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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
LILLIAN C. THOMPSON, Petitioner/Appellant,
v.
BRIAN DAVID VAUGHN, Respondent/Appellee.
No. CV 15-0072 FC
FILED 12-8-2015
Appeal from the Superior Court in Maricopa County
No. FC2010-005937
The Honorable William L. Brotherton, Jr., Judge
VACATED AND REMANDED WITH DIRECTIONS
COUNSEL
Law Offices of David D. White, P.C., Phoenix
By David D. White, Sundown L. White
Counsel for Petitioner/Appellant
Law Office of Robert E. Siesco, Phoenix
By Robert E. Siesco
Counsel for Respondent/Appellee
THOMPSON v. VAUGHN
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
W I N T H R O P, Judge:
¶1 Lillian C. Thompson (“Mother”) appeals the family court’s
orders denying and dismissing her petition to modify legal decision-
making and awarding attorneys’ fees and costs to Brian David Vaughn
(“Father”). For the reasons set forth below, we vacate the family court’s
orders and remand for the court to hold an evidentiary hearing on the
petition pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-411(L)
(Supp. 2015).
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were married in 2001. The couple have
two minor children in common, D.V. (born in 2004) and T.V. (born in 2006).
¶3 In September 2010, Mother filed a petition for dissolution of
the parties’ marriage. Both before and after finalization of the decree of
dissolution, the parties had a strained relationship and regularly engaged
in disagreements regarding parenting. In November 2011, the family court
(Judge Christopher Whitten) appointed a parenting coordinator, Annette
Burns, to assist in the case. See Ariz. R. Fam. Law P. 74.
¶4 On March 22, 2012, the family court entered a decree of
dissolution of marriage via settlement. Under the decree, the parties were
granted joint legal custody (decision-making) and equal parenting time
with the children. Also, the parties were required to participate in
mediation to resolve disputes involving the children before seeking relief
from the court.
¶5 The family court continued to utilize the parenting
coordinator’s services after the decree, regularly approving and adopting
her recommendations as temporary orders of the court, although
sometimes with slight modification. The majority of the parenting
coordinator’s involvement consisted of attempting to resolve Father’s
inappropriate communications with Mother, as well as resolving
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Decision of the Court
disagreements between Mother and Father regarding the need for
counseling for D.V. and a medical (eye) decision affecting T.V.1
¶6 After an October 2, 2013 email from Father indicating he
would purposely draft emails in such a way as to frustrate communications,
the parenting coordinator reported, “The content of Father’s emails to
Mother make co-parenting communication virtually impossible.”2 On
October 24, 2013, the family court adopted the parenting coordinator’s
recommendation that Father’s communications be monitored by a
forensically informed mental health professional for a duration of at least
thirty days.
¶7 Also in October 2013, Mother moved to extend the parenting
coordinator’s appointment, which was set to expire in November. Father
objected to the parenting coordinator’s report and recommendations, and
moved for appointment of a new parenting coordinator.
¶8 At the conclusion of a January 7, 2014 evidentiary hearing
regarding Father’s objection and the parties’ motions, the family court
reappointed Ms. Burns as parenting coordinator and affirmed her findings
and recommendations, explaining in part:
Father and Mother have historically communicated
poorly. Evidence of this problem is plentiful in reviewing
their email messages to one another. Father’s emails to
Mother, many of which are trial exhibits, are sarcastic,
condescending and go far beyond any issues related to
parenting of the children. They are unnecessarily lengthy and
1 Based on the parenting coordinator’s recommendations, Father was
sanctioned by the court for “inappropriate” email communications, which
included numerous, duplicative, and lengthy emails, and emails accusing
Mother of lying and containing insults, sarcasm, and derogatory comments
about Mother, and consistently referencing past events, including those
that occurred during the divorce proceedings. Mother occasionally
engaged in some of the same conduct as Father, but as the parenting
coordinator noted, “not nearly to the same extent as Father.”
2 After being advised by the parenting coordinator that some of his
emails were not understandable, Father responded, “Since I am meeting
your requirement of less than 70 words I started using code which [Mother]
will understand but you will not. You will understand less and less of some
[e]mails as I will be doing it more in the future.”
