Shaw v. Bergeron

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MATTHEW T. SHAW, Petitioner/Appellant,
v.
MERCEDES M. BERGERON, Respondent/Appellee.
No. 1 CA-CV 21-0094 FC
FILED 10-26-2021
Appeal from the Superior Court in Maricopa County
No. FC 2014-094188
The Honorable Roderick J. Coffey, Judge
AFFIRMED
APPEARANCES
Thomas M. Shaw, Mesa
Counsel for Petitioner/Appellant
Mercedes M. Bergeron, Gilbert
Respondent/Appellee
SHAW v. BERGERON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Maurice Portley1 joined.
C A M P B E L L, Judge:
¶1 Matthew Shaw (Father) challenges various post-decree
rulings of the family court arising from the parties’ cross-petitions for
modification. Because the court did not abuse its discretion or err as a
matter of law in its rulings, we affirm the court’s orders.
BACKGROUND
¶2 Father and Mercedes Bergeron (Mother) have two sons:
Andrew and Brett.2 Under the decree of dissolution (Decree), Andrew and
Brett were to go to school near Father’s home in Mesa, unless he moved. In
2019, Father moved about 15 miles south, and the parties were unable to
agree on new schools for the boys. After an unsuccessful mediation, Father
and Mother filed cross-petitions for modification.
¶3 After an evidentiary hearing in late July 2020, the family court
modified legal decision-making, parenting time, and child support. After
clarifying its parenting-time orders, the court entered judgment on
November 2, 2020, awarding Father $3,000 in attorney’s fees. The court
subsequently amended its child support orders and summarily denied
Father permission to file a new petition. Father timely appealed from the
November 2nd judgment, the amended child support orders, and the order
denying him permission to refile.
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
2 We use pseudonyms to protect the identities of the parents’ minor
children.
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Decision of the Court
DISCUSSION
¶4 Father contends the family court erred in (1) modifying legal
decision-making and parenting time, (2) calculating child support, (3)
clarifying its parenting-time orders, (4) limiting its award of attorney’s fees,
and (5) denying him permission to refile.
¶5 We review the family court’s rulings on legal decision-
making, parenting time, child support, and attorney’s fees for an abuse of
discretion. Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018); Candia
v. Soza, 251 Ariz. 321, 324, ¶ 7 (App. 2021); Quijada v. Quijada, 246 Ariz. 217,
221–22, ¶ 13 (App. 2019). An abuse of discretion occurs when the court
commits an error of law in drawing a discretionary conclusion or when no
competent evidence supports the court’s decision. Engstrom, 243 Ariz. at
471, ¶ 4. We view the record in the light most favorable to sustaining the
court’s rulings, which we will affirm “if there is any reasonable supporting
evidence.” Garlan v. Garlan, 249 Ariz. 278, 280–81, ¶ 4 (App. 2020). We
review the interpretation and application of statutes and court rules de
novo, however. State v. Godoy, 244 Ariz. 327, 328, ¶ 7 (App. 2017).
I. Modification of Legal Decision-Making and Parenting Time
¶6 In the Decree, the family court awarded the parents joint
legal decision-making and nearly equal parenting time, assigning most of
the weekdays to Father and most of the weekends to Mother. In the post-
Decree proceedings leading up to this appeal, the court modified decision-
making by giving Mother final authority should the parents be unable to
reach an agreement but maintained joint legal decision-making. The court
also switched to a 5-2-2-5 schedule, which gave the parents equal parenting
time and an equal share of weekdays and weekends.
¶7 Father first argues the family court erred by awarding Mother
“unlimited” final decision-making authority in violation of A.R.S. § 25-
403.01.3 Under Section 25-403.01(A), the family court may award sole or
joint legal decision-making. Section 25-403.01(B) specifies the factors the
court must consider “[i]n determining the level of decision-making that is in
the child’s best interests.” (emphasis added).
¶8 Father argues the reference to “level of decision-making”
limits an award of final decision-making authority to “a specific purpose”
3 We note that Father had sought either sole or final decision-making
“on all issues of schooling, physical and mental health issue regarding the
children.”
