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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MEGAN NIBLEY, Petitioner/Appellee,

v.

JONATHAN HILLE, Respondent/Appellant.

No. 1 CA-CV 20-0256 FC

Appeal from the Superior Court in Maricopa County

No. FC2016-003432

The Honorable Gregory Como, Judge

REVERSED

COUNSEL

Megan Nibley, Phoenix

Petitioner/Appellee

Gillespie, Shields, Goldfarb & Taylor, Phoenix

By DeeAn Gillespie Strub, Mark A. Shields

Counsel for Respondent/Appellant

FILED 2-18-2021
NIBLEY v. HILLE

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 Jonathan Hille (“Father”) appeals the superior court’s order

that he pay Megan Nibley (“Mother”) a percentage of their child’s 

preschool expenses. Treating this appeal as a special action, we accept 

jurisdiction and reverse the portions of the March 12, 2020 order and June 

22, 2020 amended order pertaining to reimbursement for preschool 

expenses.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Father were divorced in 2017. They have one 

child together (“Child”), who was born in 2015. In January 2019, Mother 

filed a petition to modify legal decision making, parenting time, and child 

support.

¶3 The superior court held an evidentiary hearing in March 2019 

and on May 17, 2019, ordered Father to pay child support in the amount of 

$1194.29 per month. The court stated that it was “adopt[ing] the amounts 

set forth in the parties’ [affidavits of financial information (“AFI”)] for their 

portion of child care.” The child support worksheet reflects that the court 

gave Father a discretionary credit of $705 for his monthly childcare costs 

and Mother a discretionary credit of $1000 for her monthly childcare costs, 

minus $50 for a federal tax credit. Mother’s AFI stated that she had monthly 

childcare costs for Child totaling $1000, including $525 to $760 per month 

at Little Big Minds Preschool and $300 to $400 for Child’s nanny.

¶4 Mother requested clarification about the May 17, 2019 order. 

Among other things, she sought clarification with regard to Child’s 

education expenses. In June 2019, the court corrected the May 17, 2019 

ruling nunc pro tunc:

The Court finds that the May 17, 2019 Ruling inadvertently 

omitted education and education-related expenses from the 

orders on page 20.
NIBLEY v. HILLE

Decision of the Court

3

. . . . 

The Order is corrected to state:

IT IS FURTHER ORDERED that unreimbursed 

medical/dental/vision expenses, education and educationrelated expenses (including pre-school, school, school 

supplies (including computer)), and agreed-upon extracurricular 

activities . . . shall be paid based on relative incomes at 70% by 

Father and 30% by Mother. . . .

Father filed a notice of appeal from the May 17, 2019 order, but he later 

withdrew his appeal.

¶5 In December 2019, Mother filed a petition to enforce and for 

contempt, claiming that Father had not paid any portion of Child’s 

preschool expenses. Father was not required to file a response, and he did 

not do so. See Ariz. R. Fam. Law P. (“ARFLP”) 91(e), (l), 92 (a party served 

with a contempt petition may file a response but is not required to do so).

¶6 The superior court held an evidentiary hearing in March 2020. 

Father’s attorney argued that the unreimbursed preschool expenses were 

built into the child support worksheet and “part of the child support. 

There’s $1000[ ] in the child support worksheet on [Mother’s] side that takes 

care of that.” Mother testified that she paid $650 a month for Child’s 

preschool and $350 a month for Child’s nanny. Mother further testified that 

she had paid all of Child’s preschool expenses for a period of eight months 

and that Father owed her $4259 for his 70% share. Father testified that he 

paid Child’s nanny $180 a week ($720 per month) to care for Child in his 

home on Fridays.

¶7 The superior court found that Father did not pay for any of 

Child’s preschool expenses for the 2019-2020 school year, and that Mother 

had paid all of those expenses without reimbursement from Father. The 

court rejected Father’s argument that the child support worksheet already 

credited Mother $1000 for monthly childcare expenses including the cost of 

Child’s preschool and ordered him to reimburse Mother $4259 for 70% of 

Child’s preschool expenses.

