Gonzalez v. Martinez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JENNIFER GONZALEZ (f/k/a JENNIFER CAMPOS-MARTINEZ),
Petitioner/Appellant,

v.

BOYD K. MARTINEZ, Respondent/Appellee.

No. 1 CA-CV 25-0114 FC
FILED 02-12-2026

Appeal from the Superior Court in Yuma County
No. S1400DO202200595
The Honorable Eliza B. Johnson, Judge Pro Tempore

AFFIRMED IN PART; VACATED AND REMANDED IN PART

APPEARANCES

Jennifer Gonzalez, Phoenix
Petitioner/Appellant

Schneider & Onofry, P.C., Phoenix
By Maria C. Lomeli, Jonathan D. Schneider
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Judge Michael S. Catlett joined.

W I L L I A M S, Judge:

¶1 In this post-decree proceeding, Jennifer Gonzalez (“Mother”)
appeals from the order modifying legal decision-making authority and
parenting time and ordering her to pay a community debt. We affirm the
superior court’s finding of changed circumstances but vacate and remand
the modified legal decision-making and parenting time orders because the
superior court did not address the evidence of domestic violence. We also
vacate the debt allocation.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mother and Boyd Martinez (“Father”) have two children. In
2022, the superior court entered a consent decree dissolving the parties’
marriage. The decree provided each party with joint legal decision-making
authority for the children but stated that Mother would have “final” say. It
also stated Mother: (1) could decide “where the children will live without
[Father’s] consent,” (2) would not move the children out of state, and (3)
would give Father one month notice if she left Yuma. According to the
parenting plan, Father had parenting time any non-workday and every
other Friday and Saturday from four to nine p.m.

¶3 The consent decree also awarded the marital residence to
Mother with the condition that she remove Father’s name “from the marital
home[.]” The decree identified several community debts and allocated
them to either Mother or Father. Additionally, each party was ordered to
“pay for the debt in his or her name, and such debt is ordered as the sole
and separate debt of each party’s name on the debt.” The decree did not list
the community debt for solar panels attached to the marital home.

¶4 In early 2023, less than three months after the decree was
issued, Mother provided notice to Father of her intent to relocate with the
children to Phoenix. Father objected, claiming Mother’s petition was
premature since A.R.S. § 25-411(A) generally prohibits modifications of
legal decision-making or parenting time orders less than one year after the

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decree was issued. The court denied Mother’s relocation request as
premature and found no grounds to allow an early petition to modify.

¶5 Within months, Mother filed a second notice to relocate the
children to Phoenix. This notice was filed just short of one year from the
date the decree issued. Father objected, arguing this petition was also
premature and contrary to the children’s best interests. Mother moved to
dismiss Father’s objection because the consent decree allowed her to
relocate the children without his consent so long as they stayed in Arizona.
The court agreed and dismissed Father’s opposition (“2024 order”).

¶6 Before the superior court issued the 2024 order, Father
petitioned to enforce the marital residence refinancing provision in the
decree. The court scheduled an evidentiary hearing on this enforcement
petition for October 2.

¶7 Before that hearing, Father petitioned to modify parenting
time and child support. He argued that Mother’s impending move to
Phoenix constituted a significant and continuing change in circumstances.
He asked the court to consider the modification petition at the upcoming
October hearing on the enforcement petition.

¶8 In August 2024, Father amended his petition to modify
parenting time, adding a request to modify joint legal decision-making
authority so Mother no longer had “final say.” He also moved for
temporary orders asking for the same relief. The superior court declined to
issue temporary orders because it could not schedule a separate hearing
earlier than the upcoming October hearing. The court’s order made no
mention of Father’s amended petition to modify.

¶9 Mother moved to strike the amended petition to modify or, in
the alternative, to continue the legal decision-making authority issue to a
later date. She argued that Father did not seek the court’s permission to
amend his petition, which is required when a hearing has been scheduled.
See Ariz. R. Fam. Law P. 28(a)(2). Before the court ruled on the motion to
strike, the parties stipulated to continue the legal decision-making
modification issue to a later date and not address it at the upcoming
hearing. Based upon that stipulation, the court vacated the October 2
hearing and scheduled a hearing on October 30 to address the petition to
enforce and the petition to modify legal decision-making, parenting time,
and child support.

¶10 Following the October 30 evidentiary hearing, the superior
court found a substantial and continuing change in circumstances given

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that Mother and the children now live in Phoenix. After considering several
factors set forth in A.R.S. § 25-403(A), the court modified joint legal
decision-making so Mother no longer had final say. It also modified
parenting time to a long-distance schedule and modified child support
accordingly. The court ruled that Mother was responsible for the solar panel
debt because the panels were part of the marital residence, which she
received in the decree.

