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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LONNIE FERGUSON, Petitioner/Appellee,

v.

CHERRY PRAILLEAU, Respondent/Appellant.

No. 1 CA-CV 19-0201 FC

Appeal from the Superior Court in Maricopa County

No. FC2018-000212

The Honorable Katherine M. Cooper, Judge

AFFIRMED IN PART, VACATED AND REMANDED IN PART

COUNSEL

Lonnie Ferguson, Lithonia, GA

Petitioner/Appellee

The Murray Law Offices PC, Scottsdale

By Stanley D. Murray

Counsel for Respondent/Appellant

FILED 11-21-2019
FERGUSON v. PRAILLEAU

Decision of the Court

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MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which 

Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.

S W A N N, Chief Judge:

¶1 This appeal challenges several aspects of the superior court’s 

name change, parenting time, and child support order. We discern no 

abuse of discretion with respect to the name change, parenting time, and 

child support rulings, and therefore affirm with respect to those rulings. 

But because the court declined to award attorney’s fees and costs based on 

its erroneous belief that the parties did not request them, we vacate the 

court’s ruling on that issue and remand so that the court can consider the 

parties’ competing requests.

FACTS AND PROCEDURAL HISTORY

¶2 Cherry Prailleau (“Mother”) and Lonnie Ferguson (“Father”)

are the parents of a minor child. In February 2018, Father petitioned to 

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

support. Father alleged that Mother had moved to Arizona with the infant 

child in March 2017 after having told him she “would just be visiting 

Arizona with the [child] and would return.” He also alleged that, after the 

move, Mother “unilaterally filed and had the [child]’s name changed and 

birth certificate amended to reflect a different middle name and Mother’s 

last name” instead of his last name. He sought joint legal decision-making 

authority and restoration of the child’s original name. He proposed a 

multiphase parenting-time plan under which he would exercise increasing 

amounts of unsupervised parenting time.

¶3 Mother responded that she had told Father her move was

permanent, and that changing the child’s name was in the child’s best 

interests in view of Father’s lack of involvement in her life. Mother 

requested that she be given sole legal decision-making authority, that 

Father be ordered to pay retroactive and future child support, and that 

Father be allowed limited parenting time, initially supervised at Mother’s 

home. Regarding the child’s name change, she contended that Father “was 

fully aware . . . that she was filing the appropriate civil court documents” 

but chose not to participate.
FERGUSON v. PRAILLEAU

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¶4 In January 2019, after a hearing at which both parties testified, 

the superior court:

• Changed the child’s name from C.P. to C.P.-F., finding 

that “Mother unilaterally changed the child’s name on 

her birth certificate to delete Father’s name without 

Father’s consent;”

• Granted the parties joint legal decision-making 

authority;

• Granted Father regular, unsupervised parenting time 

starting in late January 2019, with his parenting time 

increasing as he established a bond with the child;

• Ordered Father to pay back child support from the 

date of his petition in the amount of $2,126, and to pay 

$639 per month in child support going forward;

• Denied Mother’s claim for child support before the 

petition date, finding that she failed to seek child 

support in a timely manner and that her actions in that 

timeframe “demonstrate[d] an intent to remove Father 

from the child’s life;” and 

• Declined to award attorney fees or costs to either party 

because “[n]either Party has requested an award.”

Mother appeals.

DISCUSSION

I. THE SUPERIOR COURT PROPERLY CONSIDERED THE NAMECHANGE REQUEST.

¶5 Mother contends that the superior court should not have 

considered Father’s request to alter the child’s name because he did not 

appear in the civil name-change proceeding.

