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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROXANNE KATY MEYER, Petitioner/Appellee,

v.

NICK R. PETROFF, Respondent/Appellant.

No. 1 CA-CV 19-0442 FC

Appeal from the Superior Court in Maricopa County

No. FC2016-092341

The Honorable Adele Ponce, Judge

AFFIRMED

COUNSEL

Crider Law, P.L.L.C., Mesa

By Brad J. Crider

Counsel for Petitioner/Appellee

Nick R. Petroff, Mesa

Respondent/Appellant

FILED 4-9-2020
MEYER v. PETROFF

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 Nick R. Petroff (“Father”) appeals the family court’s May 7, 

2019 orders on cross-petitions to modify. Father argues the court did not 

fairly consider the evidence and exhibited bias in favor of Roxanne Katy 

Meyer (“Mother”). He also argues the court abused its discretion in 

ordering that (1) Mother retain sole legal decision-making, with Father’s 

parenting time limited to twice-weekly supervised parenting time; and (2) 

Father continue for six months to undergo random alcohol testing, with any 

evidence of diluted tests to reset the required six-month testing period, and 

Father now solely responsible for the cost of continued testing. For the 

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother married in March 2012. They are the 

parents of one minor child, born in September 2012.

¶3 Father has a long history of alcohol abuse with significant 

collateral consequences, including a DUI, initiating a bar brawl, domestic 

altercations requiring police intervention, related arrests, and probation. 

The parties’ marriage was punctuated by such incidents, with Father being 

a primary source of both verbal and physical abuse.

¶4 The parties separated in January 2016. In April 2016, Mother 

petitioned for dissolution of the marriage. Before she filed the petition, 

Mother exercised sole legal decision-making and the parties shared equal 

parenting time. During the dissolution proceedings, the court ordered that 

Father undergo random substance abuse testing at TASC, with Mother 

ordered to reimburse Father for one-half the cost of the testing.

¶5 In August 2016, the parties divorced. In dissolving the 

marriage, the family court awarded sole legal decision-making to Mother,

ordered that the parties receive equal parenting time, and ordered that 
MEYER v. PETROFF

Decision of the Court

3

Mother pay Father child support.

1 The court also made the following 

finding:

Mother alleges Father has substance abuse issues. Father was 

ordered to alcohol test at TASC. Father’s tests were negative, 

but the last several tests were diluted samples. Father offered 

that he drinks a lot of water due to his outdoor activities and 

lifestyle. Father testified that he has been sober since January 

31, 2016 with one exception, an incident that occurred in June 

of 2016 in which Father had been drinking and was behaving 

inappropriately. Father testified that he believes he has 

proven himself through the months of testing and refuses to 

undergo any further testing.

The family court found that “Father’s drinking is a concern” that “can be 

alleviated by ordering Father not to consume alcohol during his parenting 

time.” The court ordered Father not to consume alcohol during or twelve

hours before his parenting time.

¶6 On January 4, 2018, Father was admitted to the hospital, 

where he was ultimately determined to have sepsis related to a kidney and 

gastrointestinal issue that required surgical treatment. Father was released 

from the hospital approximately three weeks later.

¶7 On February 16, 2018, Mother petitioned the court to modify 

parenting time and child support and moved for temporary orders 

regarding parenting time. Mother’s petition to modify alleged that at the 

time of his hospital admission, Father was in severe alcohol withdrawal and 

made admissions about the severity of his drinking that raised concerns 

about his ability to care for the child.2 Mother requested that Father’s 

1 In August 2017, the family court terminated Mother’s child support 

obligation upon agreement of the parties.

2 At the March 4, 2019 evidentiary hearing on the cross-petitions to 

modify, evidence was introduced that, at the time of his hospital admission, 

Father appeared to be going through acute alcohol withdrawal. Father on 

admission had admitted he could “drink over a fifth [of vodka] daily” and 

had consumed a large amount of alcohol over the holidays, including the 

day before. Father testified the hospital records documenting these 

statements from him were not accurate, and if he made those statements, 

he did so under the influence of morphine, and they were not true. Father 
MEYER v. PETROFF

Decision of the Court

4

parenting time be supervised until he had demonstrated six months’ 

sobriety.

