McCanless v. McCanless ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JASON S. MCCANLESS, Petitioner/Appellee,
v.
SAMANTHA MCCANLESS, Respondent/Appellant.
No. 1 CA-CV 21-0458 FC
FILED 4-19-2022
Appeal from the Superior Court in Maricopa County
No. FC2014-093082
The Honorable David E. McDowell, Judge
AFFIRMED
COUNSEL
Crider Law PLLC, Mesa
By Brad J. Crider
Counsel for Petitioner/Appellee
Landry Law Office PC, Phoenix
By Wm. Troy Landry
Counsel for Respondent/Appellant
MCCANLESS v. MCCANLESS
Decision of the Court
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which Vice
Chief Judge David B. Gass and Judge Cynthia J. Bailey joined.
P A T O N, Judge:
¶1 Samantha McCanless (“Mother”) appeals the superior court’s
ruling on her petition to modify legal decision-making, parenting time, and
child support. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Jason McCanless (“Father”) (collectively
“Parents”) married in September 2007. Parents’ marriage was dissolved in
March 2015 by a Consent Decree that awarded them joint legal decision-
making authority and equal parenting time for their three children. Under
the parenting time schedule, the children would stay with each parent on a
weekly basis.
¶3 After Father dropped the children off with Mother on March
15, 2020, Mother took them to Concho, Arizona. While in Concho, Mother
told Father she wanted to keep the children there until the COVID-19
pandemic situation improved. Parents apparently agreed to temporarily
modify parenting time to a biweekly rotation to accommodate her request.
Shortly after reaching this temporary agreement, however, Mother told
Father she changed her mind and wanted to keep the children in Concho
for longer than two weeks because they were safer there. Father objected,
noting she had just agreed to the biweekly rotation.
¶4 Mother’s counsel sent Father a letter outlining her concerns
about the children, including COVID-19 safety, extracurricular activity
expenses, and parenting time. Mother rejected Father’s request that she
bring the children back from Concho and referred to Parents’ purported
agreement to temporarily modify parenting time to the biweekly rotation.
Father responded that Mother terminated that agreement when she said
she would keep the children in Concho for the foreseeable future and that
his counsel advised him to contact the police if the children were not timely
returned. Ultimately, Father contacted police after Mother kept the
children in Concho for over three weeks.
2
MCCANLESS v. MCCANLESS
Decision of the Court
¶5 On March 30, 2020, Father filed a petition to enforce parenting
time (“Father’s Enforcement Petition”), asserting that Mother withheld the
children and “us[ed] COVID-19 to justify her actions.” Father sought make-
up parenting time, a $100 per day penalty for each day Mother did not
permit him parenting time, and attorneys’ fees.
¶6 Mother filed a petition to modify legal decision-making,
parenting time, and child support (“Mother’s Modification Petition”) three
weeks later. She requested an equal split of the children’s extracurricular
activity expenses, an increase in her parenting time, temporary custody due
to COVID-19, and attorneys’ fees.
¶7 At the end of April, the superior court scheduled an
evidentiary hearing on Father’s Enforcement Petition. After Mother
returned the children and agreed to make-up parenting time, however,
Father requested to vacate his upcoming Enforcement Petition hearing,
which the court granted. Neither Father’s request to vacate nor the court’s
order addressed Father’s make-up parenting time request.
¶8 The superior court held an evidentiary hearing on Mother’s
Modification Petition in May 2021. The court found substantial and
continuing changes in circumstances justified modifying parenting time
and legal decision-making, including that Mother made numerous legal
decisions without consulting Father and incurred extracurricular expenses
without his permission.
¶9 The superior court ordered continued joint legal decision-
making authority and for each parent to be responsible for expenses
incurred without the other parent’s consent. The court altered the
parenting time schedule and ordered Mother to pay child support. The
court awarded attorneys’ fees to Father and denied Mother’s request to
compel Father to pay for extracurricular activities.
¶10 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 12-2101(A)(1).
DISCUSSION
¶11 Absent an abuse of discretion, we will uphold the superior
court’s orders for parenting time, legal decision-making, and child support.
Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (citation omitted); Nold v. Nold,
232 Ariz. 270, 273, ¶ 11 (App. 2013) (citation omitted). The same standard
applies to attorneys’ fees. Magee v. Magee, 206 Ariz. 589, 590, ¶ 6 (App. 2004)
3
MCCANLESS v. MCCANLESS
Decision of the Court
(citation omitted). The superior court abuses its discretion when the record,
viewed in the light most favorable to upholding the court’s decision, is
“devoid of competent evidence to support” the court’s decision. Little, 193
Ariz. at 520, ¶ 5 (citation omitted). We will affirm the superior court’s
ruling if it is supported by substantial evidence. Hurd v. Hurd, 223 Ariz. 48,
52, ¶ 16 (App. 2009) (citation omitted).
¶12 Mother argues that the superior court erred in (1) its findings
of fact, (2) reducing her parenting time and by ordering briefing on make-
up parenting time, (3) calculating child support, and (4) awarding Father
attorneys’ fees.
I. The superior court did not misconstrue the evidence.
¶13 Mother claims that the superior court’s typographical errors
in its ruling show it failed to understand the factual timeline. The court’s
errors, however, were technical and would not alter the outcome. See Ariz.
Const. art. 6, § 27 (“No cause shall be reversed for technical error in
pleadings or proceedings when upon the whole case it shall appear that
substantial justice has been done.”). For example, the court mistakenly
stated Parents married in September 2017 instead of September 2007. It
later noted in the same paragraph, however, that Parents divorced in March
2015.
¶14 Mother correctly notes the superior court’s minute entry
mistakenly stated that an evidentiary hearing was held on both Mother’s
Modification Petition and Father’s Enforcement Petition when the hearing
was only on Mother’s Petition. The court, however, noted multiple times
in the record that the purpose of the hearing was to address Mother’s
Modification Petition. First, at the outset of the hearing, when the court said
“[w]e’re here today for an evidentiary hearing on [Mother’s] petition.”
Second, in the minute entry when the court said the hearing would address
Mother’s Modification Petition. Finally, in the court’s ruling when it stated
it “took under advisement the issues raised in the Petition[]” and the
hearing for Father’s Enforcement Petition “was vacated.” (Emphasis
added). Because the record shows the hearing focused on the issues raised
in Mother’s Modification Petition and Father’s response, Mother was not
“prejudiced” by a lack of notice of the issues to be decided.
¶15 Mother’s claim that the superior court “failed to understand
that it was Father who was retaliating against Mother” is also not supported
by the evidence. As outlined above, Parents’ messages to each other show
that Mother sought to strong-arm Father into agreeing with her. Father
4
MCCANLESS v. MCCANLESS
Decision of the Court
testified that although he and Mother discussed the two weeks on/two
weeks off parenting time arrangement, it “turned into something worse and
snowballed.” Mother testified that she voluntarily disobeyed the court
order and kept the children for over three weeks. The superior court heard
evidence that Parents’ eldest daughter secretly sent Father a Snapchat
message stating Mother would not allow the children to text him and said
they would not see him until May because of COVID-19. Additionally, the
record showed Mother’s statements and actions did not support her
purported concern about COVID-19. Father repeatedly asked Mother to
speak to the children, which she allowed them to do only intermittently.
Mother’s allegation that Father filed a “false police report” to have the
children returned also fails because Mother violated the parenting plan.
Although Father was two hours late when he dropped off the children on
Mother’s Day/Mother’s birthday, there is no evidence this action was
retaliatory.
¶16 Additionally, while Mother argued that the issue of her taking
the children to Concho was “moot,” the superior court found Mother’s
decision to keep the children was consistent with her pattern of unilateral
decision-making and properly used this fact in conducting its best interests
analysis under A.R.S. §§ 25-403 and -403.01.
¶17 Mother asserts that Father committed perjury by testifying
that he did not receive her counsel’s March 2020 letter until after Mother
filed her Modification Petition. This testimony conflicts with a text message
Father sent acknowledging receipt of the letter before the Petition was filed.
Notwithstanding Father’s statement, however, the record contains
substantial evidence to support the court’s findings. See Hurd, 223 Ariz. at
52, ¶ 16 (“Even though conflicting evidence may exist, we affirm the trial
court’s ruling if substantial evidence supports it.”) (citation omitted). We
find no abuse of discretion.
