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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CAMILYN LOIS TINOCO, Petitioner/Appellee,

v.

ISRAEL JACOB TINOCO, Respondent/Appellant.

No. 1 CA-CV 22-0618 FC

Appeal from the Superior Court in Maricopa County

No. FC2018-096824

No. FC2018-097032

The Honorable Lisa Stelly Wahlin, Judge

REVERSED AND REMANDED

COUNSEL

Law Offices of Kevin Jensen PLLC, Mesa

By Kevin Jensen

Counsel for Petitioner/Appellee

Hoffman Legal, LLC, Phoenix

By Amy Wilkins Hoffman, Jason M. Ceola

Counsel for Respondent/Appellant

FILED 7-27-2023
TINOCO v. TINOCO

Decision of the Court

2

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge Andrew M. Jacobs joined.

P A T O N, Judge:

¶1 Israel Jacob Tinoco (“Father”) appeals the order dismissing 

his petition to modify parenting time. We reverse and remand for 

reconsideration. 

FACTS AND PROCEDURAL HISTORY

¶2 Father and Camilyn Lois Tinoco (“Mother”) divorced in 2020 

and have twins who were born in 2018. In its dissolution decree, the court

awarded the parties joint legal decision-making authority, named Mother 

the primary residential parent, and awarded Father parenting time every 

other weekend from Friday to Sunday and two hours every Wednesday 

evening. The court found both parents acted unreasonably, and warned 

that “[s]peaking negatively to a child about a parent may harm the child[] 

and it “may consider negative, insulting, bullying, or other inappropriate 

behavior in determining whether legal decision-making or parenting time 

should be changed.”

¶3 Two years later, Father petitioned to modify the parenting 

time orders based on several alleged changed circumstances, including that 

his relationship with the now four-year-old twins had “blossomed” with 

the consistent parenting time he received via the decree. He also alleged 

that Mother interfered with his parenting time in several ways, including 

taking “random days . . . away from Father and call[ing] them her ‘vacation 

day[s]’” and declining, interrupting, or ending his phone calls with the 

children. Father claimed Mother’s new husband made disparaging 

comments about Father when they exchanged the children, and once

prevented Father from comforting his crying son. Father alleged that 

Mother refused to tell him about the children’s preschool location and 

extracurricular activities which prevented him from attending or

participating in them. Finally, he alleged that Mother and her husband 

insist that the children call her husband “dad.” 

¶4 Mother moved to dismiss Father’s petition under Arizona 

Rule of Family Law Procedure (“Rule”) 29(a)(6) for failure to state a claim. 
TINOCO v. TINOCO

Decision of the Court

3

She argued that Father’s modification request failed to allege substantial 

and continuing changed circumstances materially affecting the children—

specifically that Father’s improved relationship with the children, the 

children’s attendance at preschool, and the children calling her husband 

“dad,” did not constitute changed circumstances. She denied the 

allegations that she interfered with Father’s parenting time or phone calls

and argued that, even if true, these allegations would be relevant to an 

enforcement, not modification, petition.

¶5 The superior court expressed concern about Mother’s alleged 

failure to follow the decree, but determined it was irrelevant to a request to 

modify parenting time. The court found that “the only substantial and 

continuing change Father alleged was that time had passed and the 

children were a little older” and “without more,” was insufficient to 

“constitute a substantial and continuing change of circumstances that 

materially affects the minor children’s welfare.”

¶6 Father appealed, and we have jurisdiction under Arizona 

Revised Statutes (“A.R.S.”) Section 12-2101(A)(2).

DISCUSSION

I. We review the superior court’s order dismissing Father’s petition 

to modify parenting time for an abuse of discretion. 

¶7 We generally review an order granting a motion to dismiss de 

novo. See Coleman v. City of Mesa, 230 Ariz. 352, 355–56, ¶¶ 7–9 (2012)

(When considering an Arizona Rule of Civil Procedure 12(b)(6) motion to 

dismiss, the court assumes the truth of all well-pled factual allegations and 

only grants it if the non-moving party “would not be entitled to relief under 

any interpretation of the facts susceptible of proof.”) (citation omitted); Cox 

v. Ponce, 251 Ariz. 302, 304, ¶ 7 (2021) (applying same standard of review to 

Arizona Rule of Family Law Procedure 29(a)(6) motion to dismiss as 

“family law equivalent” of Rule 12(b)(6) motion). Appellate courts apply a 

de novo standard of review because the facts are accepted as true at this 

stage, and the court must answer the legal question of whether the facts 

state a claim.

