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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             DEON P. NICHOLAS,
                              Petitioner/Appellee,

                                         v.

                           PHILLIP H. NICHOLAS,
                            Respondent/Appellant.

                          No. 1 CA-CV 15-0135 FC A
                               FILED 10-13-2015


            Appeal from the Superior Court in Maricopa County
                           No. FC2012-004193
                  The Honorable Jay R. Adleman, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Laura Gillis, Phoenix
By Laura E. Gillis
Co-Counsel for Petitioner/Appellee

Gillespie, Shields, Durrant & Goldfarb, Mesa
By Mark A. Shields
Co-Counsel for Petitioner/Appellee
The Murray Law Offices, PC, Scottsdale
By Stanley D. Murray
Counsel for Respondent/Appellant



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.


J O H N S E N, Judge:

¶1            Phillip Nicholas ("Father") appeals from the superior court's
order granting a request by Deon Nicholas ("Mother") to modify parenting
time and its order granting him partial attorney's fees. For the following
reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Mother and Father have three minor children. In June 2013,
the superior court issued a dissolution decree ("Decree") awarding joint
legal decision-making authority. It further ordered that "the minor
children shall remain in California with Mother until or about July 1, 2014
when Father retires from the Military and relocates to Arizona thereafter,
at which time the children shall be returned to Arizona."

¶3            Less than a year after the court issued the Decree, Mother
filed a petition (the "Petition") asking the court to set aside its legal
decision-making order for lack of subject matter jurisdiction. In the
alternative, she requested to be permitted to relocate to California, where
she and the children were living, because of an asserted substantial and
continuing change in circumstances.

¶4            After ascertaining its jurisdiction and taking evidence, the
court granted Mother's request to relocate the children to California. The
court issued a long-distance parenting plan that designated Mother as the
primary residential parent and established a visitation schedule for Father.




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                          Decision of the Court

¶5            Father timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2015) and
-2101(A)(1) (2015).1

                              DISCUSSION

A.    Subject Matter Jurisdiction.

¶6            Father argues the superior court lacked subject matter
jurisdiction to consider Mother's motion to relocate because Mother's
petition was premature. Under A.R.S. § 25-411(A) (2015),

      [a] person shall not make a motion to modify a legal
      decision-making or parenting time decree earlier than one
      year after its date, unless the court permits it to be made on
      the basis of affidavits that there is reason to believe the
      child's present environment may seriously endanger the
      child's physical, mental, moral or emotional health.

Because Mother did not wait a full year to file her Petition and there are
no allegations about endangerment, Father contends the court lacked
subject matter jurisdiction to enter an order modifying the Decree.

¶7             We review de novo whether the superior court had
jurisdiction to modify a parenting time order. See In re Marriage of Dorman,
198 Ariz. 298, 301, ¶ 6 (App. 2000).

¶8            Subject matter jurisdiction is the court's "statutory or
constitutional power to hear and determine a particular type of case."
State v. Maldonado, 223 Ariz. 309, 311, ¶ 14 (2010). By statute, the superior
court has subject matter jurisdiction to hear all matters related to marital
and domestic relations, including legal decision-making and parenting
time. See A.R.S. §§ 25-311(A) (2015) (original jurisdiction of marital and
domestic relations matters) and 25-402(A) (2015) (court must confirm
compliance with "the uniform child custody jurisdiction and enforcement
act" before conducting a proceeding involving legal decision-making or
parenting time).

¶9           Contrary to Father's assertion, § 25-411 does not establish the
prerequisites for subject matter jurisdiction; it merely sets out the

1     Absent material revision after the relevant date, we cite a statute's
current version.



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procedures required for modifying legal decision-making or parenting
time. See Dorman, 198 Ariz. at 302, ¶¶ 9-10 ("language of § 25-411 does not
indicate an intent to limit the jurisdiction granted by the constitution or
the jurisdictional statutes"). For that reason, the requirements of § 25-411
are procedural, not jurisdictional. Although Dorman analyzed an earlier
version of the statute that did not contain the one-year reference, the
distinction is not material. As Dorman held, and as relevant here, the
statute only sets out how a party may file a petition to modify custody; it
does not preclude the court's jurisdiction to hear a petition that does not
meet the statutory prerequisites. Id.

