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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  KARLA SUE GRUBB, Petitioner/Appellant,

                                         v.

             TRENT NEAL THRAILKILL, Respondent/Appellee.

                            No. 1 CA-CV 15-0761 FC
                                FILED 9-15-2016


            Appeal from the Superior Court in Maricopa County
            Nos. FC2006-050409, FC2012-002703 (Consolidated)
              The Honorable Jennifer C. Ryan-Touhill, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Karla Sue Grubb, Tempe
Petitioner/Appellant

Trent Neal Thrailkill, Mesa
Respondent/Appellee
                          GRUBB v. THRAILKILL
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Chief Judge Michael J. Brown
joined.


J O N E S, Judge:

¶1            Karla Grubb (Mother) appeals the family court’s order: (1)
dismissing her petition to modify legal decision-making authority and
parenting time, and (2) awarding attorneys’ fees to Trent Thrailkill (Father).
For the following reasons, we lack jurisdiction to review the award of fees,
vacate the order of dismissal, and remand for a hearing on the merits of
Mother’s petition.1

                 FACTS AND PROCEDURAL HISTORY

¶2            Mother and Father were divorced in 2012. Within the decree,
Father was awarded sole legal custody of the parties’ only child in common
(Child) and designated the primary residential parent. The family court
granted Mother supervised parenting time until she “ha[d] six months of
clean drug results through TASC,” after which she could petition the court
for unsupervised parenting time. Father later petitioned for modification
of parenting time, and, following an evidentiary hearing in July 2014, the
court entered an order suspending Mother’s parenting time until she
passed three consecutive weekly drug tests. The court added “[o]nce
Mother passes three consecutive weekly random tests at TASC, Mother
shall have supervised parenting time.” As a practical matter, while the
record does not appear to indicate the court terminated Mother’s
supervised parenting time, the court’s order suspended visitation between
Mother and Child with its renewal contingent upon Mother’s provision of
three consecutive, clean weekly drug tests.


1      Father did not file an answering brief. When a debatable issue exists
and an appellee fails to file an answering brief, we may consider such
failure a confession of error. See Hodai v. City of Tucson, 239 Ariz. 34, 45,
¶ 36 (App. 2016) (citing In re 1996 Nissan Sentra, 201 Ariz. 114, 117, ¶ 7 (App.
2001)). However, we are not required to do so and, in our discretion,
address the substance of Mother’s appeal. Id. (citing Savord v. Morton, 235
Ariz. 256, 259, ¶ 1 (App. 2014)).


                                       2
                          GRUBB v. THRAILKILL
                           Decision of the Court


¶3            In October 2014, Mother, in propia persona, filed a “Request For
Ruling Regarding Prescription For Adderall,” seeking a determination that
any positive drug test results for amphetamine were the product of her
prescribed and lawful use of Adderall. She additionally attached both the
prescription for Adderall and records of her test results. The family court
ordered Mother to submit to ETG/alcohol testing instead of full screen
testing at TASC. After Father objected on the grounds he had not been
provided notice of Mother’s request, the court vacated the order in its
entirety.

¶4             In February 2015, Mother, again as a self-represented litigant,
filed a “Request For Ruling To End The Supervised Visitation
Requirement,” stating she had “submitted to full-panel random weekly
urine tests at TASC from Aug 2014 to Jan 2015.”2 Father disputed Mother’s
clean drug tests and objected to the form of Mother’s request, contending
she should have filed a petition to modify parenting time rather than a
request for ruling. In April 2015, after the matter was fully briefed, the
family court dismissed Mother’s request and ordered she pass three
consecutive weekly random tests through TASC before it would modify her
parenting time. At this juncture, the record contained orders requiring
Mother complete three consecutive, clean weekly drug tests both: (1) to
continue exercising supervised visitation, and (2) “prior to any
modification of her parenting time.”