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Decision of the Court
repetitive. They repeatedly attack in an unnecessarily harsh
manner and cover subjects which the Parenting Coordinator
told him should not be discussed in emails. The Court
adopted more restrictive email rules, based upon the
recommendations of the Parenting Coordinator, without
objection by Father, on August 22, 2013. After these more
restrictive rules were put in place, Father largely continued
his bad behavior. Even when Father has a valid point to
make, he communicates that point in such an inflammatory
manner, that his point is forever drowned in the vitriolic
manner in which it is sent.
Father admits only that he has not followed the email
rules “to the letter.” He continues to argue that he is doing
only what is in the best interest of the children. He does not
seem to perceive himself as having created stumbling blocks
in the way he communicates.
The Parenting Coordinator has made efforts to address
this problem on multiple occasions. Father seems to perceive
these efforts as adversarial. He apparently perceives the
relationship between the Parenting Coordinator and himself
as so antagonistic that she should be removed. He is wrong
on both counts. The Parenting Coordinator’s reprimands
have been largely one sided only because the violations of the
email rules have been largely one sided. She has not been
unfairly harsh to Father.
Although the Court is cognizant of the need to replace
Parenting Coordinators to avoid the danger of them
becoming stale, usually after two years, Father has frustrated
the purpose and work of the Parenting Coordinator in this
case so much that it would be unfair to now rotate Annette
Burns, rewarding Father for his long standing bad conduct by
replacing her for trying to call him on that conduct.
The Parenting Coordinator’s recommendation that
Father participate in counseling with a forensically informed
mental health professional, one who is willing to review email
drafts with Father prior to him sending them for a period of
90 days, to assist him with tools to develop more effective
communication is adopted as an order of the Court. The
Parenting Coordinator shall choose the professional from
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THOMPSON v. VAUGHN
Decision of the Court
those which might be covered by Father’s health insurance
plan. That professional shall review the potential that Father
has an anger control problem and, if he is found to have one,
shall make a recommendation for addressing the issue. That
professional shall report to the Parenting Coordinator in
writing on a monthly basis.
¶9 On January 29, 2014, Mother filed a request for mediation,
arguing a modification of legal decision-making was necessary. On March
4, 2014, the parties participated in mediation through Conciliation Services
regarding Mother’s desire to have sole legal decision-making, but were
unable to reach any agreement regarding a modification of the legal
decision-making arrangement.
¶10 Meanwhile, the treatment of T.V.’s eye misalignment disorder
(intermittent exotropia) became a focus of contention between the parties.
Based on the recommendation of an ophthalmologist, Dr. Mark Salevitz,
Mother believed surgery was immediately necessary. Father insisted upon
a second opinion, however, and Dr. Brendan Cassidy recommended a more
conservative approach, which Father favored. The parties consulted a third
ophthalmologist, Dr. Thomas Tredici, who indicated the reports and
opinions of both of the other doctors were acceptable, but ultimately
appeared amenable to adopting the conservative approach. The parties
were unable to reach a decision between themselves as to whether surgery
should take place to treat the condition, or the parameters for making such
a decision, and sought the assistance of the parenting coordinator, who
recommended a conservative approach with further evaluation in her
March 17, 2014 report and recommendations.
¶11 Mother filed a partial objection to the parenting coordinator’s
report and recommendations. Later, after Father’s response and Mother’s
reply, Mother filed a supplement to her reply, in which she accused Father
of recording the doctors without their knowledge and consent, and
subsequently manipulating or attempting to manipulate their
recommendations, especially those of Dr. Tredici and Dr. Salevitz, through
ex parte communications.3 Mother also requested final decision-making
3 Dr. Salevitz withdrew from further professional care of the parties’
children on April 30, 2014, after becoming aware Father was surreptitiously
recording conversations with the physicians and had accused Dr. Salevitz
of failing to follow the American Association for Pediatric Ophthalmology
and Strabismus (AAPOS) guidelines. According to Mother, Dr. Salevitz
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Decision of the Court
authority for T.V.’s eye condition only. Father responded in part that
neither parent should be awarded final decision-making authority, but if
the court determined the need to specify one parent, Father should be
awarded final decision-making authority.
