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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 LONNIE FERGUSON, Petitioner/Appellee,

                                        v.

               CHERRY PRAILLEAU, Respondent/Appellant.

                           No. 1 CA-CV 19-0201 FC
                                FILED 11-21-2019


           Appeal from the Superior Court in Maricopa County
                          No. FC2018-000212
              The Honorable Katherine M. Cooper, Judge

   AFFIRMED IN PART, VACATED AND REMANDED IN PART


                                   COUNSEL

Lonnie Ferguson, Lithonia, GA
Petitioner/Appellee

The Murray Law Offices PC, Scottsdale
By Stanley D. Murray
Counsel for Respondent/Appellant
                       FERGUSON v. PRAILLEAU
                          Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


S W A N N, Chief Judge:

¶1            This appeal challenges several aspects of the superior court’s
name change, parenting time, and child support order. We discern no
abuse of discretion with respect to the name change, parenting time, and
child support rulings, and therefore affirm with respect to those rulings.
But because the court declined to award attorney’s fees and costs based on
its erroneous belief that the parties did not request them, we vacate the
court’s ruling on that issue and remand so that the court can consider the
parties’ competing requests.

                FACTS AND PROCEDURAL HISTORY

¶2             Cherry Prailleau (“Mother”) and Lonnie Ferguson (“Father”)
are the parents of a minor child. In February 2018, Father petitioned to
establish legal decision-making authority, parenting time, and child
support. Father alleged that Mother had moved to Arizona with the infant
child in March 2017 after having told him she “would just be visiting
Arizona with the [child] and would return.” He also alleged that, after the
move, Mother “unilaterally filed and had the [child]’s name changed and
birth certificate amended to reflect a different middle name and Mother’s
last name” instead of his last name. He sought joint legal decision-making
authority and restoration of the child’s original name. He proposed a
multiphase parenting-time plan under which he would exercise increasing
amounts of unsupervised parenting time.

¶3            Mother responded that she had told Father her move was
permanent, and that changing the child’s name was in the child’s best
interests in view of Father’s lack of involvement in her life. Mother
requested that she be given sole legal decision-making authority, that
Father be ordered to pay retroactive and future child support, and that
Father be allowed limited parenting time, initially supervised at Mother’s
home. Regarding the child’s name change, she contended that Father “was
fully aware . . . that she was filing the appropriate civil court documents”
but chose not to participate.


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                           Decision of the Court

¶4            In January 2019, after a hearing at which both parties testified,
the superior court:

          •   Changed the child’s name from C.P. to C.P.-F., finding
              that “Mother unilaterally changed the child’s name on
              her birth certificate to delete Father’s name without
              Father’s consent;”

          •   Granted the parties joint legal decision-making
              authority;

          •   Granted Father regular, unsupervised parenting time
              starting in late January 2019, with his parenting time
              increasing as he established a bond with the child;

          •   Ordered Father to pay back child support from the
              date of his petition in the amount of $2,126, and to pay
              $639 per month in child support going forward;

          •   Denied Mother’s claim for child support before the
              petition date, finding that she failed to seek child
              support in a timely manner and that her actions in that
              timeframe “demonstrate[d] an intent to remove Father
              from the child’s life;” and

          •   Declined to award attorney fees or costs to either party
              because “[n]either Party has requested an award.”

Mother appeals.

                               DISCUSSION

I.     THE SUPERIOR COURT PROPERLY CONSIDERED THE NAME-
       CHANGE REQUEST.

¶5            Mother contends that the superior court should not have
considered Father’s request to alter the child’s name because he did not
appear in the civil name-change proceeding.