II. The court’s parenting time decision was proper.
¶18 To alter an earlier parenting time order, the superior court
must determine that a material change in circumstances affecting the child’s
welfare has occurred. Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14 (App.
2020) (citation omitted). “The superior court is vested with broad discretion
to decide whether a change of circumstances has occurred.” Id. (citation
omitted). The court then must determine parenting time “in accordance
with the best interests of the child” and in contested cases, make “specific
findings” regarding the relevant best interests factors. A.R.S. § 25-403(A)-
(B).
5
MCCANLESS v. MCCANLESS
Decision of the Court
¶19 Here, the superior court first determined that a substantial
change in circumstances occurred from the Consent Decree. The court
noted that although some circumstances asserted as rationale for
modification were not substantial and continuing when considered in
isolation, the threshold was met when viewing the totality of the evidence.
The court relied on the record to find that Mother’s unilateral decision-
making was substantial and continuing. Thereafter, the court conducted a
detailed best interests analysis under A.R.S. § 25-403. The record supports
the court’s findings and conclusions.
¶20 Mother next argues that the superior court abused its
discretion in ordering briefing on Father’s request for make-up parenting
time. Mother is correct that despite having previously vacated the
evidentiary hearing on Father’s Enforcement Petition, the court’s order
invited Father to file a brief regarding make-up parenting time, which he
did in June 2021. Several weeks later, however, the court filed an order
stating: “In light of [Mother’s] Notice of Appeal and the court’s erroneous
inclusion of Rule 78(c) Ariz. R. Fam. L. Proc. language in its [ruling], this
Court presently lacks jurisdiction to address [Father’s] request for make-up
parenting time. [Father’s] Request will be held until the Court is reinvested
with jurisdiction.” The superior court did not rule on Father’s Enforcement
Petition and the matter has yet to be resolved. As such, it is not a final order,
and we lack jurisdiction to consider it and any arguments pertaining
thereto. See Yee v. Yee, 251 Ariz. 71, 76, ¶ 14 (App. 2021) (to be appealable,
a special order after final judgment must resolve all issues raised in the
petition that initiated the post-decree proceeding).
III. The child support calculation was not erroneous.
¶21 The purpose of a child support order is “[t]o establish a
standard of support for children consistent with the reasonable needs of
children and the ability of parents to pay.” A.R.S. § 25-320 app. § 1(A) (2018)
(“2018 Guidelines”) (current version at A.R.S. § 25-320 app. (2022)).
Provisions of any decree regarding child support may be modified “only
on a showing of changed circumstances that are substantial and
continuing.” A.R.S. § 25-327(A); see Schroeder v. Schroeder, 161 Ariz. 316, 323
(1989) (“The question whether a substantial and continuing change in
circumstances occurred . . . [is] a question of fact.”). The decision to modify
child support is within the superior court’s “sound discretion.” Nia v. Nia,
242 Ariz. 419, 423, ¶ 9 (App. 2017) (citation omitted). “Evidence regarding
current or reasonably projected income, and of recent years’ income may
assist the court in determining whether an increase or decrease in income
is ‘continuing.’” Id. at 423, ¶ 12 (citation omitted). If a parent’s earnings are
6
MCCANLESS v. MCCANLESS
Decision of the Court
voluntarily reduced, the court may impute income to the parent up to his
or her earning capacity. 2018 Guidelines § 5(E).
¶22 Here, the Consent Decree provided that neither parent was to
pay child support. The superior court found, among other things, that
Mother met the burden to demonstrate that a modification of the Consent
Decree was “justified as a substantial and continuous change in
circumstances affecting the parenting time and legal decision making for
the Children.”
¶23 In calculating child support, the superior court found Mother
voluntarily worked for no compensation at her husband’s law firm. Mother
testified that she made twenty-one dollars per hour at her previous job and
believed that she would eventually make around twenty to twenty-two
dollars an hour at the law firm. Based on her testimony, the court did not
abuse its discretion in imputing an income of twenty-one dollars per hour
to Mother.