¶6 “Under the doctrine of claim preclusion, a final judgment on 

the merits in a prior suit involving the same parties or their privies bars a 

second suit based on the same claim.” Airfreight Express Ltd. v. Evergreen 

Air Ctr., Inc., 215 Ariz. 103, 108, ¶ 12 (App. 2007). A party arguing claim 

preclusion must show “(1) an identity of claims in the suit in which a 
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judgment was entered and the current litigation, (2) a final judgment on the 

merits in the previous litigation, and (3) identity or privity between parties 

in the two suits.” In re Gen. Adjudication of All Rights to Use Water In Gila 

River Sys. & Source, 212 Ariz. 64, 69–70, ¶ 14 (2006). But “[e]ven when the 

technical requirements for preclusion based on a former adjudication are 

met, the court should not apply preclusion principles where there is some 

overriding consideration of fairness to a litigant.” In re Marriage of Gibbs, 

227 Ariz. 403, 407, ¶ 6 (App. 2011) (citation and quotation marks omitted). 

We review a claim-preclusion ruling de novo. Pettit v. Pettit, 218 Ariz. 529, 

531, ¶ 4 (App. 2008).

¶7 Mother contends that “Father was required to appear and 

respond to the name change [proceeding] . . . but instead chose to do 

nothing.” But though Mother advised Father that she intended to change 

the child’s name, and asserted that she had mailed him “legal documents,” 

the only document in the record from the name-change proceeding, and the 

only document that Father testified about, is an “Optional Consent of 

Parent to Name Change of Minor Child and Waiver of Notice” form that 

Father did not sign. Because Mother presented no evidence that she 

properly served Father in the name-change proceeding, the judgment did 

not bind Father and the court did not err by declining to apply claim 

preclusion. Cf. Restatement (Second) of Judgments § 28(5) (issue preclusion 

does not apply where “[t]here is a clear and convincing need for a new 

determination of the issue . . . because the party sought to be precluded, as 

a result of the conduct of his adversary or other special circumstances, did 

not have an adequate opportunity or incentive to obtain a full and fair 

adjudication in the initial action”).

II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY 

AWARDING FATHER IMMEDIATE UNSUPERVISED 

PARENTING TIME.

¶8 Mother contends that the superior court erred by awarding 

Father immediate unsupervised parenting time. We review the court’s 

parenting time orders for abuse of discretion. Nold v. Nold, 232 Ariz. 270, 

273, ¶ 11 (App. 2013).

¶9 Mother contends that immediate unsupervised parenting 

time was not in the child’s best interests and endangered the child’s health 

because the child and Father had no preexisting bond. But Mother does not 

challenge on appeal the superior court’s finding that her pre-petition 

decisions controlling access to the child contributed to Father’s inability to 

bond with the child. Moreover, while Mother expressed her preference that 
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Father’s first few visits with the child be “around family and in a familiar 

setting,” she presented no evidence to show that immediate unsupervised 

parenting time would not be in the child’s best interest or would endanger 

or impair her. See A.R.S. §§ 25-403.02(B) (providing that parenting plan 

must be “[c]onsistent with the child’s best interest”), -410(B) (providing that 

supervised parenting time is warranted if “in the absence of [supervision] 

the child’s physical health would be endangered or the child’s emotional 

development would be significantly impaired”). And though Mother also 

testified that the parties had agreed in mediation that it would be best for 

Father to bond with the child “around family and in a familiar setting,” 

emails she offered from that timeframe suggested that the parties did not 

agree. We perceive no abuse of discretion in the court’s parenting time 

rulings.

III. THE SUPERIOR COURT PROPERLY AWARDED CHILD 

SUPPORT.

A. The Superior Court Did Not Abuse Its Discretion by Failing 

to Include Medical Insurance and Childcare Expenses in the 

Child Support Award.

¶10 Mother contends that the superior court erred by not 

adjusting its child support award to account for medical insurance and 

childcare costs she claims to have incurred before the hearing. We review 

a child support award for abuse of discretion, accepting the superior court’s 

findings of fact unless clearly erroneous and reviewing the court’s 

interpretation of the Arizona Child Support Guidelines, A.R.S. § 25-320

app. (“Guidelines”), de novo. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21 

(App. 2009).