¶5               In June 2015, Mother, through counsel, filed a petition to
modify legal decision-making and parenting time. Citing the 2012 divorce
decree, Mother specifically requested joint legal decision-making authority
and unsupervised visitation on the grounds that she had completed six
months of drug-free testing. Mother attached three consecutive weekly
TASC Drug Detection Laboratory Reports; one was negative for any
substances and the other two were positive for amphetamine. She also
attached a letter from her physician confirming she had a lawful
prescription for Adderall and an email from a TASC liaison explaining that
her “Adderall prescription could certainly cause a positive result for
amphetamine.” Father then filed a motion to dismiss, arguing that
“[w]hether or not Mother is testing positive for a prescription of Adderall
. . . is irrelevant. The reality is that Mother is a poly-substance abuser who
can . . . abuse prescription drugs as well.”



2    It appears from the record on appeal that such testing occurred, at a
minimum, from the July 2014 order through January 2015.


                                      3
                          GRUBB v. THRAILKILL
                           Decision of the Court
¶6            Without awaiting a response, the family court issued an order
to appear at a resolution management conference (RMC) scheduled for
September 25, 2015. After Mother filed a response to Father’s motion to
dismiss, the court, on its own motion, rescheduled the RMC for October 8,
2015. When Father advised he had a calendar conflict with that date, the
court vacated the RMC and dismissed Mother’s petition. Within its five-
page order, the court stated:

       On July 29, 2014, the Court ordered Mother to submit to
       random, weekly UA testing. Once Mother had three
       consecutive weeks of clean tests, Mother could ask for
       supervised time with the minor child. This Order makes no
       reference to unsupervised time. . . . Mother has asked this
       Court to modify her parenting time and rescind the order for
       supervision. When Mother first made this request in
       February 2015, Father argued Mother had failed to comply
       with both prior court orders and procedural requirements in
       her requests; the Court agreed with Father and dismissed
       Mother’s action. Mother again makes her request for
       modification in July 2015, after Mother provided three
       consecutive clean drug tests. Mother has misunderstood
       prior Court Orders; the three clean drug tests would allow
       Mother to have supervised time with her daughter, not
       provide a basis for modification.

¶7            The family court thus relied entirely upon its July 2014 order
without explaining, clarifying, or even referencing its subsequent April
2015 order that seemingly permitted modification of parenting time after
Mother provided three consecutive, clean weekly tests through TASC. The
court also granted Father’s request for attorneys’ fees and directed he
provide supporting documentation for the particular amount sought.
Mother filed a notice of appeal on October 22, 2015. On November 13, 2015,
after reviewing the documentation submitted by Father, the court entered
an order awarding Father his attorneys’ fees in the amount of $1733.92.

                              JURISDICTION

¶8             Mother timely appealed the family court’s dismissal of her
petition for modification but did not timely file a notice of appeal from the
court’s order granting Father his attorneys’ fees. This Court has an
independent duty to examine its own jurisdiction. Riendeau v. Wal-Mart
Stores, Inc., 223 Ariz. 540, 541, ¶ 4 (App. 2010) (citing Abril v. Harris, 157
Ariz. 78, 80 (App. 1987)). Because appellate jurisdiction is defined by
statute, we must dismiss any portion of an appeal for which we do not have


                                      4
                           GRUBB v. THRAILKILL
                            Decision of the Court
jurisdiction. See, e.g., Natale v. Natale, 234 Ariz. 507, 509, ¶ 8 (App. 2014)
(citing Baker v. Bradley, 231 Ariz. 475, 479, ¶ 8 (App. 2013)). Generally, a
party may appeal a final judgment. See Ariz. Rev. Stat. (A.R.S.) § 12-
2101(A)(1).3 Pursuant to the Arizona Rules of Family Law Procedure
(ARFLP):

       When more than one claim for relief is presented in an action,
       . . . the court may direct the entry of final judgment as to one
       or more but fewer than all of the claims . . . only upon an
       express determination that there is no just reason for delay
       and upon an express direction for entry of judgment. In the
       absence of such determination and direction, any order or
       other form of decision, however designated, that adjudicates
       fewer than all the claims or the rights and liabilities of fewer
       than all the parties shall not terminate the action as to any of
       the claims or parties, and the order or other form of decision
       is subject to revision at any time before the entry of judgment
       adjudicating all the claims and the rights and liabilities of all
       the parties. For purposes of this subsection, a claim for
       attorneys’ fees may be considered a separate claim from the
       related judgment regarding the merits of a cause.

