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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             ELBRIDGE GERRY WALKER, Petitioner/Appellee,

                                        v.

        SVITLANA IGORIVNA SINIKOVA, Respondent/Appellant.

                           No. 1 CA-CV 15-0174 FC
                                FILED 1-26-2016


           Appeal from the Superior Court in Maricopa County
                          No. FC2009-001211
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire and Maxwell Mahoney
Counsel for Petitioner/Appellee

Burt, Feldman & Grenier, Scottsdale
By Sandra Burt
Co-Counsel for Respondent/Appellant

Melinda K. Cekander PLLC, Heron, MT
By Melinda K. Cekander
Co-Counsel for Respondent/Appellant
                          WALKER v. SINIKOVA
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.


K E S S L E R, Judge:

¶1           Svitlana Igorivna Sinikova (“Mother”) appeals the family
court’s dismissal of her Expedited Petition for Modification of Parenting
Time and Child Custody (“Expedited Petition”) and its subsequent denial
of her motion for new trial. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             In February 2014, the family court entered stipulated orders
pursuant to the agreements made between Mother and Elbridge Gerry
Walker (“Father”) pertaining to legal decision making, parenting time, and
related matters for their two children (“Stipulated February Order”). The
Stipulated February Order required both parents to drug test for twelve
consecutive months, Mother for alcohol and Father for THC, and provided
that a positive, diluted, or missed test “may be considered an admission by
the party that the testing . . . would have revealed the use of the substance(s)
tested for, which finding is contrary to the best interest of a child.” The
court later entered an order appointing a parenting coordinator and
precluded either party from filing “any petitions regarding parenting time,
or enforcement of the Court’s various parenting orders” before first
consulting with the Parenting Coordinator, “unless there is an emergency
related to the child’s health, safety and welfare.” The court also held that if
the issue could not be resolved by the Parenting Coordinator, the party who
wants to file a petition shall file a separate certification about consulting
with the Parenting Coordinator, the date and outcome of the consultation,
and that any “motion/petition filed without this separate certification will
be automatically denied.”

¶3           In October 2014, Mother filed the Expedited Petition pursuant
to Arizona Revised Statutes (“A.R.S.”) sections 25-411 (Supp. 2015) and 25-




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                           WALKER v. SINIKOVA
                            Decision of the Court

403.04 (Supp. 2015)1 seeking exclusive legal decision-making authority and
to modify parenting time such that Father cannot have unsupervised
visitation. The Expedited Petition asserted Father’s failure to THC test in
Arizona during July 2014, his obtaining a medical marijuana card,2 and his
ongoing marijuana use, were exigent circumstances warranting a
modification of the Stipulated February Order less than one year later and
showed the children were “drug-endangered.” 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, unless . . . there is
reason to believe the child’s present environment may seriously endanger
the child’s physical, mental, moral or emotional health.”). Mother claimed
that she did not first seek alternative dispute resolution (“ADR”) as
required because of these exigent circumstances and because the
“likelihood of the parties reaching an agreement at mediation is nil.”

¶4            Mother maintained Father was trying to “subvert his drug
problem by obtaining a medical marijuana card. . . . [and that] Father has a
serious and documented drug problem” which constitutes exigent
circumstances to modify the Stipulated February Order because the order
failed to protect the children. Mother also maintained that because Father
has “abused drugs within 12 months before [the instant Expedited Petition]




1We cite the current version of applicable statutes unless revisions material
to this decision have occurred since the events in question.

2In September 2014, Father disclosed to the family court and Mother that
he obtained a medical marijuana card.




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                            WALKER v. SINIKOVA
                             Decision of the Court

was filed, there is a rebuttable presumption that . . . legal decision-making
by [Father] is not in the children’s best interest.” See A.R.S. § 25-403.04(A).3

¶5             Father filed a motion to dismiss arguing the Expedited
Petition: was not preceded by required ADR efforts, see Ariz. R. Fam. Law
P. 91(O); nor compliant with verification requirements and proof of exigent
circumstances; and did not contain detailed facts showing Father was
endangering the children as required by A.R.S. § 25-411(A), (L). Father
noted that the Parenting Coordinator’s report did not treat the issue of his
medical marijuana card or use as exigent circumstances that endangered
the children and required action.

¶6            In response, Mother asserted she cured the Expedited
Petition’s verification defects by filing a notarized verification of the
Expedited Petition, and that “the dangers to the children, previously
recognized by [previous parent coordinators] . . . are immediate.”4 She also
asserted that Father has not established that he has a debilitating medical




3   Section 25-403.04(A) provides in relevant part:

         If the court determines that a parent has abused drugs . . .
         within twelve months before the petition or the request for
         legal decision-making or parenting time is filed, there is a
         rebuttable presumption that . . . legal decision-making by that
         parent is not in the child’s best interests.