¶8 On April 23, 2018, during a return hearing on Mother’s 

motion for temporary orders filed with her petition to modify, the family 

court ordered Father to submit to a hair follicle test and random alcohol 

testing on a twice-weekly basis. The order stated “that the failure, neglect 

or refusal to participate in testing, or providing a diluted test sample at the 

time of testing, may be considered an admission by the party that the 

testing, if properly conducted, would have revealed the use of the 

substance(s) tested for, which finding is contrary to the best interest of a 

child.” The court also ordered that Mother reimburse Father for any tests 

with negative results.

¶9 After testing on May 10, 2018, Father failed to test again until 

July 6, 2018, missing at least fifteen testing dates. On June 27, Mother filed 

an emergency motion to modify Father’s parenting time to require 

supervision at an agency location.

¶10 On July 3, 2018, Father filed a counter-petition to modify legal 

decision-making, parenting time, and child support. Father sought joint 

legal decision-making, alleging that Mother changed the child’s school 

without notifying or consulting with Father and failed to tell Father about 

the child’s medical concerns and/or treatment. Father also claimed he had 

stopped alcohol testing because he was confused about what the court’s 

order required. Additionally, Father filed a petition to enforce parenting 

time, arguing that, for several months, Mother had routinely ignored or 

refused to allow Father his parenting time.

¶11 On July 9, 2018, the family court granted Mother’s emergency 

motion for temporary orders, ordering that Father’s parenting time be 

limited to four hours a week and supervised at one of three designated 

agencies. Later that month, at a temporary orders hearing, the court named

a court-appointed advisor (“CAA”), ordered that Father continue alcohol 

claimed, however, not to remember making the statements because he 

remembered nothing that occurred before he woke up following the 

surgical procedure. In the hospital records, however, Father was described 

as coherent, conversant, and answering questions appropriately, and when 

the statements were noted, he was described as resting comfortably. The 

record suggests Father later resided in a sober living facility for 

approximately thirty days, although Father has denied this.
MEYER v. PETROFF

Decision of the Court

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testing, and reaffirmed that Father’s parenting time be supervised by a 

third-party agency.

¶12 On September 24, 2018, the CAA submitted her report to the 

court. As part of her report, the CAA interviewed the parties and Father’s 

girlfriend. The CAA also reviewed relevant Department of Child Safety 

records; Father’s TASC records; relevant police agency records from 

Chandler, Gilbert, Mesa, and Apache Junction; court and medical records; 

and text messages and emails involving the parties and Father’s girlfriend.

¶13 The communications described Father’s ongoing problems 

with alcohol and how verbally abusive Father became while drinking, and 

reflected concerns about how Father could treat and care for children, 

including the parties’ child, while intoxicated. Some messages indicated

Father had engaged in drinking during his parenting time. The CAA noted 

several issues of concern, including “domestic violence/anger 

management, Father’s apparent excessive alcohol consumption, and 

Father’s continual false statements.”

¶14 The CAA recommended Father participate in a substance 

abuse evaluation, an anger management class, and continued random 

alcohol testing. The CAA also recommended that the child remain in 

Mother’s primary care, and Father have supervised parenting time, with no 

overnight visits, on either Saturdays or Sundays, and if that could not be 

arranged, then Father’s parenting time be supervised at a facility.3

¶15 On January 3, 2019, Father filed a petition to terminate alcohol 

testing, arguing he had completed six months of testing from July 6, 2018,

to January 6, 2019. Father conceded he had two diluted tests during that 

time, but again cited his active lifestyle and heavy water consumption as 

the reason for the diluted tests.4 In a minute entry filed January 16, 2019, 

the family court summarily denied the motion.

3 At an October 3, 2018 temporary orders hearing, the parties agreed 

Father would have unsupervised parenting time every Wednesday evening

and every other Saturday from 9:00 a.m. until 5:00 p.m.

4 Contrary to Father’s representation and the CAA’s testimony, the 

record reflects Father had at least three diluted tests during this time period. 

