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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KARLA SUE GRUBB, Petitioner/Appellant,

v.

TRENT NEAL THRAILKILL, Respondent/Appellee.

No. 1 CA-CV 15-0761 FC

FILED 9-15-2016

Appeal from the Superior Court in Maricopa County

Nos. FC2006-050409, FC2012-002703 (Consolidated)

The Honorable Jennifer C. Ryan-Touhill, Judge

VACATED AND REMANDED

COUNSEL

Karla Sue Grubb, Tempe

Petitioner/Appellant

Trent Neal Thrailkill, Mesa

Respondent/Appellee
GRUBB v. THRAILKILL

Decision of the Court

2

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Chief Judge Michael J. Brown

joined.

J O N E S, Judge:

¶1 Karla Grubb (Mother) appeals the family court’s order: (1) 

dismissing her petition to modify legal decision-making authority and 

parenting time, and (2) awarding attorneys’ fees to Trent Thrailkill (Father). 

For the following reasons, we lack jurisdiction to review the award of fees,

vacate the order of dismissal, and remand for a hearing on the merits of 

Mother’s petition.1

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father were divorced in 2012. Within the decree, 

Father was awarded sole legal custody of the parties’ only child in common 

(Child) and designated the primary residential parent. The family court 

granted Mother supervised parenting time until she “ha[d] six months of 

clean drug results through TASC,” after which she could petition the court 

for unsupervised parenting time. Father later petitioned for modification 

of parenting time, and, following an evidentiary hearing in July 2014, the 

court entered an order suspending Mother’s parenting time until she

passed three consecutive weekly drug tests. The court added “[o]nce 

Mother passes three consecutive weekly random tests at TASC, Mother 

shall have supervised parenting time.” As a practical matter, while the 

record does not appear to indicate the court terminated Mother’s 

supervised parenting time, the court’s order suspended visitation between 

Mother and Child with its renewal contingent upon Mother’s provision of 

three consecutive, clean weekly drug tests.

 

1 Father did not file an answering brief. When a debatable issue exists 

and an appellee fails to file an answering brief, we may consider such 

failure a confession of error. See Hodai v. City of Tucson, 239 Ariz. 34, 45, 

¶ 36 (App. 2016) (citing In re 1996 Nissan Sentra, 201 Ariz. 114, 117, ¶ 7 (App. 

2001)). However, we are not required to do so and, in our discretion, 

address the substance of Mother’s appeal. Id. (citing Savord v. Morton, 235 

Ariz. 256, 259, ¶ 1 (App. 2014)).
GRUBB v. THRAILKILL

Decision of the Court

3

¶3 In October 2014, Mother, in propia persona, filed a “Request For 

Ruling Regarding Prescription For Adderall,” seeking a determination that 

any positive drug test results for amphetamine were the product of her 

prescribed and lawful use of Adderall. She additionally attached both the 

prescription for Adderall and records of her test results. The family court 

ordered Mother to submit to ETG/alcohol testing instead of full screen 

testing at TASC. After Father objected on the grounds he had not been 

provided notice of Mother’s request, the court vacated the order in its 

entirety. 

¶4 In February 2015, Mother, again as a self-represented litigant,

filed a “Request For Ruling To End The Supervised Visitation 

Requirement,” stating she had “submitted to full-panel random weekly 

urine tests at TASC from Aug 2014 to Jan 2015.”2 Father disputed Mother’s 

clean drug tests and objected to the form of Mother’s request, contending 

she should have filed a petition to modify parenting time rather than a 

request for ruling. In April 2015, after the matter was fully briefed, the 

family court dismissed Mother’s request and ordered she pass three 

consecutive weekly random tests through TASC before it would modify her 

parenting time. At this juncture, the record contained orders requiring 

Mother complete three consecutive, clean weekly drug tests both: (1) to

continue exercising supervised visitation, and (2) “prior to any 

modification of her parenting time.”