B.    Sufficiency of Evidence.

¶10            Citing A.R.S. § 25-411(L), Father argues the Petition did not
contain enough facts to allow the superior court to set a hearing on
relocation. He contends that the only "substantial and continuing change
in circumstances" alleged in the Petition was that Mother had remarried
and was living in California with her new husband. This court, however,
will not review asserted prehearing procedural errors under § 25-411 after
the superior court has conducted a hearing and reached a decision on the
merits. See Dorman, 198 Ariz. at 303, ¶ 11 (once superior court has
"conducted an evidentiary hearing, reviewed the merits of the case, and
determined there was sufficient cause to modify physical custody[,] [i]t is
too late to obtain effective appellate review of alleged noncompliance with
the prehearing procedural statements of § 25-411.").

¶11           Father's brief also argues insufficient evidence supported the
court's decision to grant Mother's petition. We review the superior court's
decisions about custody and parenting time for an abuse of discretion.
Hart v. Hart, 220 Ariz. 183, 185, ¶ 8 (App. 2009); Owen v. Blackhawk, 206
Ariz. 418, 420, ¶ 7 (App. 2003). "In considering a motion for change of
custody, the court must initially determine whether a change of
circumstances has occurred since the last custody order." Pridgeon v.
Superior Court, 134 Ariz. 177, 179 (1982). Once the court finds a change of
circumstances, it then addresses whether a change in custody would be in
the child's best interest. Id. The superior court has broad discretion to
decide whether a change of circumstances has occurred. Id. We will
affirm the court's ruling on parenting time unless the record is devoid of
competent evidence to support the decision. See Borg v. Borg, 3 Ariz. App.
274, 277 (1966).

¶12         In response to Father's argument about evidence concerning
a change in circumstances, Mother argues she did not need to prove a


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                          Decision of the Court

change of circumstances because her Petition only sought to modify
parenting time, not legal decision-making. See A.R.S. § 25-411(J) (court
may modify parenting time "whenever modification would serve the best
interest of the child").2

¶13          The Decree gave Mother physical custody of the children by
designating her the primary residential parent, pending Father's
retirement and return to Arizona. See Owen, 206 Ariz. at 421, ¶ 11 ("An
order designating one parent as primary residential parent constitutes an
order regarding physical custody . . . ."). Because Mother's Petition asked
the superior court to allow her to continue to be the primary residential
parent in California, contrary to the requirement in the Decree that the
children would live in Arizona after Father retired, the Petition effectively
sought to change the physical custody order, not just parenting time.

¶14            Following entry of the Decree, Mother married a man who
lives in California, and she and her husband have a child together. The
court found that both parents have close relationships with the children.
It also found that their children have a close relationship with the children
of Mother's new husband, who live with him half the time in a 4,000
square-foot home. It found that Father lives in a two-bedroom apartment
in Tucson. Although the court noted Father could obtain a larger
residence if the children were to return to Arizona, it was "uncertain what
specific arrangements (school, daycare, parenting exchanges, etc.) would
be necessitated for the children if they returned to an undetermined
location in either Maricopa County or Pima County."                The court
concluded:

      The evidence suggests that the temporary "relocation" to
      California has been beneficial for the children. They seem to
      be thriving in school and in the community. Mother is now
      a homemaker who is able to provide them with their daily
      care, transportation to school, and all of their usual needs.




2       When the legislature amended Title 25, Chapter 4 (effective January
1, 2013) it replaced the terms "physical custody" and "parental visitation"
with "parenting time." See 2012 Ariz. Sess. Laws, ch. 309, § 4 (2d Reg.
Sess.) (S.B. 1127); S. Fact Sheet (Final Amended, May 15, 2012), S.B. 1127,
58th Leg., 2d Reg. Sess. (Ariz. 2012).




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                 NICHOLAS v. NICHOLAS
                   Decision of the Court

There is no dispute that the children apparently have a good
relationship with their stepfather. . . . He is able to meet the
family's financial needs.

                        *      *      *

[T]he children's "relocation" to California would actually
promote their stability, as they have been residing in
Victorville for more than two years.

The children have never lived in Pima County, and it is
entirely irrational to deny the "relocation" to California and
order their "return" to Pima County, given that they never
lived there previously. If the children were ordered to
return to Maricopa County, they would still reside
approximately 100 miles away from their Father. This result
seems similarly illogical.

                        *      *      *

The Court has immense respect for Father's service to our
country during his 26 years in the military. When the
marriage declined in 2011-2012, he was faced with an
unfortunate dilemma that is all too common for our service
members. Although he remained stationed in Virginia (and
later Tennessee), he consented to Mother's relocation with
the minor children to the state of Arizona.

Mother soon moved to California without any prior
discussion with Father. Her conduct in that regard was
entirely inappropriate.

The fact remains, though, that more than two years after
their move to California, the children are clearly established
in their new community. They seem to be thriving in school,
extra-curricular activities, and with their step-siblings.
While Father has now moved to Arizona, he did not even
return within 100 miles of the children's former community
in Maricopa County.