¶6              “Under the doctrine of claim preclusion, a final judgment on
the merits in a prior suit involving the same parties or their privies bars a
second suit based on the same claim.” Airfreight Express Ltd. v. Evergreen
Air Ctr., Inc., 215 Ariz. 103, 108, ¶ 12 (App. 2007). A party arguing claim
preclusion must show “(1) an identity of claims in the suit in which a



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judgment was entered and the current litigation, (2) a final judgment on the
merits in the previous litigation, and (3) identity or privity between parties
in the two suits.” In re Gen. Adjudication of All Rights to Use Water In Gila
River Sys. & Source, 212 Ariz. 64, 69–70, ¶ 14 (2006). But “[e]ven when the
technical requirements for preclusion based on a former adjudication are
met, the court should not apply preclusion principles where there is some
overriding consideration of fairness to a litigant.” In re Marriage of Gibbs,
227 Ariz. 403, 407, ¶ 6 (App. 2011) (citation and quotation marks omitted).
We review a claim-preclusion ruling de novo. Pettit v. Pettit, 218 Ariz. 529,
531, ¶ 4 (App. 2008).

¶7             Mother contends that “Father was required to appear and
respond to the name change [proceeding] . . . but instead chose to do
nothing.” But though Mother advised Father that she intended to change
the child’s name, and asserted that she had mailed him “legal documents,”
the only document in the record from the name-change proceeding, and the
only document that Father testified about, is an “Optional Consent of
Parent to Name Change of Minor Child and Waiver of Notice” form that
Father did not sign. Because Mother presented no evidence that she
properly served Father in the name-change proceeding, the judgment did
not bind Father and the court did not err by declining to apply claim
preclusion. Cf. Restatement (Second) of Judgments § 28(5) (issue preclusion
does not apply where “[t]here is a clear and convincing need for a new
determination of the issue . . . because the party sought to be precluded, as
a result of the conduct of his adversary or other special circumstances, did
not have an adequate opportunity or incentive to obtain a full and fair
adjudication in the initial action”).

II.    THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
       AWARDING     FATHER    IMMEDIATE     UNSUPERVISED
       PARENTING TIME.

¶8           Mother contends that the superior court erred by awarding
Father immediate unsupervised parenting time. We review the court’s
parenting time orders for abuse of discretion. Nold v. Nold, 232 Ariz. 270,
273, ¶ 11 (App. 2013).

¶9           Mother contends that immediate unsupervised parenting
time was not in the child’s best interests and endangered the child’s health
because the child and Father had no preexisting bond. But Mother does not
challenge on appeal the superior court’s finding that her pre-petition
decisions controlling access to the child contributed to Father’s inability to
bond with the child. Moreover, while Mother expressed her preference that


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                           Decision of the Court

Father’s first few visits with the child be “around family and in a familiar
setting,” she presented no evidence to show that immediate unsupervised
parenting time would not be in the child’s best interest or would endanger
or impair her. See A.R.S. §§ 25-403.02(B) (providing that parenting plan
must be “[c]onsistent with the child’s best interest”), -410(B) (providing that
supervised parenting time is warranted if “in the absence of [supervision]
the child’s physical health would be endangered or the child’s emotional
development would be significantly impaired”). And though Mother also
testified that the parties had agreed in mediation that it would be best for
Father to bond with the child “around family and in a familiar setting,”
emails she offered from that timeframe suggested that the parties did not
agree. We perceive no abuse of discretion in the court’s parenting time
rulings.

III.   THE SUPERIOR          COURT        PROPERLY     AWARDED         CHILD
       SUPPORT.

       A.     The Superior Court Did Not Abuse Its Discretion by Failing
              to Include Medical Insurance and Childcare Expenses in the
              Child Support Award.

¶10           Mother contends that the superior court erred by not
adjusting its child support award to account for medical insurance and
childcare costs she claims to have incurred before the hearing. We review
a child support award for abuse of discretion, accepting the superior court’s
findings of fact unless clearly erroneous and reviewing the court’s
interpretation of the Arizona Child Support Guidelines, A.R.S. § 25-320
app. (“Guidelines”), de novo. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21
(App. 2009).

