Nilles v. South

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PATRICK DANIEL NILLES, Petitioner/Appellant,

v.

MIRANDA SOUTH, Respondent/Appellee.

No. 1 CA-CV 25-1028 FC
FILED 09-03-2026

Appeal from the Superior Court in Maricopa County
No. FC2015-050750
The Honorable J. Justin McGuire, Judge Pro Tempore

AFFIRMED

COUNSEL

Patrick Daniel Nilles, Phoenix
Petitioner/Appellant

Rubin & Ansel PLLC, Scottsdale
By Yvette D. Ansel
Counsel for Respondent/Appellee

NILLES v. SOUTH
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Veronika Fabian and Judge Kent E. Cattani joined.

C A T L E T T, Judge:

¶1 Patrick Nilles (“Father”) appeals the superior court’s denial of
his Petition to Modify Parenting Time and Child Support (“Petition”). We
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Miranda South (“Mother”) (together, “Parents”)
share a minor child (“Child”) born in 2013. In March 2016, Parents agreed
to a parenting time schedule and Father’s monthly child support obligation
(“March 2016 Agreement”), which the court approved.

¶3 On February 1, 2024, Father filed the Petition, arguing
Mother’s alleged alcohol abuse was a continuing and substantial change in
circumstances warranting modification of Mother’s parenting time. He also
moved for temporary orders. In both filings, Father requested that the court
reduce Mother’s parenting time and require Mother to participate in
alcohol testing.

¶4 That same day, Child disclosed to a school counselor that
Mother abuses alcohol, that Mother had driven Child while intoxicated,
and Mother had increasingly become physically aggressive. The school
counselor prepared a written summary of this conversation. The
Department of Child Safety (the “Department”) also received a report
concerning these allegations. Thereafter, Father filed an ex-parte
emergency motion seeking temporary orders modifying Mother’s
parenting time and requiring substance abuse testing. The court denied the
ex-parte motion but scheduled a hearing on Father’s request for temporary
orders.

¶5 Following a hearing, the court found that the school
counselor’s note “demonstrate[d] a clear concern . . . regarding potential
substance abuse, [and] physical abuse[.]” As a result, the court temporarily
reduced Mother’s parenting time and required Mother to participate in
alcohol testing.

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¶6 Then in October 2025, the court held a two-day evidentiary
hearing on Father’s Petition. The court heard testimony from Father,
Mother, a court-appointed advisor (“CAA”), and Mother’s father. Among
the evidence presented was the CAA’s investigation report, documents
from the Department concerning its investigation, emails between Father
and Child’s school counselor, and over 4,000 negative results stemming
from alcohol tests Mother took from April 2024 to September 2025.

¶7 The court denied Father’s Petition, finding that he failed to
prove a “significant and continuing change of circumstances” affecting
Child’s welfare. The court concluded Father did not present “independent,
objective evidence” supporting his allegations that Mother engaged in
alcohol and physical abuse. The court noted the “only objective evidence”
addressing Mother’s alleged abuse were the 4,000 negative test results,
which contradicted Father’s allegations.

¶8 The court also found Child was not a credible witness. The
court stated that the allegations against Mother were based solely on
Child’s statements. Based on the CAA’s testimony and a “statement of the
[C]hild’s school counselor,” the court found Child lacks an “appreciation of
the seriousness of making false or inaccurate statements.” Moreover, the
Department’s “many investigations” and the CAA’s investigation did not
uncover evidence corroborating Child’s allegations.

¶9 Father moved to amend the judgment under Rule 83 on
grounds that the evidence did not support the court’s conclusion. See Ariz.
R. Fam. Law P. 83(a)(1). Father contended that specific evidence, such as
the CAA’s report and an email exchange between Father and a school
counselor, contradicted the court’s findings. The court denied relief.

¶10 Father timely appealed. We have jurisdiction. A.R.S. § 12-
2101(A)(2).

DISCUSSION

¶11 As an initial matter, Father’s opening brief does not comply
with Rule 13. The brief does not include tables of contents and authorities,
and the argument section does not contain sufficient citations and
references to the record. See ARCAP 13(a)(1), (2), (7)(A). Although filing a
non-compliant opening brief may constitute waiver, we decline to find
waiver here because Father’s appeal involves the best interests of a child.
Cf. Nold v. Nold, 232 Ariz. 270, 273 ¶ 10 (App. 2013).

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¶12 Father argues the court erred by denying his Petition because
certain of the court’s factual findings are unsupported by the record. We
review the superior court’s parenting time order for abuse of discretion.
Gish v. Greyson, 253 Ariz. 437, 444 ¶ 31 (App. 2022). The court abuses its
discretion when it commits a legal error in reaching a discretionary decision
or makes decisions unsupported by the record. DeLuna v. Petitto, 247 Ariz.
420, 423 ¶ 9 (App. 2019). We accept the court’s factual findings unless
clearly erroneous. Id. We do not reweigh the evidence; we instead defer to
the court’s “determinations of witness credibility and the weight given to
conflicting evidence.” Lehn v. Al-Thanayyan, 246 Ariz. 277, 284 ¶ 20 (App.
2019).