¶5 In June 2015, Mother, through counsel, filed a petition to 

modify legal decision-making and parenting time. Citing the 2012 divorce 

decree, Mother specifically requested joint legal decision-making authority

and unsupervised visitation on the grounds that she had completed six 

months of drug-free testing. Mother attached three consecutive weekly 

TASC Drug Detection Laboratory Reports; one was negative for any 

substances and the other two were positive for amphetamine. She also 

attached a letter from her physician confirming she had a lawful 

prescription for Adderall and an email from a TASC liaison explaining that 

her “Adderall prescription could certainly cause a positive result for 

amphetamine.” Father then filed a motion to dismiss, arguing that 

“[w]hether or not Mother is testing positive for a prescription of Adderall 

. . . is irrelevant. The reality is that Mother is a poly-substance abuser who 

can . . . abuse prescription drugs as well.”

 

2 It appears from the record on appeal that such testing occurred, at a 

minimum, from the July 2014 order through January 2015.
GRUBB v. THRAILKILL

Decision of the Court

4

¶6 Without awaiting a response, the family court issued an order 

to appear at a resolution management conference (RMC) scheduled for

September 25, 2015. After Mother filed a response to Father’s motion to 

dismiss, the court, on its own motion, rescheduled the RMC for October 8, 

2015. When Father advised he had a calendar conflict with that date, the

court vacated the RMC and dismissed Mother’s petition. Within its fivepage order, the court stated:

On July 29, 2014, the Court ordered Mother to submit to 

random, weekly UA testing. Once Mother had three 

consecutive weeks of clean tests, Mother could ask for 

supervised time with the minor child. This Order makes no 

reference to unsupervised time. . . . Mother has asked this 

Court to modify her parenting time and rescind the order for 

supervision. When Mother first made this request in 

February 2015, Father argued Mother had failed to comply 

with both prior court orders and procedural requirements in 

her requests; the Court agreed with Father and dismissed 

Mother’s action. Mother again makes her request for 

modification in July 2015, after Mother provided three 

consecutive clean drug tests. Mother has misunderstood 

prior Court Orders; the three clean drug tests would allow 

Mother to have supervised time with her daughter, not 

provide a basis for modification. 

¶7 The family court thus relied entirely upon its July 2014 order

without explaining, clarifying, or even referencing its subsequent April 

2015 order that seemingly permitted modification of parenting time after 

Mother provided three consecutive, clean weekly tests through TASC. The 

court also granted Father’s request for attorneys’ fees and directed he 

provide supporting documentation for the particular amount sought. 

Mother filed a notice of appeal on October 22, 2015. On November 13, 2015, 

after reviewing the documentation submitted by Father, the court entered 

an order awarding Father his attorneys’ fees in the amount of $1733.92. 

JURISDICTION

¶8 Mother timely appealed the family court’s dismissal of her 

petition for modification but did not timely file a notice of appeal from the 

court’s order granting Father his attorneys’ fees. This Court has an 

independent duty to examine its own jurisdiction. Riendeau v. Wal-Mart 

Stores, Inc., 223 Ariz. 540, 541, ¶ 4 (App. 2010) (citing Abril v. Harris, 157 

Ariz. 78, 80 (App. 1987)). Because appellate jurisdiction is defined by 

statute, we must dismiss any portion of an appeal for which we do not have 
GRUBB v. THRAILKILL

Decision of the Court

5

jurisdiction. See, e.g., Natale v. Natale, 234 Ariz. 507, 509, ¶ 8 (App. 2014) 

(citing Baker v. Bradley, 231 Ariz. 475, 479, ¶ 8 (App. 2013)). Generally, a 

party may appeal a final judgment. See Ariz. Rev. Stat. (A.R.S.) § 12-

2101(A)(1).3 Pursuant to the Arizona Rules of Family Law Procedure

(ARFLP): 

When more than one claim for relief is presented in an action, 

. . . the court may direct the entry of final judgment as to one 

or more but fewer than all of the claims . . . only upon an 

express determination that there is no just reason for delay 

and upon an express direction for entry of judgment. In the 

absence of such determination and direction, any order or 

other form of decision, however designated, that adjudicates 

fewer than all the claims or the rights and liabilities of fewer 

than all the parties shall not terminate the action as to any of 

the claims or parties, and the order or other form of decision 

is subject to revision at any time before the entry of judgment 

adjudicating all the claims and the rights and liabilities of all 

the parties. For purposes of this subsection, a claim for 

attorneys’ fees may be considered a separate claim from the 

related judgment regarding the merits of a cause.

