will be in the best interests of the child.'" Mesa, ___ Ariz.
at ___, ¶24 (emphasis added) (citing Backstrand v. Backstrand, 250 Ariz. 339,
343, ¶ 14 (App. 2020)). "[T]he burden is on the moving party to satisfy the
court that conditions and circumstances have so changed after the original
decree as to justify the modification." Burk v. Burk, 68 Ariz. 305, 308 (1949).

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"The superior court is vested with broad discretion to decide whether a
change of circumstances has occurred." Backstrand, 250 Ariz. at 343, ¶14.

¶12 The superior court is only required to make findings on the
record when mandated by rule or statute. See Mesa, ___ Ariz. at ___, ¶27
(citing Hart v. Hart, 220 Ariz. 183, 188, ¶ 16, (App. 2009)) ("Although the
court must make findings consistent with [A.R.S.] § 25-411(J), these findings
need not 'be reduced to writing or stated on the record.'").

¶13 "When a party fails to include [transcripts or other necessary
documents], we assume they would support the court's findings and
conclusions." Baker v. Baker, 183 Ariz. 70, 73 (App. 1995). "It is the
appellant's burden to ensure that the record on appeal contains all
transcripts or other documents necessary for us to consider the issues
raised." Blair v. Burgener, 226 Ariz. 213, 217, ¶ 9 (App. 2010) (internal
quotations and citation omitted); see also Engstrom v. McCarthy, 243 Ariz.
469, 471, ¶ 7 n.2 (App. 2018) (stating that in family court appeals, "we must
presume the record supports the court's conclusion" when neither party
presents transcripts necessary to consider the issues raised).

I. A.R.S. § 25-411(L) and Summary Dismissal.

¶14 Mother contends the superior court erred by: (1) evaluating
whether there was a "substantial" change in circumstances, arguing that this
is a more rigorous standard than the "material" standard set forth for A.R.S.
§ 25-411(L) in Backstrand; and (2) summarily dismissing the petition after
she met the prerequisites for an evidentiary hearing as discussed in Downs
v. Scheffler, 206 Ariz. 496 (App. 2003).

¶15 Mother's first argument is unpersuasive. While the superior
court's ruling uses the word "substantial," this Court has previously used
"substantial" as equivalent to "material" in this context. See Backstrand, 250
Ariz. at 345, ¶ 23 ("'substantial,' i.e., a change that materially affects the
welfare of the child"); French v. Morin, 1 CA-CV 16-0688 FC, 2017 WL
4782242, at *2, ¶ 7 (Ariz. App. Oct. 24, 2017) (mem. decision) (equating
superior court's finding in best interests context of "no 'substantial or
continuing change'" to "no material change").

¶16 Because Mother did not provide a transcript, we assume any
missing record supports the superior court's ruling. ARCAP 11(c)(1)(B)
(stating appellant has the duty to include all relevant transcripts to
challenge a "judgment, finding or conclusion" as "unsupported by the
evidence or [] contrary to the evidence"); Baker, 183 Ariz. at 73 (same). The
superior court's discussion of relevant factors—including recommended

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parenting courses, counseling, and the use of communication applications
for contact between the parties and children—supports the presumption
that the superior court considered all relevant facts. In this context, the
word "substantial" reflects the superior court's conclusion that Mother
failed to demonstrate a "material" change in circumstances.

¶17 Moreover, Mother fails to demonstrate that the superior court
erred in dismissing her petition. Even after finding that a party's allegations
are sufficient to require a hearing, the superior court must then engage in a
two-prong inquiry, first determining whether there has been a material
change in circumstances. See Mesa, ___ Ariz. at ___, ¶24. Unlike in Downs,
206 Ariz. at 499–500, ¶ 10, the superior court here found that Mother had
not established the required change in circumstances that would necessitate
best-interests findings.

¶18 Mother has not established any abuse of discretion.

II. A.R.S. § 25-403.03(E).

¶19 Mother also argues that the superior court made inadequate
findings regarding continued joint legal decision-making and the children's
best interests. But because the superior court did not err in concluding that
Mother had failed to establish a material change in circumstances, we need
not address the superior court's best-interests findings. Id.; see also Pridgeon
v. Superior Ct., 134 Ariz. 177, 180 (1982) ("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.").

III. Attorney Fees.

¶20 Mother requests attorney fees and costs under A.R.S. §§ 25-
324, -403.08, and ARCAP 21. Because Mother is not the prevailing party we
decline her request.

CONCLUSION

¶21 For the foregoing reasons, we affirm.

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