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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KRISTYN ANNE ALCOTT, Petitioner/Appellant,

v.

KYLE JEFFRY KILLEBREW, Respondent/Appellee.

No. 1 CA-CV 19-0013 FC

Appeal from the Superior Court in Maricopa County

No. FC2015-091121

The Honorable Suzanne Scheiner Marwil, Judge

AFFIRMED

COUNSEL

Rader Sheldon & Stoutner, P.L.L.C., Phoenix

By Nicole D. Siqueiros-Stoutner

Co-Counsel for Petitioner/Appellant

Marc R. Grant Jr., P.L.L.C., Phoenix

By Marc R. Grant Jr.

Co-Counsel for Petitioner/Appellant

Kyle Jeffry Killebrew, Peoria

Respondent/Appellee

FILED 1-16-2020
ALCOTT v. KILLEBREW

Decision of the Court

2

MEMORANDUM DECISION

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

which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.

J O N E S, Judge:

¶1 Kristyn Alcott (Mother) appeals the family court’s order 

denying and dismissing her petition to modify parenting time and child 

support. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Kyle Killebrew (Father) were divorced by consent 

decree in December 2015.1 The decree awarded the parents joint legal 

decision-making authority of their two children (the Children), then ages 

three and four, with “Mother having final decision-making authority in all 

areas.” Mother retained primary physical custody of Children with regular 

visitation to Father. About nine months later, the parties stipulated to a 

parenting-time plan with “a week on/week off schedule,” which was 

approved and adopted by the family court in September.

¶3 In August 2017, Mother, who lived in Glendale at the time,

filed a petition to modify parenting time and child support based largely 

upon Father relocating to Flagstaff. After an evidentiary hearing, the family 

court found Mother had proved a “substantial and continuing change” 

materially affecting the welfare of the Children that warranted 

modification. Specifically, the court found that although Father had stated 

he planned to live in Flagstaff for a “‘couple months,’ he continue[d] to live 

in Flagstaff at the time of the [evidentiary] hearing and ha[d] now been 

living there for the past six months.”

1 “We view the facts in the light most favorable to sustaining the

family court’s ruling.” Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 522, ¶ 1

n.1 (App. 2007) (citing Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)).
ALCOTT v. KILLEBREW

Decision of the Court

3

¶4 Thereafter, the family court considered the factors relevant to 

best interests, see Ariz. Rev. Stat. (A.R.S.) §§ 25-403(A),2 -403.01(B), noting

the following: “[t]he parties have difficulty in effectively communicating;” 

while Mother expected Father to comply with their daughter’s treatment 

for “PTSD and an adjustment disorder,” Mother did “not volunteer the 

information she should” in order “to inform Father of anything medically 

or educationally related;” while “Mother state[d] Father d[id] not attend 

doctor appointments or attend any [school] IEP meetings,” Father testified 

“he ha[d] never been made aware of any doctor appointments or IEP 

meetings;” the parties’ son “ha[d] a number of recurrent respiratory 

issues;” though Mother alleged one of the children “struggle[d] with 

school,” Father testified to the contrary that it was he who “received notice 

from the school [that] the [C]hildren ha[d] a large number of absences and 

tardies since being in Mother’s primary care;” that the “[c]ourt was under 

the impression both parents tend[ed] to withhold information from the 

other parent which caus[e]d a ripple effect that [] ultimately le[]d to less 

than full and accurate information being provided to the [c]ourt,” though 

there was no intentional misleading by either parent; and ultimately, “the 

primary disagreement regarding parenting time [] erupted over Father 

living out of [Maricopa] county.” Based on these considerations, the court 

found modification was in the Children’s best interests and ordered that 

Father would exercise “parenting time every weekend of the month except 

[for] the first weekend of [each] month.” The court specified within its 

January 2018 order, however, the parties would “revert back to a weekon/week-off schedule” if Father relocated to a “residence within 25 miles 

of Mother’s residence.”

