NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of:

JANINE MARIE MOTHERSHED, Petitioner/Appellant,

v.

WILLIAM RYAN GREENEN, JR., Respondent/Appellee.

No. 1 CA-CV 13-0686

Appeal from the Superior Court in Maricopa County

No. DR2001-090181

The Honorable Timothy J. Ryan, Judge

AFFIRMED

COUNSEL

S. Alan Cook, PC, Phoenix

By S. Alan Cook

Counsel for Petitioner/Appellant

William Ryan Greenen, Jr., Mesa

Respondent/Appellee Pro Se
MOTHERSHED v. GREENEN

Decision of the Court

2

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.

H O W E, Judge:

¶1 Janine Mothershed (“Mother”) moved to modify child 

custody. After an evidentiary hearing, the family court found that Mother 

had not met her burden of showing a change of circumstances affecting the 

welfare of the child (“the Child”) and dismissed her petition. She appeals 

that ruling, the court’s refusal to admit statements of the paternal 

grandparents during the hearing, and the award of attorneys’ fees to 

William Ryan Greenen, Jr. (“Father”). For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father were the Child’s parents. In March 2006,

the family court awarded them joint legal custody of Child, but Mother was 

awarded final decision-making authority on educational matters and 

Father was awarded final decision-making authority on medical matters. 

Moreover, if Father lived within fifteen miles of the Child’s school, the 

parents would have equal parenting time; otherwise, Father would have 

parenting time every other weekend from after school on Friday until 

before school on Monday. 

¶3 Father periodically relocated within and beyond the fifteenmile range. In May 2012, after having been outside of the fifteen-mile range 

for at least the school year, Father moved within the fifteen-mile area and 

began to exercise equal parenting rights. 

¶4 On May 7, 2012, Mother moved to modify custody and 

parenting time, seeking sole custody with supervised parenting time or no 

parenting time for Father. Mother alleged that Father had multiple drug 

charges, threatened to assault her, kept little food in his home, lived in an 

unsafe neighborhood, and would not allow Child to visit friends. Mother 

also alleged that Child’s stepmother yelled at Child for eating too much and 

that Child was upset she had to carry clothes and books back and forth 

between the homes. Mother asserted that the Child’s grades and mental 

status would suffer if Mother were not granted emergency custody. 
MOTHERSHED v. GREENEN

Decision of the Court

3

¶5 At trial, Mother had revised her position. Mother sought joint 

legal custody with the right of final decision making and to be designated 

primary residential parent, with Father having parenting time alternate

weekends. Mother also sought to admit into evidence written statements 

from the Child’s paternal grandparents, but the family court sustained 

Father’s objection on hearsay grounds. 

¶6 After Mother rested her case, the court indicated that it did 

not believe Mother had met her burden of proof. Father moved for a 

directed verdict and the court granted the motion, dismissed Mother’s 

petition, and ordered Father to submit an application and affidavit for an 

award of attorneys’ fees. 

¶7 The family court dismissed Mother’s petition and awarded 

Father $4,710.31 in attorneys’ fees and costs. Mother appealed after filing 

an unsuccessful motion for new trial.

1

 

DISCUSSION 

Dismissal of Mother’s Petition

¶8 Mother argues that the family court abused its discretion in 

dismissing her petition when she rested her case. Mother argues that her 

petition was not frivolous and that she presented a reasonable basis for the 

family court to grant modification. 

¶9 The party seeking a change in legal decision-making or 

parenting time has the burden of proving a change in circumstances 

materially affecting the welfare of the child. Hendricks v. Mortensen, 153 

Ariz. 241, 243, 735 P.2d 851, 853 (App. 1987); Bailey v. Bailey, 3 Ariz. App. 

138, 141, 412 P.2d 480, 483 (1966). Changes in activities and environment are 

not a basis for modification unless shown to be detrimental to the child’s

welfare. Davis v. Davis, 78 Ariz. 174, 176, 277 P.2d 261, 263 (1954). The 

family court has broad discretion to determine if a change of circumstances 

exists and we will not reverse the court’s determination absent a clear abuse 

of discretion. Hendricks, 153 Ariz. at 243, 735 P.2d at 853. In reviewing a 

directed verdict based on the insufficiency of the evidence in a bench trial, 

we may treat the ruling as a judgment on partial findings under Arizona 

Rule of Family Law Procedure (“A.R.F.L.P.”) 82(c). Johnson v. Pankratz, 196 

 

1 Father did not file an answering brief in this case. Although we may 

treat his failure to do so as a confession of reversible error, we choose in our 

discretion to reach the merits of this case. See Nydam v. Crawford, 181 Ariz. 