¶12 On May 27, 2014, the family court held an evidentiary hearing
regarding whether surgery should take place, and the court adopted the
recommendation of the parenting coordinator for conservative, non-
surgical care in a signed minute entry order dated May 28 and filed June 4,
2014. The court also ordered the parties to continue to monitor T.V.’s vision
and present future disputes to the parenting coordinator. Additionally,
after noting the parties had “advocated with these doctors in a manner that,
at least in part, is responsible for some of the doctors withdrawing from
[T.V.]’s care,” the court ordered that neither party (1) communicate with the
children’s medical providers in writing without sending copies of
communications to the other parent, or (2) record the children’s medical
care providers without the knowledge and consent of all persons being
recorded. The court also denied both parties’ requests for attorneys’ fees,
but did not explicitly address in its minute entry the parties’ arguments
regarding sole legal decision-making for T.V.’s eye.
¶13 Later, on June 13, 2014, the parenting coordinator issued
another report and recommendations, finding that Father continued to
have difficulties with communications by sending numerous emails to
Mother accusing her of misrepresentations until instructed by the parenting
coordinator to stop.4 On July 1, 2014, the family court approved the
parenting coordinator’s recommendations that the forensically informed
mental health professional, Dr. Marlene Joy, continue monitoring Father’s
communications and provide an update report regarding his ongoing
therapy, and that the parties be limited in their communications with and
explained in part, “I cannot be accused of these type of things,” and “I can’t
take threats.” Father asserted he had recorded the appointments to ensure
Mother did not misrepresent statements made by the doctors and to hold
the doctors “accountable,” and that Dr. Salevitz withdrew because the
parties were not following his recommended treatment plan. In a letter
dated May 21, 2014, Dr. Cassidy also withdrew his services as T.V.’s
ophthalmologist.
4 The parenting coordinator also noted Mother had on occasion sent
emails of excessive length; however, when advised she had done so, Mother
revised her emails to comply.
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THOMPSON v. VAUGHN
Decision of the Court
documentation provided to health care providers. After Father filed an
objection, the court held oral argument in September 2014 and affirmed the
recommendations, with minor amendments.
¶14 In the meantime, on July 17, 2014, Mother filed her petition
for modification of legal decision-making, alleging in part that a substantial
change of circumstances affecting the best interest of the children had
occurred since the decree because “Father’s inappropriate behavior and
inability to communicate has made co-parenting utterly impossible,” and
that although the parenting coordinator had been “helpful,” Father had
continued his inappropriate communications “despite numerous sanctions,
reports and recommendations to the Court.” Mother further alleged the
parties were in disagreement as to the selection of a new treating physician
for T.V., and Father had indicated he would be unwilling to consent to
surgery until T.V. was eighteen years of age.
¶15 On August 4, 2014, Father filed both a response to Mother’s
petition for modification of legal decision-making and a motion to dismiss
the petition. Father sought to have the petition dismissed for failure to
comply with Rule 91, Ariz. R. Fam. Law P., and A.R.S. § 25-411, maintaining
no substantial change of circumstances had occurred, Mother had failed to
set forth specific facts and allegations supporting adequate cause for a
hearing, and Mother had not provided a factual basis for concluding
modification would be in the best interest of the children. Father further
maintained that “Mother’s agenda is to obtain sole legal decision-making
so that she can authorize the minor child, [T.V.]’s, ex[o]tropia eye surgery
without Father’s consent and over Father’s objection.”
¶16 Mother moved to strike Father’s motion to dismiss, and filed
a response, requesting the court deny his motion and arguing that detailed
facts were set forth in the petition for modification establishing adequate
cause for a hearing and why modification would be in the children’s best
interest. Father responded to the motion to strike, arguing his motion to
dismiss was not frivolous because it was based on Mother’s failure to state
a claim.
