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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ROBERT F. MORAN, Petitioner/Appellee,

                                        v.

                 KEELY E. MORAN, Respondent/Appellant.

                           No. 1 CA-CV 16-0686 FC
                                FILED 11-14-2017


          Appeal from the Superior Court in Maricopa County
                          No. FC2009-005525
        The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

The Cavanagh Law Firm, P.A., Phoenix
By Helen R. Davis, Karen C. Stafford
Counsel for Petitioner/Appellee

Dickinson Wright PLLC, Phoenix
By Steven D. Wolfson, Scott A. Holcomb
Counsel for Respondent/Appellant
                            MORAN v. MORAN
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


W I N T H R O P, Presiding Judge:

¶1            Keely E. Moran (“Mother”) appeals the family court’s post-
decree orders adopting the report of a Family Law Master (“the Master”)
that deleted a provision (“Recommendation B”) within a prior report that
allowed a week of parenting time to be reallocated if the schedule resulted
in three consecutive weeks of parenting time to either Mother or Robert F.
Moran (“Father”). Mother argues the prior report became a binding order
of the court pursuant to Arizona Rule of Family Law Procedure (“Rule”)
72(G), and the Master exceeded her authority by deleting Recommendation
B. In Mother’s view, deletion of Recommendation B constituted an
amendment of an existing order in violation of Rule 85, and the family court
failed to make necessary findings and an independent determination in
overruling Mother’s objection to the deletion. She argues the court’s
adoption of the Master’s recommendation to delete Recommendation B was
an impermissible abdication of the court’s authority under Nold v. Nold, 232
Ariz. 270 (App. 2013). For the following reasons, we disagree and affirm.

                 FACTS AND PROCEDURAL HISTORY1

¶2            The parties were married in 1995 and have one minor child
(“the child”) in common. Father petitioned for dissolution of the parties’
marriage in August 2009. On May 4, 2011, the parties stipulated to the




1      We view the facts and reasonable inferences in the light most
favorable to sustaining the family court’s orders. See Mitchell v. Mitchell, 152
Ariz. 317, 323 (1987); Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984).



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                           MORAN v. MORAN
                           Decision of the Court

appointment of Annette T. Burns as the Master,2 pursuant to Rule 72.3 On
July 3, 2012, the family court entered a consent decree of dissolution of the
parties’ marriage.4 Pursuant to agreement of the parties, the court
reappointed Burns as the Master following entry of the decree.

¶3            In November 2013, Father filed a petition to, inter alia, modify
parenting time. The parties eventually resolved that proceeding through a
stipulated order entered October 6, 2015. The stipulated order incorporated
a “First Amended Joint Legal Decision-Making Agreement and Parenting
Plan” (“the Amended Plan”), which provided in part as follows:

              The Parents will meet with the Parenting Coordinator
       to finalize and update the parenting time calendar for the
       following year. Because the school calendar is not released
       until early to mid-February, beginning in 2016 and after, the
       Parents will meet with the Parenting Coordinator by March 1
       each year. However, for the year 2015, the Parents will meet
       with the Special Master on October 28, 2015 for the calendar
       meeting (and then again before March 1, 2016 when they have
       the 2016-2017 school calendar), which has been scheduled
       with the Special Master because no Parenting Coordinator is
       in place at this time. The actual meeting dates will be
       scheduled based on the schedules of the Parenting

2      The order provided in part that the Master “may deal with any
issues, pursuant to Title 25, A.R.S., that could be presented to the assigned
Judge including without limit pre-decree motions, petitions, requests for
costs and attorney’s fees or for injunctive relief and any post-decree
matters.”

3      A Parenting Coordinator, Judith Wolf, was also appointed in
December 2011. Wolf was reappointed in January 2013, and again in
February 2014, over Mother’s objection. Wolf’s second reappointment as
Parenting Coordinator expired in early 2015, and Mother again objected to
Wolf’s reappointment. Accordingly, by the fall of 2015, no Parenting
Coordinator was in place. As of January 1, 2016, the Arizona Rules of
Family Law Procedure were revised, such that appointment or
reappointment of a Parenting Coordinator now can be made only by
stipulation of the parties. See Ariz. R. Fam. Law P. 74(B), (Q).