¶5 In September 2018, Mother filed a request for mediation to

resolve issues related to parenting time. By this time, Father had moved 

back to the Phoenix area, where Mother was also residing. After Father 

failed to attend a November mediation, despite receiving proper service,

Mother filed a second petition to modify parenting time and child support,

as well as an expedited motion in support of her petition.

3 

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

current version.

3 The record does not reflect the specific denial of Mother’s expedited 

motion for modification of parenting time and child support, filed in 

support of her petition. Nonetheless, “when a court fails to expressly rule 

on a motion, we deem it denied.” State v. Mendoza-Tapia, 229 Ariz. 224, 231, 

¶ 22 (App. 2012) (citing State v. Hill, 174 Ariz. 313, 323 (1993)).
ALCOTT v. KILLEBREW

Decision of the Court

4

¶6 To support her request for modification, Mother alleged: the 

parties’ daughter had been diagnosed with various behavioral disorders; 

Father was non-compliant with their daughter’s treatment plan, causing 

her to be terminated from the clinic where she was receiving treatment; 

Father would not give the Children prescribed medications when they were 

ill; on at least one occasion, Father did not pick up the Children from school 

on time and, on two occasions, sent Children to school without lunches; the

daughter had begun to manifest “excessive skin picking, tics, obsessive 

thoughts and anxious mood” from staying in Father’s one-bedroom 

apartment; Father did not actively engage in helping Children with their 

school work on three occasions; and the Children did not regularly bathe 

while in Father’s care, and when daughter did bathe, “Father closely 

watche[d] over her while she [wa]s naked.” Mother also attached various 

exhibits in support of her petition, including photos of the daughter’s 

alleged hand injury.

¶7 The family court denied and dismissed Mother’s second 

petition to modify, finding:

[Mother’s petition] alleges no substantial and continuing 

change since the issuance of the [c]ourt’s January 16, 2018 

ruling. During the hearing on the previous petition to 

modify, [Mother] made many of the same allegations 

regarding the children’s struggles in school and medical 

diagnoses. The [c]ourt nevertheless found that [Father] could 

exercise week on/week off equal parenting time so long as he 

lived within a 25 mile radius of [Mother]. [Mother] does not 

dispute that [Father now] lives locally but simply dislikes that 

[Father] lives in a one bedroom apartment. This is not a basis 

to modify.

Mother timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-

120.21(A)(1) and -2101(A)(2). See In re Marriage of Dorman, 198 Ariz. 298, 

301, ¶ 4 (App. 2000) (concluding an order resolving a petition to modify a 

decree of dissolution is appealable as a special order after final judgment).
ALCOTT v. KILLEBREW

Decision of the Court

5

DISCUSSION

¶8 Mother argues the family court erred by failing to hold a 

hearing on her second petition to modify parenting time and child support.4 

Mother asserts that her petition, supported by the filing of her expedited 

motion on the same day, “contained entirely new allegations” not 

addressed in the most recent January 2018 custody and parenting time 

order, thus providing sufficient evidence of the existence of a material

change in circumstances affecting the welfare of the Children to warrant a

hearing.

¶9 To modify a parenting time order, “a person shall submit an 

affidavit or verified petition setting forth detailed facts supporting the 

requested modification and shall give notice . . . to the other parties to the 

proceeding, who may file opposing affidavits.” A.R.S. § 25-411(L). The 

court will hold an evidentiary hearing on the request only if it finds that 

“adequate cause for hearing the motion” is established by the pleadings. Id. 

The court’s review of the “pleadings” includes the petition itself and any 

associated and opposing affidavits. Id.; Prigdeon v. Superior Court, 134 Ariz. 

177, 181 (1982). The purpose of requiring this threshold showing “is to 

spare the parties and the child the cost, disruption, and potential trauma of 

a full modification hearing unless the petition and supporting documents 

show ‘adequate cause.’” DePasquale v. Superior Court, 181 Ariz. 333, 335 

(App. 1995).