The family court considered the parents’ drug use at the time of the
Stipulated February Order, and ordered drug testing, but did not find
“abuse” for purposes of the application of section 25-403.04(A). Even
applying the presumption here, it is rebuttable, and thus, to the extent it is
applicable, we presume the family court considered it. See Hart v. Hart, 220
Ariz. 183, 188, ¶ 18 (App. 2009) (stating that in the absence of record
evidence to the contrary, trial judges are presumed to know and correctly
apply the law).
4In reply, Father noted that any alleged concerns of the prior parenting
coordinators were years old and previously considered by the family court
because they predated the Stipulated February Order including the present
custody status to which Mother agreed.



                                        4
                          WALKER v. SINIKOVA
                           Decision of the Court

condition that qualifies him as a medical marijuana patient.5 She
maintained that these facts warranted an evidentiary hearing “to determine
the best interests of the children following [Father’s] unilateral request for
and receipt of a medical marijuana card.”

¶7           While the Expedited Petition and motion to dismiss were
pending, the Parenting Coordinator filed her report. In that report, the
Parenting Coordinator acknowledged the basis for the Expedited Petition,
Father’s THC testing and medical marijuana card, and stated:

              It is not unreasonable that Mother is hyper-focused on
       Father’s [THC] testing and the fact that Father has not been
       compliant with [court-ordered] testing. . . . The [Parenting
       Coordinator] was, however, provided with Father’s medical
       marijuana card . . . . As Father tests solely for THC, testing
       [is] now meaningless as Father acknowledges that his tests
       will be positive . . . . Father denies use of marijuana during
       parenting time . . . . Mother has not given the [Parenting


5Mother   also posited that Father should have to file a petition with the
family court asking that the drug testing requirement be removed. She
asserted, in such case, she would have been provided with Father’s medical
records which she has been unable to obtain, and had him participate in an
independent medical exam to prove he needs medical marijuana. On
appeal, Mother argues that she should be allowed to view Father’s medical
records, provide them to her own expert, depose the doctor that prescribed
the medical marijuana card to Father, and test the validity of the assertion
that Father needs marijuana for medical purposes. She argues that this is
appropriate because Father placed his medical need at issue by
“unilaterally obtaining the Card and using it to avoid complying with the
[family] court’s orders.”
       Mother relies on A.R.S. § 36-2811(A)(2) (2014), part of the Arizona
Medical Marijuana Act, which provides that Father’s lawful medical use of
marijuana is subject to a rebuttable presumption. That the presumption
may be rebutted does not pave the way for a free-wheeling inquiry into the
matter, nor permit Mother to utilize the family court process to gather
evidence in an attempt to rebut the presumption. Mother raised the
Arizona Medical Marijuana Act argument in her pleadings for the court to
consider. See Hart, 220 Ariz. at 188, ¶ 18 (stating that in the absence of
record evidence to the contrary, trial judges are presumed to know and
correctly apply the law).



                                      5
                          WALKER v. SINIKOVA
                           Decision of the Court

       Coordinator] examples or proof of any effect of substance
       abuse, marijuana or otherwise, on Father’s parenting abilities.

¶8            The family court dismissed Mother’s Expedited Petition
because Mother failed to comply with requisite verifications pursuant to
A.R.S. § 25-411 and Arizona Rule of Family Law Procedure 91(D), failed to
establish exigent circumstances warranting a modification earlier than one
year after the Stipulated February Order, see A.R.S. § 25-411(A), and in the
absence of exigent circumstances failed to pursue required ADR prior to
filing the Expedited Petition. The court ordered that neither parent be
under the influence of drugs or alcohol during parenting time, and relieved
Father from “prevailing orders for” THC testing “during periods of time in
which he has provided this Court (in advance) with proof of a valid medical
marijuana card.”