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Decision of the Court
and “a specific duration.” Under a plain reading of the statute, however,
the phrase, “level of decision making,” is a reference to the two options for
legal decision-making given in A.R.S. § 25-403.01(A). Father cites no legal
authority in support of a more limited application of the family court’s
discretion regarding legal decision-making orders. Moreover, Father’s
argument is inconsistent with Nicaise v. Sundaram, where our supreme court
upheld orders granting final decision-making authority to one parent on
medical, dental, and mental health issues. 245 Ariz. 566, 567, 569, ¶¶ 3, 17
(2019). Calling these “tie-breaking” arrangements “common and
commendable,” the court did not impose any limit on their duration or
scope. Id. at 568–69, ¶¶ 13–14.
¶9 Father also contends the family court’s findings were
inadequate to justify the modification.4 In order to modify legal decision-
making or parenting time, the family court must determine whether a
modification is in the child’s best interests. Pridgeon v. Superior Ct., 134 Ariz.
177, 179 (1982). The court must consider “all factors that are relevant to the
child’s physical and emotional well-being, including” 11 statutorily defined
best interest factors. A.R.S. § 25-403(A). If legal decision-making or
parenting time are contested issues, the court must “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.” A.R.S. § 25-403(B). The court
has broad discretion to determine if a change in circumstances justifies
modification and to decide what orders are in a child’s best interests.
Pridgeon, 134 Ariz. at 179; Ward v. Ward, 88 Ariz. 130, 135 (1960).
¶10 In this case, the family court found modification to be in the
children’s best interests because (1) Mother and Father could not agree on
schools, (2) Brett had severe behavioral problems, (3) Father had been
uncooperative in getting Brett professional help for those problems, (4)
Mother’s preferred schools were higher ranking than Father’s and less
likely to aggravate Brett’s behavioral problems, (5) giving Mother more
weekdays would permit her to get Brett assessed and treated, and (6) the
children would benefit from a more consistent schedule. The court made
4 The family court may only modify legal decision-making or
parenting-time if it makes the threshold determination that “there has been
a change of circumstances materially affecting the welfare of the child.”
Black v. Black, 114 Ariz. 282, 283 (1977). By virtue of petitioning to modify
legal decision-making and parenting time, Father is judicially estopped
from challenging the family court’s finding that a change of circumstances
warranted modification. See State v. Towery, 186 Ariz. 168, 182 (1996).
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Decision of the Court
findings on each of the 11 factors listed in A.R.S. § 25-403(A) and the four
factors listed in A.R.S. § 25-403.01(B). These findings support the court’s
decision to grant Mother final decision-making authority and to adopt a
simpler schedule that gave her more weekday parenting time.5
¶11 Father also challenges the sufficiency of the evidence
supporting a host of the family court’s findings. The record—in particular
Mother’s testimony, the children’s school records, and school rankings
from the Arizona Department of Education—reasonably supports all but
one of the challenged findings. Father cites contrary evidence, including his
own testimony, but we will not reweigh conflicting evidence or second-
guess the court’s credibility determinations.6 See Lehn v. Al-Thanayyan, 246
Ariz. 277, 284, ¶ 20 (App. 2019). The lone exception is the court’s finding
that Father criticized Mother for refusing to let Brett go to Cub Scouts after
he got in trouble at school. Although we find no support in the record for
that finding, on the record presented, any such error on the point is
harmless. See generally Creach v. Angulo, 189 Ariz. 212, 214–15 (1997) (error
reversible only if prejudicial). In sum, the court did not reversibly err in
modifying legal decision-making or parenting-time.
II. Calculation of Child Support
¶12 Father next contends the family court erred in calculating
child support by failing to attribute the difference between Mother’s actual
rent and fair market rent as gross income. Mother paid $800 a month to rent
a house that her mother (Grandmother) purchased about 14 months before
the trial. Mother made about $15,000 in improvements to the home and paid
the homeowners’ association fees, property taxes, and insurance, which
5 Father also faults the family court for failing to make specific
findings as to Andrew to justify modification “for him.” Contrary to
Father’s assertion, however, the court did make findings as to Andrew,
considering his interests separately and in conjunction with his brother’s
where appropriate.