ARFLP 78(B). Thus, “a family court ruling that resolves some but not all of
the issues pending before the court and does not have a Family Rule 78(B)
certification of finality is not final and appealable.” Natale, 234 Ariz. at 509,
¶ 9.

¶9            The procedural history in the present case is nearly identical
to that in Ghadimi v. Soraya, 230 Ariz. 621 (App. 2012), where the family
court issued a signed decree granting the husband’s attorneys’ fees but left
the specific amount of those fees to be determined. Id. at 622, ¶ 3. The wife
appealed the decree before the amount of attorneys’ fees was resolved, and
when the amount of fees was later ordered, she failed to file an amended
notice of appeal. Id. at ¶¶ 3, 5. This Court dismissed the wife’s appeal for
lack of jurisdiction after it determined that her notice of appeal was
premature because the decree, which had not been certified as final under
Rule 78(B) and left the amount of attorneys’ fees unresolved, was not a final
judgment. Id. at 623, ¶ 11. Moreover, we held that a determination of the
amount of an award of attorneys’ fees is discretionary and not ministerial,
and the exception enumerated in Barassi v. Matison, 130 Ariz. 418 (1981), did

3     Absent material changes from the relevant date, we cite a statute’s
current version.



                                       5
                         GRUBB v. THRAILKILL
                          Decision of the Court
not apply. Ghadimi, 230 Ariz. at 623-24, ¶ 13 (quoting Bryant v. Bryant, 40
Ariz. 519, 521 (1932)).

¶10             Here, Mother filed a notice of appeal from the family court’s
signed minute entry dismissing her petition for modification of legal
decision-making authority and parenting time and granting Father’s
request for attorneys’ fees. Although the court certified the order as final
under Rule 78(B), it did not resolve the amount of the award of attorneys’
fees until it issued a separate order two months later. Therefore, this Court
has jurisdiction to consider the merits of the issues finally resolved within
that signed minute entry — namely the dismissal of Mother’s petition.
However, Mother was required to file a new or amended notice of appeal
regarding the separate issue of attorneys’ fees after that issue was finally
resolved through an order setting an exact amount. She did not do so, and
the Barassi exception does not apply. See id. Because Mother’s notice of
appeal of the award of attorneys’ fees was premature, it was ineffective and
a nullity. Craig v. Craig, 227 Ariz. 105, 107, ¶ 13 (2011) (quoting Smith v.
Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, 415, ¶ 39 (2006)).
Accordingly, we lack jurisdiction to consider the award of Father’s
attorneys’ fees. We have jurisdiction over Mother’s timely appeal of the
dismissal of her petition for modification pursuant to A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).

                              DISCUSSION

I.    The Family Court’s April 2015 Order Superseded Its July 2014
      Order.

¶11            Resolution of Mother’s appeal requires us to evaluate and
reconcile the family court’s April 2015 and July 2014 orders, a task we
perform de novo. See Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13 (App. 2001)
(citing Citibank (Ariz.) v. Bhandhusavee, 188 Ariz. 434, 435 (App. 1996), and
Anderson v. Anderson, 522 N.W.2d 476, 478-79 (N.D. 1994)). The April 2015
order allowed Mother to petition for modification of legal decision-making
authority and parenting time upon evidence of three consecutive, clean
drug tests; the court’s prior July 2014 order established that three
consecutive, clean tests were merely a prerequisite for Mother to continue
to receive supervised parenting time rights. See supra ¶ 4.

¶12           We conclude the April 2015 order superseded the July 2014
order by comparing the two orders themselves. See Patterson v. Patterson,
102 Ariz. 410, 414 (1967) (comparing the language of consecutive trial court
orders to determine if they were complementary or whether the latter
superseded the former). The July 2014 order specifically directs “that all


                                     6
                           GRUBB v. THRAILKILL
                            Decision of the Court
other prior orders regarding legal decision[-]making and parenting time
remain in full force and effect.” In contrast, the April 2015 order contains
no such provision, implying the April 2015 order was meant to supersede,
rather than supplement, the July 2014 order. See id. Therefore, pursuant to
the controlling order, at the time of her June 2015 petition, Mother was
specifically authorized to petition for modification of legal decision-making
authority and parenting time after presenting evidence of three
consecutive, clean drug tests.4

II.    The Family Court Abused Its Discretion When It Vacated The
       RMC And Dismissed Mother’s Petition Without A Hearing.