At this point, it would not serve the best interests of the
children by affirming a return to the state of Arizona. It is
far more appropriate for them to remain in Victorville,
California.


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                        NICHOLAS v. NICHOLAS
                          Decision of the Court

¶15           The record contains sufficient evidence to support the
superior court's exercise of discretion. Although Mother already had
moved to California by the time of the Decree, the court could conclude
that Mother's subsequent marriage and the children's adjustment to their
school and the children's strengthened relationship with their step-family
constituted changed circumstances. Moreover, the court noted that upon
his retirement from the military, rather than move to the Phoenix area
where he owns a home, Father moved to the Tucson area. The court
termed that as "an unfortunate development," noting that the children
have never lived in Tucson. In holding that it would be in the children's
best interests to remain in California, the court also noted that Father
presented "no evidence regarding their potential living arrangements,
school, daycare, etc." if the children were to return to Arizona.

¶16          Although Father argues that the only "change of
circumstances" the superior court could consider were those that occurred
before Mother filed the Petition, he cites no legal authority for that
proposition, nor does he say how he was prejudiced by the court's
consideration of evidence concerning the children's status at the time of
the hearing. See Dorman, 198 Ariz. at 303, ¶ 12 (order will not be reversed
for noncompliance with § 25-411 "absent a showing of prejudice").

¶17           Father also argues the court should have dismissed the
Petition because Mother improperly moved to California in violation of a
preliminary injunction. Citing cases holding that a parent may not
deprive an Arizona court of jurisdiction over a child by wrongfully
removing the child to another state, Father argues the superior court erred
by approving the relocation based in part on circumstances that resulted
from Mother's unilateral and unauthorized decision to take the children to
California. The overriding principle guiding child custody, however, is
"the welfare and best interest of the child . . . as measured by the particular
facts and circumstances of each case before the courts." Funk v. Ossman,
150 Ariz. 578, 581 (App. 1986). The superior court took evidence and
made findings on the appropriate factors set out in A.R.S. § 25-403 (2015),
including the children's adjustment to home, school and community.3 It
was not improper for the court to consider the children's circumstances in
California, where they currently live, in determining their best interests.

¶18          The superior court did not err in finding sufficient changed
circumstances and that the children's best interests would be served by

3      Father does not challenge the best interest findings on appeal.



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                          NICHOLAS v. NICHOLAS
                            Decision of the Court

allowing them to remain in California with Mother. We therefore deny
Father's request to vacate the superior court's order.

C.     Attorney's Fees.

¶19           Father contends the superior court abused its discretion by
failing to award all of his attorney's fees. We review an award of
attorney's fees for an abuse of discretion. Magee v. Magee, 206 Ariz. 589,
590, ¶ 6 (App. 2004).

¶20           Section 25-324 (2015) provides:

       The court from time to time, after considering the financial
       resources of both parties and the reasonableness of the
       positions each party has taken throughout the proceedings,
       may order a party to pay a reasonable amount to the other
       party for the costs and expenses of maintaining or defending
       any proceeding under this chapter or chapter 4, article 1 of
       this title.

¶21           In considering Father's request for fees, the court found a
substantial disparity of financial resources between Father, who is
employed, and Mother, who is not. It also determined that Mother acted
unreasonably by moving to California without notifying Father and by
failing to discuss with Father her intent not to return to Arizona.
Accordingly, the court decided that it would be appropriate to grant
Father only a portion of attorney's fees. From the record, it is clear that the
court considered the two prongs of § 25-324, the financial resources of
both parties and the reasonableness of the position of both parties. The
court did not abuse its discretion in awarding Father only a portion of his
attorney's fees.

D.     Attorney's Fees on Appeal.

¶22           Both Mother and Father request their attorney's fees and
costs incurred on appeal pursuant to § 25-324(A). In relevant part, that
provision allows a court to award attorney's fees "after considering the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings." We have considered
both prongs of § 25-324(A), and we generally agree with the superior
court that although Father has greater financial resources, this relocation
dispute was triggered by Mother's unreasonable conduct. Accordingly,
under the unique circumstances of this case, we exercise our discretion to
award Father a portion of his reasonable attorney's fees on appeal.


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                        NICHOLAS v. NICHOLAS
                          Decision of the Court

                              CONCLUSION

¶23           For the reasons set forth above, the superior court did not err
in modifying the parenting time order and granting Father a portion of his
attorney's fees. Contingent on their respective compliance with Arizona
Rule of Civil Appellate Procedure 21, we award Mother her costs of
appeal and Father a portion of his reasonable attorney's fees.




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