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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   KIMBERLY LEWIS, Petitioner/Appellee,

                                        v.

          WILLIAM ANDREW REHKOW, Respondent/Appellant.

                           No. 1 CA-CV 18-0314 FC
                             FILED 6-18-2019


           Appeal from the Superior Court in Maricopa County
                           No. FC2002-004726
              The Honorable Ronee Korbin Steiner, Judge

                                  AFFIRMED


                                   COUNSEL

Kimberly Lewis, Phoenix
Petitioner/Appellee

William Andrew Rehkow, Las Vegas, Nevada
Respondent/Appellant
                            LEWIS v. REHKOW
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.


C R U Z, Judge:

¶1            William Andrew Rehkow (“Father”) appeals the superior
court’s orders denying his petition to modify parenting time and his motion
for a new trial. For the following reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2             Father and Kimberly Lewis (“Mother”) have one minor child
in common, A.R., born in November 2001. This case involves a seventeen-
year-long divorce and child custody dispute. We briefly summarize only
those facts relevant to this appeal.

¶3            Mother and Father were divorced in 2003. The original orders
awarded Mother sole legal decision-making authority and parenting time,
while Father was awarded supervised parenting time. In September 2015,
the superior court granted Father’s petition to modify parenting time.

¶4            In 2018, Father filed a new petition to modify parenting time
and to hold Mother in contempt. The court held a one-day evidentiary
hearing, where it heard testimony from Father, Mother, A.R.’s maternal
uncles, and stepmother. A therapist testified as a lay witness. In a detailed
order, the superior court found there has been no “material change in
circumstances affecting the child’s welfare . . . since the Court’s entry of the
last parenting time orders” in 2015. The superior court found Mother
“significantly more credible than Father.” The court considered the
relevant factors, denied Father’s petition to modify parenting time and
ordered that Mother have sole legal decision-making authority. See
Arizona Revised Statutes (“A.R.S.”) sections 25-403, -403.01, and -403.03.
The court also denied Father’s petition for contempt.

¶5            Father filed a notice of appeal, then filed a motion for new
trial. This court stayed the appeal to allow the superior court to rule on
Father’s motion. The superior court denied Father’s motion for a new trial.




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                             Decision of the Court

Father filed an amended notice of appeal.1 We have jurisdiction pursuant
to A.R.S. § 12-2101(A)(2), (5)(a).

                                DISCUSSION

I.     Standard of Review

¶6             We review the superior court’s orders modifying legal
decision-making authority and parenting time for an abuse of discretion.
Baker v. Meyer, 237 Ariz. 112, 116, ¶ 10 (App. 2015); Owen v. Blackhawk, 206
Ariz. 418, 420, ¶ 7 (App. 2003). The superior court has broad discretion to
determine whether a material change in circumstances meriting a change
in its prior orders has occurred, and its decision will not be reversed absent
an abuse of discretion. Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982).
The court “abuses its discretion when it makes an error of law in reaching
a discretionary conclusion or when the record, viewed in the light most
favorable to upholding the trial court’s decision, is devoid of competent
evidence to support [it].” Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App.
2014) (quotation omitted). We will not reweigh the evidence, and we will
affirm if substantial evidence supports the court’s ruling. Hurd v. Hurd, 223
Ariz. 48, 52, ¶ 16 (App. 2009). We review the denial of a motion for new
trial for an abuse of discretion. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App.
2009).

II.    Modification of Parenting Time

¶7           Father argues the superior court erred by denying his petition
to modify parenting time. We disagree.



1      During the pendency of the instant appeal, Mother filed a pleading
captioned “Court Order dated 5/6/19 to Support Dismissal of Appeals,”
urging this court to summarily dismiss the appeal. Mother’s request is
based on her contention that: (1) Father’s appeal is brought for the sole
purpose of harassing Mother, (2) the child will become an adult in the
current year and can make her own decisions regarding whether to have
contact with Father, (3) Father has filed a subsequent petition to modify his
legal decision-making authority and parenting time, and (4) he had the
opportunity to be heard at a full and fair hearing regarding the most recent
petition and it was also denied. Because we decide this appeal on its merits,
Mother’s motion is hereby summarily denied. Pursuant to ARCAP 1(d)
“[a]ny party aggrieved by a judgment may appeal as provided under
Arizona law and by [the Arizona Rules of Civil Appellate Procedure]”.