101, 101, 887 P.2d 631, 631 (App. 1994).
MOTHERSHED v. GREENEN

Decision of the Court

4

Ariz. 621, 626 ¶ 19, 2 P.3d 1266, 1271 (App. 2000) (reviewing court may treat 

directed verdict in bench trial as judgment on partial findings pursuant to 

Rule 52(c), analog to A.R.F.L.P 82(c)). Reviewing the sufficiency of the 

evidence, we view the evidence in the light most favorable to upholding the 

ruling. Id. at 626 ¶ 20, 2 P.3d at 1271. 

¶10 Mother had the burden of demonstrating a change in 

circumstances materially affecting the welfare of the Child such that a 

modification of custody and parenting time would be in the Child’s best 

interest. Mother argues that she presented sufficient evidence, based on her 

own testimony, the Conciliation Services’ report, and the statements of the 

Child’s paternal grandparents that the family court had excluded. 

¶11 Mother testified that the Child was always upset when she 

went to Father’s home. She stated that Father could not financially support 

the Child so the Child had to take school clothes back and forth between 

the two homes. Mother testified that Father had limited food, restricted the 

Child’s friends, and did not allow the Child to attend parties and 

sleepovers. Mother also testified that the Child had asthma and Father had 

ten German Shepherds, which required the Child to use her inhaler. Mother 

described the Child as a great student who actively participated in 

competitive gymnastics. Mother expressed concern that the Child’s grades 

would suffer if Father had equal parenting time. Mother testified that she 

and the Child did various activities together, but that when at her Father’s 

home, the Child watched movies. Mother claimed that the Child had a poor 

and distant relationship with her stepmother and was left with her 

stepmother at night because Father worked. 

¶12 Conciliation Services’ report of its interview with the Child 

confirmed that the Child had a strong desire to stay with her Mother during 

the week and see Father on alternate weekends. The Child explained that 

she had to pack her things when she went to her Father’s and that he did 

not allow her to attend sleepovers or birthday parties with her friends. The 

Child stated that yelling occurred at both her Father’s and Mother’s homes,

but more at Father’s. 

¶13 In the statements from the paternal grandparents that Mother 

sought to have admitted, the grandparents opined that Mother was better 

able to provide and care for the Child at that time. They confirmed that the 

Child had a poor relationship with her stepmother and that Father 

restricted food in his house and was not financially able to care for the 

Child. 
MOTHERSHED v. GREENEN

Decision of the Court

5

¶14 Mother’s proffered evidence failed to demonstrate that

circumstances had changed since the original custody and parenting order.

Mother also did not establish that the alleged change of circumstances 

materially affected the Child’s welfare. Mother’s interests and the Child’s 

wishes may be considered, but are not dispositive. See Bailey, 3 Ariz. App. 

at 141, 412 P.2d at 483. Although the Child would prefer to see Father on 

alternate weekends so that she could pack her clothes less often and could 

visit with her friends, that preference does not show a material effect on her 

welfare. Although Mother alleged that Father had limited food at his home,

the record does not show that the Child is not being appropriately fed and 

nourished. Moreover, the Conciliation Services’ report does not indicate 

that the Child is in distress or is negatively affected by halftime visitation. 

Mother’s concern regarding the Child’s grades is speculative because

Mother presented no evidence that the Child’s schoolwork has suffered. In 

fact, Mother acknowledged that the Child’s grades were not adversely 

affected. Although Child’s aggravated asthma from the dogs in Father’s 

home is some evidence of a change in circumstances affecting the Child’s 

welfare, Mother presented no corroborating evidence from a doctor. 

Moreover, Mother admitted that she had not even mentioned this concern 

in her petition. Because the family court has broad discretion in 

determining if a change of circumstances has occurred, we cannot find that 

the court abused its discretion in concluding that Mother had not met her 

burden. Hendricks, 153 Ariz. at 243, 735 P.2d at 853. 

Exclusion of Grandparents’ Statements as Hearsay

¶15 Mother argues that the family court abused its discretion in 

refusing to admit into evidence the statements of the Child’s paternal 

grandparents that supported Mother’s request that she be made the 

primary residential parent. 

