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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                DUSTIN MATTHEWS, Petitioner/Appellant,

                                        v.

                 ROSEANN ROBLES, Respondent/Appellee.

                           No. 1 CA-CV 18-0704 FC
                                FILED 11-5-2019


           Appeal from the Superior Court in Maricopa County
                           No. FC2012-093973
           The Honorable Andrew J. Russell, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Dustin Matthews, Tempe
Petitioner/Appellant

Roseann Robles, Avondale
Respondent/Appellee
                         MATTHEWS v. ROBLES
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Paul J. McMurdie joined.


C R U Z, Judge:

¶1           Dustin Matthews (“Father”) appeals from the superior court’s
final judgment entered on October 16, 2018. For the following reasons, we
affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2            Father and Roseann Robles (“Mother”) are the biological
parents of D.M., born in 2011. The superior court entered an order in
December 2013, granting the parties joint legal decision-making authority
over D.M., setting a parenting-time schedule, and ordering Mother to pay
Father $39.46 in monthly child support.

¶3             Father filed a petition to modify legal decision-making
authority, parenting time, and child support in August 2016. The court
issued a child support order in February 2017, that increased Mother’s child
support obligation to $47.05. Further, the court issued an order that granted
the parties joint legal decision-making authority and equal parenting time.
The court also found a change in circumstances because Mother had moved
from Tempe to Avondale, while Father remained in Tempe. Due to the new
distance between the parties’ residences, the court ordered that the child
attend a school equidistance between the parties’ homes. D.M. was due to
start kindergarten around this time, and the parties agreed he should attend
Kenilworth Elementary School in Phoenix via open enrollment.

¶4             On March 29, 2017, Father filed a petition to modify the
superior court’s child support order, arguing there had been a change in his
childcare expenses, a change in his income, and that the court incorrectly
found that he received additional income in the form of recurring gifts from
family members. Father’s petition was denied in May 2017 and he
appealed. However, before disposition of the appeal, on February 22, 2018,
Father filed a subsequent petition to modify the child support order.

¶5           Pursuant to the February 2017 child support order, if Mother
was current on her child support payments as of December 31, 2017, Mother


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                          Decision of the Court

could claim D.M. on her 2017 tax returns. Although the child support order
required that payments be made via the Child Support Clearinghouse,
Mother made her payments to Father directly between March and
December of 2017, by depositing the ordered amount into his bank account.
At the hearing, Father claimed these payments were intended as gifts and
that Mother was not current on her child support obligation. Mother
claimed she could not pay via the Child Support Clearinghouse as ordered,
because the court failed to process the income withholding order properly.
Father claimed the child as his dependent for tax year 2017. On March 1,
2018, Mother filed a motion to enforce the tax provision of the child support
order.

¶6            Issues then arose regarding decisions involving D.M.’s
education. As a result of D.M.’s severe behavioral issues, he was expelled
from Kenilworth Elementary after about a week of enrollment. Father and
Mother were unable to agree on where to send D.M. for kindergarten after
his expulsion. Kenilworth school officials suggested that the parents enroll
D.M. in a home district school instead of participating in open enrollment,
as the home district school could not expel D.M. for his behavioral issues
and would instead be required to provide him services. Neither parent
would agree to enroll the child in the home district of the other. On August
15, 2017, Mother filed a Motion for Emergency Order Without Notice and a
Petition for Modification of Legal Decision-Making Authority as to
Educational Decisions Only. Both the motion and petition requested that
Mother be granted sole final legal decision-making authority for the child
as to educational issues only.

¶7            In response to Mother’s Motion for Emergency Order
Without Notice, on August 15, 2017, the court found that an emergency
existed, and issued a Post-Decree Temporary Order Without Notice for
Modification of Legal Decision-Making Authority. The Temporary Order
Without Notice granted Mother sole legal decision-making authority as to
educational issues only on a temporary basis and scheduled an evidentiary
hearing for August 25, 2017. Mother enrolled D.M. in a school in her home
district, Rancho Santa Fe Elementary School.

¶8            After holding an evidentiary hearing on the temporary
orders, the court granted Mother final legal decision-making authority for
educational issues involving D.M. The court affirmed the parties’ joint legal
decision-making authority as to all other issues.