¶9            After the family court denied Mother’s motion for new trial,
Mother timely appealed. We have jurisdiction pursuant to A.R.S. § 12-
2101(A)(2) (special order after final judgment), (A)(5)(a) (order denying
new trial) (Supp. 2015). See In re Marriage of Dorman, 198 Ariz. 298, 300-01,
¶¶ 3-4 (App. 2000) (“To be appealable, a special order after judgment must
raise different issues than those that would be raised by appealing the
underlying judgment; it must affect the underlying judgment, relate to its
enforcement, or stay its execution; and it must not be merely preparatory to
a later proceeding that might affect the judgment or its enforcement.”
(internal quotation marks and citation omitted)).6

                               DISCUSSION

¶10            The family court has wide discretion in determining whether
there is adequate cause for a custody modification hearing, and as such, we
review its decision to dismiss the Expedited Petition without a hearing for
an abuse of discretion. See Pridgeon v. Superior Court, 134 Ariz. 177, 179
(1982); Siegert v. Siegert, 133 Ariz. 31, 33 (App. 1982) (determining court did
not abuse its discretion by denying a hearing and explaining trial court has
“necessarily wide discretion” to determine whether there is adequate cause
for a hearing and that appellate court will only reverse if “no reasonable
judge would have denied the petition without a hearing”).




6 Father moved to dismiss the appeal as moot just days before oral
argument. We disagree that the appeal is moot and deny his motion.


                                      6
                           WALKER v. SINIKOVA
                            Decision of the Court

I.     The family court did not abuse its discretion by dismissing the
       Expedited Petition to modify parenting time and legal decision-
       making without an evidentiary hearing.

¶11           Mother argues that we should vacate the family court’s
dismissal of her Expedited Petition and remand with instructions to allow
discovery and an evidentiary hearing. The essence of Mother’s argument
is that because Father violated “a [family] court’s order [concerning drug
testing] expressly adopted for the best interests of the children, a petition to
modify parenting time satisfies the requirement of A.R.S. § 25-411 and
[Arizona Rule of Family Law Procedure] 91, as a matter of law, and the
[family] court is required to set an evidentiary hearing.” (Emphasis added.)
We disagree.

¶12            Mother’s Expedited Petition did not meet the requirements of
A.R.S. § 25-411. To the extent she requested a change in parenting time
within one year of the Stipulated February Order, she had to submit
affidavits to show “the child’s present environment may seriously
endanger the child’s physical, mental, moral or emotional health.” A.R.S. §
25-411(A). Although that same time line does not apply to petitions to
modify legal decision-making orders on the allegation that the order was
violated, a petition to modify legal decision-making orders must comply
with all of the requirements of A.R.S. § 25-411, id., or it will be subject to
automatic denial without a hearing. A.R.S. § 25-411(L) (requiring petitions
seeking to modify legal decision-making and parenting time be supported
with affidavits or verification including “detailed facts” and providing
court “shall deny” the motion unless the pleadings establish adequate cause
for a hearing); Ariz. R. Fam. Law P. 91(D)(1)(a) (mandating a petition to
modify custody be “either verified by the moving party or supported by
the requisite affidavit(s) pursuant to A.R.S. § 25-411”); Ariz. R. Fam. Law P.
91(F)(1)(b) (seeking modification to order supervised parenting time
requires “a statement in the petition detailing facts as to why unrestricted
parenting time would seriously endanger the child’s physical, mental,
moral, or emotional health”); Ariz. R. Fam. Law P. 91(D) (providing “[n]o
hearing for modification of a child custody order or decree shall be set
unless there is compliance with A.R.S. § 25-411 . . . .”); see also Ariz. R. Fam.
Law P. 91(D)(6) (granting family court discretion “without argument or
hearing” to “determine whether a custody hearing should be granted”);
DePasquale v. Superior Court, 181 Ariz. 333, 335 (App. 1995) (“[T]he trial
court must screen the petition and supporting affidavits to decide whether
they state adequate grounds to subject the parties to a full hearing. . . . The
statute requires no hearing at the screening stage . . . .”).



                                       7
                          WALKER v. SINIKOVA
                           Decision of the Court

¶13           Mother’s pleadings did not establish the children’s health was
seriously endangered or detailed facts to support a need for an evidentiary
hearing such that we can say the family court abused its discretion by
dismissing the Expedited Petition without a hearing. The Expedited
Petition for modification of legal decision-making and for restricted
supervised parenting time was made less than one year after the Stipulated
February Order to which Mother agreed. Even assuming Mother corrected
the lack of any verification of the facts alleged in the Expedited Petition, the
petition was pursued entirely based on Father’s failure to THC test and
obtaining a medical marijuana card, but not supported by “detailed facts”
substantiating Mother’s belief and/or detailing how the children were
endangered based on these new actions. See A.R.S. § 25-411(A) (restricting
petitions to modify legal decision-making within a year of previous orders
to those based on belief that child’s environment may seriously endanger
the child’s health); A.R.S. § 25-411(J) (restriction of parenting time rights
requires court to find “parenting time would endanger seriously the child’s
physical, mental, moral or emotional health”); Ariz. R. Fam. Law P.
91(F)(1)(b) (seeking modification to order supervised parenting time
requires “a statement in the petition detailing facts as to why unrestricted
parenting time would seriously endanger the child’s physical, mental,
moral, or emotional health”).