¶11 Under Guidelines § 9(A), the court must “add to the Basic 

Child Support Obligation the cost of the children’s medical dental or vision 

insurance coverage, if any.” Here, however, the court correctly found that 

Mother did not list any medical insurance expenses in her affidavit of 

financial information. She also listed no medical insurance expenses in the 

child support worksheet she submitted with her pretrial statement, and she 

testified that she and the child were covered by Medicaid between April 

2017 and May 2018.

¶12 As for childcare expenses, Guidelines § 9(B)(1) provides that 

the court may add “[c]hildcare expenses that would be appropriate to the 

parents’ financial abilities.” But Mother listed no childcare expenses in her 

affidavit of financial information, and the court found unpersuasive the 
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evidence she offered at trial—testimony and bank statements showing 

unidentified withdrawals and transfers. We defer to the court’s weighing 

of the evidence. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009) (“Our 

duty on review does not include re-weighing conflicting evidence or 

redetermining the preponderance of the evidence.”). We therefore find no 

abuse of discretion on this issue.

B. The Superior Court Did Not Abuse Its Discretion by

Declining to Award Child Support Retroactive to the Date of 

Mother’s Move to Arizona.

¶13 Mother contends that the superior court erred by declining to 

award her child support retroactive to March 2017, when she moved with 

the child to Arizona. She cites A.R.S. § 25-809(B), which lists three factors 

that the court must consider in deciding whether to “order past support 

retroactive to more than three years before the commencement of the 

proceeding.” But § 25-809(B) does not apply because Mother did not seek 

support retroactive to more than three years before Father’s petition.

¶14 Mother’s claim instead is governed by § 25-320(C), which 

provides: “[T]he court may order child support retroactively to the date of 

separation, but not more than three years before the date of the filing for 

dissolution of marriage, legal separation, maintenance or child support. 

The court must first consider all relevant circumstances, including the 

conduct or motivation of the parties in that filing and the diligence with 

which service of process was attempted on the obligor spouse or was 

frustrated by the obligor spouse.” Under the statute, the court is not 

required to order retroactive child support; it may do so where it deems 

such child support appropriate. See Simpson v. Simpson, 224 Ariz. 224, 226–

27, ¶ 9 (App. 2010).

¶15 Mother argues that “[t]he only legal basis for denying [her]

full retroactive child support would be if she had hid[den] the child from 

Father and unreasonably delayed establishing child support.” While the 

court did not find that Mother “hid” the child from Father, it did find she 

“took the child to live with her in Arizona without Father’s knowledge or 

consent” and did nothing to establish child support before Father filed his 

petition nearly a year later. Mother disputes those findings, but we defer 

to the superior court’s resolution of the parties’ conflicting testimony. See 

Hurd, 223 Ariz. at 52, ¶ 16. Further, we reject Mother’s contention that the

court’s findings were not relevant to the analysis under § 25-320(C). Section

25-320(C) provides that the court must consider “all relevant 
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circumstances.” The court did not abuse its discretion by deeming Mother’s 

pre-petition actions to be relevant to her retroactive child support claim.

IV. THE SUPERIOR COURT OVERLOOKED THE PARTIES’ 

REQUESTS FOR ATTORNEY’S FEES AND COSTS. 

¶16 Mother finally challenges the superior court’s decision not to 

award attorney’s fees or costs under A.R.S. § 25-324(A). We review the 

court’s ruling for abuse of discretion. See Murray v. Murray, 239 Ariz. 174, 

179, ¶ 20 (App. 2016).

¶17 The court declined to award attorney’s fees and costs based 

on its finding that neither party requested them. But the record reveals that 

both parties did request attorney’s fees and costs in their pretrial 

statements, and that Father requested attorney’s fees and costs in his 

petition as well. We therefore vacate the court’s ruling on this issue and 

remand so that it may consider the parties’ requests.

CONCLUSION

¶18 We affirm as to all issues raised in this appeal except for the 

parties’ attorney’s fees and costs claims below. We vacate and remand for 

further proceedings as to that issue. Having considered the financial 

evidence in the record and the reasonableness of both parties’ positions on 

appeal, we deny Mother’s request for attorney’s fees and costs incurred in 

this appeal.