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

DISCUSSION

I. Legal Decision-Making Authority and Parenting Time Orders

A. There Is No Horizontal Appeal.

¶12 Mother argues the order finding her move constituted a
change in circumstances is an improper horizontal appeal from the 2024
order dismissing Father’s objection to her second relocation notification.

¶13 This is no horizontal appeal because the orders address
different issues. See Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II,
176 Ariz. 275, 278–79 (App. 1993) (explaining that a horizontal appeal
occurs when a second trial judge is asked to reconsider the decision of
another trial judge in the same matter, under no new circumstances and
where no other reason warrants reconsideration).

¶14 The 2024 order rejected Father’s argument that Mother’s
relocation notice was a premature petition to modify. This was correct
because the consent decree allowed Mother to relocate the children without
first obtaining Father’s consent. Mother had a right to move to Phoenix.
After the move, Father petitioned to modify legal decision-making and
parenting time arguing that the move, and Mother excluding him from
decision-making, constituted changed circumstances. The order on appeal
resolved Father’s petitions to modify, which were based on changed
circumstances arising after the 2024 order.

¶15 According to Mother, her relocation cannot constitute a
changed circumstance because the 2024 order stated: “The Decree does not
indicate that parenting time for Father would change in any way regardless
of Mother remaining in Yuma or relocating anywhere else in Arizona.” We
disagree. The 2024 order did not address whether relocation was a changed
circumstance. Instead, it concluded, consistent with the decree, that Mother

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need not show grounds to modify the decree or wait one year from the
decree to relocate. The quoted language recognizes the parties’ obligation
to comply with the existing parenting time orders unless modified. Father’s
later modification petitions did not ask the court to reconsider any of these
conclusions. Therefore, the 2024 order did not address the issues presented
in Father’s later modification petitions. There was no horizontal appeal.

B. The Superior Court Properly Considered the Amended
Petition to Modify.

¶16 Mother argues the superior court erred in considering
Father’s amended petition to modify.1 She contends that Father could not
amend his petition without permission from the court. To be sure, Arizona
Rule of Family Law Procedure (“ARFLP”) 28(a)(2) provides that a party
must get court permission to amend a pleading if a hearing on the pleading
has already been set. But after Mother moved to strike Father’s amended
petition, the parties stipulated to address legal decision-making later. By
agreeing to address this issue later, Mother waived any objection to the
amendment.

¶17 Even if Mother’s agreement did not constitute a waiver, the
superior court notified the parties that the October 30 hearing would
address legal decision-making authority and parenting time. By scheduling
a hearing on legal decision-making, the court implicitly granted leave to
amend. Moreover, Mother did not object when the court notified the parties
that the October 30 hearing would include the legal decision-making issue.
In fact, Mother’s pre-hearing statement addressed legal decision-making
without objection.

¶18 The parties also litigated the issue at the hearing. ARFLP
28(b)(2) provides for an automatic amendment of a pleading when an issue
is tried by the parties’ express or implied consent. See In re McCauley’s Estate,
101 Ariz. 8, 17 (1966) (discussing analogous Arizona Rule of Civil Procedure
15(b)). Finally, “[a]n amendment nonetheless is permitted absent a showing
of ‘prejudice, i.e., surprise.’” Parker v. City of Tucson, 233 Ariz. 422, 439, ¶ 51
(App. 2013) (discussing Arizona Rule of Civil Procedure 15(b)) (quoting
McCauley, 101 Ariz. at 18). Mother has shown no prejudice or surprise.

1 Mother claims the superior court denied Father’s amended petition in the

order filed August 12, 2024. Not so. This order denied Father’s request for
temporary orders and did not mention the amended petition to modify or
Mother’s motion to strike.

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Therefore, the court properly considered Father’s request to modify legal
decision-making authority.

C. Changed Circumstances Exist.

¶19 A parent seeking to modify a legal decision-making or
parenting time order must first show “a change of circumstances materially
affecting the welfare of the child.” Backstrand v. Backstrand, 250 Ariz. 339,
343, ¶ 14 (App. 2020) (citation modified). If the superior court finds such a
change exists, then it determines whether a modification is in the child’s
best interests. Id. The court has broad discretion to decide whether a change
of circumstances exists that justifies modifying legal decision-making
authority and parenting time. Id. We will affirm a court’s order absent a
clear abuse of that discretion. Id.

¶20 The superior court did not abuse its discretion by finding
Mother’s relocation to Phoenix from Yuma constituted a change in
circumstances materially affecting the children. The long distance from
Father impacts the availability of his non-overnight parenting time
provided for in the decree. The move also changed the children’s home,
school, and community activities. Furthermore, the evidence showed that
Mother did not consult Father before making decisions about the children.
These are changes materially affecting the children’s welfare. Id. at ¶ 15.