¶10 Adequate cause for a hearing exists when “the facts alleged [] 

constitute a change in circumstances” that materially affects the welfare of 

the child. Prigdeon, 134 Ariz. at 180. Those facts “must be more than mere 

conclusory allegations” and “not merely cumulative or impeaching.” Id. at 

181-82. Ultimately, the court has “wide discretion in its determination as to

whether or not there is adequate cause for hearing,” and we will reverse 

only if “no reasonable judge would have denied the petition without a 

hearing.” Siegret v. Siegret, 133 Ariz. 31, 33 (App. 1982). The question is

thus not what this Court would have done in the first instance, but whether 

4 Mother also argues on appeal that the family court committed 

reversible error by relying on the fact that it had denied her July 2018 

motion for reconsideration (MFR) as grounds to deny her November 2018 

petition to modify. The record does not support this contention; in its order, 

the court specifically denied Mother’s November petition “because it 

allege[d] no substantial and continuing change.” (Emphasis added). Only 

thereafter did the court find it “worthy of note” that it had previously 

denied the July 2018 MFR that alleged the same grounds for change.
ALCOTT v. KILLEBREW

Decision of the Court

6

the family court abused its discretion. See Visco v. Universal Refuse Removal 

Co., 11 Ariz. App. 73, 74 (1969) (“It is the general rule that the exercise of a 

court’s discretion will not be disturbed unless it is plainly wrong.”) (citing 

Fought v. Fought, 94 Ariz. 187, 188 (1963)).

¶11 In reviewing Mother’s November 2018 petition, the family 

court considered the “hearing on the previous [January 2018] petition to 

modify,” which included discussion of daughter’s medical diagnoses at the 

time and son’s respiratory issues, as well as the Children’s challenges at 

school. While Mother expressed frustration with Father’s failure to 

medically attend to the Children — a sentiment she seems to have earlier 

asserted at the hearing on her January petition — after the hearing on the 

January petition, the court noted that Mother “d[id] not volunteer the 

information she should” to Father regarding the Children’s medical and 

educational needs, and that “both parents tend[ed] to withhold 

information from the other parent,” leading to their inability to effectively 

communicate. The court nonetheless “found that [Father] could exercise 

week on/week off equal parenting time so long as he lived within a 25 mile 

radius of [Mother].” The court also considered Mother’s new allegation 

that Father’s updated living arrangement caused their daughter to exhibit 

concerning behavior, determining Mother “simply dislike[d] that [Father] 

live[d] in a one-bedroom apartment,” which “[wa]s not a basis to modify.”

¶12 Furthermore, the exhibits Mother filed in support of her 

November 2018 petition did not squarely support her claim for 

modification. Mother attached three of the son’s phonogram tests, on 

which he earned two Cs and one F but also included four certificates son 

earned by being a “super star student.” The certificates indicated the son 

“turned in [his] reading, spelling and math homework 4 out of 4 days 

th[ose] week[s]” but also earned a “yellow light” sometimes for not 

listening or following directions. Mother also attached the daughter’s 

Christmas wish list, which has no apparent relevance to the petition, and 

photos of daughter’s alleged hand injury, without explaining the nature nor 

cause of that injury.

¶13 The record reflects that the family court considered the 

circumstances alleged by Mother, compared them to her contentions and 

the court’s findings related to her previous requests, and evaluated the new 

allegations consistently with prior observations of the parties’ efforts and 

conduct. Additionally, although the court did not specifically address 

Mother’s bathing concerns nor Father’s alleged failure to provide school 

lunches and on-time pick up from school, we cannot say the court abused 

its discretion in dismissing the petition; the court could reasonably 
ALCOTT v. KILLEBREW

Decision of the Court

7

conclude that Mother’s allegations, even if true, did not constitute a 

substantial and continuing change in circumstances that would warrant a 

hearing.

CONCLUSION

¶14 The family court’s order denying and dismissing Mother’s 

petition for modification is affirmed.