¶16 Under Rule 2, a party may require strict compliance with the 

rules of evidence by filing a notice to that effect at least forty-five days 

before trial. A.R.F.L.P. 2(B)(1). If no notice is filed, all relevant evidence is 

admissible. A.R.F.L.P. 2(B)(2). The family court may nevertheless exclude 

certain evidence:

[The family court] shall exclude evidence if its probative value 

is outweighed by the danger of unfair prejudice, confusion of 

the issues, or by considerations of undue delay, waste of time, 

needless presentation of cumulative evidence, lack of 

reliability or failure to adequately and timely disclose same. 
MOTHERSHED v. GREENEN

Decision of the Court

6

This admissibility standard shall replace Rules 403, 602, 801-

806, 901-903 and 1002-1005, Arizona Rules of Evidence. 

A.R.F.L.P. 2(B)(2). 

¶17 Neither party provided notice invoking strict compliance 

with the rules of evidence. A hearsay objection, however, concerns the 

reliability of the evidence, see State v. Stotts, 144 Ariz. 72, 81–82, 695 P.2d 

1110, 1119–20 (1985), and under the rule the court may still exclude 

unreliable evidence. Hearsay evidence may be considered reliable where 

circumstances establish that it is trustworthy. Brown v. Arizona Dep’t of Real 

Estate, 181 Ariz. 320, 328, 890 P.2d 615, 623 (App. 1995). We will not disturb 

the trial court’s decision on the admissibility of evidence absent a clear 

abuse of discretion and resulting prejudice. Gemstar Ltd. v. Ernst & Young, 

185 Ariz. 493, 506, 917 P.2d 222, 235 (1996). Even the improper exclusion of 

evidence is not grounds for reversal if its admission would not have 

changed the result. Gasiorowski v. Hose, 182 Ariz. 376, 382, 897 P.2d 678, 684 

(App. 1994). 

¶18 The statements Mother sought to have admitted were 

unsworn, unsigned, typewritten letters purportedly from Father’s parents.2 

The family court acted within its discretion by finding the proffered 

statements unreliable. Although the letters stated the grandparents’ 

opinions about the Child’s best interests, the letters offered few facts not 

already presented to the family court. Thus, even if the letters had been 

admitted, they would have unlikely affected the family court’s ruling. 

Accordingly, the family court did not abuse its discretion by excluding the

proffered evidence.

Attorneys’ Fees

¶19 Mother also contends that the family court erred by awarding 

Father attorneys’ fees. We disagree. 

¶20 The family court may, “after considering the financial 

resources of both parties and the reasonableness of the positions each party 

has taken throughout the proceedings,” order one party to pay the other a 

reasonable amount for the costs and expenses of maintaining or defending 

 

2 Although the documents were not admitted into evidence, they have 

been provided on appeal. 
MOTHERSHED v. GREENEN

Decision of the Court

7

a dissolution or child custody proceeding. A.R.S. § 25–324.

3 The purpose 

of the statute is to provide a remedy for the party least able to pay. BellKilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524 ¶ 13, 169 P.3d 111, 114 (App. 

2007). Although the court must consider the parties’ income and conduct, 

it need not find both a disparity of income and unreasonable conduct to 

order an award of fees. Mangan v. Mangan, 227 Ariz. 346, 353 ¶ 27 n.13, 258 

P.3d 164, 171 n.13 (App. 2011). An objective standard applies in assessing 

the reasonableness of a party’s position. In re Marriage of Williams, 219 Ariz. 

546, 548–49 ¶ 10, 200 P.3d 1043, 1045–46 (App. 2008). Whether a party 

prevails in the proceeding is irrelevant to the determination of an award of 

attorneys’ fees. Breitbart-Napp v. Napp, 216 Ariz. 74, 84 ¶ 39, 163 P.3d 1024, 

1034 (App. 2007). We will not disturb the trial court’s decision to award 

attorney’s fees under A.R.S. § 25-324 absent an abuse of discretion. 

MacMillan v. Schwartz, 226 Ariz. 584, 592 ¶ 36, 250 P.3d 1213, 1221 (App. 

2011). 

¶21 Mother first argues that the award of fees “appears to be 

outcome oriented,” but provides no argument or facts on which she bases 

the claim. We therefore do not address it. See Modular Systems Inc. v. Naisbitt, 

114 Ariz. 582, 587, 562 P.2d 1080, 1085 (App. 1977) (arguing only that court 

erred is not the same as arguing an issue, so the issue is deemed 

abandoned). 