D. The Superior Court Failed to Make Findings About the
Evidence of Domestic Violence.

¶21 Mother next argues the superior court failed to make findings
about relevant best interests factors upon which the parties presented
evidence. The court must “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[ren].” A.R.S. § 25-403(B). “This statutory requirement cannot be
satisfied by inference from a court’s order or waived by a party.” Olesen v.
Daniel, 251 Ariz. 25, 29, ¶ 17 (App. 2021). One of the best interests factors is
whether there has been domestic violence. See A.R.S. § 25-403(A)(8). If there
is evidence of domestic violence, the court must apply the framework
outlined in A.R.S. § 25-403.03. DeLuna v. Petitto, 247 Ariz. 420, 423,
¶¶ 11–12 (App. 2019).

¶22 The superior court must consider whether there is evidence
of: (1) significant domestic violence, (2) a significant history of domestic
violence, or (3) whether a parent has committed an act of domestic violence.
See A.R.S. § 25-403.03(A), (D). The existence of any domestic violence gives
rise to different presumptions that impact the award of sole or joint legal

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decision-making and parenting time. See A.R.S. § 25-403.03(A), (D), (F). The
court must also consider any evidence that may rebut the presumption.
A.R.S. § 25-403.03(D), (E), (F). Finally, the court must make findings on the
record about the relevant factors rebutting the presumption. See A.R.S.
§ 25-403(B); Olesen, 251 Ariz. at 29, ¶ 17; DeLuna, 247 Ariz. at 424–25, ¶ 16.

¶23 The record on appeal includes undisputed evidence relevant
to the domestic violence analysis in A.R.S. § 25-403.03. After the decree
issued, Mother obtained an order of protection2 against Father because he
called her thirty to forty times a day, entered her home without permission,
and looked in her windows. The order of protection allows the parties to
communicate only through email and texts. Mother also described a time
when Father shoved her boyfriend almost causing Mother and the children,
who were nearby, to fall. Father did not dispute any of these facts.

¶24 The superior court found “no history of significant domestic
violence between the parties.” This finding addresses only the “significant
history” form of domestic violence. See A.R.S. § 25-403.03(A); DeLuna, 247
Ariz. at 423–24, ¶¶ 11–12, 16. But the court made no finding about
“significant domestic violence” or whether Father committed “an act of
domestic violence.” See A.R.S. § 25-403.03(A), (D). Nor are there any
findings about Father rebutting any presumption. The court must make
these findings on the record. A.R.S. § 25-403(B); DeLuna, 247 Ariz. at
424–25, ¶ 16.

¶25 Mother also contends the superior court failed to address
Father’s history of mental health and addiction issues. In an earlier
proceeding to set aside the consent decree, Father raised his mental health
struggles. At the October 30 hearing, Father admitted to past mental health
issues and a prior sex addiction. But there was no evidence that these issues
continue or impact his current ability to care for the children. In fact, Father
has had overnight parenting time every other weekend since Mother
moved to Phoenix. The court’s finding that “[n]either parent appears to
have any physical or mental health conditions that would prevent them
from providing adequate care for the children[]” is consistent with the
evidence presented at the hearing.

2 The order of protection is not in the record. However, an exhibit list from
an earlier hearing lists Mother’s January 3, 2023, petition for an order of
protection as one of Father’s exhibits. The exhibit was not admitted into
evidence.

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¶26 The court failed to make the required findings about domestic
violence and whether Father rebutted the statutory presumptions.
Therefore, we vacate the legal decision-making and parenting time orders
and remand for further consideration consistent with this decision. On
remand, the superior court may, in the exercise of its discretion, allow the
parties to present additional evidence relevant to the domestic violence
analysis.

¶27 It is worth noting that Mother argues awarding joint legal
decision-making authority without giving her final say is contrary to the
decree that allows her to relocate the children without Father’s permission.
As noted, supra ¶ 14, the decree allowed Mother to relocate the children
with notice and without having to follow the usual statutory procedures.
See A.R.S. § 25-408 (D), (H). The award of joint legal decision-making is not
inconsistent with Mother’s right to relocate. Because the court “shall not
deviate from” the parties’ agreement that Mother can relocate the children
without Father’s consent under A.R.S. § 25-408(H), we conclude the order
granting joint legal decision-making authority implicitly recognized
Mother’s ability to relocate the children without Father’s consent.