¶17 On September 10, 2014, the family court heard oral argument
regarding Father’s objection to the parenting coordinator’s June 13, 2014
report and recommendations and subsequent related pleadings. The court
did not hear oral argument or receive any evidence regarding Mother’s
petition for modification of legal decision-making or the parties’
subsequent motions related to that petition.
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Decision of the Court
¶18 Later, however, in a signed minute entry order filed October
1, 2014, the family court denied Mother’s petition for modification of legal
decision-making, granted Father’s motion to dismiss Mother’s petition, and
denied Mother’s motion to strike Father’s motion to dismiss. The court
found the petition failed to state “adequate cause” under A.R.S. § 25-411 to
support holding a hearing on the petition. The court also awarded Father
his reasonable attorneys’ fees and costs after finding the cause was so
inadequate as to render the filing an unreasonable position under A.R.S.
§ 25-324:
The Court notes that Judge Whitten[5] did agree with
the medical approach for the minor child, [T.V.], which was
supported by Respondent/Father and the Parenting
Coordinator. Subsequent to Judge Whitten’s ruling,
Petitioner/Mother filed a Petition for Modification of Legal
Decision Making on July 17, 2014. In said Petition,
Petitioner/Mother’s main request is to be given sole legal
decision making for the minor children or, in the alternative,
“at the very least” she receive “final say regarding major
mental and medical related decisions.”
The Court finds the timing of the filing of this Petition
suspect considering the fact that it occurred a few weeks after
Judge Whitten ruled against Petitioner/Mother’s preferred
treatment option for her son. Respondent/Father’s pleadings
are well-taken especially where they infer [sic] that a granting
of Petitioner/Mother’s Petition would result in an “end run”
around Judge Whitten’s May 28, 2014 Order.
The Court finds that Petitioner/Mother’s Petition for
Modification of Legal Decision Making fails to state
“adequate cause” under ARS § 25-411 to support holding a
hearing on the Petition. Therefore, consistent with the statute,
Petitioner/Mother’s Petition for Modification of Legal
Decision Making is denied, Respondent/Father’s Motion to
Dismiss Petitioner/Mother’s Petition for Modification of
Legal Decision Making is granted, and Petitioner/Mother’s
Motion to Strike Respondent’s Motion to Dismiss is denied.
Additionally, the Court finds the cause so inadequate for
5 The case was reassigned to Judge William L. Brotherton, Jr., on July
28, 2014.
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THOMPSON v. VAUGHN
Decision of the Court
Petitioner/Mother’s Petition for Modification of Legal
Decision Making, as to render its filing as an unreasonable
position by Petitioner/Mother pursuant to ARS § 25-324.
Therefore the Court awards reasonable attorney fees and
costs to Respondent/Father. Respondent/Father is ordered
to file a China Doll Affidavit[6] by October 8, 2014.
In a signed minute entry order filed December 10, 2014, the court awarded
costs and attorneys’ fees to Father in the amount of $3,408.
¶19 We have jurisdiction over Mother’s timely appeal from the
court’s minute entry orders filed October 1 and December 10, 2014. See
A.R.S. § 12-2101(A)(2) (Supp. 2015).
ANALYSIS
¶20 As an initial matter, Father argues this court should not
consider the merits of the family court’s May 28, 2014 order addressing
T.V.’s medical (eye) issue. Mother agrees, and so do we.
¶21 Mother did not appeal the family court’s May 28 order;
accordingly, that order, absent intervening facts, is final and is not at issue
in this appeal. See generally Wendling v. Sw. Savings & Loan Ass’n, 143 Ariz.
599, 601, 694 P.2d 1213, 1215 (App. 1984) (stating that this court lacks
jurisdiction to review matters not contained in the notice of appeal
(citations omitted)). Moreover, we agree with Father and the family court
that, to the extent Mother’s July 17 petition for modification of legal
decision-making could be construed as challenging the family court’s May
28 order, her petition would constitute an untimely and improper collateral
attack on, or “end run” around, that order. See generally Chaney Bldg. Co. v.