¶22 Mother further objects to the award of attorneys’ fees because

Father did not provide a fee agreement to support the application. Mother 

offers no authority that the submission of a fee agreement is required. A 

party seeking an award of fees must establish an obligation to pay legal 

fees. Lisa v. Strom, 183 Ariz. 415, 419, 904 P.2d 1239, 1243 (App. 1995). 

Father’s counsel submitted an affidavit stating that Father was being billed 

the firm’s then-current billing rates and identifying those rates. Counsel 

further avowed that Father was billed monthly for services and provided 

the total of fees and costs incurred by Father. Attached to the affidavit were 

copies of the billing statements provided to Father showing fees and costs. 

The affidavit and its attachments sufficiently established that Father had 

incurred expenses in defending the action; submission of a fee agreement 

was not necessary. 

 

3 Father sought attorneys’ fees pursuant to A.R.S. § 25-809(G). Because

that section applies to maternity and paternity proceedings, it does not 

apply to this case. A.R.S. § 25-809(G) (pertaining to “proceedings under this 

article”). 
MOTHERSHED v. GREENEN

Decision of the Court

8

¶23 Mother also objects to certain specific billing entries. Mother 

objects to charges for file maintenance, noting that the charge varies from 

$25.00 per hour to $75.00 per hour. The different charges relate to the 

different rates for a secretary, $25.00, and a paralegal, $75.00. The billing 

statements show that file maintenance was performed monthly over five 

months, averaging less than an hour per month. Mother argues that these

charges represent impermissible administrative work, but offers no 

authority that the cost of such maintenance of a client’s records is not 

recoverable. We find no abuse of discretion in the court’s permitting 

recovery of these charges. 

¶24 Mother also objects to an entry for August 3, 2012, that Mother 

argues lacks sufficient specificity. Counsel’s affidavit must indicate the type 

of services provided. Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188, 

673 P.2d 927, 932 (App. 1983). The entry states that counsel reviewed 

“Various police reports, letters, and other documentation received from 

Client.” The entry provides sufficient information about the services 

rendered. 

¶25 Mother argues that no financial records of either party were 

introduced into evidence and no testimony was presented regarding the 

financial conditions of the parties. Consequently, Mother argues, the court

made no findings and could not have made a determination of the relative 

financial circumstances of the parties as required by A.R.S. § 25–324. 

Mother argues that the court therefore abused its discretion in awarding 

attorneys’ fees and in failing to grant her motion for new trial on the issue 

of attorneys’ fees. 

¶26 When filing her child support modification petition, Mother 

also submitted a parent’s worksheet for child support, which listed an 

estimated monthly gross income for Father of $2,000, and a monthly gross 

income for Mother of $2,500. Father directed the family court’s attention to 

this information in his application for attorneys’ fees. In addition, Mother 

testified that she believed that Father could not financially support the 

Child at that time, noting that he could not buy the Child school clothes and 

had limited food at his home. Under A.R.S. § 25–324, the court must 

consider the relative financial resources of the parties. White-Nathan v. 

Nathan, 181 Ariz. 112, 118, 888 P.2d 237, 243 (App. 1994). Although the 

information before the court did not provide exact data about the parties’ 

finances, it did represent an acknowledgment by Mother that Father has 

fewer financial resources than she does. The court therefore had before it 

information from which it could conclude that a fee award to Father was 

appropriate. 
MOTHERSHED v. GREENEN

Decision of the Court

9

¶27 Mother also argues that she should not be responsible for 

Father’s attorneys’ fees because her trial lawyer did an inadequate job. 

Mother’s trial lawyer was her agent, he presented her case, and she is bound 

by his actions. See Panzino v. City of Phoenix, 196 Ariz. 442, 447 ¶ 16, 999 

P.2d 198, 203 (2000); Cahn v. Fisher, 167 Ariz. 219, 221, 805 P.2d 1040, 1042 

(App. 1990). Mother’s disappointment in her attorney’s performance does 

not change that she filed a petition and then failed to meet her burden to 

show a change in circumstances affecting Child’s welfare. Nor does it 

change that Father, whom Mother admits has fewer financial resources 

than she does, was required to respond to the petition and litigate, incurring 

fees and expenses. Accordingly, we find no abuse of discretion in the family 

court’s award of attorneys’ fees to Father. 

CONCLUSION 

¶28 For the foregoing reason, the family court’s ruling is affirmed.