ARFLP 78(B). Thus, “a family court ruling that resolves some but not all of 

the issues pending before the court and does not have a Family Rule 78(B) 

certification of finality is not final and appealable.” Natale, 234 Ariz. at 509,

¶ 9.

¶9 The procedural history in the present case is nearly identical 

to that in Ghadimi v. Soraya, 230 Ariz. 621 (App. 2012), where the family 

court issued a signed decree granting the husband’s attorneys’ fees but left

the specific amount of those fees to be determined. Id. at 622, ¶ 3. The wife 

appealed the decree before the amount of attorneys’ fees was resolved, and 

when the amount of fees was later ordered, she failed to file an amended 

notice of appeal. Id. at ¶¶ 3, 5. This Court dismissed the wife’s appeal for 

lack of jurisdiction after it determined that her notice of appeal was 

premature because the decree, which had not been certified as final under 

Rule 78(B) and left the amount of attorneys’ fees unresolved, was not a final 

judgment. Id. at 623, ¶ 11. Moreover, we held that a determination of the 

amount of an award of attorneys’ fees is discretionary and not ministerial, 

and the exception enumerated in Barassi v. Matison, 130 Ariz. 418 (1981), did

 

3 Absent material changes from the relevant date, we cite a statute’s 

current version.
GRUBB v. THRAILKILL

Decision of the Court

6

not apply. Ghadimi, 230 Ariz. at 623-24, ¶ 13 (quoting Bryant v. Bryant, 40 

Ariz. 519, 521 (1932)).

¶10 Here, Mother filed a notice of appeal from the family court’s 

signed minute entry dismissing her petition for modification of legal 

decision-making authority and parenting time and granting Father’s 

request for attorneys’ fees. Although the court certified the order as final 

under Rule 78(B), it did not resolve the amount of the award of attorneys’ 

fees until it issued a separate order two months later. Therefore, this Court 

has jurisdiction to consider the merits of the issues finally resolved within 

that signed minute entry — namely the dismissal of Mother’s petition. 

However, Mother was required to file a new or amended notice of appeal 

regarding the separate issue of attorneys’ fees after that issue was finally 

resolved through an order setting an exact amount. She did not do so, and 

the Barassi exception does not apply. See id. Because Mother’s notice of 

appeal of the award of attorneys’ fees was premature, it was ineffective and 

a nullity. Craig v. Craig, 227 Ariz. 105, 107, ¶ 13 (2011) (quoting Smith v. 

Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, 415, ¶ 39 (2006)). 

Accordingly, we lack jurisdiction to consider the award of Father’s 

attorneys’ fees. We have jurisdiction over Mother’s timely appeal of the 

dismissal of her petition for modification pursuant to A.R.S. §§ 12-

120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. The Family Court’s April 2015 Order Superseded Its July 2014 

Order.

¶11 Resolution of Mother’s appeal requires us to evaluate and 

reconcile the family court’s April 2015 and July 2014 orders, a task we 

perform de novo. See Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13 (App. 2001)

(citing Citibank (Ariz.) v. Bhandhusavee, 188 Ariz. 434, 435 (App. 1996), and 

Anderson v. Anderson, 522 N.W.2d 476, 478-79 (N.D. 1994)). The April 2015 

order allowed Mother to petition for modification of legal decision-making 

authority and parenting time upon evidence of three consecutive, clean 

drug tests; the court’s prior July 2014 order established that three 

consecutive, clean tests were merely a prerequisite for Mother to continue 

to receive supervised parenting time rights. See supra ¶ 4. 

¶12 We conclude the April 2015 order superseded the July 2014 

order by comparing the two orders themselves. See Patterson v. Patterson, 

102 Ariz. 410, 414 (1967) (comparing the language of consecutive trial court

orders to determine if they were complementary or whether the latter 

superseded the former). The July 2014 order specifically directs “that all 
GRUBB v. THRAILKILL

Decision of the Court

7

other prior orders regarding legal decision[-]making and parenting time 

remain in full force and effect.” In contrast, the April 2015 order contains 

no such provision, implying the April 2015 order was meant to supersede, 

rather than supplement, the July 2014 order. See id. Therefore, pursuant to 

the controlling order, at the time of her June 2015 petition, Mother was 

specifically authorized to petition for modification of legal decision-making

authority and parenting time after presenting evidence of three 

consecutive, clean drug tests.4

II. The Family Court Abused Its Discretion When It Vacated The 

RMC And Dismissed Mother’s Petition Without A Hearing.