6 Most notably, Father contends that Mother’s counseling records,
which the family court admitted as an exhibit after trial, undermine the
court’s finding that Mother “appear[ed] to be in adequate mental . . .
health.” Father presented no evidence on the counseling records at trial,
however. Without expert testimony explaining how the information
contained in the counseling records bears on Mother’s fitness as a parent,
the counseling records do not undermine the court’s mental-health finding.
See Ariz. R. Evid. 701 and 702.
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SHAW v. BERGERON
Decision of the Court
totaled about $203 a month. Father’s expert estimated that the home’s fair
market rental value was $1,778 a month; Grandmother testified that it was
between $1,300 and $1,400. The court declined to attribute income to
Mother based on her reduced rent, finding no “valid basis for doing so.”
¶13 Arizona’s Child Support Guidelines define gross income
broadly to include “income from any source,” including “recurring gifts.”
A.R.S. § 25-320 app. § 5(A). The family court may treat “the free use of a
home” as income from recurring gifts if the benefit is “substantial” as well
as “regular and continuous.” Cummings v. Cummings, 182 Ariz. 383, 384–85
(App. 1994) (affirming attribution of homeowners’ mortgage payments as
income for mother living in house rent-free).
¶14 Here, there was no evidence Mother was receiving a net
benefit, much less a substantial one. Her monthly housing costs averaged
$800 in rent, about $1,070 in improvements (prorating the $15,000 in
improvements over the course of her tenancy), and $203 in fees, taxes, and
insurance. In total she paid about $2,073 a month, which exceeds Father’s
estimate of the fair market rent. Thus, the family court did not abuse its
discretion in declining to attribute income to Mother for her alleged
reduced rent.
III. Clarification of Parenting-Time Orders
¶15 In modifying parenting time to follow a 5-2-2-5 schedule, the
family court originally ordered that parenting “start times” were to be “at
6:00 p.m.” Father moved for clarification about when exchanges were to
take place. Before entering the judgment that awarded Father attorney’s
fees and finalized the modification, the court issued an unsigned minute
entry, stating that it “intended for exchanges to occur after school when
school is in session or at 3:00 p.m. rather than 6:00 p.m. when school is not
in session.”
¶16 Father argues the court violated Rule 84(d) of the Rules of
Family Law Procedure (Rules) by changing the exchange time from 6 p.m.
to 3 p.m. In relevant part, Rule 84(d) provides, “[o]n a motion for
clarification, the court may not open the judgment.” Under the Rules,
however, a “judgment” means “a decree or an order from which an appeal
lies.” Ariz. R. Fam. Law P. 78(a)(1). And generally, an appeal may only be
taken from a post-decree order once the family court has “fully resolved all
issues raised in a post-decree motion or petition.” Yee v. Yee, 251 Ariz. 71,
76, ¶ 14 (App. 2021); see also A.R.S. § 12-2101(A)(2) (jurisdiction for appeals
from “any special order made after final judgment”). Thus, a post-decree
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Decision of the Court
order is not a “judgment” and remains modifiable until the family court
fully resolves all issues contained in the relevant petition.
¶17 The parenting-time order here was not an appealable
judgment when the family court issued its minute entry clarification, as the
court had not yet finally resolved the parents’ petitions. See Natale v. Natale,
234 Ariz. 507, 510–11, ¶¶ 11–12 (App. 2014) (order not appealable until
court resolved request for attorneys’ fees). Thus, the court did not violate
Rule 84(d) by modifying that order.
IV. Family Court’s Award of Attorney’s Fees
¶18 Father next contends the family court abused its discretion by
limiting its award of attorney’s fees to him.7 The family court has discretion
to award attorney’s fees and costs after considering the parents’ financial
resources and the reasonableness of their positions throughout the
proceedings. A.R.S. § 25-324(A).
¶19 The family court limited its award of attorney’s fees to Father
after finding Father and Mother had similar financial resources and had
both taken unreasonable positions in the proceedings. The court found
Father had acted unreasonably by insisting the court wait to rule until it
had received and considered Mother’s counseling records. It found Father’s
insistence unreasonable because (1) “[t]here was no factual basis to believe”
Mother had “any significant mental health issues,” (2) Father “should have
been more proactive” in obtaining the records before trial, and (3) the
resulting delay had prevented the court from ruling before the new school
year began.