4      Attached as Exhibit A to the consent decree was a comprehensive
“Joint Custody Agreement and Parenting Plan.”



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                           Decision of the Court

      Coordinator or Special Master, if applicable, and the Parents.
      If no Parenting Coordinator is in place, the Parents will meet
      with the Special Master to conduct the calendar meeting
      (without lawyers if at all possible).

¶4            In compliance with the Amended Plan, the parties met with
the Master on October 28, 2015, for the expressed “purposes of finalizing,
to the extent possible, their parenting time calendar for the remainder of
2015 and for the first few months of 2016.”5 The Master then filed her
“Family Law Master’s Report Dated October 29, 2015 Re Calendar Issues”
(“the October 2015 Report”). The October 2015 Report made four
recommendations, including the recommendation at issue in this appeal,
Recommendation B, which provided as follows:

      Should a break, holiday or vacation period cause a parent to
      have [the child] for three weeks in a row, then if at all possible,
      the last of those three weeks will be swapped, so that each
      parent has [the child] for two weeks in a row rather than one
      parent having her for three weeks in a row. Those swaps,
      when reasonably possible, have already been accommodated
      in the attached calendars.[6]

Although the October 2015 Report was mailed to counsel for each party, the
report did not advise the parties of an objection period or that the court




5      Under the current version of Rule 72 adopted and effective January
1, 2017, “[a]n appointment under this rule may not direct a master to
perform services within the scope of Rule 74 [the Parenting Coordinator] or
otherwise make decisions or recommendations concerning legal decision-
making or parenting time.” Ariz. R. Fam. Law P. 72(B). However, “[a]ll
family law master appointments made prior to January 1, 2017, continue to
be governed by the prior version of Rule 72.” Ariz. R. Fam. Law P. 72(M).

6      The attached calendars specified each day that each parent was to
have the child through late May 2016, and tentatively indicated that, for
2016, Father would have the child from May 26 through June 23, at which
time a “Mother-Summer” period would begin.




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                           MORAN v. MORAN
                           Decision of the Court

might adopt the report as an order. The family court did not formally adopt
the report as an order of the court.7

¶5           On May 12, 2016, the parties again met with the Master, this
time to complete the parenting time calendar for August 2016 through
August 2017. The Master then issued her “Family Law Master’s Report
Dated May 31, 2016” (“the May 2016 Report”), which included the
following finding, supporting a recommendation that Recommendation B
in the October 2015 Report be deleted:

              A recommendation in the [October 2015 Report] is
      inconsistent with the remainder of the recommendations and
      needs to be deleted. Specifically, that recommendation states
      that if a break, holiday or vacation causes a parent to have [the
      child] for more than three weeks in a row, then if possible, a
      week should be swapped so that each parent has her two
      weeks in a row rather than one parent having her for three
      weeks. Mother objects to this provision being deleted, but
      does not want this provision applied to the summer months
      when she has [the child] for more than six (6) weeks in a row.
      This provision simply does not make sense in light of the way
      the parents have divided [the child’s] break time. As Mother
      has the majority (60%) of the summer break days, and they
      are exercised consecutively so that [the child] and Mother can
      travel to Spain, Father is then awarded certain break time
      with [the child] during the school year to make up for having
      lesser time in the summer. It makes no sense to swap only
      weeks during the school year (which would greatly
      complicate an already complicated calendar), which would
      affect Father’s parenting time with [the child] but not
      Mother’s.[8]


7      On December 30, 2105, the Master filed a supplement to the October
2105 Report, giving Mother, at Father’s request, three days and three
overnight periods originally allocated to Father. Again, the parties were
not notified of an objection period or that the court might adopt the report
as an order. The family court did not formally adopt the supplement as an
order of the court.