City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986). Further, although
Mother is correct that the family court did not directly address her prior
request for sole legal decision-making regarding T.V.’s eye in its May 28
order, the parties had placed the issue before the court, and the court
implicitly ruled on that issue when it ordered that “the parties shall
continue to monitor [T.V.]’s vision and shall present any dispute about his
future care to the Parenting Coordinator.” The only reasonable
interpretation of the court’s May 28 order is that Mother’s limited request
for modification of legal decision-making as to T.V.’s eye was denied.
6 See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 189, 673 P.2d 927,
933 (App. 1983).
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THOMPSON v. VAUGHN
Decision of the Court
¶22 Mother argues, however, that she based her July 2014 petition
for modification of legal decision-making on what she perceived to be long-
standing and systemic issues in communicating with Father-issues that
allegedly affected the parties’ ability to parent the children and that began
long before and continued even after the family court issued its May 28
order–and not simply on her lack of success in convincing the court to order
surgery for T.V. or provide her with sole legal decision-making as to that
issue. See generally Pridgeon v. Superior Court, 134 Ariz. 177, 180, 655 P.2d 1,
4 (1982) (recognizing that the significance of subsequent changes in
circumstances “need not be determined in a vacuum” (citation omitted)).
We agree with Mother that the May 28 order did not constitute a final
appealable order on a global legal decision-making arrangement. That
issue was not before the family court at the May 27 hearing, and the court’s
order did not address that issue. Further, Mother’s July 17 petition for
modification of legal decision-making alleged the parties had subsequently
encountered disagreements regarding selection of a new treating physician
for T.V., that Father had continued to act inappropriately and unreasonably
in his communications since the May 28 order, and that Father’s
intransigent behavior continued to prevent a collaborative decision-making
process – all issues that allegedly arose or had become exacerbated since the
family court’s May 28 minute entry order.7
¶23 Mother argues the family court abused its discretion in
finding her petition for modification of legal decision-making failed to state
adequate cause under A.R.S. § 25-411(L) to support holding a hearing on
the petition. We review the family court’s order granting Father’s motion
to dismiss for an abuse of discretion. Dressler v. Morrison, 212 Ariz. 279, 281,
¶ 11, 130 P.3d 978, 980 (2006).
¶24 Pursuant to Rule 91(D), Ariz. R. Fam. Law P., “[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.” Subsection (L) of A.R.S. § 25-411
requires a person seeking to modify any type of legal decision-making or
parenting time order to submit an affidavit or verified petition setting forth
detailed facts supporting the requested modification, and further provides
that the family court “shall deny the motion unless it finds that adequate
cause for hearing the motion is established by the pleadings, in which case
7 Moreover, although Mother’s July 17 petition appeared to seek
broad relief that, if granted in full, might have tended to undercut the
family court’s previous May 28 order, nothing would have prevented the
court from imposing appropriate limitations on any relief granted.
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THOMPSON v. VAUGHN
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it shall set a date for hearing on why the requested modification should not
be granted.”
¶25 In general, the family court has wide discretion in assessing
whether adequate cause for hearing the motion has been established by the
pleadings. Siegert v. Siegert, 133 Ariz. 31, 33, 648 P.2d 146, 148 (App. 1982).
We will reverse the court’s decision, however, if “no reasonable judge
would have denied the petition without a hearing.” Id.
¶26 In this case, Mother’s petition for modification of legal
decision-making set forth detailed facts supporting the requested
modification, see A.R.S. § 25-411(L), including facts supporting Mother’s
allegation that a substantial change of circumstances affecting the best
interest of the children had occurred since the decree because Father’s
persistent, inappropriate behavior and inability or refusal to properly
communicate had rendered collaborative decision-making “impossible,”
and that Father had continued his inappropriate communications despite
the consistent and ongoing assistance of a parenting coordinator and a
forensically informed mental health professional, and sanctions and
modifications to email policies imposed by the court. See A.R.S. § 25-
403.01(B)(2)-(3) (Supp. 2015).8 The petition further stated the parties had
reached a new disagreement regarding the selection of a new treating
physician for T.V., Father had engaged in various instances of
inappropriate conduct with medical providers, and Father had indicated he
would be unwilling to consent to surgery—presumably even if medically
8 Subsection (B) of A.R.S. § 25-403.01 provides as follows:
B. In determining the level of decision-making that is in the
child’s best interests, the court shall consider the factors
prescribed in § 25-403, subsection A and all of the following:
1. The agreement or lack of an agreement by the parents
regarding joint legal decision-making.
