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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     MARIA MOYE, Petitioner/Appellee,

                                        v.

                 ERNEST K. MOYE, Respondent/Appellant.

                           No. 1 CA-CV 16-0395 FC
                               FILED 4-6-2017


           Appeal from the Superior Court in Maricopa County
                          No. FC2009-004917
            The Honorable Justin Beresky, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Wong Carter PC, Phoenix
By Matthew A. Klopp, Eric M. Moores
Counsel for Petitioner/Appellee

Ernest K. Moye, Tempe
Respondent/Appellant
                             MOYE v. MOYE
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.


J O N E S, Judge:

              Ernest K. Moye (Father) appeals from the family court’s order
reducing his parenting time and directing him to pay child support to Maria
Moye (Mother). For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

               Father and Mother divorced by consent decree in 2010. At the
time, the parties had two minor children, one of whom is now emancipated.
Since entry of the decree, the parties have “had frequent disputes regarding
the child that have necessitated significant involvement by the court.” The
current appeal arises out of Mother’s 2015 petition to modify legal decision-
making authority, parenting time, and child support for the parties’
remaining minor child (Child). In the petition, Mother requested sole legal
decision-making authority and that she be designated the primary
residential parent. At the time, the parties shared joint legal decision-
making authority and equal parenting time on a week-on/week-off
schedule.

               The family court held an evidentiary hearing on Mother’s
petition in May 2016; both parties were present and testified. After taking
the matter under advisement, the court issued an order awarding the
parties joint legal decision-making authority, designating Mother as the
primary residential parent, and reducing Father’s parenting time to
alternating weekends and one evening per week. Thereafter, the court
calculated child support in accordance with the Arizona Child Support




1       We view the facts in the light most favorable to upholding the family
court’s judgment. See Smith v. Smith, 235 Ariz. 181, 183 n.1, ¶ 1 (App. 2014)
(citing Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5 (App. 1998)).




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                            Decision of the Court

Guidelines (Guidelines), Ariz. Rev. Stat. (A.R.S.) § 25-320 app.,2 and
directed Father to pay $638.59 per month. Father timely appealed, and we
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2).

                               DISCUSSION

                On appeal, we review the family court’s rulings on parenting
time and child support for an abuse of discretion. See Nold v. Nold, 232 Ariz.
270, 273, ¶ 11 (App. 2013) (parenting time) (citing In re Marriage of Diezsi,
201 Ariz. 524, 525, ¶ 3 (App. 2002)); In re Marriage of Berger, 140 Ariz. 156,
167 (App. 1983) (child support) (citing Bender v. Bender, 123 Ariz. 90, 94
(App. 1979)). An abuse of discretion occurs “when the record, viewed in
the light most favorable to upholding the trial court’s decision, is ‘devoid
of competent evidence to support’ the decision.” Little v. Little, 193 Ariz.
518, 520, ¶ 5 (1999) (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)).

I.     Parenting Time

              Father first argues the family court abused its discretion by
failing to find “significant or extra ordinary circumstances to change
Parenting Time pursuant to A.R.S. [§] 25-403.”

              However, the law does not require a family court to find a
“significant or extra ordinary circumstance[]” before modifying an existing
parenting time order; a change may be made based upon any “material
change in circumstances affecting the welfare of the child.” Canty v. Canty,
178 Ariz. 443, 448 (App. 1994) (citing Pridgeon v. Superior Court, 134 Ariz.
177, 179 (1982)). Here, the court found a substantial and continuing change
in circumstances justifying modification. Specifically, the court found
Child “had a break down in November [2015] and appeared at that time to
be genuinely fearful of Father.”

               Section 25-403(B) further requires the family court to make
specific findings on the record regarding all factors relevant to the child’s
best interests prior to making a modification. With regard to Child’s best
interests here, the court found: (1) Child had “expressed through several
different sources his fear of Father,” (2) Father “lack[ed] insight as to how
anger and a raised voice can be quite fearful to a child,” (3) Father no longer
speaks with the parties’ emancipated daughter because of a conflict that
occurred when she was sixteen or seventeen, (4) “no matter what issue was

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



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                            Decision of the Court

presented to Father, he displayed an amazing ability to deflect the issue off
himself and place blame on others,” and (5) “should Father continue to fail
to recognize how his reactions and actions are perceived by others, his
relationship with [Child] may be permanently damaged.” Based upon
these findings and others, the court reduced Father’s parenting time to
alternating weekends and one evening per week.