8    The parties dispute whether the Master erred in finding that
Recommendation B is “inconsistent” with the parties’ summer parenting-



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                            MORAN v. MORAN
                            Decision of the Court

The family court adopted the May 2016 Report as a temporary order of the
court, to become final unless either party filed a written objection by June
27, 2016.

¶6            Mother timely objected to the May 2016 Report based, in part,
on the deletion of Recommendation B. The family court summarily denied
Mother’s objection before Father’s time to respond had run, and an order
denying the objection was filed July 14, 2016. Mother then moved to modify
the court’s July 14 order, arguing the court should reverse the deletion of
Recommendation B. The court again summarily denied Mother’s motion
before Father’s time to respond had run.

¶7            Mother timely appealed the family court’s formal orders. We
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(2), (4) (2016).

                                 ANALYSIS

       I.     Standard of Review

¶8             In general, we review the family court’s orders on parenting
time for an abuse of discretion. Nold, 232 Ariz. at 273, ¶ 11. 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, L.L.C. v. Meienberg, 215 Ariz.
44, 50, ¶ 27 (App. 2007). We review de novo legal questions, such as the
interpretation of statutes and procedural rules. See Melgar v. Campo, 215
Ariz. 605, 606, ¶ 6 (App. 2007); Felipe v. Theme Tech Corp., 235 Ariz. 520, 524,
¶ 10 (App. 2014). Furthermore, under Rule 72(H), “[a]t the time the master
is appointed, the parties may stipulate that a master’s findings of fact shall
be final. When so stipulated, the court shall consider only questions of law
arising from the master’s report. Absent such a stipulation, the court shall


time schedule. We agree with Father that, under the plain language of
Recommendation B, that recommendation as written would apply to both
the school year and the summer period. See supra ¶ 4 (“Should a break,
holiday or vacation period cause a parent to have [the child] for three weeks
in a row . . . .” (emphasis added)). Accordingly, the Master correctly found
that Recommendation B was inconsistent with the tentative calendar for the
2016 summer parenting-time schedule. It was also inconsistent with section
6 of the Amended Plan.



                                       6
                            MORAN v. MORAN
                            Decision of the Court

not reverse the special master’s findings of fact unless clearly erroneous and
shall review conclusions of law de novo.”

       II.    The Merits

¶9             Relying on Rule 72(G), Mother argues that the October 2015
Report, along with its Recommendation B, automatically became an order
of the family court after the time for the parties to object had passed.9 Father
counters that, because the court never issued an order formally adopting
the October 2015 Report, when the Master later recommended deletion of
Recommendation B in the May 2016 Report, the Master did no more than
recommend deletion of a term that was never a court order in the first place.

¶10          The applicable portion of the version of Rule 72(G) in effect at
the time provided as follows:

              If no objection [to a Family Law Master’s report] is filed
       by either party pursuant to this rule, the master’s report shall
       become an order of the court, unless the court on its own
       motion sets a hearing upon a particular issue in the report
       within ten (10) days after the time for filing an objection has
       passed. If the master’s report covers all issues in the case, and
       no objection is filed and the court does not set a hearing, the
       court shall enter judgment on the master’s report.[10]

¶11           Even assuming without deciding that Mother is correct that
Rule 72 is “self-executing,” however, Mother cites no persuasive authority
that prevented the court from overruling her objection to the Master’s May
2016 Report.11 The October 2015 Report was generated to create temporary
orders and was specifically designed to address calendaring issues arising


9      Under Rule 72(F), Ariz. R. Fam. Law P., “[a] party may object to the
master’s report . . . no later than fifteen (15) days from the date of mailing
of the master’s report.”

10    The second sentence has been eliminated from the current version of
Rule 72(G), effective January 1, 2017.

11     Mother’s citation to Rules 85 and 91, Ariz. R. Fam. Law P., is
unhelpful, as those rules are inapplicable in this context. Further, Nold is
distinguishable because it regards a physical custody decision, not simply
a scheduling issue that might lead to minor calendaring changes. See 232
Ariz. at 273, ¶ 11.