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                            Decision of the Court

¶8             “[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.” A.R.S. § 25-411(J). “The
outlines of that right are made clear under Arizona public policy and
statutes, which direct that a child’s best interest includes ‘substantial,
frequent, meaningful and continuing parenting time with both parents,’
. . . which protect that right absent exceptional circumstances.” Baker, 237
Ariz. at 114, ¶ 6 (quoting A.R.S. § 25-103(B), (C)); see A.R.S. § 25-411(J).

¶9             To change an existing custody order, the superior court must
determine there “has been a material change in circumstances affecting the
welfare of the child.” Canty v. Canty, 178 Ariz. 443, 448 (App. 1994). Only
if the superior court finds there has been a material change in circumstances
does it then proceed to analyze best interests. See A.R.S. § 25-411(L) (“The
court shall deny the motion [to modify] unless it finds that adequate cause
for hearing the motion is established by the pleadings.”); Christopher K. v.
Markaa S., 233 Ariz. 297, 300, ¶ 15 (App. 2013) (“If the court finds . . . a
[material] change in circumstances, it must then determine whether a
change in custody would be in the child’s best interests.”). As the party
seeking to modify custody, Father had the burden of proving a material
change in circumstances. Pridgeon, 134 Ariz. at 181.

       A.     Evidence That Predates 2015

¶10           Father contends the superior court erred by failing to consider
evidence of changed circumstances “predating 2015.” Specifically, he
argues the evidence all “goes back to 2007.” The record contains substantial
relevant evidence to support the superior court’s order. The last parenting
time modification was entered in 2015. To the extent that Father had
evidence supporting his petition to modify that predates the 2015
modification proceedings, he should have presented such evidence and
arguments at the time of the hearing on his 2015 petition. See Davis v. Davis,
78 Ariz. 174, 176 (1954) (holding modification of custody orders requires
“cogent reasons” . . . “constitut[ing] facts or conditions unknown at the time
of the original [order], or occurring subsequent to the [order]”) (citations
omitted); Hendricks v. Mortensen, 153 Ariz. 241, 243 (App. 1987) (holding
Arizona case law requires a showing of changed circumstances materially
affecting the welfare of the child) (citation omitted).

       B.     Mental Health

¶11         Father next argues the court erred by “failing to confirm
Mother’s mental health records,” and contends Mother’s failure to attend



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                           LEWIS v. REHKOW
                           Decision of the Court

therapy showed a change in circumstances. Father cites no evidence or
authority to support his argument that the superior court should
independently verify Mother’s testimony regarding her compliance with
the court’s recommendation that she attend counseling. In fact, it is not
clear that Mother was ordered to participate in any type of counseling in
2015. Actually, the minute entry resulting from the 2015 evidentiary
hearing states in relevant part, “THE COURT FINDS it would be beneficial
for Mother to attend individual counseling with someone who holds a
Master’s [sic] level degree.” Regardless, Father raises this argument for the
first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26,
¶ 13 (App. 2000) (explaining that generally the court does not consider
issues raised for the first time on appeal). Moreover, the superior court
explicitly considered the mental and physical health of all individuals
involved and found that “Father still has obsessive behaviors toward
Mother and vengeance as previously indicated. It does not appear Father
has made strides in this regard.” Father fails to cite specific evidence to
support his allegations that the court abused its discretion in assessing
Mother’s mental health as a potential factor meriting modification of the
current legal decision-making authority and parenting time orders. We
find no error on this basis.

       C.     Requisite Findings

¶12            Father also contends the superior court denied his petition
without making the requisite findings pursuant to A.R.S. § 25-403(B).2
Section 25-403(B) applies in a “contested legal decision-making or
parenting time case,” but § 25-411 governs the process for modifying legal
decision-making or parenting time. Murray v. Murray, 239 Ariz. 174, 176,
¶¶ 6-7 (App. 2016). Following an evidentiary hearing, the court found
Father had “not demonstrated that a material change in circumstances
affecting the child’s welfare ha[d] occurred since the [c]ourt’s entry of the
last parenting time orders.” Therefore, the superior court was not required
to make § 25-403 best-interest findings. Nevertheless, the court made
explicit findings pursuant to A.R.S. §§ 25-403, -403.01, -403.03, -403.04, and
-403.05. The superior court did not err.




2     Father cites no authority to support his argument and it is therefore
waived. See Englert, 199 Ariz. at 26. In our discretion, we address this
argument.