¶9         The court held a final evidentiary hearing on October 9, 2018,
as to Mother’s Petition for Modification of Legal Decision-Making


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Authority as to Educational Decisions Only, Father’s February 2018 Petition
to Modify Child Support, and Mother’s Motion to Enforce Order re Tax
Exemption Provision. Although not previously requested, in Father’s
Amended Pretrial Statement, he sought to modify parenting time and the
court considered his request. The court granted Mother final legal decision-
making authority for educational issues and affirmed the parties’ joint legal
decision-making authority for all other issues. Additionally, it denied
Father’s request to modify parenting time as well as Father’s Petition to
Modify Child Support. Finally, the court found that Mother was current on
her child support payments and ordered Father to amend his tax returns by
removing D.M. as a dependent for the year 2017 unless the parties agreed
to allow Mother to claim D.M. as her dependent in tax year 2018. Father
appealed from this judgment.1

                              DISCUSSION

I.   Motion for Emergency Order Without Notice, Temporary Order, Pre-
     trial Motions, and Post-Trial Motions

¶10            As an initial matter, although Father appeals the superior
court’s October 16, 2018 ruling, he also seeks review of various rulings
made before these orders. First, Father raises issues regarding Mother’s
Motion for Emergency Order Without Notice and the superior court’s
issuance of the Temporary Order. We lack jurisdiction to consider the
superior court’s Temporary Order because such orders are not appealable.
Gutierrez v. Fox, 242 Ariz. 259, 264, ¶ 12 (App. 2017). The proper challenge
to a temporary order is by special action, and Father filed a special action
with this court, as well as a petition for review with the Arizona Supreme
Court. Both courts declined jurisdiction. We do not now consider
argument on these issues.

¶11            Second, Father argues the superior court abused its discretion
by failing to address his Motion for Partial Summary Judgment, Response
to Mother’s Motion to Continue Trial, Response to Motion to Quash
Subpoena Duces Tecum, Request for Sanctions, Motion for Judgment on
the Pleadings, Motion for Admittance and Consideration of Newly


1      On remand from appeal of the May 2017 orders in Matthews v. Robles,
1 CA-CV 17-0494 FC, 2018 WL 4374214 (Ariz. App. Sept. 13, 2018) (mem.
decision), the superior court held an evidentiary hearing. As a result of
rulings therein, Father has now abandoned his appeal as it pertains to issues
of child support and the tax returns, deeming them moot. Therefore, we do
not address them.


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                           Decision of the Court

Discovered Evidence, and Motion for a New Trial. However, these issues
are either untimely raised or unappealable. See ARCAP 9(a) (requiring
notice of appeal to be filed within thirty days after entry of judgment being
appealed); see also Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568,
577, ¶ 21 (App. 2015) (noting that the denial of a motion for summary
judgment is not reviewable on appeal from a final judgment entered after
trial on the merits); Schwartz v. Superior Court In & For Cty. of Maricopa, 186
Ariz. 617, 619 (App. 1996) (finding that a superior court’s denial of a motion
to quash a subpoena duces tecum is not an appealable order but may be
challenged by special action). Therefore, we decline to address them.

II.   Petition for Modification of Legal Decision-Making Authority as to
      Educational Decisions Only

¶12           Father argues that the court erred in awarding Mother final
decision-making authority for educational issues. We review the superior
court’s legal decision-making rulings for an abuse of discretion. Owen v.
Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003). A court abuses its discretion
when it commits an error of law in making a discretionary decision, reaches
a conclusion without considering evidence, or makes a finding that lacks
substantial evidentiary support.       Flying Diamond Airpark, L.L.C. v.
Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007) (citation omitted).

¶13              First, Father argues that the court erred in modifying the
parties’ legal decision-making authority because Mother filed her petition
earlier than one year after the decree was entered. Under Arizona Revised
Statutes (“A.R.S.”) section 25-411(A), there is a one-year waiting period
when seeking modification of an existing legal decision-making order,
unless there is evidence that “the child’s present environment may
seriously endanger the child’s physical, mental, moral or emotional health.”
A.R.S. § 25-411(A). But “this court ‘will not reverse for alleged
noncompliance with § 25-411 on appeal absent a showing of prejudice,’ and
. . . ‘[e]rrors in preliminary procedures, such as those in § 25-411, must be
addressed prior to a resolution on the merits.’” Sundstrom v. Flatt, 244 Ariz.
136, 138, ¶ 8 (App. 2017) (quoting In re Marriage of Dorman, 198 Ariz. 298,
302-03, ¶¶ 12, 11 (App. 2000).

¶14           Moreover, there was evidence to suggest that modification of
the parties’ legal decision-making authority was necessary to prevent
serious endangerment of D.M.’s mental, moral, and emotional health. D.M.
was removed from his school, he had severe behavioral issues that needed
to be addressed, and the parties’ inability to agree on a solution was
keeping D.M. from attending school. It was not an abuse of discretion for


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                           Decision of the Court

the court to allow Mother to file a petition for modification of legal decision-
making authority in August, rather than waiting for the one-year period to
pass while the child remained out of school.

¶15           Father additionally argues the “facts of the case do not
support [a finding that] a substantial and continual change” warrants a
modification in legal decision-making authority as to educational issues.
The superior court must determine whether there has been a material
change in circumstances affecting the welfare of the child to modify a legal
decision-making or parenting-time order. Canty v. Canty, 178 Ariz. 443, 448
(App. 1994). The court has broad discretion in making this determination,
and we will not disturb its decision absent a clear abuse of discretion. See
id. Here, the court found that “the child’s behavior problems exhibited at
school, his expulsion [from] that school, Mother’s relocation, Father[‘s]
actions in this litigation, and the parties’ increasing inability to cooperate
all constitute material changes in circumstances that affect the child’s
welfare.” The court did not abuse its discretion in considering the
combination of these facts to be material changes affecting the welfare of
the child.

