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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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 postdecree 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.
MILLER v. MILLER

Decision of the Court

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¶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 

 

2 ARCAP 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. 
MILLER v. MILLER

Decision of the Court

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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 
MILLER v. MILLER

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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.
MILLER v. MILLER

Decision of the Court

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¶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. 

 

3 Although Father requests costs pursuant to A.R.S. § 12-329, the statute 

does not exist.