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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               APRIL M. ZIMMERMAN, Petitioner/Appellee,

                                        v.

              ERIC M. ZIMMERMAN, Respondent/Appellant.

                              No. CV 14-0756 FC
                                FILED 9-29-2015


           Appeal from the Superior Court in Maricopa County
                          No. FC2012-002486
                The Honorable Michael J. Herrod, Judge

      AFFIRMED IN PART, REVERSED IN PART; REMANDED


                                   COUNSEL

Riggs Ellsworth & Porter, PLC, Mesa
By Paul C. Riggs, Spencer T. Hale
Counsel for Respondent/Appellant

Scott L. Patterson, PLLC, Tempe
By Scott L. Patterson
Counsel for Petitioner/Appellee
                    ZIMMERMAN v. ZIMMERMAN
                        Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


P O R T L E Y, Judge:

¶1            Eric Zimmerman (“Father”) appeals an order denying his
petition to amend legal decision-making, parenting time, and child support.
For the following reasons, we affirm in part and reverse in part.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Father was divorced from April Zimmerman (“Mother”) in
Texas on January 8, 2010. In the final decree, Mother was designated as the
sole managing conservator of their four children.1 The decree also
established Father’s parenting time and monthly child support.2 Sometime
later, each parent moved to Arizona, and Mother domesticated the Texas
decree in Maricopa County in March 2012. She subsequently allowed
Father to have more parenting time, but a few months after Father exercised
the additional parenting time, one of the children started experiencing
anxiety. Mother thereafter limited Father’s parenting time to the schedule
listed in the Texas decree.

¶3            Father then filed a petition to amend legal decision-making,
parenting time, and child support. After discovery and an evidentiary
hearing, the family court denied the petition and affirmed the original
Texas decree. The family court also awarded Mother attorney’s fees. Father
appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(2).3




1 This is comparable to Arizona’s sole legal decision-making. See generally,
Anne E. Melley, Types of Conservatorship Arrangements, 4 Tex. Fam. L. Serv.
§ 29:12 (2007).
2 Although Father asserts that the monthly child support included spousal

maintenance, the decree labeled the entire amount as child support.
3 We cite the current version of the statute unless otherwise noted.



                                     2
                      ZIMMERMAN v. ZIMMERMAN
                          Decision of the Court

                                DISCUSSION

I.     Standard of Review

¶4             “‘We review the [family] court’s decision regarding child
custody for an abuse of discretion.’” Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11,
219 P.3d 258, 261 (App. 2009) (quoting Owen v. Blackhawk, 206 Ariz. 418, 420,
¶ 7, 79 P.3d 667, 669 (App. 2003)) (alterations in Hurd). “An abuse of
discretion exists when the [trial] record, viewed in the light most favorable
to upholding the [family] court’s decision, is devoid of competent evidence
to support the decision.” Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108,
110 (1999) (internal citation and quotation marks omitted). We do not
reweigh the evidence, however, because the family court is better situated
to determine the facts and the credibility of witnesses. Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004); Gutierrez
v. Gutierrez, 193 Ariz. 343, 347–48, ¶ 13, 972 P.2d 676, 680–81 (App. 1998).

II.    Legal decision-making and parenting time

¶5           Father contends that the family court abused its discretion by
failing to make specific findings about the children’s best interests when
denying his request to modify the existing legal decision-making and
parenting-time orders. We disagree.

¶6              When making or modifying a custody or legal decision-
making determination, the family court must consider and make best
interests findings based on factors listed in A.R.S. § 25–403(A) relating to
the child’s physical and emotional well-being.                See A.R.S. §§
25-403(B), -403.01, -411(A); Baker v. Meyer, 237 Ariz. 112, 116, ¶¶ 10-11, 346
P.3d 998, 1002 (App. 2015). Moreover, when determining whether to grant
sole or joint legal decision-making, the court not only considers the § 25-403
factors, but also four factors in § 25-403.01(B):

       1. The agreement or lack of an agreement by the parents
       regarding joint legal decision-making.

       2. Whether a parent’s lack of an agreement is unreasonable or
       is influenced by an issue not related to the child’s best
       interests.

       3. The past, present and future abilities of the parents to
       cooperate in decision-making about the child to the extent
       required by the order of joint legal decision-making.



                                        3
                      ZIMMERMAN v. ZIMMERMAN
                          Decision of the Court

       4. Whether the joint legal decision-making arrangement is
       logistically possible.

¶7           And when a court creates or modifies a parenting plan, the
plan must include:

       1. A designation of the legal decision-making as joint or sole
       as defined in § 25-401.

       2. Each parent’s rights and responsibilities for the personal
       care of the child and for decisions in areas such as education,
       health care and religious training.

       3. A practical schedule of parenting time for the child,
       including holidays and school vacations.

       4. A procedure for the exchanges of the child, including
       location and responsibility for transportation.

       5. A procedure by which proposed changes, . . . disputes and
       alleged breaches may be mediated or resolved, which may
       include the use of conciliation services or private counseling.

       6. A procedure for periodic review of the plan’s terms by the
       parents.

       7. A procedure for communicating with each other about the
       child, including methods and frequency.

       8. A statement that each party has read, understands and will
       abide by the notification requirements of § 25-403.05,
       subsection B.

A.R.S. § 25-403.02(C).