¶24 Mother also contends the superior court erred by not
including Father’s commissions in its income calculation. Indeed, gross
income “may include” commission income. 2018 Guidelines § 5(A).
Nonetheless, “[i]ncome from any source which is not continuing or
recurring in nature need not necessarily be deemed gross income for child
support purposes.” 2018 Guidelines § 5(A).
¶25 The court’s child support calculations were not erroneous
based on the guidelines and the evidence. The court’s child support
worksheet shows that it diligently reviewed Parents’ finances and adjusted
child support obligations based on Father’s monthly payment amount for
the children’s insurance.
¶26 Additionally, although the superior court found that Mother
made significant expenditures for the children’s extracurricular activities
which benefitted them, she regularly made them without Father’s consent.
Mother testified that because the Consent Decree did not provide for
extracurricular expenses or reimbursement, she and Father would
communicate regarding whether to reimburse the other. Communications
indicate that Mother pressured Father to agree to the expenses. For
example, when Father indicated that he would pay for a less expensive
cheer program for their eldest daughter but not for the more expensive
travel program, Mother replied: “I hope [eldest daughter] really hates you.”
Despite this evidence, however, the court reduced Mother’s child support
obligation to sixty-seven dollars per month—to be used towards
7
MCCANLESS v. MCCANLESS
Decision of the Court
extracurricular activity expenses. The court’s child support determination
was proper.
IV. Attorneys’ fees and costs were properly awarded to Father.
¶27 The superior court may award attorneys’ fees after
considering the financial resources and the reasonableness of the parties’
positions. A.R.S. § 25-324(A). We review an award of attorneys’ fees for an
abuse of discretion and will not disturb the superior court’s order “if there
is any reasonable basis for it.” Orfaly v. Tucson Symphony Soc’y, 209 Ariz.
260, 265, ¶ 18 (App. 2004) (citation and internal quotation marks omitted).
¶28 Mother argues that the superior court abused its discretion in
awarding Father his attorneys’ fees. We disagree. The court found Mother
acted unreasonably by (1) making unilateral legal decisions, (2) attempting
to extract contributions from Father for expenses she incurred, and (3)
seeking modification based on Father’s refusal to contribute to
extracurricular expenses he did not agree to pay. Parents provided
financial affidavits for the court to assess their financial resources. There
was a reasonable basis for the court’s fee award.
¶29 Mother contends that the superior court should have required
Father to submit a China Doll affidavit before determining attorneys’ fees.
See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183 (App. 1983). A China Doll
affidavit aids the court in assessing the reasonableness of requested fees. Id.
at 187-88. Here, Father’s financial affidavit stated that his attorneys’ fees
were $3,500. Father testified he was willing to file an application for an
order of attorneys’ fees and costs. The court awarded Father $3,500 for
attorneys’ fees and costs. See generally A.R.S. § 25-324.
¶30 Although a China Doll affidavit can aid the court in
determining a fee amount, it does not help determine if a party is entitled
to fees under A.R.S. § 25-324. “Once a party establishes its entitlement to
fees and meets the minimum requirements in its application and affidavit
for fees, the burden shifts to the party opposing the fee award to
demonstrate the impropriety or unreasonableness of the requested fees.”
Nolan v. Starlight Pines Homeowner Ass’n, 216 Ariz. 482, 491, ¶ 38 (App. 2007)
(citation omitted). Although the better practice is to require a China Doll
affidavit, we have not held that a China Doll affidavit is mandatory to
receive fees in a child support or parenting time action.
¶31 The superior court had substantial evidence before it
regarding Parents’ resources from their financial affidavits and trial
testimony. Although the record does not indicate that a fee application or
8
MCCANLESS v. MCCANLESS
Decision of the Court
China Doll affidavit were provided, a reasonable basis exists for the fee
award given Father’s avowal that his fees were $3,500. Mother cites no
evidence that the fees were unreasonable, and we find no abuse of
discretion.
¶32 Father requests attorneys’ fees and costs on appeal under
A.R.S. §§ 12-349 and 25-324. We decline to award Father attorneys’ fees but
award him costs upon compliance with Arizona Rule of Civil Appellate
Procedure 21. See A.R.S. § 12-341.
CONCLUSION
¶33 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
9