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                            LEWIS v. REHKOW
                            Decision of the Court

       D.     Sufficient Evidence

¶13          Finally, Father argues the superior court’s order was not
supported by sufficient evidence. We disagree. The record and the court’s
twenty-eight-page ruling contain ample evidence supporting the court’s
conclusion. Of note, the superior court found as follows:

       The parties have continued to be in high conflict. The child’s
       relationship with Father is as bad now as it was before, if not
       worse. The child has a strong desire to stop all parenting time
       with Father although the Court believes ceasing the time will
       further damage the relationship. Father bears no
       responsibility for his actions.

Moreover, the court found Mother has a good relationship with A.R., and
Mother and her witnesses were “significantly more credible than Father.”
The court remarked that rather than take personal responsibility for his
tenuous relationship with A.R., Father blamed it on Mother’s “alienation”
of the child.

¶14            The court appointed Dr. Christiano as a therapeutic
interventionist (“TI”). In his report, Dr. Christiano noted that Father’s
relationship with A.R. caused the child a great deal of anxiety. Specifically,
the report reflected that Father’s and A.R.’s relationship had not improved.
Additionally, Dr. LaMorgese, a therapist who worked with Dr. Christiano
and provided therapy to Father and A.R., testified at the evidentiary
hearing that therapy did not change their relationship. Relying in part on
the TI’s report, the court found that Father did not show counseling
changed his approach to his relationship with A.R. or Mother, and the
record supports the finding.

¶15            Father next contends the superior court’s finding that “[t]he
parents hate each other significantly more than they love their child as they
both have continued to create stressful scenarios for her, although more by
Father,” was based on insufficient evidence. However, Father does not
specifically point to evidence in the record which the court erroneously
relied on. Father’s argument amounts to a request that we reweigh the
evidence. Reweighing evidence is not this court’s function. Hurd, 223 Ariz.
at 52, ¶ 16. We defer to the trial court’s determination of witness credibility
and the weight to give conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz.
343, 347, ¶ 13 (App. 1998). Here, the superior court considered the relevant
factors and weighed the evidence in its thorough ruling. Accordingly,




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                           LEWIS v. REHKOW
                           Decision of the Court

substantial evidence supports the superior court’s ruling and there was no
error.3

III.   Motion for New Trial

¶16           Father argues the superior court erred in denying his motion
for a new trial. We disagree.

¶17             Under Arizona Rule of Family Law Procedure 83(a), a
judgment may be vacated, and a new trial granted for certain enumerated
causes “materially affecting a party’s rights.” “To obtain relief, the moving
party must demonstrate that the evidence (1) is material, (2) existed at the
time of trial, (3) could not have been discovered before trial by the exercise
of due diligence, and (4) would probably change the result at a new trial.”
Waltner v. JPMorgan Chase Bank, N.A., 231 Ariz. 484, 490, ¶ 24 (App. 2013).

¶18           In Father’s motion for new trial, he argued that the superior
court’s ruling was not justified by the evidence. He specifically argues on
appeal that he presented “[n]ewly discovered [e]vidence” showing a
change of circumstances warranting a new trial. However, Father failed to
develop any argument supporting such claim both in his motion and on
appeal.

¶19            The superior court is in the best position to evaluate the
credibility of witnesses and weigh the evidence. In that process, the court
must weigh the evidence “independently from the conclusions of
witnesses.” See Leslie C. v. Maricopa Cty. Juv. Ct., 193 Ariz. 134, 136 (App.
1997). A review of the record reveals the superior court considered and
gave appropriate weight to the testimony at the evidentiary hearing, the
evidence, and record. Because reasonable evidence supports its ruling, the
superior court did not abuse its discretion in denying Father’s motion for
new trial.




3       Father also claims that the superior court “abused its discretion by
restricting the parents’ free speech.” However, he failed to support his
argument with relevant legal authorities, so we will not further consider it.
See ARCAP 13(a)(7).



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                              LEWIS v. REHKOW
                              Decision of the Court

                                 CONCLUSION

¶20            For the foregoing reasons, we affirm.4




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




4      Mother filed a “Motion to Seal This Appeal & Decisions Rendered.”
In that pleading, Mother requests this court seal the instant Memorandum
Decision based on the argument that Appellant uses the appeals process to
divulge information which the superior court has previously ordered
sealed. The State of Arizona favors open government and an informed
citizenry. To that end, in general, “the records in all courts . . . of the Judicial
Department of the State of Arizona are presumed to be open to any member
of the public for inspection or to obtain copies at all times.” Rules of the
Supreme Court of Arizona, Rule 123(c)(1). Although there may be
countervailing interests supporting restriction of public access to certain
records, we find an insufficient basis to do so here. Therefore, Mother’s
motion is hereby denied.


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