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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
CHRISTOPHER JOHNSON,
Petitioner/Appellant,
v.
KIMBERLY JOHNSON,
Respondent/Appellee.
No. 1 CA-CV 20-0175 FC
FILED 1-7-2021
Appeal from the Superior Court in Maricopa County
No. FC2015-095306
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL
Christopher Johnson, Gilbert
Petitioner/Appellant
Suzette Lorrey-Wiggs PC, Tempe
By Suzette Belle Lorrey-Wiggs
Counsel for Respondent/Appellee
JOHNSON v. JOHNSON
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Christopher Johnson (“Father”) appeals the superior court’s
post-decree modification of joint legal decision-making, parenting time and
child support terms. Because no error is shown, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Kimberly Johnson (“Mother”) were married for
several years and share a minor daughter (“Daughter”), born in 2004. They
divorced in 2018. The superior court entered a consent decree to
memorialize their dissolution agreement, which included joint legal
decision-making authority, equal parenting time, a 5-2-2-5 parenting time
schedule, and no child support.
¶3 Soon after, in September 2018, Father had a serious argument
with Daughter about a school dance and his parenting time all but
vanished. Around a year later, Father petitioned the superior court to (1)
enforce the consent decree and order parenting time, and (2) enter a
temporary order modifying parenting time to a week-on/week-off
schedule. The court declined to modify parenting time temporarily, but
encouraged communication between Father and Daughter while setting an
evidentiary hearing over parenting time for late January 2020. Father
followed with an amended petition. Although Mother did not formally
respond to Father’s petition or amended petition, her prehearing statement
covered the issues, including parenting time, legal decision-making and
child support.
¶4 After the evidentiary hearing, the court ordered Mother and
Father to continue joint legal decision-making, but granted Mother final
authority to decide if and when the parties cannot agree. The court also (1)
directed Father to participate in counseling with Daughter, and (2)
modified parenting time so Father had two hours per week, gradually
increasing over a ten-month period and culminating in Father exercising
parenting time on alternating weekends and holidays. And the court
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JOHNSON v. JOHNSON
Decision of the Court
modified child support to reflect the new parenting time schedule. Father
timely appealed. We have jurisdiction. See A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Parenting Time
¶5 Father argues the superior court abused its discretion and
violated his due process rights when it decreased his parenting time sua
sponte. Due process claims present legal issues for our de novo review.
Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999). We review the
parenting time modification for an abuse of discretion. Christopher K. v.
Markaa S., 233 Ariz. 297, 300, ¶ 15 (App. 2013).
¶6 The record indicates no error. Father contends the court
violated his due process rights when it considered whether to reduce his
parenting time because Father had not sought such relief. “Due process
entitles a party to notice and an opportunity to be heard at a meaningful
time and in a meaningful manner.” Curtis v. Richardson, 212 Ariz. 308, 312,
¶ 16 (App. 2006). At minimum, however, the record shows that Mother
raised the issue in her prehearing statement. Indeed, Mother asked the
court to pause Father’s parenting time altogether until he attended
counseling.
¶7 Beyond that, the court’s modified order reflected Father’s
input, including his testimony that an immediate return to equal parenting
time was not in Daughter’s best interest and instead suggesting he “slowly”
be reintroduced through counseling. The superior court then clarified: “[I]f
I understand you correctly, you’re asking for some kind of a gradual
transition either through counseling, or through, like, limited periods of
time—you see her a couple times a week for an hour, whatever, until
they’re—and counseling so that it slowly gets built up.” Father answered
“yes.”
¶8 Father also argues the evidence did not support the court’s
modification and contends he would have introduced more evidence if he
known a reduction in parenting time was possible. But the promised
evidence would only show communication between Father and Daughter
after September 2018, which the superior court accepted as true. Father
shows no prejudice. See Volk v. Brame, 235 Ariz. 462, 470, ¶ 26 (App. 2014)
(“Due process errors require reversal only if a party is thereby
prejudiced.”).
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JOHNSON v. JOHNSON
Decision of the Court
¶9 Father also challenges the court’s exclusion of written
communications, which we review for an abuse of discretion. Davis v.
Davis, 246 Ariz. 63, 65, ¶ 6 (App. 2018) (evidentiary rulings are reviewed on
appeal for an abuse of discretion and resulting prejudice). Father has
shown no abuse of discretion or prejudice. The communications in the
excluded exhibits predated the consent decree and thus held questionable
relevance to the modification issues raised months after the entry of the
decree.1
II. Legal Decision-Making
¶10 Father contends the superior court erroneously modified the
consent decree to recognize Mother as sole legal decision-maker. The court
continued joint legal decision-making authority, however, only recognizing
ultimate authority in Mother when the parties could not agree. And the
Arizona Supreme Court has recognized that courts may “provide for joint
legal decision-making [under A.R.S. § 25-401(2)] with one parent having
final authority over certain matters.” Nicaise v. Sundaram, 245 Ariz. 566, 568,
¶¶ 13, 16-17 (2019).
¶11 Father also challenges the record basis for the court’s
designation of Mother as the final voice. But Father does not account for
evidence that Mother and Father had trouble communicating and making
joint decisions, all of which supported the superior court’s finding that
Mother and Father “are unable to communicate in any effective manner at
all.” The record shows that Mother and Father could not even arrange
routine dental appointments or share health insurance information. The
court did not abuse its discretion by awarding final authority to Mother.
III. Child Support
¶12 Father argues the superior court erroneously awarded child
support to Mother in violation of his due process rights, stressing that
nobody asked for child support. We review for an abuse of discretion.
Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 7 (App. 2015).
1 Father also argues the superior court should have held Mother in
contempt, but the denial of a petition for contempt is not appealable,
Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35 (App. 2001). And because Father
did not develop the argument with record or legal citations, we will not
exercise our discretion hear the issue as a special action.
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JOHNSON v. JOHNSON
Decision of the Court
¶13 Father was not deprived of due process. Arizona law
empowered the superior court to revisit child support after and based on
its modifications to parenting time. A.R.S. § 25-403.09(A); Heidbreder v.
Heidbreder, 230 Ariz. 377, 379-80, ¶¶ 7, 9 (App. 2012). And Father had
“adequate notice and a meaningful opportunity to be heard” on child
support issues. Id. at 381, ¶ 13. Indeed, Father himself petitioned the court
to modify the child support order so that Mother paid support to Father.
Mother’s prehearing statement also identified child support as a contested
issue and sought an increased amount of child support. Thus, Father had
notice that modification of child support was at issue.
¶14 Father also argues the child support order hinges on
incomplete evidence. He contends Mother’s financial affidavit did not
include her last three tax returns or show income from her second job and
maintains he did not offer evidence of Mother’s income because he was not
aware child support modification was at issue. But again, Father had
adequate notice and never offered such evidence. Nor did Father argue at
the hearing that Mother had undisclosed income from a second job. He
cannot raise this argument for the first time on appeal. Bobrow v. Bobrow,
241 Ariz. 592, 597, ¶ 23 (App. 2017). The court did not abuse its discretion
in modifying the child support order based on the new parenting time
orders.
CONCLUSION
¶15 We affirm the superior court’s modification order. After
considering the reasonableness of the parties’ positions and their financial
resources, we exercise our discretion to award Mother her attorney fees and
costs on appeal upon compliance with Arizona Rule of Civil Appellate
Procedure 21. See A.R.S. §§ 25-324(A); 12-342(A).
AMY M. WOOD • Clerk of the Court
FILED: AA
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