¶13            Mother argues the family court erred by granting Father’s
motion to dismiss without holding a hearing on her petition for
modification. We review an order granting a motion to dismiss for an abuse
of discretion. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11 (2006) (citing
Franzi v. Superior Court, 139 Ariz. 556, 561 (1984)). “A family court abuses
its discretion by making an error of law in reaching a discretionary
conclusion, or making a discretionary ruling that the record does not
support.” Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012) (citing In re
Marriage of Williams, 219 Ariz. 546, 548, ¶ 8 (App. 2008), then Hurd v. Hurd,
223 Ariz. 48, 52, ¶ 19 (App. 2009)).

¶14             Parents have a firmly established fundamental right to the
custody and control of their children, a right recognized by both state and
federal law. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Michael J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 11 (2000); see also A.R.S. § 1-
601(A)-(B) (“The liberty of parents to direct the upbringing [and] education
. . . of their children is a fundamental right [that] [t]his state or any other
governmental entity shall not infringe [up]on . . . without demonstrating [a]
compelling governmental interest . . . of the highest order.”). These
fundamental rights are protected by the Due Process Clause of the



4      Equally troubling to this court but not raised by this appeal is the
family court’s apparent preemption of Mother’s statutory right to petition
for modification of legal decision-making authority and parenting time one
year after entry of the decree of dissolution and upon her assertion that
modification would be in Child’s best interests. See A.R.S. § 25-411(A) (“A
person shall not make a motion to modify a legal decision-making or
parenting time decree earlier than one year after its date.”), -411(J) (“The
court may modify an order granting or denying parenting time rights
whenever modification would serve the best interest of the child.”).


                                        7
                           GRUBB v. THRAILKILL
                            Decision of the Court
Fourteenth Amendment of the U.S. Constitution. Baker v. Meyer, 237 Ariz.
112, 114, ¶ 6 (App. 2015) (citations omitted).

¶15             Mother’s fundamental right to parent affords her certain
procedural due process rights, including a meaningful opportunity to be
heard on a petition for modification of legal decision-making authority or
parenting time. Cruz v. Garcia, ___ Ariz. ___, ___, 2016 WL 3390235, at *2,
¶ 11 (App. 2016) (citing Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 18 (App.
2011)). In the family law context, “[d]ue process requires that when there
are disputed issues of fact as to a child’s best interests, ‘the court must allow
the parties to present evidence before it makes its finding.’” Id. at *3, ¶ 16
(quoting Murray v. Murray, 239 Ariz. 174, 179, ¶ 18 (App. 2016), and citing
Heidbreder v. Heidbreder, 230 Ariz. 377, 381, ¶ 15 (App. 2012), and DePasquale
v. Superior Court, 181 Ariz. 333, 336 (App. 1995)). Moreover, if affidavits
filed in connection with a petition to modify are in direct opposition, “the
court may not conduct a trial by affidavit, attempting to weigh the
credibility of the opposing statements.” Pridgeon v. Superior Court, 134 Ariz.
177, 181 (1982) (internal quotations omitted); see also Volk v. Brame, 235 Ariz.
462, 466, 468, ¶¶ 14, 19-20 (App. 2014) (concluding the family court violated
a parent’s due process rights when it “recognized that credibility was
central to the issue before it but expressly rejected the parties’ efforts to
testify, choosing instead to rely on a ‘paper view’ to decide the petition”);
DePasquale, 181 Ariz. at 336 (“The trial court also erred by changing custody
without a hearing and without the aggrieved party’s consent. . . . No
Arizona rule or statute authorizes such an order.”). Rather, “[i]n such a
case, the court must hold a hearing.” Pridgeon, 134 Ariz. at 181 (interpreting
a prior version of A.R.S. § 25-411).

