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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DANETTE MILLER, Petitioner/Appellant,
v.
THOMAS ANDREW MILLER, Respondent/Appellee.
No. 1 CA-CV 14-0521 FC
FILED 4-16-2015
Appeal from the Superior Court in Maricopa County
No. FC2007-008371
The Honorable Christopher T. Whitten, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Danette Miller, Phoenix
Petitioner/Appellant
Thomas A. Miller, Tempe
Respondent/Appellee
MILLER v. MILLER
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
P O R T L E Y, Judge:
¶1 Danette Miller (“Mother”) appeals from three separate post-
decree orders. For the reasons stated below, we affirm the order denying
Mother’s March 2013 petition to modify parenting time and motion for
findings of fact, but vacate the order denying Mother’s August 2013 petition
to modify parenting time and remand for further findings of fact.
BACKGROUND
¶2 The parties’ divorce decree was entered in 2009. This appeal
involves the family court’s denial of Mother’s post-decree petitions to
modify parenting time and request for findings of fact pursuant to Arizona
Revised Statutes (“A.R.S.”) section 25-403.1
¶3 The first order on appeal denied Mother’s March 2013 petition
to modify parenting time. At the time Mother filed the petition, she had
sole legal custody (now legal decision-making) of the parties’ two minor
children, and the parties shared equal parenting time. After an evidentiary
hearing, the family court denied Mother’s petition, concluding there had
not been a material change of circumstances affecting the welfare of the
children. The court made the ruling in an unsigned minute entry order filed
June 6, 2013. The court subsequently denied Mother’s request for
additional findings pursuant to A.R.S. § 25-403 in another unsigned minute
entry order.
¶4 On August 1, 2013, Mother filed another petition to modify
parenting time. Following an evidentiary hearing, the court denied
Mother’s petition in an unsigned minute entry order filed December 13,
2013. The court noted that Father’s continued “mediocre compliance” with
court orders, which adversely affected the children, was not a material
change in circumstances. Mother’s motion for reconsideration/objection to
the lack of findings was also denied.
1 We cite to the current version of the statute unless otherwise noted.
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MILLER v. MILLER
Decision of the Court
¶5 In June 2014, the court granted Mother’s request to issue
signed orders corresponding with its prior orders: (1) denying Mother’s
March 2013 petition to modify parenting time; (2) denying Mother’s request
for additional findings pursuant to § 25-403; and (3) denying Mother’s
August 2013 petition to modify parenting time. Mother filed a notice of
appeal from these signed orders.
JURISDICTION
¶6 Father argues that we lack jurisdiction over this appeal
because Mother failed to file a notice of appeal within thirty days of the
orders from which she appeals. See Arizona Rules of Civil Appellate
Procedure (“ARCAP”) 9(a) (2014).2 The court’s original orders, filed in
June, July, and December 2013, were not appealable until they were signed.
See ARCAP 9(b)(2)(A) (“For the purposes of this subdivision, entry of an
order occurs when a signed written order is filed with the clerk of the
superior court.”); see also Occhino v. Occhino, 164 Ariz. 482, 484, 793 P.2d
1149, 1151 (App. 1990) (“An unsigned minute entry is not appealable.”).
Mother filed her notice of appeal within thirty days from the entry of the
signed orders from which she appeals.
¶7 Father aptly notes that the delay between the original orders
and the signed orders is significant. However, a party who wishes to appeal
or to commence the running of time for the other party to appeal may ask
the court to enter a signed judgment. See Bollermann v. Nowlis, 234 Ariz.
340, 342, ¶ 12, 322 P.3d 157, 159 (2014). There is currently no time limitation
on when this must occur.
¶8 Mother requested signed orders on December 26, 2013.
Despite the significant passage of time between her request and the original
orders, we can find no procedural bar to Mother’s notice of appeal because
the original orders were not final and appealable until the court reissued
signed orders in June 2014. As a result, we conclude that we have
jurisdiction over Mother’s appeal from all three orders.
DISCUSSION
¶9 On a petition to modify parenting time, “the court must
initially determine whether a change of circumstances has occurred since
the last custody order. Only after the court finds a change has occurred
2ARCAP was substantially amended effective January 1, 2015. In this case,
however, we apply the earlier version of ARCAP which was in effect when
the notice of appeal was filed in 2014.
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MILLER v. MILLER
Decision of the Court
does the court reach the question of whether a change in custody would be
in the child's best interest.” Pridgeon v. Superior Court (LaMarca), 134 Ariz.
177, 179, 655 P.2d 1, 3 (1982) (citations omitted); see also Christopher K. v.
Markaa S., 233 Ariz. 297, 300, ¶ 15, 311 P.3d 1110, 1113 (App. 2013) (same);
Owen v. Blackhawk, 206 Ariz. 418, 421, ¶ 11, 79 P.3d 667, 670 (App. 2003)
(holding a substantial change in joint physical custody constitutes a change
in custody requiring § 25-403 findings). The court’s discretionary
determination regarding whether or not a change of circumstances has
occurred “will not be reversed absent a clear abuse of discretion, i.e., a clear
absence of evidence to support its actions.” Pridgeon, 134 Ariz. at 179, 655
P.2d at 3.