¶8 As relevant here, however, we review the superior court’s 

ruling as to whether changed circumstances exist in deciding a modification 

petition for an abuse of discretion. Pridgeon v. LaMarca, 134 Ariz. 177, 179 

(1982). When considering a motion to modify parenting time, the court 

must first determine whether the petition alleged changed circumstances 

materially affecting the children’s welfare. Backstrand v. Backstrand, 250 
TINOCO v. TINOCO

Decision of the Court

4

Ariz. 339, 343, ¶ 14. “Only if it finds such a change in circumstances may it 

‘then proceed to determine whether a change in custody will be in the best 

interests of the child.’” Id. (quoting Black v. Black, 114 Ariz. 282, 283 (1977)). 

We thus review the superior court’s decision regarding whether changed

circumstances exist for an abuse of discretion because it is a factual inquiry, 

see id., and defer to the superior court sitting as fact finder, see Gutierrez v. 

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

¶9 Although Mother moved to dismiss under Rule 29(a)(6), her 

motion essentially responded to the allegations in the petition to modify. 

And the superior court granted Mother’s Rule 29 motion to dismiss only 

after finding that Father’s petition failed to allege changed circumstances 

materially affecting the children’s welfare. That ruling is reviewed for 

abuse of discretion. See Backstrand, 250 Ariz. at 343, ¶ 14. The court abuses 

its discretion when it makes a decision unsupported by the record or

commits an error of law in reaching a discretionary conclusion. Engstrom 

v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018). 

II. The superior court erred by only considering whether the 

children’s ages were a changed circumstance sufficient to support 

Father’s petition to modify parenting time.

¶10 Father argues the superior court erred when it failed to 

consider the totality of the allegations he raised in his petition to modify 

parenting time. The superior court concluded that Father’s only allegation 

of a changed circumstance was the children’s age, and “without more,”

“[did] not constitute a substantial and continuing change of circumstances 

that materially affect[ed] the children’s welfare.” But, as discussed supra 

¶ 3, Father raised several other allegations of changed circumstances 

materially affecting the children, including Mother’s remarriage and her 

new husband’s interactions with the children, and that the children were 

now in preschool and other activities that he was not kept apprised of.

¶11 While remarriage alone may not be a changed circumstance 

sufficient for modification, it may be considered one in combination with 

other changes. See Black, 114 Ariz. at 284 (holding that several changes of 

circumstance, including a parent’s remarriage, collectively had a material 

effect on the children’s welfare, even though any one of those changes alone 

may not have); Stapley v. Stapley, 15 Ariz. App. 64, 71 (1971) (holding that

mother’s remarriage alone was not a basis for custody modification but

“was a factor to consider in combination with other circumstances”). Here, 

the court did not consider whether this allegation was a change in 
TINOCO v. TINOCO

Decision of the Court

5

circumstance materially affecting the children’s interests and should do so 

in combination with Father’s other alleged circumstances on remand. 

¶12 Father also alleged that Mother failed to comply with the 

court’s express language in the dissolution decree that it may consider any 

“inappropriate behavior” by either parent in deciding whether to modify 

parenting time in the future. The dissolution decree recognized Mother’s 

efforts to thwart Father’s parenting time and cautioned it may consider 

“inappropriate behavior” by either parent in deciding whether to modify 

parenting time in the future. Here, the superior court determined that 

Mother’s alleged noncompliance with the decree was “not relevant” to 

Father’s petition. Given the specific and express directive in the decree as 

to parenting time, and Father’s allegation that Mother violated it, the court 

should consider this allegation in combination with the other alleged 

circumstances on remand. See Stapley, 15 Ariz. App. at 70–71 (holding it is 

appropriate to consider a parent’s violation of court orders “as a change of 

condition and as a factor in determining the child’s welfare”).

¶13 The court further erred to the extent it required Father to 

show a “substantial and continuing change of circumstances” materially 

affecting the welfare of the children (emphasis added). A parent seeking

modification need only show a “change of circumstances materially 

affecting the welfare of the child.” Backstrand, 250 Ariz. at 343, ¶ 14 & n.1 

(noting that courts are bound by this judicial precedent even though the 

statute requires no such change or showing). But cf. A.R.S. § 25-503(E) 

(requiring a petitioner for child support modification to show a “changed 

circumstance that is substantial and continuing”). 

ATTORNEYS’ FEES ON APPEAL

¶14 Both parties request attorneys’ fees and costs on appeal under 

Section 25-324. We have no evidence of the parties’ current financial 

resources, and neither party took unreasonable positions. In the exercise of 

our discretion, we decline to award either party attorneys’ fees on appeal. 

As the successful party on appeal, Father is entitled to his reasonable costs 

under Section 12-342. 
TINOCO v. TINOCO

Decision of the Court

6

CONCLUSION

¶15 We reverse the order dismissing Father’s petition to modify 

parenting time and remand for reconsideration consistent with this 

decision.