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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DONELLE C. WHEELER, Petitioner/Appellant,

v.

ERNIE A. JONES, Respondent/Appellee.

No. 1 CA-CV 19-0578 FC

Appeal from the Superior Court in Maricopa County

No. FC2013-005208

The Honorable Michael C. Blair, Judge

VACATED AND REMANDED

COUNSEL

Pangerl Law Firm, P.L.L.C., Phoenix

By Regina M. Pangerl

Counsel for Petitioner/Appellant

Ernie A. Jones, Litchfield Park

Respondent/Appellee

FILED 9-3-2020
WHEELER v. JONES

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in 

which Judge David B. Gass and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Donelle C. Wheeler (“Mother”) appeals the denial of her 

petition to modify legal decision-making authority and parenting time 

orders and the attorneys’ fees award. For the following reasons, we vacate 

the order denying Mother’s petition and remand. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mother and Ernie A. Jones (“Father”) lived together for 

several years and have two children, M.J., born in 2004, and J.J., born in 

2007. In January 2013, after the parties separated, Mother petitioned to 

establish sole legal decision-making authority, parenting time, and child 

support. Father filed a report with the entity now known as Department of 

Child Safety (“DCS”) accusing Mother of abusing the children. In 

September 2013, the superior court awarded Father emergency temporary 

sole legal decision-making authority and ordered Mother to have 

supervised parenting time “as outlined by [DCS].”

¶3 At the temporary orders hearing in November 2013, the 

superior court found that Father failed to submit to a court-ordered drug 

test and admitted he would have tested positive for marijuana. The court 

also noted that DCS had closed its investigation of Mother and no evidence 

supported continuing supervised parenting time. The court ordered 

temporary joint legal decision-making authority, but based on Father’s 

substance abuse problem, the court awarded Mother primary physical 

custody of the children, ordered Father to participate in the Family Drug 

Court program, and appointed a court-appointed advisor (“CAA”). The 

court also appointed a best interests attorney (“BIA”) for the children.

Father successfully completed all Family Drug Court requirements and was 

later released from the program.

¶4 In preparing a report for trial, the BIA became concerned that 

Mother was abusing M.J. and contacted DCS. As a result, DCS placed M.J. 

with Father. In October 2014, following a trial, the superior court awarded 
WHEELER v. JONES

Decision of the Court

3

Father sole legal decision-making authority and primary physical custody,

and granted Mother unsupervised parenting time with J.J. every other 

weekend and Wednesday evenings. In its October 2014 Final Paternity 

Orders (“2014 Order”) the court granted Mother supervised parenting time 

with M.J. until “DCS opines that unsupervised visitation is appropriate”

and when that occurred, Mother would have unsupervised parenting time 

with both children every other weekend and one evening a week.

¶5 Mother filed her first petition to modify legal decisionmaking authority and parenting time in May 2016. The superior court held 

an evidentiary hearing in December 2016 and found no material change of 

circumstances since the prior order. Mother filed a second petition to 

modify in May 2017. The court held another evidentiary hearing and again,

found no material change of circumstances affecting the children’s best 

interests and denied the motion in October 2017.

¶6 In May 2018, Mother filed a third petition to modify, 

accompanied by a motion for an ex parte temporary order to grant Mother 

physical custody and sole legal decision-making authority. Mother alleged 

that Father hit J.J. causing visible bruising and provided a police report of 

the incident. The court ordered Father to appear and respond to the motion 

for temporary orders. Mother retained counsel and amended both petitions

to include more detailed factual allegations. After an evidentiary hearing, 

the superior court declined to issue modified temporary orders. The court 

twice ordered Father to submit to a random drug test based on Mother’s 

allegation that he was using marijuana, but Father never did so.

¶7 The superior court held further evidentiary hearings on 

Mother’s amended petition to modify but found no material change of 

circumstances and denied the petition. Specifically, the court found DCS 

did not substantiate the allegation that Father abused J.J. in May 2018 and 

the Phoenix Police did not file any charges against Father. The court 

awarded Mother $2500 in attorneys’ fees because Father has greater 

financial resources and acted unreasonably by disregarding the drug test

orders. Mother filed a timely notice of appeal, and we have jurisdiction 

under A.R.S. section 12-2101(A)(1).

DISCUSSION

I. Change in Circumstances

¶8 When considering a petition to modify legal decision-making 

authority and parenting time orders, the superior court engages in a twostep analysis by determining (1) whether a change in circumstances 
WHEELER v. JONES

Decision of the Court

4

occurred that materially affects the children’s welfare, and, if so, (2) 

whether the children’s best interests requires a change in custody. 

Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15 (App. 2013) (citation 

omitted). We review modification of legal decision-making authority and 

parenting time orders for an abuse of discretion. Baker v. Meyer, 237 Ariz. 

112, 116, ¶ 10 (App. 2015). “The [superior] court has broad discretion in 

determining changed circumstances.” Canty v. Canty, 178 Ariz. 443, 448 

(App. 1994). We “must affirm if any reasonable construction of the evidence 

justifies the decision.” Stevenson v. Stevenson, 132 Ariz. 44, 46 (1982). We may 

only infer findings of fact and conclusions of law supporting the trial court’s 

order if “those findings are reasonably supported by the evidence.” Johnson 

v. Elson, 192 Ariz. 486, 489, ¶ 11 (App. 1998). 

