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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL A. SERVIN, JR., Petitioner/Appellant,

v.

CHRISTINA E. SERVIN, Respondent/Appellee.

No. 1 CA-CV 21-0217 FC

Appeal from the Superior Court in Maricopa County

No. FC2017-002176

The Honorable Suzanne M. Nicholls, Judge

AFFIRMED AS MODIFIED

COUNSEL

Strong Law, Phoenix 

By Marc R. Grant, Jr.

Counsel for Petitioner/Appellant

Berkshire Law Office PLLC, Tempe

By Keith Berkshire, Erica Leavitt

Counsel for Respondent/Appellee

FILED 4-12-2022
SERVIN v. SERVIN

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Michael A. Servin, Jr., (“Father”) challenges the superior 

court’s post-decree order addressing a petition to modify legal decisionmaking and parenting time filed by Christina E. Servin (“Mother”). He 

argues the court erred by restricting his ability to petition to modify and by 

awarding Mother excessive attorneys’ fees. We strike the restriction but 

affirm the rest of the order.

BACKGROUND 

¶2 Father and Mother divorced in January 2018; they have two 

minor children in common. Initially, the parents shared joint legal decisionmaking and Father, a member of the United States Army, had long-distance 

parenting time. In 2020, Mother petitioned to modify legal decision-making 

and parenting time, based in part on Father’s acts of domestic violence 

against his new wife, Mother’s order of protection against Father due to his 

harassing communications, and new information regarding Father’s mental 

health. As relevant here, Mother requested sole legal decision-making and 

supervised parenting time for Father. Mother also requested an order that 

required Father to engage in services for his mental health. 

¶3 After an evidentiary hearing, the superior court determined 

that the evidence presented a substantial change in circumstances requiring 

modification of their parenting plan. The court found that Father did

commit domestic violence, that he suffers from mental health issues that 

have not been addressed against medical advice, and that he knowingly

and intentionally presented false and/or misleading information to Mother 

and the court to gain a favorable outcome. The court made written findings 

on all of the relevant statutory best interest and domestic violence factors.

¶4 The court also noted its concerns over Father’s increasingly 

serious acts of domestic violence, finding that he “engaged in ‘significant 

domestic violence’ such that the prohibition on awarding joint legal 

decision-making authority does apply.” The court determined that Father 
SERVIN v. SERVIN

Decision of the Court

3

failed to rebut the statutory presumptions that sole or joint legal decisionmaking to the parent that committed the act of domestic violence is contrary 

to the children’s best interests and would endanger the children or 

significantly impair their emotional development. See A.R.S.

§§ 25-403.03(D) (legal decision-making), -403.03(F) (parenting time). 

¶5 The court awarded Mother sole legal decision-making and 

designated her as the primary residential parent. Father was awarded 

seven (12-hour) supervised parenting days in Arizona each month. In 

section (A)(2)(i) of the order, the court imposed six conditions on Father 

before he could file a petition to modify parenting time.

¶6 Addressing attorneys’ fees, the court found that under A.R.S. 

§ 25-324(A), Father did not act reasonably in the litigation and a substantial 

disparity exists between the financial resources of the parties, with Father 

earning significantly more than Mother. The court further found that under 

§ 25-324(B), two of Father’s filings were not grounded in fact or based on 

law, and were filed for an improper purpose. The court therefore awarded

Mother attorneys’ fees under § 25-324(A) and (B). Father unsuccessfully 

moved to alter or amend the judgment and then timely appealed. We have 

jurisdiction under A.R.S. § 12-2101(A)(2); see also Yee v. Yee, 251 Ariz. 71, 73, 

¶ 1 (App. 2021).

DISCUSSION

A. Restrictions on Future Petitions

¶7 Father argues the superior court exceeded its statutory 

authority by restricting his ability to file a petition to modify legal decisionmaking and parenting time. We review legal decision-making and 

parenting time orders for an abuse of discretion. DeLuna v. Petitto, 247 Ariz. 

420, 423, ¶ 9 (App. 2019). We review issues of law, including statutory 

interpretation, de novo. Id. 

¶8 The superior court conditioned Father’s ability to file a 

petition to modify. Specifically, the court ordered:

In order to petition and permit the Court to consider an increase 

in Father’s court-ordered parenting time and/or to modify 

the requirement for supervised parenting time, Father shall: (1) 

participate in and complete [] domestic violence counseling; 

(2) participate in and complete anger management 

counseling/program; (3) participate in and comply with 

appropriate mental health services to address his identified 
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behavioral health diagnosis, including, but not limited to, 

medication management as may be deemed appropriate by 

qualified mental health professionals; (4) demonstrate that he 

has not participated in or been involved in any further 

incidents of domestic violence (whether physical, verbal, 

mental or emotional) for an extended period of time of no less than 

six (6) months; (5) demonstrate that he has achieved and 

maintained stable mental health and full compliance with his 

mental health and medical providers for an extended period of 

time of no less than six (6) months; and (6) consistently exercised 

his supervised parenting time with the Children for at least 

six (6) months. 