¶14           As the Parenting Coordinator observed, Mother has not
presented any detailed facts that illustrate endangerment or examples of
incidents or circumstances to substantiate her belief that the health of the
children was seriously endangered.7 The family court considered Mother’s

7 Mother generally contended Father’s medical marijuana use had “obvious
negative effects” on the children, who at a minimum should not be exposed
to second-hand smoke and subjected to potentially inattentive parents that
expose children to danger. Mother also asserted that the court could “take
judicial notice that a parent who is impaired cannot effectively parent their
children.” To the extent Mother has asserted any example of actions alleged
to substantiate endangerment or opinions suggesting the same, such
incidents and opinions occurred prior to the Stipulated February Order and
were previously considered by the family court and parties when crafting
the agreed upon parenting time and legal decision-making arrangements at
that time. Moreover, in its order dismissing the Expedited Petition, the
court vacated the provision of the Stipulated Order requiring Father to
undergo THC testing during the times he had provided the court with
current medical marijuana cards and confirmed that Father cannot be under
the influence of marijuana during parenting time with the children.



                                       8
                          WALKER v. SINIKOVA
                           Decision of the Court

assertions and evidence, the existing evidence, Father’s new actions, and
the Parenting Coordinator’s report, and it determined there was not
adequate cause for a hearing or modification based on serious
endangerment to the children. See Pridgeon, 134 Ariz. at 180 (stating court
may consider new circumstance in relation to prior circumstances “in
determining whether adequate cause for a hearing has been established”).
The court did not abuse its discretion by determining, based on the
pleadings, that the children were not seriously endangered by the actions
alleged and by dismissing the Expedited Petition.

¶15          It appears, as Mother asserts, that Father was not in strict
compliance with the Stipulated February Order, however, that does not on
its own, establish serious endangerment necessary to bring a petition to
change legal decision-making less than one year after the last order, see
A.R.S. § 25-411(A), or to seek an order requiring restricted/supervised
parenting time, see A.R.S. § 25-411(J); Ariz. R. Fam. Law P. 91(F)(1)(b).

¶16            In addition, the court did not abuse its discretion in
dismissing the Expedited Petition because Mother failed to pursue
mediation with the Parenting Coordinator. The only way Mother could
avoid that requirement was to meet the requirement of the order
appointing the Parenting Coordinator that “there is an emergency related
to the child’s health, safety and welfare.” As that order also provided, if the
issue could not be resolved by the Parenting Coordinator, the party who
wants to file a petition must file a certification about the consultation with
the Parenting Coordinator or the petition would be automatically denied.
As reflected in the Parenting Coordinator’s report, although Mother raised
the issue of Father’s medical marijuana card, she did not provide “examples
or proof of any effect of substance abuse, marijuana or otherwise, on
Father’s parenting abilities.” Just because Mother unilaterally concluded
that mediation would be futile, does not mean the family court abused its
discretion by finding that this consultation was insufficient to meet
statutory requirements and the court’s prevailing orders. A parent cannot
avoid court-ordered mediation simply by refusing to provide facts to the
parenting coordinator or to reasonably cooperate with such mediation. See
Ariz. R. Fam. Law P. 91(O) (“The court may require . . . that the parties
submit to mediation before any issues of custody, parenting time or
visitation may be heard.”).




                                      9
                           WALKER v. SINIKOVA
                            Decision of the Court

II.    The family court did not abuse its discretion by denying Mother’s
       motion for new trial.

¶17            Mother moved for a new trial pursuant to Arizona Rule of
Family Law Procedure 83(A), essentially reiterating her earlier pleadings
that the court should set an evidentiary hearing because Father violated a
court order, and “to determine the children’s best interests in light of Father
obtaining a medical marijuana card.” Mother asserts, as she did below, that
she should have been granted a new trial because she cured the Expedited
Petition’s verification defects, and she should be excused from first
pursuing ADR because “exigent circumstances arise from two facts –
Father’s historical problems with marijuana that led to [the] Court’s
February 24, 2014 order [requiring him to drug test] and Father’s unilateral
violation of” that order.8

¶18            We find no abuse of discretion by denying Mother’s motion
for new trial. See Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009) (stating
standard and reviewing for abuse of discretion); see In re Marriage of
Williams, 219 Ariz. 546, 548, ¶ 8 (App. 2008) (“An abuse of discretion occurs
when a court commits an error of law in the process of reaching a
discretionary conclusion.”).