¶9 Mother argues that the superior court erred in finding there 

were no changed circumstances warranting a modification. She contends 

there were “numerous” changed circumstances since the September 2014 

order, including: (1) Father’s renewed drug use, (2) physical abuse, (3) lack 

of communication about the children, (4) Father restricting the children’s 

communication with Mother, (5) denial of Mother’s parenting time, (6) the 

children’s increasing behavior issues at school, and (7) Mother’s changed 

personal circumstances. The superior court explicitly addressed only one of 

these allegations: physical abuse. The court’s ruling contains no indication 

that it considered the other alleged changes in circumstances. 

¶10 A.R.S. § 25-411(J) does not require the court to make express, 

written findings about changed circumstances. See Hart v. Hart, 220 Ariz. 

183, 187, ¶¶ 16–17 (App. 2009) (court will not impose requirement for 

written findings where the statute only requires that the court “‘find’ 

certain facts in order to grant the specified relief” but does not require the 

“findings be reduced to witting or stated on the record”). We will affirm the 

order if it is supported by reasonable evidence and view the evidence in the 

light most favorable to upholding that order. See Vincent v. Nelson, 238 Ariz. 

150, 155, ¶ 17 (App. 2015).

¶11 At trial, the parties focused almost exclusively on the second 

analytical step in the modification inquiry: whether the best interests of the 

children warranted a change in custody. The court’s own questions—some 

of which raised the possibility of changing to a week-on-week-off 

arrangement—also focused on part two of the relevant analysis. But the 

court’s post-trial conclusion cut off analysis at part one, finding no change 

in circumstances occurred. A close look at the record suggests that 

reasonable evidence does not support the court’s conclusion.
WHEELER v. JONES

Decision of the Court

5

¶12 We see this in two specific areas. First, the 2014 Order 

explicitly relied on the fact that Father attended Family Drug Court and had 

“done everything the court has asked of him.” In other words, the 2014 

Order relied on Father’s resolution of his drug issues and compliance with 

court orders related to his drug use. The current record establishes the 

opposite: Father was repeatedly non-compliant with the court’s orders for 

drug testing and admitted ongoing use of marijuana up to and at the time 

of trial. 

¶13 Second, at the time of the 2014 Order, the court found that 

“the children are adjusted to their school.” But the record shows recent, 

significant school-related issues. Both children had several unexcused tardy 

reports and at least one suspension from school. M.J. engaged in multiple 

aggressive behavior incidents, ultimately leading to her expulsion from 

school.

¶14 Because the court’s order does not discuss these issues, we 

cannot discern the court’s basis for disregarding these changes. While, as 

noted above, we do not require detailed, written findings about changed 

circumstances, we cannot reconcile the lack of such findings coupled with 

a record that does not support the superior court’s conclusion of no 

changed circumstances. We are thus compelled to find the court abused its 

discretion in concluding there were no changed circumstances. While we 

decline to find as a matter of law that circumstances changed, we remand 

the case for the superior court to resolve this discrepancy between the 

record and its conclusions. The superior court may find it appropriate to 

hold additional hearings to reach that resolution and to obtain current 

information on the issues Mother raised in her amended petition to modify. 

II. Substance Abuse 

¶15 Under A.R.S. § 25-403.04, courts must presume that it goes 

against the children’s best interests to award sole or joint legal decisionmaking authority to a parent who has abused drugs or alcohol or has been 

convicted of a drug offense within the past twelve months. Mother 

contends the superior court erred in failing to apply this presumption 

because the evidence shows that Father used marijuana.

¶16 Because we are remanding for the superior court to 

reconsider its ruling on changed circumstances, we need not determine the 

applicability of this statute. On remand, if it concludes that Father’s drug 

use constitutes a changed circumstance, the superior court will consider 

A.R.S. § 25-403.04 in the normal course of its best interests inquiry. 
WHEELER v. JONES

Decision of the Court

6

III. Attorneys’ Fees 

¶17 Mother requested $26,431.49 in attorneys’ fees and costs. The 

court awarded Mother $2500 because Father had greater financial resources 

and was unreasonable in failing to drug test as ordered. Mother contends 

the court abused its discretion by not awarding her a greater amount. We 

review an award of attorneys’ fees for an abuse of discretion. In re Marriage 

of Berger, 140 Ariz. 156, 167 (App. 1983).

¶18 Under A.R.S. § 25-324, the superior court can award 

attorneys’ fees “after considering the financial resources of both parties and 

the reasonableness of the positions each party has taken throughout the 

proceedings.” As she did in the superior court, Mother contends that Father 

took several unreasonable positions besides refusing to drug test. We 

presume the superior court considered the other allegations of 

unreasonable conduct and found they did not warrant a greater award of 

attorneys’ fees. Many allegations of unreasonableness stemmed from

disputed evidence, such as the alleged child abuse and the reasons for 

Father’s lack of communication. We defer to the weight the superior court 

gives to conflicting evidence and do not re-weigh evidence on appeal. Hurd 

v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). Reasonable evidence supports 

the award of attorneys’ fees, and so we affirm.

¶19 Mother requests attorneys’ fees and costs on appeal. After 

considering the parties’ financial resources and reasonableness of their 

positions, we decline to award attorneys’ fees to Mother. We award Mother 

her taxable costs on appeal upon compliance with Arizona Rule of Civil 

Appellate Procedure 21. See A.R.S. § 12-342.

CONCLUSION

¶20 We vacate the superior court’s order denying Mother’s 2018 

amended petition to modify parenting time and legal decision-making. We 

remand for further proceedings consistent with this decision.