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                           MORAN v. MORAN
                           Decision of the Court

from November 2015 through “the first few months of 2016.” The May 2016
Report recommended the elimination of Recommendation B going
forward, and the court advised the parties of its approval and adoption of
the recommendations in that report as a temporary order of the court,
subject to timely objection by either party. Mother timely objected, and the
court then followed the directive of Rule 72(G), which provides the
following options:

      In the event any objection(s) are filed, the court may set oral
      argument on the objection(s), adopt the report, modify it,
      reject it in whole or in part or may receive further evidence.
      The court shall hold a hearing or enter an order in connection
      with any objection to the master’s report within thirty (30)
      days of the filing of the response or other ordered pleading to
      such objection.

¶12            Thus, under the plain language of Rule 72(G), the family court
retained discretion to set oral argument, adopt the report, modify the
report, or reject the report in whole or in part. Further, the rule required
the court, within thirty days of Mother’s objection, to either issue an order
or hold an evidentiary hearing. Here, the court issued its order within 30
days. Contrary to Mother’s assertion, nothing in Rule 72 required the court
to hold an evidentiary hearing or to make further findings, and we see no
reason to judicially impose such requirements. See generally Hart v. Hart,
220 Ariz. 183, 187, ¶¶ 16-17 (App. 2009) (recognizing current A.R.S. § 25-
411(J) contains “no requirement, as there is in A.R.S. § 25-403(B), that
findings be reduced to writing or stated on the record”). On this record, the
family court did not abuse its discretion in deciding not to set oral
argument, hold an evidentiary hearing, or make further findings, and the
court’s adoption of the Master’s May 2016 Report as a temporary order of
the court was not an improper abdication of its responsibilities. The court
had the authority to adopt the May 2016 Report, including the
recommended deletion of Recommendation B going forward, and we find
no error in its decision to do so.

      III.   Attorneys’ Fees and Costs on Appeal

¶13          Both parties request an award of attorneys’ fees on appeal
pursuant to A.R.S. § 25-324 (2017). The record indicates that both Mother
and Father have substantial financial resources, and any relative disparity




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                           MORAN v. MORAN
                           Decision of the Court

is not meaningful.12 Further, Father’s position throughout the proceedings
has been reasonable. Accordingly, we deny Mother’s request for an award
of attorneys’ fees on appeal. Mother’s appeal, however, relies on a strained
legal analysis and, even if she were successful, would not likely benefit her
or the child. See supra note 8. Moreover, in seeking attorneys’ fees, Mother
argues in her opening brief that “Father has maintained an unreasonable
position, having never raised any response or argument in response to
Mother’s Objections or Motion to Modify, having made no suggestion that
the deletion of Recommendation B was in the best interest of the Minor
Child, and then refusing to reinstate Recommendation B, despite the lack
of any substantive opposition to retaining Recommendation B.” Mother’s
argument implies that Father’s lack of a response in superior court means
Father agrees with Mother as to the merits of the appeal, but has
nonetheless forced Mother to appeal an undisputed issue. As Father states
and Mother does not dispute and failed to tell this court, however, the
superior court in each instance ruled before Father’s responses were due.
Accordingly, Mother’s argument for an award of attorneys’ fees relies
primarily on a misrepresentation by omission. Given the above, we
conclude Mother’s positions have been unreasonable and support an award
of fees to Father. We therefore grant Father’s request for an award of
attorneys’ fees on appeal, subject to his compliance with Arizona Rule of
Civil Appellate Procedure (“ARCAP”) 21. As the successful party on
appeal, Father is also entitled to an award of his taxable costs upon
compliance with ARCAP 21.

                              CONCLUSION

¶14          The family court’s orders are affirmed.




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



12     In our discretion, we deny Father’s motion to strike the Form 8-K,
attached as Appendix 1 to Mother’s opening brief, and have considered
Appendix 1 for the limited purpose of evaluating the parties’ requests for
attorneys’ fees.


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