¶20 Our review of the record discloses ample support for the
family court’s findings. At the evidentiary hearing, Father did not present
evidence about or cross-examine Mother about her mental health. Father
did not seek formal discovery of Mother’s counseling records, but instead,
two weeks before trial, moved for a mental health evaluation. And contrary
to Father’s assertion, he did insist the court delay its ruling, even though
the start of the school year was imminent. Although this delay was
exacerbated by an error in transmission outside of Father’s control, the
7 Father also argues the family court abused its discretion by
considering facts not in evidence. Because he fails to develop and support
this argument with citations to the record and legal authority, he has
waived it. See ARCAP 13(a)(7)(A); see also Boswell v. Fintelmann, 242 Ariz.
52, 54, ¶ 7 n.3 (App. 2017).
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Decision of the Court
court did not abuse its discretion by holding Father responsible for his role
in unnecessarily delaying its disposition.
V. Denial of Permission to File Early Petition for Modification
¶21 Father argues the family court abused its discretion by
denying him permission to file another petition for modification. About
two months after the court fully resolved the parents’ petitions, Father
moved for permission to file a new petition for modification. He claimed
that Mother, a certified nursing assistant (CNA), had endangered the
children by giving them flu vaccinations at home. He alleged that Mother
had “ma[de] medical decisions . . . without a supervising physician,”
violated Arizona laws and regulations governing CNAs, and rendered the
efficacy of the children’s vaccines “questionable” by foregoing necessary
cold-storage procedures. Father also alleged that Mother violated the
court’s legal decision-making orders by failing to consult with him
beforehand. The court summarily denied his motion.
¶22 Under A.R.S. § 25-411(A), a parent must wait one year before
petitioning to modify decision-making or parenting-time orders, unless the
family court permits otherwise on the basis that the child’s environment
may “seriously endanger” the child’s health. A.R.S. § 25-411(A). We review
the denial of permission to file a new petition for modification for an abuse
of discretion. Murray v. Murray, 239 Ariz. 174, 176, ¶ 5 (App. 2016).
¶23 Here, Father does not allege any serious harm to the children
actually occurred or could have occurred. Cf. State ex rel. Hollingsworth v.
Ferrill, 1 CA-CV 19-0373 FC, 2020 WL 2394861, at *2, ¶ 10 (Ariz. App. May
12, 2020) (mem. decision) (child having self-harm thoughts and “afraid
about what’s going to happen at Father[’s] home”). Mother may have
violated nursing laws and medical norms, but Father has not shown how
this seriously endangered the children. At most, he claims the children’s
protection against the flu may have been “negate[d] or seriously
diminish[ed].” But in this context, speculation about reduced protection
against an illness the children may or may not contract does not amount to
serious endangerment. Because Father has shown no abuse of discretion,
we affirm the family court’s denial of permission to file an early petition.8
8 Additionally, the issue appears to be moot. A parent may petition
for modification after only six months “based on the failure of the other
parent to comply with the provisions of the order” if the order provides for
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Decision of the Court
VI. Request for Attorney’s Fees on Appeal
¶24 Father requests attorney’s fees pursuant to A.R.S. § 25-324.
We have discretion to award either parent their reasonable costs and
attorney’s fees after considering their financial resources and the
reasonableness of their positions on appeal. A.R.S. § 25-324(A). The family
court found the parents have similar financial resources. The record shows
Father earns nearly three times as much as Mother, however.
¶25 In addition, Father has taken unreasonable positions on
appeal. He failed to support and develop several of his arguments as
required by ARCAP 13. And he provided a disingenuous account of his role
in unreasonably delaying the proceedings in the family court. Accordingly,
we deny his request for fees on appeal. Mother is representing herself on
appeal, so we therefore award Mother her taxable costs on appeal in an
amount to be determined pending her compliance with ARCAP 21.
CONCLUSION
¶26 For the reasons above, we affirm the family court’s rulings.
AMY M. WOOD • Clerk of the Court
FILED: JT
joint decision-making. A.R.S. § 25-411(A). As more than six months have
elapsed since the family court finalized its orders awarding joint decision-
making, no obstacle remains to Father seeking modification based on
Mother’s alleged noncompliance.
9