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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     KAREN CURTIS, Petitioner/Appellee,

                                         v.

                 NATHAN THOMAS, Respondent/Appellant.


                            No. 1 CA-CV 18-0587 FC
                                 FILED 7-2-2019


            Appeal from the Superior Court in Maricopa County
                            No. FC2016-071340
               The Honorable Lisa Ann VandenBerg, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Adam C. Rieth, PLLC, Mesa
By Adam C. Rieth
Counsel for Petitioner/Appellee

Thomas Law Office PLC, Phoenix
By Ronald V. Thomas
Counsel for Respondent/Appellant
                           CURTIS v. THOMAS
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


P E R K I N S, Judge:

¶1           Nathan Thomas (“Father”) appeals the superior court’s order
denying and dismissing his unopposed petition to modify parenting time
and child support. For the following reasons, we vacate the dismissal and
remand for further proceedings in compliance with this decision.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           Father and Karen Curtis (“Mother”) entered into a consent
judgment and divorce decree (the “Decree”) awarding the parties joint legal
decision-making authority for their two minor children and setting
parenting time for Father in light of his active duty military status. The
Decree also provided that

      should there be any change or disagreement in the future
      regarding parenting time/access, the parties may first seek
      advice through the visitation/conciliation services, or any
      mutually agreeable mediator, prior to initiating any litigation
      in this matter.

(emphasis added). Under the Decree, Father is obligated to pay $1,086.14
per month in child support.

¶3           Two years later, Father simultaneously filed a motion for
temporary orders and a verified petition to modify parenting time and child
support. In his motion, Father requested a reduction in child support and
an alternating-week parenting time because he has retired from active
military duty.

¶4             Father’s petition also requested a permanent modification of
parenting time and child support due to his military retirement and
permanent relocation to Phoenix, a substantial and continuing change of
circumstances. Father’s petition is missing a page which this Court
assumes, under the unique circumstances of this case, has the factual basis
for Father’s allegations of a substantial and continuing change. It appears


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                            Decision of the Court

Father did not know his petition was missing a page in the superior court’s
electronic records until Mother pointed it out on appeal.

¶5            Mother did not object or respond to Father’s motion or
petition. The superior court denied and dismissed Father’s unopposed
motion and petition, citing two reasons: (1) the Decree required the parties
participate in mediation before filing for modification; and (2) Father’s
petition did not “state facts establishing a substantial and continuing
change of circumstances that materially affects the welfare of the child” as
required by Arizona Revised Statutes (“A.R.S.”) section 25-411(A). Father
now appeals.

                               DISCUSSION

¶6            On appeal, Mother argues Father failed to file the required
order to appear and affidavit of financial information. Mother additionally
argues that “may” means “shall” in the parties’ Decree. Mother failed to
raise these issues below despite having the opportunity to do so. Thus,
Mother’s arguments on appeal are waived. Romero v. Sw. Ambulance, 211
Ariz. 200, 204, ¶ 7 (App. 2005) (issues not raised before the superior court
are generally waived on appeal).

¶7           Father argues the superior court erred in its interpretation of
the Decree. Father also argues the superior court abused its discretion in
finding no substantial and continuing change in circumstances to support
modifying parenting time and child support.

I.     Interpretation of the Divorce Decree

¶8              We review the interpretation of a dissolution decree de novo.
Merrill v. Merrill, 230 Ariz. 369, 372, ¶ 7 (App. 2012). In interpreting a
dissolution decree, we look to the text of the decree without parol evidence.
Id. at 374, ¶ 14.

¶9            The Decree’s plain language provides that the parties may
participate in mediation before litigating. Generally, the use of the word
“may” indicates permissive intent while “shall” denotes a mandatory
provision. City of Chandler v. Ariz. Dep't of Transp., 216 Ariz. 435, 438–39,
¶ 10 (App. 2007). We apply the ordinary meaning of words used in a
dissolution decree unless the context indicates otherwise. See Stout v. Taylor,
233 Ariz. 275, 278, ¶ 12 (App. 2013) (applying ordinary meaning of words
and phrases “unless the context reveals special meaning” in interpreting
rules and statutes). Here, the context of the Decree supports applying the
ordinary meaning of “may.”