¶19          As discussed above, the court was well within its discretion
to deny the Expedited Petition based on the petition and other pleadings if
the court could not find adequate grounds to grant a hearing. See A.R.S. §
25-411(L) (“The court shall deny the motion [to modify legal decision-
making or parenting time] unless it finds that adequate cause for hearing
the motion is established by the pleadings . . . .”). Other than the issue of
statutory compliance and verification, Mother’s motion for new trial merely
reasserted her conclusions regarding the exigency of the circumstances,
noting she “disagree[d] with the court.” Putting aside whether the

8 Mother argues that Father’s failure to address her appeal from the denial
of her motion for new trial means that Father confesses error with respect
to the necessity of a new trial. Although failing to address an issue raised
in an opening brief may be treated as a confession of error, here Father
asserts the underlying dismissal was correct, and thus, in our discretion, we
decline to treat his silence regarding a new trial as a confession of error. See
Meiners v. Indus. Comm’n, 213 Ariz. 536, 538-39 (App. 2006); Witherspoon v.
Witherspoon, 17 Ariz. App. 391, 393 (1972) (“The failure to file an answering
brief constitutes a confession of reversible error if the reasons presented for
reversal are debatable, and it is our duty to determine whether these are
debatable.”).


                                       10
                         WALKER v. SINIKOVA
                          Decision of the Court

Expedited Petition suffered from verification defects following Mother’s
curative efforts, the record supported the court’s conclusion that, the
pleadings did not show that the children’s health was seriously endangered
as required by A.R.S. § 25-411(A) and Arizona Rule of Family Law
Procedure 91(F)(1)(b), and Mother had not properly pursued court-ordered
mandatory mediation, as bases for dismissing the Expedited Petition.
Moreover, the petition did not set forth detailed facts sufficient to require
an evidentiary hearing pursuant to A.R.S. § 25-411(L). We find no abuse of
discretion in the court’s denial of Mother’s motion for new trial based on
the same assertions raised in the Expedited Petition.

III.   Attorneys’ fees on appeal

¶20           Mother requests attorneys’ fees on appeal maintaining that
her appeal was necessary because Father intentionally violated the
Stipulated February Order and that she should get fees based on the parties’
relative resources.9 Father requests attorneys’ fees on appeal pursuant to




9Mother argues that because Father has not addressed her request for fees,
her request should be granted.




                                     11
                            WALKER v. SINIKOVA
                             Decision of the Court

A.R.S. § 25-324 (Supp. 2015).10 He also requests fees pursuant to A.R.S. §
25-411(M),11 and “for Mother’s unreasonableness related to her claims on
appeal.” Father maintains Mother’s appeal is unreasonable because she
appealed rather than just wait until February 2015 to file a new petition,
allegedly in an attempt to increase the cost of litigation. Father also posits
that Mother could have sought ADR following the court’s November 2014
ruling which purportedly would have expedited the process and done
more to protect the children than Mother’s current course of action.

¶21           In the exercise of our discretion, we deny both parties’ request
for an award of attorneys’ fees on appeal. However, we will award Father
his taxable costs on appeal pursuant to A.R.S. § 25-324 and upon his timely
compliance with ARCAP 21.




10   Section 25-324(A) provides for a discretionary award of costs:

         [A]fter considering the financial resources of both parties and
         the reasonableness of the positions each party has taken
         throughout the proceedings, [the court] may order a party to
         pay a reasonable amount to the other party for the costs and
         expenses of maintaining or defending any proceeding under
         this chapter . . . .

Section 25-324(B) also provides for an award of attorneys’ fees under the
following circumstances:

         If the court determines that a party filed a petition under one
         of the following circumstances, the court shall award
         reasonable costs and attorney fees to the other party: 1. The
         petition was not filed in good faith. 2. The petition was not
         grounded in fact or based on law. 3. The petition was filed for
         an improper purpose, such as to harass the other party, to
         cause an unnecessary delay or to increase the cost of litigation
         to the other party.
11Section 25-411(M) permits an award of fees if the modification action is
“vexatious and constitutes harassment.”


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                       WALKER v. SINIKOVA
                        Decision of the Court



                           CONCLUSION

¶22         For the reasons stated, we affirm the dismissal of Mother’s
Expedited Petition and the denial of her motion for new trial.




                               :ama




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