II. The Solar Panel Debt Was Not Addressed in the Consent Decree
and Must Be Divided Equally

¶28 The superior court ordered Mother to pay the community
debt for the solar panels on the marital home. The court reasoned that,
although the decree did not allocate this debt, debts usually follow the
corresponding asset, and because Mother received the home, she should
pay the solar panel debt. Mother argues this was error.

¶29 We review the superior court’s interpretation of the decree de
novo. Cohen v. Frey, 215 Ariz. 62, 66, ¶ 9 (App. 2007). “The meaning of a
decree is to be determined from the language used.” Stine v. Stine, 179 Ariz.
385, 388 (App. 1994). Whether a decree is susceptible to more than one
interpretation is a question of law for the court to decide. Cohen, 215 Ariz.
at 66, ¶ 11. We construe the decree’s language in the context of the court’s
statutory duty to divide community property and debts equitably. Id. at 67,
¶ 14; A.R.S. § 25-318(A).

¶30 The decree divided all community debts other than the solar
panels nearly equally. Additionally, the decree awarded the marital home
to Mother without any equalization payment to Father for the roughly
$100,000 equity in the home. Consistent with this award, Mother was to
remove Father’s name from the marital home and pay the mortgage.

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Because the solar panels cannot be relocated to Father’s residence, they
must stay with the marital home, which is now Mother’s asset.

¶31 A literal reading of the decree’s catch-all provision assigns the
debt to Father because the solar panel debt was taken out solely in Father’s
name: “each party pay for the debt in his or her name, and such debt is
ordered as the sole and separate debt of each party’s name on the debt.” But
Father argues the debt was mistakenly omitted, and suggests it is
inequitable to apply the catch-all provision to this community debt related
to the home awarded to Mother. We agree.

¶32 Courts may forgo a literal reading of a decree when doing so
runs afoul of the court’s duty to equitably divide community property and
debts and is inconsistent with the context of the decree. Cohen, 215 Ariz. at
66–67, ¶¶ 12–14. Because we conclude the decree’s catch-all debt provision
does not apply, and the decree mistakenly omitted assigning or dividing
the solar panel debt, the question becomes, what is to be done?

¶33 “Community debts not allocated by a divorce decree are
apportioned equally between the former spouses.” Fleming v. Tanner, 248
Ariz. 63, 70, ¶ 23 (App. 2019); accord Fischer v. Sommer, 160 Ariz. 530, 531
(App. 1989) (holding that community debts not allocated in the decree
remain joint obligations and should be apportioned equally); Jankowski v.
Jankowski, 114 Ariz. 406, 407 (App. 1977) (holding that parties remained
jointly liable for community debts not allocated in the decree).

¶34 The party paying the joint obligation may move to reopen the
decree to enforce the joint obligation, but the court cannot modify the
decree unless the court finds conditions that justify reopening a decree
under ARFLP 85. Fischer, 160 Ariz. at 531–33 (interpreting a request for post-
decree contribution for an unallocated community debt under the civil
counterpart to ARFLP 85); A.R.S. § 25-327(A); see also Quijada v. Quijada, 246
Ariz. 217, 220, ¶ 6 (App. 2019) (holding that the terms of a decree are not
subject to post-decree modification absent a showing that relief is
warranted under ARFLP 85). Husband did not move to reopen the decree,
so the court was compelled to divide the community obligation equally.
Fisher, 160 Ariz. at 531. The court, therefore, erred when it allocated the
entire debt to Mother.

¶35 Finally, Mother argues the superior court should never have
ruled on the solar panel debt because Father did not properly plead the
issue before the evidentiary hearing. But Mother waived any objection to
the court addressing the solar panel debt. She did not object when Father

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listed this issue in his prehearing “notice of issues.” Mother also addressed
the solar panels in her prehearing statement without objecting that the issue
was untimely. She offered the solar panel agreement as an exhibit. And her
attorney waited until closing arguments to assert that this issue was
untimely. Even if the issue was untimely, Mother cannot show prejudice
because she fully litigated the issue before objecting. See Volk v. Brame, 235
Ariz. 462, 470, ¶ 26 (App. 2014) (holding due process errors warrant reversal
only if prejudice is shown).

¶36 Consequently, we vacate the order directing Mother to pay
the entirety of the solar panel debt. On remand, the superior court shall
allocate the decree’s omitted community debt equally between the parties.
Fleming, 248 Ariz. at 70, ¶ 23.

CONCLUSION

¶37 We vacate the legal decision-making authority and parenting
time orders and remand for further proceedings consistent with this
decision. We also vacate the order requiring Mother to pay the entirety of
the solar panel debt and remand for the superior court to allocate the debt
equally between the parties. Mother is entitled to her reasonable costs on
appeal under A.R.S. § 12-342(A) upon compliance with Arizona Rule of
Civil Appellate Procedure 21.

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

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