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¶10              The Decree uses the word “shall” in many places, including
in the paragraphs surrounding the mediation clause. For example, in the
two paragraphs preceding the mediation clause, the Decree provides that
the parties “shall enjoy joint legal decision making authority” and that
“while Father is out of state for his military duty, he shall have parenting
time” (emphasis added). Likewise, in the two paragraphs immediately
following the mediation paragraph, the Decree provides that the parties
“shall communicate primarily via email exchanges” and “shall equally
divide the cost of all transportation for Father’s parenting time.” (emphasis
added). To interpret the word “may” in the mediation clause as mandatory
rather than permissive would render the distinction between the two words
meaningless. See Walter v. Wilkinson, 198 Ariz. 431, 432, ¶ 7 (App. 2000) (“If
a statute employs both mandatory and discretionary terms, we may infer
. . . that each term carries its ordinary meaning.”). Thus, the superior court
erred in interpreting the Decree as requiring mediation before petitioning
to modify.

II.    Substantial and Continuing Change in Circumstances

¶11           We review an order regarding the modification of parenting
time for an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525,
¶ 3 (App. 2002). To modify a custody or parenting time order, the family
court must determine that a “material change in circumstances affecting the
welfare of the child” has occurred. Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17
(App. 2015). The family court has broad discretion to determine whether a
material change in circumstance has occurred. Canty v. Canty, 178 Ariz. 443,
448 (App. 1994).

¶12           Whether the superior court had a copy of the entire petition
is unclear. The version of Father’s petition in the electronic record shows
enumerated page 1 ending mid-sentence in paragraph 3, immediately
followed by enumerated page 3, starting with paragraph 8. Page 4 contains
counsel’s signature and page 5 contains Father’s verification. The petition
is obviously missing page 2. Father alleges in his reply brief that he sent the
court a copy of the conformed petition, including the missing page, and that
the clerk erroneously excluded the page.

¶13           Father alleges he informed the court, presumably on page 2,
that he retired from active military duty and had permanently returned to
the Phoenix area. To the extent Father’s petition did not allege sufficient
facts due to the missing page, we note that it was obvious the petition was
missing a substantive page. Because the court did not acknowledge the
clearly missing page, we assume the court had a copy of the full petition.


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¶14           Moreover, no one disputes that Father’s simultaneously-filed
motion for temporary orders alleged that he retired from active military
duty and would be living within minutes of Mother. Mother did not oppose
Father’s petition or motion or object to any of Father’s factual allegations.
The record shows a material change in circumstances occurred when Father
retired and permanently returned to Phoenix.

¶15          The superior court did not specifically address Father’s
request to modify child support. Father alleged that the parties were
informally sharing alternating-week parenting time. Father also alleged
increased incomes for both parties. Father presented a colorable claim to
support a substantial and continuing change in circumstances under A.R.S.
§ 25-327(A).

¶16           Therefore, the superior court abused its discretion in
determining that no material change in circumstances had occurred, and in
not holding a hearing to determine whether Father’s child support
obligation should be modified. We vacate the dismissal of Father’s motion
and petition and remand for the court to hold a hearing pursuant to A.R.S.
§ 25-411(L), which requires the court to “set a date for hearing on why the
requested modification should not be granted” upon finding cause for a
hearing.

III.   Attorneys’ Fees and Costs

¶17           Father requests his attorneys’ fees on appeal under A.R.S. §§
25-324 and -327(A), as well as the Decree, which provides that if legal
proceedings are commenced to construe or enforce the terms of the Decree,
“the prevailing Party in any such action shall recover his or her attorneys’
fees.” Mother also requests an award of fees under § 25-324 pursuant to
Arizona Rule of Civil Appellate Procedure (“ARCAP”) 21.

¶18           The prevailing-party provision in the Decree does not control
our award of fees on appeal. Bobrow v. Bobrow, 241 Ariz. 592, 598–99, ¶¶ 30–
31 (App. 2017) (citing Edsall v. Superior Court In & For Pima Cty., 143 Ariz.
240, 247–49 (1984)). Instead, we determine whether to award fees under
A.R.S. § 25-324. After considering the reasonableness of the parties’
respective arguments on appeal and the financial disparity between the
parties, we decline to award either party their attorneys’ fees.




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                          Decision of the Court

                              CONCLUSION

¶19           For the foregoing reasons, we vacate the superior court’s
dismissal of Father’s petition and motion and remand for actions consistent
with this decision.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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