¶13 Mother argues the family court erred by granting Father’s 

motion to dismiss without holding a hearing on her petition for 

modification. We review an order granting a motion to dismiss for an abuse 

of discretion. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11 (2006) (citing 

Franzi v. Superior Court, 139 Ariz. 556, 561 (1984)). “A family court abuses 

its discretion by making an error of law in reaching a discretionary 

conclusion, or making a discretionary ruling that the record does not 

support.” Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012) (citing In re 

Marriage of Williams, 219 Ariz. 546, 548, ¶ 8 (App. 2008), then Hurd v. Hurd, 

223 Ariz. 48, 52, ¶ 19 (App. 2009)).

¶14 Parents have a firmly established fundamental right to the 

custody and control of their children, a right recognized by both state and 

federal law. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Michael J. v. 

Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 11 (2000); see also A.R.S. § 1-

601(A)-(B) (“The liberty of parents to direct the upbringing [and] education 

. . . of their children is a fundamental right [that] [t]his state or any other 

governmental entity shall not infringe [up]on . . . without demonstrating [a] 

compelling governmental interest . . . of the highest order.”). These 

fundamental rights are protected by the Due Process Clause of the 

 

4 Equally troubling to this court but not raised by this appeal is the 

family court’s apparent preemption of Mother’s statutory right to petition 

for modification of legal decision-making authority and parenting time one 

year after entry of the decree of dissolution and upon her assertion that 

modification would be in Child’s best interests. See A.R.S. § 25-411(A) (“A 

person shall not make a motion to modify a legal decision-making or 

parenting time decree earlier than one year after its date.”), -411(J) (“The 

court may modify an order granting or denying parenting time rights 

whenever modification would serve the best interest of the child.”).
GRUBB v. THRAILKILL

Decision of the Court

8

Fourteenth Amendment of the U.S. Constitution. Baker v. Meyer, 237 Ariz. 

112, 114, ¶ 6 (App. 2015) (citations omitted). 

¶15 Mother’s fundamental right to parent affords her certain 

procedural due process rights, including a meaningful opportunity to be 

heard on a petition for modification of legal decision-making authority or 

parenting time. Cruz v. Garcia, ___ Ariz. ___, ___, 2016 WL 3390235, at *2, 

¶ 11 (App. 2016) (citing Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 18 (App. 

2011)). In the family law context, “[d]ue process requires that when there 

are disputed issues of fact as to a child’s best interests, ‘the court must allow 

the parties to present evidence before it makes its finding.’” Id. at *3, ¶ 16 

(quoting Murray v. Murray, 239 Ariz. 174, 179, ¶ 18 (App. 2016), and citing 

Heidbreder v. Heidbreder, 230 Ariz. 377, 381, ¶ 15 (App. 2012), and DePasquale 

v. Superior Court, 181 Ariz. 333, 336 (App. 1995)). Moreover, if affidavits 

filed in connection with a petition to modify are in direct opposition, “the 

court may not conduct a trial by affidavit, attempting to weigh the 

credibility of the opposing statements.” Pridgeon v. Superior Court, 134 Ariz. 

177, 181 (1982) (internal quotations omitted); see also Volk v. Brame, 235 Ariz. 

462, 466, 468, ¶¶ 14, 19-20 (App. 2014) (concluding the family court violated 

a parent’s due process rights when it “recognized that credibility was 

central to the issue before it but expressly rejected the parties’ efforts to 

testify, choosing instead to rely on a ‘paper view’ to decide the petition”); 

DePasquale, 181 Ariz. at 336 (“The trial court also erred by changing custody 

without a hearing and without the aggrieved party’s consent. . . . No 

Arizona rule or statute authorizes such an order.”). Rather, “[i]n such a 

case, the court must hold a hearing.” Pridgeon, 134 Ariz. at 181 (interpreting 

a prior version of A.R.S. § 25-411).