(Emphasis added.) Father argues these conditions modify the statutory 

right to file a petition whenever “there is reason to believe the child’s 

present environment may seriously endanger the child’s physical, mental, 

moral or emotional health.” A.R.S. § 25-411(A). We agree. 

¶9 A petitioner seeking to modify a legal decision-making or

parenting time order must provide “adequate cause for [a] hearing” and

“present detailed facts which are relevant to the statutory grounds for

modification.” A.R.S. § 25-411(L); Pridgeon v. Superior Court, 134 Ariz. 177,

181 (1982). Adequate cause is determined by “whether there has been a 

material change in circumstances affecting the welfare of the child.” Canty 

v. Canty, 178 Ariz. 443, 448 (App. 1994). If adequate cause is determined,

the court “shall set a date for hearing.” § 25-411(L). 

¶10 “[A]ccess to courts is a fundamental right.” Madison v. 

Groseth, 230 Ariz. 8, 14, ¶ 17 (App. 2012). Section 25-411 provides the time 

frames and a cause requirement. A.R.S. § 25-411(A); see also In re Marriage 

of Dorman, 198 Ariz. 298, 302, ¶ 9 (App. 2000). Although the superior court 

may have had just cause to be concerned for the children, it cannot create 

time frames and conditions that conflict with the statutory ability of a party 

to file a petition. See A.R.S. § 25-411; Vera v. Rogers, 246 Ariz. 30, 35, ¶ 20 

(App. 2018). 

¶11 Accordingly, the restrictive language in paragraph eight 

listed above is vacated. See Acuna v. Kroak, 212 Ariz. 104, 115, ¶ 42 n.15

(App. 2006) (noting the court of appeals is authorized under A.R.S.

§ 12-2103(A) to modify a judgment).

¶12 Finally, we note that after this appeal was filed, the superior 

court issued a nunc pro tunc order changing the disputed language to 
SERVIN v. SERVIN

Decision of the Court

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address the issues discussed here. We do not address the change because 

the superior court lacked jurisdiction to make such a modification of the 

order being challenged in the appeal. See Moreno v. Beltran, 250 Ariz. 379, 

382, ¶ 14 (App. 2020).

B. Attorneys’ Fees 

¶13 Father argues the superior court erred by awarding Mother 

$50,000 in attorneys’ fees. We review an award of attorneys’ fees for an 

abuse of discretion. Medlin v. Medlin, 194 Ariz. 306, 309, ¶ 17 (App. 1999). 

We will not disturb a fee award if there is any reasonable basis supporting 

it. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265, ¶ 18 (App. 2004).

¶14 The superior court explained that its decision to award 

attorneys’ fees to Mother was supported by both § 25-324(A) (consideration 

of financial resources and reasonable of positions) and § 25-324(B) (filing 

not made in good faith, not grounded in fact or law, or done for an improper

purpose). After considering these statutory provisions, the court granted 

Mother’s request for attorneys’ fees. The court explained that Father failed 

to comply with discovery orders, lied to the court, failed to provide support 

for numerous claims raised, and failed to pay for his portion of childcare, 

requiring Mother to seek court intervention. The court also found that two 

of Father’s filings were filed to harass Mother, drive up her litigation costs, 

and continue his efforts to control Mother’s actions pertaining to the 

children. 

¶15 Father does not challenge the court’s decision to award 

attorneys’ fees to Mother or the related findings. Instead, he contends the 

fees Mother requested were “so grossly unreasonable and overreaching” 

that “no fees should be awarded.” Father’s contention overlooks the fact 

that Mother requested $92,662 in attorneys’ fees, but the court awarded her 

$50,000. Given the court’s uncontested findings that Father increased the 

cost of the litigation, and the court’s decision to award Mother significantly 

less than the amount she requested, Father has shown no abuse of 

discretion. 
SERVIN v. SERVIN

Decision of the Court

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CONCLUSION

¶16 We strike the portion of the order restricting Father’s ability 

to petition for modification of legal decision-making and parenting time. 

The remaining portions of the order are affirmed. Both parties request 

attorneys’ fees on appeal pursuant to § 25-324. In our discretion, we deny 

both requests. As the more successful party, Father is awarded taxable costs 

on appeal upon compliance with ARCAP 21.