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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    REBECCA FARIES, Petitioner/Appellee,

                                         v.

                  JOHN G. FARIES, II, Respondent/Appellant.

                            No. 1 CA-CV 19-0094 FC
                                 FILED 8-6-2019


            Appeal from the Superior Court in Maricopa County
                            No. FC2013-050436
              The Honorable Jennifer C. Ryan-Touhill, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Petitioner/Appellee

John G. Faries, II, Phoenix
Respondent/Appellant
                           FARIES v. FARIES, II
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Kent E. Cattani joined.


C R U Z, Judge:

¶1            John G. Faries, II (“Father”) appeals the superior court’s
denial of his motion to amend the judgment. For the following reasons, we
affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2           In 2014, the superior court entered a parenting plan
agreement that awarded Father and Rebecca Faries (“Mother”) joint legal
decision-making authority for their three children and required parents to
resolve disagreements through mediation or conciliation services before
presenting their issues to the court.

¶3            In 2018, Mother petitioned to modify parenting time and child
support as to all three children and to modify legal decision making for D.F.
only. In her petition, Mother alleged Father and D.F. had a falling out and
that D.F. was living with Mother full-time.

¶4             At trial in October 2018, the superior court heard from
witnesses, including the parties. The court entered an under advisement
ruling, in which it addressed the Arizona Revised Statutes (“A.R.S.”)
section 25-403(A) factors and denied Mother’s petition to modify legal
decision making. The court awarded Mother and Father joint legal
decision-making authority and gave final decision-making authority to
Mother over issues that Father and Mother disagree on after making a good
faith effort to reach an agreement. The court denied Mother’s request to
modify parenting time; and granted the request to modify child support,
ordering Father to pay Mother $1,986 monthly.

¶5            Father moved to amend the judgment pursuant to Arizona
Rule of Family Law Procedure (“Rule”) 83. The superior court denied
Father’s motion. Father timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1), (2).




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                            FARIES v. FARIES, II
                            Decision of the Court

                               DISCUSSION

I.     Standard of Review

¶6             We review the superior court’s denial of a Rule 83 motion for
an abuse of discretion. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009).
We will affirm if reasonable evidence supports the family court’s decision.
Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9 (App. 2007). A court abuses its
discretion when it commits an error of law in reaching a discretionary
decision, reaches a conclusion without considering the evidence, commits
another substantial error of law, or makes a finding lacking substantial
evidentiary support. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44,
50, ¶ 27 (App. 2007).

¶7            We defer to the family court’s credibility determinations
when evidence conflicts. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App.
1998). We will not reweigh conflicting evidence, and although conflicting
evidence may exist, we will affirm if substantial evidence supports the
court’s decision. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).

II.    Denial of Rule 83 Motion

¶8          Father contends the court erred by denying his motion to
amend the judgment. He argues the court erred by awarding Mother final
decision-making authority and modifying child support. We disagree.

       A.     Legal Decision-Making Authority

¶9            When addressing a petition to modify legal decision making
and parenting time, the trial court must first determine whether there has
been a change in circumstances since the last order. Engstrom v. McCarthy,
243 Ariz. 469, 472, ¶ 10 (App. 2018); see also Christopher K. v. Markaa S., 233
Ariz. 297, 300, ¶ 15 (App. 2013). “If the court finds such a change in
circumstances, it must then determine whether a change in [legal decision
making and parenting time] would be in the child’s best interests.”
Christopher K., 233 Ariz. at 300, ¶ 15; see also A.R.S. §§ 25-403(A), 25-
403.01(B). In making that determination, the court must evaluate all
relevant factors.

¶10            Father argues that (1) the superior court’s “significant
modification” of the previous custody orders was unsupported by the
evidence; (2) the court’s award of final decision-making authority to Mother
is contrary to the statute; and (3) Father lacked notice because Mother’s



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                           FARIES v. FARIES, II
                           Decision of the Court

petition to modify only requested a modification of decision-making
authority as to D.F., and not as to all three children.

¶11           Father failed to provide this court with the transcripts of the
trial below. As the appellant, Father was “responsible for making certain
the record on appeal contain[ed] all transcripts or other documents
necessary for us to consider the issues” he raised. Baker v. Baker, 183 Ariz.
70, 73 (App. 1995); see also Ariz. R. Civ. App. P. 11(c)(1) (appellant must
order transcripts necessary for proper consideration of issues on appeal).
We must presume the missing transcript would support the superior
court’s findings and conclusions. See Johnson v. Elson, 192 Ariz. 486, 489,
¶11 (App.1998).

¶12          Because the superior court made findings under § 25-403 and
we assume the evidence presented at trial supported its factual findings, we
conclude the court did not abuse its discretion. See Baker, 183 Ariz. at 73.

¶13             Transcripts notwithstanding, Father’s arguments appear to
reflect his disagreement with the superior court’s conclusions about witness
credibility and the weight of conflicting evidence—which we do not
reweigh on appeal. See Hurd, 223 Ariz. at 52, ¶ 16. Notably, the superior
court’s thorough, sixteen-page under advisement order lays out the
procedural posture of this case, followed by a discussion of statutory factors
and a best-interests finding.

¶14           Father’s argument that the court erred by modifying the legal
decision-making authority misstates the record. The court did not modify
legal custody. See Nicaise v. Sundaram, 245 Ariz. 566, 568-69, ¶¶ 13-14 (2019)
(explaining a hybrid joint legal decision-making order designating a “tie-
breaking” parent is distinct from sole legal decision-making authority).
Moreover, the court noted that Father “attempted to mislead the Court,”
and thus questioned Father’s credibility. And the superior court received
credible evidence that Mother would follow the superior court’s orders,
supporting its conclusion that Mother can be trusted to make final
decisions. Finally, the superior court compared Mother’s and Father’s
approach to parenting, specifically as to D.F., with Father’s allegation that
Mother’s motivation underlying her petition was malicious. The court
concluded it is in the children’s best interests to award Mother and Father
joint legal decision making with Mother having final, tie-breaking
authority. Accordingly, the superior court did not err.




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                             FARIES v. FARIES, II
                             Decision of the Court

       B.     Child Support

¶15           Father next argues the superior court erred in denying his
Rule 83 Motion as to the child support modification. He contends the court
calculated his income by considering “any and all payments, salaries, profit
sharing bonuses and other bonuses based on extensive overtime,” but did
not apply the same consideration to Mother’s income.

¶16           The superior court issued its order modifying child support
after hearing testimony from Father and Mother. Because Father did not
provide this Court with a transcript of the trial, “we assume the missing
portions of the record would support the [superior] court’s findings and
conclusions.” State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16
(App. 2003) (citation omitted); see also ARCAP 11(c)(1)(A)-(B). Accordingly,
Father has not established that the superior court abused its discretion or
misapplied the law in modifying child support.

                                CONCLUSION

¶17            Mother requests attorneys’ fees and costs on appeal pursuant
to A.R.S. § 25-324 and ARCAP 21(c). In our discretion, we deny the request
for fees and grant the request for costs upon compliance with ARCAP 21.

¶18           For the foregoing reasons, we affirm.




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




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