¶16 A court may only act sua sponte to restrict parenting time if it 

finds the parenting time would “endanger seriously the child’s physical, 

mental, moral or emotional health.” See Cruz, 2016 WL 3390235 at *4, ¶ 18 

(“The court’s authority to impose ‘restrictions’ on parenting time sua sponte

under [A.R.S.] § 25-411(J) is limited to placing conditions on the exercise of 

parenting time, such as supervision or geographical restrictions.”) (citing 

Hart v. Hart, 220 Ariz. 183, 187, ¶ 16 (App. 2009)). The Cruz court, though,

was distinguishing those cases where the child faces an immediate threat 

to her physical or mental health that requires urgent action via an 

emergency sua sponte order, from those, like the present case, where the 

parents simply disagree over the child’s best interests. See id.; DePasquale, 

181 Ariz. at 336 (acknowledging that the family court may face an 

emergency situation requiring a change in custody or parenting time 

without notice or a hearing, but the court must follow “strict procedural 

limits” within the rules governing temporary orders); see also A.R.S. § 25-
GRUBB v. THRAILKILL

Decision of the Court

9

411(J) (“[T]he court shall not restrict a parent’s parenting time rights unless 

it finds that the parenting time would endanger seriously the child’s 

physical, mental, moral or emotional health.”). 

¶17 Additionally, the procedural rules governing post-decree, 

family law proceedings likewise contemplate a hearing. ARFLP 91 requires

a party to petition for modification and states that, upon the receipt of a 

petition for an order to appear, “the court shall schedule the petition for an 

evidentiary hearing, a return hearing, oral argument, a Post-decree or Postjudgment Management Conference, mediation, or other proceeding, and 

issue an appropriate Order to Appear.” ARFLP 91(A), (N) (emphasis 

added); see also ARFLP 76(A)(1) (“Upon written request of any party, the 

court shall, or upon its own motion the court may, schedule one or more 

Resolution Management Conferences that shall be held within sixty (60) 

days of receipt of written request by the court, unless extended for good 

cause shown.”). 

¶18 To obtain a hearing on a petition to modify legal decisionmaking authority, the petitioner must also comply with A.R.S. § 25-411. See 

ARFLP 91(D). This statute requires “an affidavit or verified petition setting 

forth detailed facts supporting the requested modification,” and directs the 

family court to deny the motion “unless it finds that adequate cause for 

hearing the motion is established by the pleadings, in which case it shall set 

a date for hearing.” A.R.S. § 25-411(L); see DePasquale, 181 Ariz. at 335

(describing the trial court’s “screening” function in analyzing a petition for 

modification to determine whether the petitioner has presented adequate 

cause to warrant a hearing). Adequate cause for a hearing is satisfied when

the petitioner provides detailed facts to support the requested modification,

particularly where those facts are disputed by the respondent “upon any 

substantial and crucial fact relevant to the grounds for modification.” 

Pridgeon, 134 Ariz. at 181; see also Murray, 239 Ariz. at 179, ¶ 18 (“When the 

question of a child’s best interests presents a disputed issue of fact, the court 

must allow the parties to present evidence before it makes its finding.”) 

(citing Volk, 235 Ariz. at 466, ¶ 14).

¶19 In this case, Mother petitioned the family court for 

modification of both legal decision-making authority and parenting time 

and simultaneously presented evidence of three consecutive, clean drug 

tests in support of her petition. Indeed, the court’s April 2015 order granted 

Mother the opportunity to do exactly that, and, as the court recognized, 

“Mother provided three consecutive clean drug tests.” See supra ¶ 12.

Father’s responsive pleading contested whether Mother’s drug test results 

were, as she asserted, false positives resulting from legal and appropriate 

use of prescription medication. Mother’s assertion and Father’s objection 
GRUBB v. THRAILKILL

Decision of the Court

10

established that the issues presented to the court through Mother’s petition 

were both factually and legally in question; therefore, a hearing was 

required. Presumably having determined Child’s mental and physical 

health were not immediately in peril, see Cruz, 2016 WL 3390235 at *4, ¶ 18;

see also DePasquale, 181 Ariz. at 336, the court determined Mother had

presented adequate cause for a hearing and issued an order to appear at a 

RMC to resolve the disputed issues. The court abused its discretion when 

it ultimately vacated the RMC and dismissed the petition without affording 

Mother the opportunity to present evidence to support her assertions or 

itself the opportunity to evaluate the credibility and merit of the witnesses’ 

testimony.

CONCLUSION

¶20 The family court’s order dismissing Mother’s petition is 

vacated and the case remanded for proceedings consistent with this

decision.