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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID RYAN PORTER, JR., Petitioner/Appellant,

v.

REBECCA MONET SMITH, Respondent/Appellee.

No. 1 CA-CV 16-0512 FC

Appeal from the Superior Court in Maricopa County

No. FC2009-091089

The Honorable Jennifer E. Green, Judge

REMANDED

APPEARANCES

Rowley Chapman Barney & Buntrock LTD, Mesa

By Joshua R. Boyle

Counsel for Petitioner/Appellant

Rebecca Monet Kinsey (formerly known as Rebecca Smith), Mesa

Respondent/Appellee
PORTER v. SMITH

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Margaret H. Downie and Judge Kenton D. Jones joined.

K E S S L E R, Judge:

¶1 David Ryan Porter, Jr. (“Father”) appeals from a family court 

order modifying his parenting time with the parties’ two daughters. For 

the reasons set forth below, we remand the parenting time order for further 

findings in compliance with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 This is a high-conflict custody case. In 2010, the family court 

ordered Father and Rebecca Monet Smith (“Mother”) to share joint legal 

decision-making and equal parenting time with their son and two 

daughters. In August 2015, Mother filed a petition to modify legal decisionmaking and parenting time, alleging Father’s “destructive manipulation 

and psychological abuse” was escalating and he failed to provide a stable 

environment. Father denied these allegations and counter-petitioned for 

final legal decision-making authority, citing the parties’ inability to coparent. The family court appointed a parenting conference provider to 

prepare a report to the court and interview the children, if necessary. 

¶3 Following an evidentiary hearing and receipt of the parenting 

conference report and confidential children’s interview report, the family 

court found a substantial and continuing change in circumstances and 

modified Father’s parenting time with the two daughters to every other 

weekend and twice during the week. The court did not modify parenting 

time for the son or modify joint legal decision-making. Father timely 

appealed, and we have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 12-2101(A)(1) (2017).

1

DISCUSSION

¶4 To modify parenting time, the family court must first 

determine there has been a change in circumstances materially affecting the 

 

1 Absent material revision after the relevant date, we cite the current 

version of the statutes. 
PORTER v. SMITH

Decision of the Court

3

welfare of the children since the last custody order. Pridgeon v. Superior 

Court (LaMarca), 134 Ariz. 177, 179 (1982); Hendricks v. Mortensen, 153 Ariz. 

241, 243 (App. 1987) (citation omitted). The court has broad discretion to 

determine whether such a change has occurred, and its decision will not be 

reversed absent a clear abuse of discretion. Pridgeon, 134 Ariz. at 179

(citations omitted). “We view the evidence in the light most favorable to 

sustaining the [family] court’s findings and will uphold them unless they 

are clearly erroneous or unsupported by the evidence.” In re Marriage of 

Yuro, 192 Ariz. 568, 570, ¶ 3 (App. 1998) (citation omitted). As the party 

seeking to modify Father’s parenting time, Mother had the burden of 

proving a change in circumstances. Pridgeon, 134 Ariz. at 181.

¶5 The family court found there had been a substantial and 

continuing change of circumstances “due to both parties seeking a change 

in legal decision-making and Mother’s request to substantially reduce 

Father’s parenting time.” The fact that both parties seek to change legal 

decision-making or one party seeks to reduce the other’s parenting time 

does not constitute a change in circumstances materially affecting the 

children. Davis v. Davis, 78 Ariz. 174, 176 (1954) (citations omitted) (holding 

modification of custody orders requires “cogent reasons” such as changed 

conditions affecting “the child whose welfare is the paramount 

consideration at all times”); Hendricks, 153 Ariz. at 243 (holding Arizona 

case law requires a showing of changed circumstance’s materially affecting 

the welfare of the children). In the immediate case, the court’s finding is 

merely an observation that what both parties request would result in a 

substantial change in legal decision-making and/or parenting time. 

¶6 Therefore, we remand the case to the family court for findings 

on whether there has been a substantial and continuing change in 

circumstances to warrant a change in legal decision-making and/or 

parenting time other than merely the requests for change filed by the 

parties. “To change a previous custody order, the court must determine 

whether there has been a material change in circumstances affecting the 

welfare of the child.” Canty v. Canty, 178 Ariz. 443, 448 (App. 1994) (citation 

omitted). This change in circumstances cannot be the request to change the 

custody order, rather a substantial change in circumstances must precede 

alteration of the custody order. We therefore remand for a ruling applying

the correct legal standard. 

¶7 Father requests an award of attorneys’ fees and costs on 

appeal pursuant to A.R.S. § 25-324 (2017). Neither party took unreasonable 

positions on appeal, nor did either party prevail. Therefore, we deny 
PORTER v. SMITH

Decision of the Court

4

Father’s request for an award of attorneys’ fees on appeal and exercise our 

discretion to not award costs. 

CONCLUSION

¶8 We remand this case to the family court for findings in 

compliance with this decision.