Further, in December 2018, Father had posted photographs on-line of 

himself drinking beers after a hike.
MEYER v. PETROFF

Decision of the Court

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¶16 That same day, Mother filed an emergency motion for

temporary orders without notice regarding parenting time, alleging Father 

had continued to drink alcohol and requesting Father’s parenting time be 

immediately supervised through a licensed facility approved by the court, 

at Father’s expense. The court denied the motion. Meanwhile, however, 

Father submitted a urine sample that tested positive for alcohol, and 

Mother filed a renewed emergency motion on January 17, 2019, which the 

court also denied.

¶17 On March 4, 2019, the court held the evidentiary hearing on 

Mother’s petition to modify and Father’s counter-petition. The CAA 

testified she had continuing concerns about Father minimizing his use of 

alcohol, and she opined that Father’s continued use of alcohol could 

jeopardize the safety of the child. Mother testified the child had been 

residing primarily with her since the temporary orders were entered and 

that he was thriving and his grades, behavior, and anxiety level had 

improved markedly while under her primary care. Mother also expressed 

concerns about Father’s continuing alcohol, abuse, and candor issues. 

Father testified regarding the details of his January 2018 hospitalization, 

and he denied consuming alcohol before his admission. He admitted 

having three diluted alcohol test results and one positive result after he 

resumed testing in July 2018 through February 20, 2019, but claimed his 

diluted tests resulted from living an active lifestyle that required him to 

consume significant quantities of water. He nevertheless agreed that, if the 

court found he had been drinking as much as had been reported, it would 

be appropriate to order that he “continue drug testing until [he had] clear, 

unmissed, undiluted tests for a certain period of time” and that missing a 

test would “be considered like failing a test.” He also agreed that multiple 

positive tests would indicate “[t]here’s an issue there, obviously.” At the 

end of the hearing, the court took the matter under advisement.

¶18 Meanwhile, Father submitted diluted urine samples to TASC 

on March 1, 7, 19, and 27, and April 1, 2019, and submitted a sample that 

tested positive for alcohol on March 8, 2019. On April 23, 2019, noting that 

Father had been involved in alcohol-related domestic disturbances with his 

girlfriend that generated police reports on April 5 and 6, Mother filed 

another emergency motion for temporary orders without notice regarding 

parenting time, which the court again denied.

¶19 In a detailed twelve-page minute entry dated May 3, 2019, the 

family court issued its findings and orders. The court found that “[s]ince 

the prior order, despite an avowed commitment to sobriety, Father has 

engaged in drinking, at times to significant excess, indicating a continued 
MEYER v. PETROFF

Decision of the Court

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substance abuse problem.” The court also found that, because of Father’s 

positive and diluted tests, and given his history of heavy drinking, Father 

had not rebutted the finding that he has a substance abuse problem. The 

court ordered in part that Mother retain sole legal decision-making 

authority over the child, that Father continue to have supervised parenting 

time on Wednesdays from 5:00 p.m. to 8:00 p.m. and Saturdays from 9:00 

a.m. to 5:00 p.m., and that Father continue to participate in twice-weekly 

alcohol testing. The court also ordered that when Father had completed six 

months of alcohol testing without any missed, diluted, or positive tests, the 

parties would resume equal unsupervised parenting time and Father could 

apply to the court for an adjustment of the child support order.

5

¶20 The court dismissed Father’s subsequent petition to modify 

legal decision-making, parenting time, and child support and denied 

Father’s motion to alter or amend the judgment pursuant to Rule 83 of the 

Arizona Rules of Family Law Procedure. We have jurisdiction over Father’s 

timely appeal pursuant to Arizona Revised Statutes (”A.R.S.”) section 12-

2101(A)(1) and (2).

ANALYSIS

I. Standard of Review and Applicable Law

¶21 We will affirm if substantial evidence supports the family 

court’s decision, Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009), and will 

not substitute our opinion for that of the family court unless there has been 

a clear abuse of discretion, Deatherage v. Deatherage, 140 Ariz. 317, 319 (App. 

1984). Further, we will not set aside findings of fact unless they are clearly 

erroneous. Ariz. R. Fam. Law P. 82(a)(5). To the extent the family court 

based its rulings on the weight it gave to conflicting evidence and the 

parties’ credibility, we defer to the court’s judgment. See Gutierrez v. 