¶16             Father next contests the superior court’s findings under A.R.S.
§ 25-403(A). Section 25-403(A) enumerates the factors for the court to
consider in determining legal decision making, although the best interests
of the child is the primary consideration in awarding legal decision-making
authority. Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003). After making specific
findings under each enumerated factor in A.R.S. § 25-403(A), the superior
court also noted that Mother had a more active role in finding a school for
D.M. and remarked on the parties’ inability to cooperate. Given these
considerations, the court found that it was in D.M.’s best interest to grant
Mother’s request for final legal decision-making authority for educational
issues only.

¶17           “The trial court is in the best position to judge the credibility
of the witnesses, the weight of evidence, and also the reasonable inferences
to be drawn therefrom.” Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166,
171 (1971). “We view the evidence in the light most favorable to sustaining
the trial court’s findings and determine whether there was evidence that
reasonably supports the court’s findings.” Gutierrez v. Gutierrez, 193 Ariz.
343, 346, ¶ 5 (App. 1998). Here, the evidence reasonably supports the
superior court’s findings. The record evidences the parties’ inability to
cooperate regarding D.M.’s education. Additionally, there is evidence that
Mother was active in finding a school that would meet D.M.’s needs. Thus,



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                          Decision of the Court

there was not an abuse of discretion in granting Mother final legal decision-
making authority regarding educational issues.

III.   Request to Modify Parenting Time

¶18           Father argues that the superior court erred in failing to
modify parenting time. We review the superior court’s parenting-time
rulings for an abuse of discretion. Owen, 206 Ariz. at 420, ¶ 7. As stated
above, the superior court must determine whether there has been a material
change in circumstances affecting the welfare of the child to modify a
parenting-time order. Canty, 178 Ariz. at 448.

¶19           The superior court found that there was not a material change
in circumstances that justified modification of the parties’ parenting time.
Although Father alleges Mother’s relocation to Avondale and D.M.’s
enrollment in a school near her home adversely effects his parenting time,
the court found that this did not have an effect on the current parenting-
time schedule. The record shows that the superior court ordered the parties
to meet at Kenilworth, the school that expelled D.M., at 3:00 p.m. to
exchange the child. Father is not required to drive any further than he
would if the child remained at a school that was equidistance between the
parties’ homes. Thus, it was not an abuse of discretion to deny Father’s
request to modify parenting time.

IV.    Attorneys’ Fees Awards

¶20            Father argues the superior court erred in failing to grant his
request for attorneys’ fees and economic loss. He also argues that the
court’s award of $3,000 to Mother should be vacated. We review the
superior court’s award of attorneys’ fees and costs for an abuse of
discretion. Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350,
¶ 17 (App. 2006). We will uphold the court’s award of attorneys’ fees and
costs if it has “any reasonable basis.” State Farm Mut. Auto. Ins. Co. v.
Arrington, 192 Ariz. 255, 261, ¶ 27 (App. 1998).

¶21           The family court need not make express findings of fact in
support of an award unless such findings are specifically requested. A.R.S.
§ 25-324(A). As to Father’s request for attorneys’ fees, the record reflects
Father has largely represented himself throughout these proceedings but
retained counsel for assistance in defending against Mother’s Petition for
Temporary Orders Without Notice and Mother’s Petition for Modification
of Legal Decision-Making Authority as to Educational Decisions Only over
the child. As to Mother’s request for attorneys’ fees, in considering the
parties’ financial positions, the court found there was no evidence to


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                           Decision of the Court

suggest either party’s financial resources was significantly greater than the
other. Also, even though the court gave great weight to Father’s conduct in
claiming the child as an exemption in his 2017 tax reporting against the
court’s orders, this was not the only basis for the court’s award of attorneys’
fees to Mother. The court also found that Father had taken “unreasonable
positions” throughout the proceedings. See MacMillan v. Schwartz, 226 Ariz.
584, 592, ¶ 38 (App. 2011). We find no abuse of discretion in the court
awarding Mother partial attorneys’ fees and declining to award Father’s
request.

¶22           While Father additionally contests a prior $500 award of
attorneys’ fees granted to Mother in August 2018, for having to respond to
Father’s motion for judgment on the pleadings, this award was not
appealed within thirty days and is now untimely. See ARCAP 9(a). As
such, we do not address it further.

                               CONCLUSION

¶23           Father requests an award of taxable fees and costs incurred
on appeal. Additionally, without providing any legal basis, Father requests
$2,500 so that he “may proceed with an attorney in the event this matter is
remanded.” Father’s requests are denied. As the prevailing party on
appeal, Mother is entitled to an award of taxable costs contingent upon her
compliance with ARCAP 21.

¶24           For the foregoing reasons, we affirm.




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




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