¶8 Father timely appealed. The court’s March 12, 2020 order was 

signed but did not contain ARFLP 78 language. Accordingly, we stayed the 

appeal, and the superior court entered an amended order with ARFLP 78(b)

language. In our discretion, we treat this appeal as a special action and 

accept special action jurisdiction. See Henderson v. Henderson, 241 Ariz. 580, 
NIBLEY v. HILLE

Decision of the Court

4

585, ¶ 7 (App. 2017) (reviewing appeal as a special action because contempt 

findings are only reviewable by special action); Danielson v. Evans, 201 Ariz. 

401, 411, ¶ 35 (App. 2001) (this court lacks jurisdiction “over an appeal from 

a civil contempt adjudication”).

DISCUSSION

¶9 Father argues the superior court abused its discretion by 

entering a judgment against him for preschool expenses separate and apart 

from his monthly child support obligation. We review child support 

awards for an abuse of discretion and accept the superior court’s findings 

of fact unless they are clearly erroneous. Engel v. Landman, 221 Ariz. 504, 

510, ¶ 21 (App. 2009). However, we review de novo the superior court’s 

interpretation of the child support guidelines, and we “draw our own legal 

conclusions from facts found or implied in the judgment.” Id. (citation and 

internal quotations omitted).

¶10 Mother argues Father’s appeal was untimely because he 

failed to appeal the amended May 17, 2019 order that Child’s unreimbursed 

preschool expenses were to be paid 70% by Father and 30% by Mother. We 

disagree. Although Father did not appeal the May 17, 2019 order, he filed 

a timely appeal from the superior court’s March 12, 2020 order that he 

reimburse Mother $4259 for 70% of Child’s preschool expenses. And to the 

extent that Mother argues Father did not timely make the argument about 

the child support worksheet because he first raised it at the evidentiary 

hearing, we note that Father was not required to file a response before the 

hearing and was therefore permitted to “assert at trial any defense” to 

Mother’s claim. See ARFLP 91(e), (l), 29(b).

¶11 According to the Arizona Child Support Guidelines, the 

superior court “[m]ay add . . . [c]hildcare expenses that would be 

appropriate to the parents’ financial abilities” to the basic child support 

obligation. Arizona Revised Statutes (“A.R.S.”) section 25-320 app. 

§ 9(B)(1). The decision to do so is discretionary. Similarly, the court may 

add to the basic child support obligation a child’s education expenses. 

A.R.S. § 25-320 app. § 9(B)(1).

¶12 Here, the superior court attributed Mother with $1000 per 

month for her childcare expenses on the child support worksheet and 

attributed to Father $705 per month for his childcare expenses. The child 

support worksheet did not attribute educational expenses to either party. 

The court based these amounts on Mother and Father’s AFIs. Mother’s AFI 

listed monthly childcare costs of $1000, including $525 to $760 per month 
NIBLEY v. HILLE

Decision of the Court

5

for Child’s preschool and $300 per month for Child’s nanny. At the 

evidentiary hearing on her petition to enforce and for contempt, Mother 

testified that she paid $650 per month for Child’s preschool and $350 per 

month for Child’s nanny, a total of $1000 per month. Father’s 

uncontradicted testimony was that he paid Child’s nanny $180 a week ($720 

per month) to care for Child in his home.

¶13 The preschool listed in Mother’s AFI is the same preschool 

Mother paid for in 2019-2020. Because the child support worksheet credited 

Mother for all of her childcare expenses, including Child’s monthly 

preschool expenses, the court erred by separately ordering Father to 

reimburse Mother for 70% of the preschool expenses. Accordingly, we 

reverse the portions of the March 12, 2020 order and June 22, 2020 amended 

order pertaining to reimbursement for preschool expenses.

¶14 Father requests attorneys’ fees on appeal pursuant to A.R.S. 

§ 25-324. After considering the parties’ financial resources and the 

reasonableness of the positions they have taken, we decline to award 

attorneys’ fees. As the prevailing party, we award Father his costs on 

appeal upon compliance with ARCAP 21.

CONCLUSION

¶15 For the foregoing reasons, we reverse the portions of the 

superior court’s March 12, 2020 order and June 22, 2020 amended order 

pertaining to reimbursement for preschool expenses.