¶13 When deciding whether to modify parenting time, “the
superior court must engage in a two-stage inquiry.” Backstrand v.
Backstrand, 250 Ariz. 339, 343 ¶ 14 (App. 2020). First, whether there has been
a material “change of circumstances materially affecting” the child’s
welfare. Id. Second, whether modification is in the child’s best interests.
Id.; see A.R.S. § 25-403(A). The superior court “has broad discretion to
determine whether a change of circumstances has occurred.” Pridgeon v.
Super. Ct., 134 Ariz. 177, 179 (1982).

I. Petition to Modify

¶14 Father first argues the court’s finding regarding Child’s
credibility is unsupported. The court found that Child was not a credible
witness based on the CAA’s testimony at the evidentiary hearing and a
“statement of the [C]hild’s school counselor[.]” The court also noted that
neither the CAA nor the Department found any evidence to corroborate
Child’s allegations.

¶15 Father challenges the court’s factual finding based on the
evidence presented, but he has not provided the transcripts from the
evidentiary hearing. So we presume they support the superior court’s
ruling. See Cullison v. City of Peoria, 120 Ariz. 165, 168 n.2 (1978); see also
Ariz. R. Civ. App. P. 11(c) (appellant has a duty to order transcripts of
relevant proceedings); Baker v. Baker, 183 Ariz. 70, 73 (App. 1995). This
presumption is consequential because, for example, Father focuses on the
CAA’s written report but disregards that the court also relied on the CAA’s
testimony in reaching the challenged finding. We presume that testimony
supports the court’s credibility finding.

¶16 Father also contends the school counselor’s statement does
not support the court’s finding because the counselor did not make a

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credibility determination. He contends the counselor’s email supports
Child’s credibility. In essence, Father disagrees with how the court viewed
and weighed specific evidence. Because we “defer to the superior court’s
factual findings unless they are clearly erroneous,” we will not reweigh
evidence the court properly considered. See Brucklier v. Brucklier, 253 Ariz.
579, 582 ¶ 10 (App. 2022); Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009)
(“Our duty on review does not include re-weighing conflicting evidence”
or judging “the credibility of the witnesses.”). All in all, Father invites us
to second guess the court’s credibility determination, which we will not do.

¶17 Furthermore, the school counselor’s statement was not the
only evidence the court relied on regarding Child’s credibility. The court
also considered the CAA’s testimony, the CAA’s investigation, and the
Department’s investigations, all of which support the court’s conclusion
that Child was not a credible witness. Father disagrees with the court’s
conclusion based on his view of the evidence, but he has not shown that the
court’s credibility finding was clearly erroneous.

¶18 Next, Father argues the court erred by characterizing
Mother’s alcohol test results as the only objective evidence addressing her
alleged abuse, and he asserts in conclusory fashion that doing so
“materially affected” the court’s analysis. Father contends the court’s
conclusion is unsupported because the CAA’s report “reflects interviews,
observations, and records review.” This is another instance where Father
merely disagrees with how the superior court weighed the evidence.

¶19 At bottom, neither of Father’s arguments shows that there
was insufficient evidence supporting the court’s conclusion that Father did
not meet his burden to show a material change in circumstances. In other
words, Father’s interpretation of the evidence notwithstanding, there is
sufficient evidence in the record supporting the court’s conclusion that
Mother did not abuse alcohol or physically abuse Child, and thus that there
had not been a material change in circumstances. We affirm the court’s
ruling denying Father’s Petition.

II. Rule 83 Motion

¶20 Father argues the court erred by denying his Rule 83 motion
“without addressing the contradictions presented[.]” We review a court’s
ruling on a motion to alter or amend for an abuse of discretion. Wisniewski
v. Dolecka, 251 Ariz. 240, 241 ¶ 5 (App. 2021). Under Rule 83, “[t]he court
may . . . alter or amend all or some of its rulings” if “the decision, findings
of fact, or judgment is not supported by the evidence or is contrary to law.”

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Ariz. R. Fam. Law P. 83(a)(1)(H). We have already concluded the court did
not err by denying Father’s Petition. We therefore also conclude the court
did not abuse its discretion by denying Father’s Rule 83 motion.

ATTORNEY FEES ON APPEAL

¶21 Mother requests attorney fees and costs on appeal under
A.R.S. § 25-324 and Arizona Rule of Civil Appellate Procedure 21. In our
discretion, we deny Mother’s request for attorney fees. But because she is
the prevailing party, we award her costs upon compliance with Arizona
Rule of Civil Appellate Procedure 21.

CONCLUSION

¶22 We affirm. Because we affirm the superior court’s ruling, we
deny as moot Father’s request to reassign this matter to a different superior
court judge.

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

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