Gutierrez, 193 Ariz. 343, 347-48, ¶ 13 (App. 1998).

II. Father’s Allegations of an Unfair Trial and Bias

¶22 Father argues the family court did not fairly consider the 

evidence presented at trial and was biased against him. The family court 

has discretion over the control and management of the trial. See Hales v. 

Pittman, 118 Ariz. 305, 313 (1978). “We will not interfere in matters within 

the [family] court’s discretion unless we are persuaded that the exercise of 

such discretion resulted in a miscarriage of justice or deprived one of the 

5 The court ordered that Father pay child support to Mother in the 

amount of $492 per month.
MEYER v. PETROFF

Decision of the Court

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litigants of a fair trial.” Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 

308, ¶ 31 (App. 2007) (citation omitted). In this case, Father’s arguments 

amount to a request that we reweigh the evidence, something we will not 

do. See Hurd, 223 Ariz. at 52, ¶ 16. On this record, we find no evidence that 

the court denied Father a fair trial.

¶23 As for Father’s argument that the family court was biased

against him, we begin our analysis with the presumption that the family 

court judge is free of prejudice and bias. State v. Ramsey, 211 Ariz. 529, 541,

¶ 38 (App. 2005). To overcome this presumption, Father must prove the 

court harbored “a hostile feeling or spirit of ill-will, or undue friendship or 

favoritism.” State v. Cropper, 205 Ariz. 181, 185, ¶ 22 (citation omitted), 

supplemented by 206 Ariz. 153 (2003). To prove this, Father must “set forth a 

specific basis for the claim of partiality and prove by a preponderance of 

the evidence that the judge is biased or prejudiced.” State v. Medina, 193 

Ariz. 504, 510, ¶ 11 (1999). In this case, Father has not rebutted the 

presumption of judicial impartiality. After reviewing the entire record 

presented, including the transcript of the March 4 hearing, we conclude the 

record reflects no bias and indicates the family court impartially considered 

the parties’ positions.

III. Legal Decision-Making and Parenting Time

¶24 Father argues the family court abused its discretion in 

ordering that Mother retain sole legal decision-making, with Father’s 

parenting time limited to twice-weekly supervised parenting time.

¶25 We review for an abuse of discretion the family court’s legal 

decision-making and parenting time orders. Engstrom v. McCarthy, 243 

Ariz. 469, 471, ¶ 4 (App. 2018); Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 

2013). In deciding legal decision-making and parenting time, courts must 

consider a child’s best interest. A.R.S. § 25-403; see also Hays v. Gama, 205 

Ariz. 99, 102, ¶ 18 (2003) (stating that “the child’s best interest is 

paramount”). The best interest of the child is for the family court alone to 

decide. Nold, 232 Ariz. at 273, ¶ 14 (citing DePasquale v. Superior Court 

(Thrasher), 181 Ariz. 333, 336 (App. 1995)).

¶26 Here, the family court’s May 2019 minute entry makes clear 

the court found a proper legal basis for modification, considered issues 

regarding the parents pursuant to A.R.S. § 25-403.01, and carefully 

considered the evidence presented at the March 4 hearing, including the 

CAA’s report and testimony, in light of each of the best interest factors of 

A.R.S. § 25-403. The court also considered other relevant issues, including 
MEYER v. PETROFF

Decision of the Court

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evidence presented by both parties related to substance abuse, see A.R.S. 

§ 25-403.04, and explained in detail why it did not find much of Father’s 

testimony credible. The court found that Father “can be verbally abusive 

when he is drinking,” that he “has engaged in unreasonable behavior such 

as putting the child in time out for mentioning the name of Mother’s 

boyfriend,” and that significant evidence indicates “Father has an alcohol 

abuse problem,” including Father’s admission that he continues to consume 

alcohol.

¶27 The family court had the discretion to consider Father’s 

alcohol use, the details surrounding his hospitalization, and his 

documented verbal abuse as factors in its decisions regarding legal 

decision-making and parenting time. Our review of the record confirms 

that substantial evidence supports the court’s decisions; accordingly, it did 

not abuse its discretion in concluding the child’s best interest was served by 

awarding sole legal decision-making to Mother, with Father’s parenting 

time limited to twice-weekly supervised parenting time.