¶16            A court may only act sua sponte to restrict parenting time if it
finds the parenting time would “endanger seriously the child’s physical,
mental, moral or emotional health.” See Cruz, 2016 WL 3390235 at *4, ¶ 18
(“The court’s authority to impose ‘restrictions’ on parenting time sua sponte
under [A.R.S.] § 25-411(J) is limited to placing conditions on the exercise of
parenting time, such as supervision or geographical restrictions.”) (citing
Hart v. Hart, 220 Ariz. 183, 187, ¶ 16 (App. 2009)). The Cruz court, though,
was distinguishing those cases where the child faces an immediate threat
to her physical or mental health that requires urgent action via an
emergency sua sponte order, from those, like the present case, where the
parents simply disagree over the child’s best interests. See id.; DePasquale,
181 Ariz. at 336 (acknowledging that the family court may face an
emergency situation requiring a change in custody or parenting time
without notice or a hearing, but the court must follow “strict procedural
limits” within the rules governing temporary orders); see also A.R.S. § 25-



                                       8
                           GRUBB v. THRAILKILL
                            Decision of the Court
411(J) (“[T]he court shall not restrict a parent’s parenting time rights unless
it finds that the parenting time would endanger seriously the child’s
physical, mental, moral or emotional health.”).

¶17           Additionally, the procedural rules governing post-decree,
family law proceedings likewise contemplate a hearing. ARFLP 91 requires
a party to petition for modification and states that, upon the receipt of a
petition for an order to appear, “the court shall schedule the petition for an
evidentiary hearing, a return hearing, oral argument, a Post-decree or Post-
judgment Management Conference, mediation, or other proceeding, and
issue an appropriate Order to Appear.” ARFLP 91(A), (N) (emphasis
added); see also ARFLP 76(A)(1) (“Upon written request of any party, the
court shall, or upon its own motion the court may, schedule one or more
Resolution Management Conferences that shall be held within sixty (60)
days of receipt of written request by the court, unless extended for good
cause shown.”).

¶18            To obtain a hearing on a petition to modify legal decision-
making authority, the petitioner must also comply with A.R.S. § 25-411. See
ARFLP 91(D). This statute requires “an affidavit or verified petition setting
forth detailed facts supporting the requested modification,” and directs the
family court to deny the motion “unless it finds that adequate cause for
hearing the motion is established by the pleadings, in which case it shall set
a date for hearing.” A.R.S. § 25-411(L); see DePasquale, 181 Ariz. at 335
(describing the trial court’s “screening” function in analyzing a petition for
modification to determine whether the petitioner has presented adequate
cause to warrant a hearing). Adequate cause for a hearing is satisfied when
the petitioner provides detailed facts to support the requested modification,
particularly where those facts are disputed by the respondent “upon any
substantial and crucial fact relevant to the grounds for modification.”
Pridgeon, 134 Ariz. at 181; see also Murray, 239 Ariz. at 179, ¶ 18 (“When the
question of a child’s best interests presents a disputed issue of fact, the court
must allow the parties to present evidence before it makes its finding.”)
(citing Volk, 235 Ariz. at 466, ¶ 14).

¶19           In this case, Mother petitioned the family court for
modification of both legal decision-making authority and parenting time
and simultaneously presented evidence of three consecutive, clean drug
tests in support of her petition. Indeed, the court’s April 2015 order granted
Mother the opportunity to do exactly that, and, as the court recognized,
“Mother provided three consecutive clean drug tests.” See supra ¶ 12.
Father’s responsive pleading contested whether Mother’s drug test results
were, as she asserted, false positives resulting from legal and appropriate
use of prescription medication. Mother’s assertion and Father’s objection


                                       9
                          GRUBB v. THRAILKILL
                           Decision of the Court
established that the issues presented to the court through Mother’s petition
were both factually and legally in question; therefore, a hearing was
required. Presumably having determined Child’s mental and physical
health were not immediately in peril, see Cruz, 2016 WL 3390235 at *4, ¶ 18;
see also DePasquale, 181 Ariz. at 336, the court determined Mother had
presented adequate cause for a hearing and issued an order to appear at a
RMC to resolve the disputed issues. The court abused its discretion when
it ultimately vacated the RMC and dismissed the petition without affording
Mother the opportunity to present evidence to support her assertions or
itself the opportunity to evaluate the credibility and merit of the witnesses’
testimony.

                              CONCLUSION

¶20        The family court’s order dismissing Mother’s petition is
vacated and the case remanded for proceedings consistent with this
decision.




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




                                        10