¶8             In resolving Father’s petition, the family court acknowledged
the relevant statutory requirement, and then listed and discussed each of
the § 25–403 factors. In fact, the court made specific findings and explained
its reasons regarding the relevant statutory factors and the children’s best
interests. Accordingly, the court made adequate best interests findings
under A.R.S. § 25–403. See Owen, 206 Ariz. at 421-22, ¶ 12, 79 P.3d at 670-
71; In re Marriage of Diezsi, 201 Ariz. 524, 525-26, ¶ 4, 38 P.3d 1189, 1191 (App.
2002).




                                        4
                     ZIMMERMAN v. ZIMMERMAN
                         Decision of the Court

¶9             Additionally, in resolving Father’s request to modify the legal
decision-making order, the court considered and discussed each of the
§ 25–403.01 factors. Although the ruling implicitly noted that there was no
agreement about joint legal decision-making, see A.R.S. § 25–403.01(B)(1),
the court found that “when conflict has been increased, Mother and Father
are less able to cooperate effectively in decision-making.” See A.R.S. § 25-
403.01(B)(3). The court also noted that “[i]t is unclear whether the present
level of conflict can be reduced sufficiently to allow joint legal decision-
making.” See A.R.S. § 25-403.01(B)(4).

¶10           Finally, the court’s parenting plan included each of the
required elements. See A.R.S. § 25-403.02(C). Therefore, the court
sufficiently considered the statutory factors, and we find no abuse of
discretion.

III.   Child support

¶11            Father also asserts that the family court erred because there
was a change in circumstances that justified modifying the amount set forth
in the Texas child support award. A modification of child support may be
warranted when there is “[a] substantial variance between an existing child
support order and an amount resulting from application of the new
guidelines . . . .” A.R.S. § 25-320 app. § 29(B) (2015) (“Guidelines”). “A
variance of at least 15% would be evidence of a substantial and continuing
change of circumstances.” Id. A child support order can only be modified
if the party seeking the modification demonstrates a substantial and
continuing change in circumstances. A.R.S. § 25–327(A); Jenkins v. Jenkins,
215 Ariz. 35, 39, ¶ 16, 156 P.3d 1140, 1144 (App. 2007) (citations omitted).
“The decision to modify an award of child support rests within the sound
discretion of the [family] court and, absent an abuse of that discretion, will
not be disturbed on appeal.” Little, 193 Ariz. at 520, ¶ 5, 975 P.2d at 110.

¶12           The testimony presented at the evidentiary hearing
demonstrated a substantial and continuing change of circumstances that
required the family court to consider modifying child support. First, both
parties have relocated to Arizona. Second, Father’s monthly income
increased from $7,947 to $10,833. And third, Mother had part-time
employment.

¶13           After the court denied Father’s modification petition, he filed
a motion to alter or amend the court’s order and attached two child support
worksheets. He asserted that based on the worksheets, the child support
award should be $735.95, if both parents were the primary residential



                                      5
                      ZIMMERMAN v. ZIMMERMAN
                          Decision of the Court

parents, or $1,490.62, if mother was the primary residential parent. Both of
Father’s worksheets, however, reduced his income because he is now
supporting four stepchildren. Although it is laudatory that Father is
supporting his stepchildren, that support cannot be considered when
determining Father’s obligation to support his own children or when
modifying child support. See Guidelines § 2(D) (“A parent’s legal duty is
to support his or her natural or adopted children. The ‘support’ of other
persons such as stepchildren . . . is deemed voluntary and is not a reason
for an adjustment in the amount of child support determined under the
guidelines.”).

¶14           Although Mother did not seek an increase in child support
based on Father’s increased income, Father requested a modification and
renewed his request by filing a motion to amend the court’s order. Because
the record demonstrates a substantial and continuing change from the 2010
divorce, the family court was required by the Guidelines to examine the
gross income of both parents, even if the court has to impute full-time
income to Mother at minimum wage, along with the other relevant factors,
to determine whether there has been at least a 15% variance between the
Texas child support order and the Arizona Child Support Guidelines. See
Guidelines § 29(B). If, after the calculation, modification is warranted, the
child support award should be modified unless the court makes specific
findings to support a deviation, even if it maintains the current award. See
Guidelines § 20.

¶15           In resolving the child support modification, the family court
did not determine whether there was a 15% variance. The court was
required to “run the numbers” to determine what the support should have
been and then determine whether a deviation was appropriate by listing
specific findings. Accordingly, we reverse the order denying any child
support modification, and remand to allow the court to consider all the
relevant factors under the Guidelines.

IV.    Attorney’s fees

¶16          Finally, Father contends that the family court erred by
awarding Mother attorney’s fees. Specifically, Father asserts that the court
did not make proper findings or consider that Mother receives student
loans. We disagree.

¶17           We review an award of attorney’s fees pursuant to § 25–324
for an abuse of discretion. In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 26,
5 P.3d 911, 917. Here, after briefing, the court granted Mother $25,000 in



                                       6
                     ZIMMERMAN v. ZIMMERMAN
                         Decision of the Court

attorney’s fees. Father requested specific findings about the attorney’s fees,
and the court made specific findings. The court was aware of the
reasonableness of the positions the parties took throughout the proceedings
as well as their financial circumstances. We find no abuse of discretion in
the attorney’s fee ruling.

¶18           Both parties request attorney’s fees and costs on appeal. After
considering the parties’ financial resources and the reasonableness of their
positions on appeal, in the exercise of our discretion, we deny both parties
request for attorney’s fees and costs on appeal.

                              CONCLUSION

¶19          For the following reasons, we affirm the family court’s order
denying Father’s petition to amend legal decision-making, parenting time,
but reverse the child support ruling and remand for a recalculation and
determination of child support.




                                  :ama




                                         7