¶11            Under Guidelines § 9(A), the court must “add to the Basic
Child Support Obligation the cost of the children’s medical dental or vision
insurance coverage, if any.” Here, however, the court correctly found that
Mother did not list any medical insurance expenses in her affidavit of
financial information. She also listed no medical insurance expenses in the
child support worksheet she submitted with her pretrial statement, and she
testified that she and the child were covered by Medicaid between April
2017 and May 2018.

¶12            As for childcare expenses, Guidelines § 9(B)(1) provides that
the court may add “[c]hildcare expenses that would be appropriate to the
parents’ financial abilities.” But Mother listed no childcare expenses in her
affidavit of financial information, and the court found unpersuasive the



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evidence she offered at trial—testimony and bank statements showing
unidentified withdrawals and transfers. We defer to the court’s weighing
of the evidence. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009) (“Our
duty on review does not include re-weighing conflicting evidence or
redetermining the preponderance of the evidence.”). We therefore find no
abuse of discretion on this issue.

      B.     The Superior Court Did Not Abuse Its Discretion by
             Declining to Award Child Support Retroactive to the Date of
             Mother’s Move to Arizona.

¶13           Mother contends that the superior court erred by declining to
award her child support retroactive to March 2017, when she moved with
the child to Arizona. She cites A.R.S. § 25-809(B), which lists three factors
that the court must consider in deciding whether to “order past support
retroactive to more than three years before the commencement of the
proceeding.” But § 25-809(B) does not apply because Mother did not seek
support retroactive to more than three years before Father’s petition.

¶14           Mother’s claim instead is governed by § 25-320(C), which
provides: “[T]he court may order child support retroactively to the date of
separation, but not more than three years before the date of the filing for
dissolution of marriage, legal separation, maintenance or child support.
The court must first consider all relevant circumstances, including the
conduct or motivation of the parties in that filing and the diligence with
which service of process was attempted on the obligor spouse or was
frustrated by the obligor spouse.” Under the statute, the court is not
required to order retroactive child support; it may do so where it deems
such child support appropriate. See Simpson v. Simpson, 224 Ariz. 224, 226–
27, ¶ 9 (App. 2010).

¶15            Mother argues that “[t]he only legal basis for denying [her]
full retroactive child support would be if she had hid[den] the child from
Father and unreasonably delayed establishing child support.” While the
court did not find that Mother “hid” the child from Father, it did find she
“took the child to live with her in Arizona without Father’s knowledge or
consent” and did nothing to establish child support before Father filed his
petition nearly a year later. Mother disputes those findings, but we defer
to the superior court’s resolution of the parties’ conflicting testimony. See
Hurd, 223 Ariz. at 52, ¶ 16. Further, we reject Mother’s contention that the
court’s findings were not relevant to the analysis under § 25-320(C). Section
25-320(C) provides that the court must consider “all relevant




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                        FERGUSON v. PRAILLEAU
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circumstances.” The court did not abuse its discretion by deeming Mother’s
pre-petition actions to be relevant to her retroactive child support claim.

IV.    THE SUPERIOR COURT OVERLOOKED THE                           PARTIES’
       REQUESTS FOR ATTORNEY’S FEES AND COSTS.

¶16           Mother finally challenges the superior court’s decision not to
award attorney’s fees or costs under A.R.S. § 25-324(A). We review the
court’s ruling for abuse of discretion. See Murray v. Murray, 239 Ariz. 174,
179, ¶ 20 (App. 2016).

¶17            The court declined to award attorney’s fees and costs based
on its finding that neither party requested them. But the record reveals that
both parties did request attorney’s fees and costs in their pretrial
statements, and that Father requested attorney’s fees and costs in his
petition as well. We therefore vacate the court’s ruling on this issue and
remand so that it may consider the parties’ requests.

                               CONCLUSION

¶18            We affirm as to all issues raised in this appeal except for the
parties’ attorney’s fees and costs claims below. We vacate and remand for
further proceedings as to that issue. Having considered the financial
evidence in the record and the reasonableness of both parties’ positions on
appeal, we deny Mother’s request for attorney’s fees and costs incurred in
this appeal.




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




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