I. First Petition to Modify Parenting Time & Request for Findings
¶10 Mother contends the family court abused its discretion in
denying the March 2013 petition to modify parenting time because Father’s
neglect of the children’s medical and education needs was a change in
circumstances warranting a reduction in his parenting time. Mother
contends the court’s “concerns” that Father was “dropping the ball” in
supervising the children’s homework and daily medication use, did not
support its conclusion that there was not yet a material change in
circumstances affecting the children’s welfare.
¶11 The fact that Mother established two new areas of conflict did
not mandate a conclusion of changed circumstances. The parties have had
an extremely high level of conflict and inability to co-parent since the decree
was issued. The court has been involved in resolving many of these
conflicts and is uniquely qualified to determine when the degree of conflict
or area of concern constitutes a change in circumstances justifying a
modification of parenting time. We will not disturb that determination on
appeal absent an abuse of discretion. Id. An abuse of discretion exists when
there is a clear absence of evidence supporting the court’s decision or where
the court ignored evidence. Id. (citations omitted). There was no evidence
that, at that time, Father’s failures materially affected the children.
Accordingly, we affirm the order denying Mother’s March 2013 petition to
modify parenting time.
¶12 Additionally, Mother contends the court erroneously denied
her request to make findings pursuant to § 25-403. The court first decides
whether changed circumstances exist before determining whether
modification is in the children’s best interests. See Pridgeon, 134 Ariz. at 179,
655 P.2d at 3; Christopher K., 233 Ariz. at 300, ¶ 15, 311 P.3d at 1113. Because
the court did not find changed circumstances, it was not required to make
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MILLER v. MILLER
Decision of the Court
a best interests analysis and list its findings. Thus, we affirm the order
denying Mother’s request for § 25-403 findings.
II. Second Petition to Modify Parenting Time
¶13 Mother also appeals the order denying her August 2013
petition to modify parenting time. Mother contends the court ignored
evidence of changed circumstances, specifically allegations of domestic
violence and the medical diagnosis that the children suffered physical
symptoms as a result of stress and anxiety. Mother provided evidence that
one child complained of stomach aches and said Father yelled and cursed,
and that the pediatrician diagnosed one child with stomach aches related
to anxiety.
¶14 Mother contends that, contrary to the court’s conclusion, the
fact that the children suffered physical symptoms related to anxiety
constituted a change in circumstances materially affecting the children’s
welfare. At the December 2013 hearing, Mother presented uncontested
evidence that at least one child is now suffering physical symptoms of stress
and anxiety related to the parties’ high-conflict divorce. Although
somewhat at odds with the May 2013 order, the December 2013 order found
no changed circumstances because Father’s failure to comply with the court
orders has affected the children in the past. However, our review of the
record revealed no previous allegations or evidence that the children
suffered any physical symptoms or health issues as a result of the parties’
on-going high conflict. Therefore, the evidence that at least one child now
has physical symptoms or health issues related to anxiety may constitute a
changed circumstance materially affecting the welfare of the children. See
Christopher K., 233 Ariz. at 300, ¶ 15, 311 P.3d at 1113. The family court’s
conclusion that Mother “failed to show that there has been a ‘material
change of circumstances affecting the welfare of the child’ since May 31,
2013” is contrary to the evidence.
¶15 The court correctly noted that Father’s “continued mediocre
compliance” with court orders was not a changed circumstance. However,
the fact that the parents’ on-going conflict is now affecting one child’s
physical health constitutes a change in circumstances. Given the new
evidence, the court was required to determine whether a modification of
parenting time was in the children’s best interests. See id. The court failed
to make the necessary findings pursuant to § 25-403; therefore, we must
remand for such findings.
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MILLER v. MILLER
Decision of the Court
¶16 Mother also argues that the court ignored evidence of
domestic violence. Mother did not raise allegations of domestic violence
until her motion for reconsideration. Because § 25-403 requires the court to
consider all evidence relating to the children’s best interests, including
domestic violence, on remand the court shall determine whether there has
been domestic violence, in addition to considering all other factors.
“Specific findings are required regardless of whether the court decides to
grant or deny the petition.” Christopher K., 233 Ariz. at 301, ¶ 18, 311 P.3d
at 1114. We leave it to the court’s discretion whether further proceedings
are necessary or if the findings can be made based on the record. We
express no opinion as to whether the evidence presented at the December
2, 2013 hearing warrants a modification.
III. Costs on Appeal
¶17 Both parties request an award of costs on appeal pursuant to
§ 25-324. Each contends the other party took unreasonable positions. Both
parties have limited financial resources, as evidenced by the fee deferrals
granted in this appeal. We do not find one party took a more unreasonable
position than the other and, therefore, decline to award costs pursuant to
§ 25-324.3 We also do not find either party’s conduct sanctionable and
decline to impose sanctions pursuant to ARCAP 25. However, Mother is
entitled to her costs on appeal pursuant to § 12-342.
CONCLUSION
¶18 We affirm the order denying Mother’s March 2013 petition to
modify and related motion for findings. We vacate the order denying
Mother’s August 2013 petition to modify parenting time and remand for
the superior court to make the findings required by § 25-403.
:ama
3Although Father requests costs pursuant to A.R.S. § 12-329, the statute
does not exist.
6