IV. The Requirement of Continued Random Alcohol Testing

¶28 Noting that he has submitted numerous urine samples that 

have tested negative for alcohol, Father next argues the family court abused 

its discretion in ordering that he continue to submit to random alcohol 

testing, with diluted tests resetting the required six-month testing period, 

at his sole expense.

¶29 We review the court’s orders regarding alcohol testing for an 

abuse of discretion. See In re Miguel R., 204 Ariz. 328, 333, ¶ 14 (App. 2003).

¶30 The record indicates that Father has a long history of alcohol 

abuse coupled with anger management issues. Before the parties’ divorce, 

from late June to mid-August 2016, Father had seven instances of diluted 

test results, which the court appropriately viewed as positive results. In 

late April 2018, after Father’s hospitalization, the court again ordered Father 

to submit to random alcohol testing on a twice-weekly basis and warned 

him that missed or diluted tests “may be considered an admission by the 

party that the testing . . . would have revealed the use of the substance(s)

tested for, which finding is contrary to the best interest of a child.”

Nonetheless, after testing on May 10, Father failed to test again until July 6, 

2018, missing at least fifteen testing dates. After he resumed testing in July 

2018, Father submitted multiple diluted samples and one positive sample 

before the March 4, 2019 hearing. Further, evidence was presented that 

Father became verbally abusive while drinking, and the CAA expressed 
MEYER v. PETROFF

Decision of the Court

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concerns about how Father could treat children, including the parties’ child,

while intoxicated.

¶31 Given this evidence, the family court did not abuse its 

discretion in ordering that Father continue to undergo twice-weekly alcohol 

testing at his sole expense. Father’s own conduct has placed him in this

position, and as for his argument that diluted tests should not restart the 

testing period, he fails to recognize that he alone controls whether the tests 

are diluted. Further, he was on notice as early as 2016 that a diluted test 

would be considered a positive test and acknowledges in his reply brief that 

“[t]he trial court is within its discretion to make decisions regarding the 

interpretation of a diluted or missed drug test in accordance with what it 

believes will best serve the interests of the child.” Father’s failure to rebut 

the evidence that he suffers from a substance addiction to alcohol warrants 

his continued monitoring, and his achieving and demonstrating sustained 

sobriety is in the child’s best interest.

¶32 Further, in ordering Father to undergo random alcohol 

testing, the court has given Father a path to eventually petition the court to 

modify its orders if he meets the criteria to do so. Finally, because Father 

has been given multiple opportunities to demonstrate he is free from 

alcohol addiction, and he has failed to do so, the court did not abuse its 

discretion in shifting the full cost of random testing to Father.6

V. Costs and Attorneys’ Fees

¶33 Arguing that “Father has unreasonably contested the [family]

court’s ruling by his refusal to acknowledge his own actions which led to 

the [family] court’s findings,” Mother requests an award of her costs and 

attorneys’ fees on appeal pursuant to A.R.S. §§ 12-349 and 25-324. We 

decline to award fees pursuant to § 12-349. As for Mother’s request under 

§ 25-324, the most current financial information provided by the parties 

indicates there is little disparity as to their financial resources. As for the 

reasonableness of the parties’ positions, we agree with Mother that Father’s 

position on appeal is unreasonable. Accordingly, we award Mother taxable 

6 Father also contends Mother has not reimbursed him for previous 

negative tests. He provides no affidavit or other proof in support of his 

contention. Moreover, he does not claim that he presented this issue to the 

family court or cite to any such request in the record. As a general rule, we 

will not consider arguments not presented in the court below. See Barrio v. 

San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 104 (1984); Richter 

v. Dairy Queen of S. Ariz., Inc., 131 Ariz. 595, 596 (App. 1982).
MEYER v. PETROFF

Decision of the Court

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costs and attorneys’ fees on appeal, in an amount to be determined upon 

compliance with Rule 21, ARCAP.

CONCLUSION

¶34 The family court’s May 3, 2019 post-decree orders are 

affirmed.