               Documents in the record support these findings. Moreover,
because Father failed to provide this Court with a transcript of the
evidentiary hearing, we presume the evidence at the hearing “was
sufficient to sustain the [family] court’s conclusion[s]” that the requisite
change in circumstances occurred and the modification was in Child’s best
interests. Fletcher v. Fletcher, 137 Ariz. 497, 498 (App. 1983) (citing Bryant v.
Thunderbird Acad., 103 Ariz. 247, 249 (1968)); see also ARCAP 11(c)(1)(B)
(requiring the appellant to order and provide transcripts of the trial court
proceedings if he intends to argue that a “judgment, finding or conclusion[]
is unsupported by the evidence or is contrary to the evidence”). On this
record, we cannot say the court abused its discretion in reducing Father’s
parenting time.

II.    Child Support

            Father next argues the family               court’s   “method     of
determination for Child Support” was in error.

              The Guidelines “establish a standard of support for children
consistent with their reasonable needs and the ability of parents to pay by
providing a formula for calculation of child support based, in significant
part, on the parties’ gross incomes.” Mead v. Holzmann, 198 Ariz. 219, 220,
¶ 5 (App. 2000) (citing Guidelines §§ 1, 6-11). The record reflects the family
court calculated child support in accordance with the Guidelines using the
parties’ respective incomes as stated in their tax returns and/or W-2 forms.
The court was thereafter required to order the noncustodial parent —
Father — to pay his proportionate share of the total obligation, see
Guidelines § 14, and did not err in doing so.

              Father also argues Mother “submitted false financial
information.” But the documents in the record support Mother’s reported
income and the court’s reliance upon the figures provided. We presume
further support exists within the transcript. See supra ¶ 8. Moreover, Father
had an opportunity to cross-examine Mother regarding her Affidavit of
Financial Information, her tax returns, and her W-2 form and to present




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                            Decision of the Court

evidence rebutting her stated income. On this record, we find no abuse of
discretion.

III.   Due Process

              Finally, Father argues his due process rights were violated
because the parties did not participate in mediation prior to the evidentiary
hearing. Father argues, pursuant to a prior 2014 order, “each party was
explicitly ordered to utilize[] Court Conciliation Services [to] resolve any
disputes before seeking relief from the Court.” We find no violation here.

               First, although the prior order did direct the parents, “[e]xcept
in an emergency or when addressing a time-sensitive issue, . . . [to]
participate in mediation through a private mediator or through this Court’s
Conciliation Services to resolve any disputes, problems, or proposed
changes regarding legal decision-making or parenting time before seeking
further relief from the Court,” Father never filed a request for mediation or
a motion to enforce the 2014 order. He may not rightfully assert error
premised upon his own failure to comply with the order he now claims is
controlling. See Schlecht v. Schiel, 76 Ariz. 214, 220 (1953) (“By the rule of
invited error, one who deliberately leads the court to take certain action
may not upon appeal assign that action as error.”), abrogated in part on other
grounds as recognized in A Tumbling-T Ranches v. Paloma Inv. Ltd. P’ship, 197
Ariz. 545, 552, ¶ 23 (App. 2000).

              Second, it is clear from how Mother initially styled her
petition — as a “motion for post-decree temporary order without notice for
modification of legal decision-making and parenting time” — she believed
the issue to be time-sensitive. Therefore, the conciliation provisions of the
prior order did not apply.

              Third, in asserting the violation of constitutional protections
it needs be recognized that the Due Process Clause entitles a parent to
“notice and an opportunity to be heard at a meaningful time in a
meaningful manner,” as well as a right “to offer evidence and confront
adverse witnesses” when custodial rights to a child are at issue. Curtis v.
Richardson, 212 Ariz. 308, 312, ¶ 16 (App. 2006) (citing Comeau v. Ariz. State
Bd. of Dental Exam’rs, 196 Ariz. 102, 106-07, ¶ 20 (App. 1999)); Smart v.
Cantor, 117 Ariz. 539, 542 (1977) (citing Stanley v. Illinois, 405 U.S. 645, 657
(1972)). The record reflects Father was provided ample notice of the hearing
on Mother’s petition. In addition, the hearing provided Father the
opportunity to be heard, offer evidence, and confront Mother. Accordingly,
Father was not deprived of due process.



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                           Decision of the Court

                              CONCLUSION

             The family court’s orders are affirmed.

               Mother requests an award of attorneys’ fees on appeal
pursuant to A.R.S. §§ 12-349 and 25-324. Section 25-324(A) directs us to
examine the relative financial resources of the parties and the
reasonableness of their positions. In this case, Father’s income is greater
than Mother’s, and although Father argues on appeal that the evidence does
not support the family court’s rulings, he failed to provide us with a
transcript of the hearing that would permit meaningful review of his claims.
Accordingly, in our discretion, we award Mother her reasonable attorneys’
fees and costs on appeal subject to compliance with ARCAP 21(b).




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




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