2. Whether a parent’s lack of an agreement is unreasonable or is
influenced by an issue not related to the child’s best interests.
3. The past, present and future abilities of the parents to cooperate
in decision-making about the child to the extent required by the
order of joint legal decision-making.
4. Whether the joint legal decision-making arrangement is
logistically possible.
(Emphasis added.)
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necessary—until T.V. was eighteen years of age, and that Mother lacked the
financial resources to engage in continual litigation with Father while he
continued to act unreasonably and inappropriately with regard to the
children’s best interest. In response, Father disputed Mother’s allegations
and the factual basis for them—including Mother’s basis for asserting that
modification would be in the best interest of the children—and maintained
Mother’s agenda was to obtain sole legal decision-making over treatment
of T.V.’s eye disorder.
¶27 In denying and dismissing Mother’s petition, while finding
the timing of the petition “suspect,” that it was designed as an “end run”
around Judge Whitten’s May 28 order, and that it was so lacking in
adequate cause as to constitute an unreasonable position, the family court
necessarily adopted the facts as stated by Father, and implicitly found
Father more credible than Mother. By weighing the credibility of the
parties’ opposing statements without an evidentiary hearing, however, the
family court engaged in an impermissible “trial by affidavit.” See Pridgeon,
134 Ariz. at 181, 655 P.2d at 5. “In such a case, the court must hold a
hearing.” Id.; accord Volk v. Brame, 235 Ariz. 462, 464, ¶ 1, 333 P.3d 789, 791
(App. 2014) (holding that “when the resolution of an issue before the court
requires an assessment of credibility, the court must afford the parties an
opportunity to present sworn oral testimony”). We recognize that, having
recently inherited this long-standing, contentious matter, Judge Brotherton
was at a significant disadvantage in understanding the background and
context of the new and recurring disputes, but, on this record, it was
inappropriate for the court to summarily deny and dismiss Mother’s
petition for modification of legal decision-making—and further order that
Mother pay Father’s costs and attorneys’ fees for taking an unreasonable
position—without affording Mother the opportunity to present sworn oral
testimony. In this situation, the family court must hold an evidentiary
hearing before assessing and determining the credibility of the parties.
¶28 Father requests attorneys’ fees on appeal pursuant to A.R.S.
§ 25-324 (Supp. 2015). Father provides no current information as to the
parties’ relative financial information, however, and to the extent the record
reflects financial disparity as between the parties, it would appear that
Father has more financial resources. Further, neither party’s arguments on
appeal were unreasonable. We therefore decline to award fees. See Leathers
v. Leathers, 216 Ariz. 374, 379, ¶ 22, 166 P.3d 929, 934 (App. 2007)
(recognizing this court must examine the parties’ financial resources and
the reasonableness of their positions before awarding fees under § 25-324);
Magee v. Magee, 206 Ariz. 589, 593, ¶ 18, 81 P.3d 1048, 1052 (App. 2004)
(“[R]elative financial disparity between the parties is the benchmark for
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eligibility.”). We grant Mother her taxable costs on appeal upon her
compliance with Rule 21, ARCAP.
CONCLUSION
¶29 We vacate the family court’s October 1 and December 10, 2014
minute entry orders, and remand for the court to hold a hearing on
Mother’s petition for modification of legal decision-making. We make no
comment on the merits of the hearing on remand, but emphasize that, in
making any legal decision-making determination, the family court must
consider all factors relevant to the children’s best interest, including the
factors enumerated in A.R.S. § 25–403(A) (Supp. 2015). Further, “the court
shall make specific findings on the record about all relevant factors and the
reasons for which the decision is in the best interests of the child[ren].”
A.R.S. § 25–403(B).
:ama
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