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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

APRIL M. ZIMMERMAN, Petitioner/Appellee,

v.

ERIC M. ZIMMERMAN, Respondent/Appellant.

No. CV 14-0756 FC

Appeal from the Superior Court in Maricopa County

No. FC2012-002486

The Honorable Michael J. Herrod, Judge

AFFIRMED IN PART, REVERSED IN PART; REMANDED 

COUNSEL

Riggs Ellsworth & Porter, PLC, Mesa

By Paul C. Riggs, Spencer T. Hale

Counsel for Respondent/Appellant

Scott L. Patterson, PLLC, Tempe

By Scott L. Patterson

Counsel for Petitioner/Appellee
ZIMMERMAN v. ZIMMERMAN

Decision of the Court

2

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.

P O R T L E Y, Judge:

¶1 Eric Zimmerman (“Father”) appeals an order denying his 

petition to amend legal decision-making, parenting time, and child support.

For the following reasons, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Father was divorced from April Zimmerman (“Mother”) in 

Texas on January 8, 2010. In the final decree, Mother was designated as the 

sole managing conservator of their four children.1 The decree also 

established Father’s parenting time and monthly child support.

2 Sometime 

later, each parent moved to Arizona, and Mother domesticated the Texas 

decree in Maricopa County in March 2012. She subsequently allowed 

Father to have more parenting time, but a few months after Father exercised 

the additional parenting time, one of the children started experiencing 

anxiety. Mother thereafter limited Father’s parenting time to the schedule 

listed in the Texas decree.

¶3 Father then filed a petition to amend legal decision-making, 

parenting time, and child support. After discovery and an evidentiary 

hearing, the family court denied the petition and affirmed the original 

Texas decree. The family court also awarded Mother attorney’s fees. Father 

appealed, and we have jurisdiction under Arizona Revised Statutes 

(“A.R.S.”) section 12-2101(A)(2).3

 

1 This is comparable to Arizona’s sole legal decision-making. See generally, 

Anne E. Melley, Types of Conservatorship Arrangements, 4 Tex. Fam. L. Serv. 

§ 29:12 (2007).

2 Although Father asserts that the monthly child support included spousal 

maintenance, the decree labeled the entire amount as child support.

3 We cite the current version of the statute unless otherwise noted.
ZIMMERMAN v. ZIMMERMAN

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DISCUSSION

I. Standard of Review

¶4 “‘We review the [family] court’s decision regarding child 

custody for an abuse of discretion.’” Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11, 

219 P.3d 258, 261 (App. 2009) (quoting Owen v. Blackhawk, 206 Ariz. 418, 420, 

¶ 7, 79 P.3d 667, 669 (App. 2003)) (alterations in Hurd). “An abuse of 

discretion exists when the [trial] record, viewed in the light most favorable 

to upholding the [family] court’s decision, is devoid of competent evidence 

to support the decision.” Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 

110 (1999) (internal citation and quotation marks omitted). We do not 

reweigh the evidence, however, because the family court is better situated 

to determine the facts and the credibility of witnesses. Mary Lou C. v. Ariz. 

Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004); Gutierrez 

v. Gutierrez, 193 Ariz. 343, 347–48, ¶ 13, 972 P.2d 676, 680–81 (App. 1998).

II. Legal decision-making and parenting time

¶5 Father contends that the family court abused its discretion by

failing to make specific findings about the children’s best interests when 

denying his request to modify the existing legal decision-making and 

parenting-time orders. We disagree.

¶6 When making or modifying a custody or legal decisionmaking determination, the family court must consider and make best 

interests findings based on factors listed in A.R.S. § 25–403(A) relating to 

the child’s physical and emotional well-being. See A.R.S. §§

25-403(B), -403.01, -411(A); Baker v. Meyer, 237 Ariz. 112, 116, ¶¶ 10-11, 346 

P.3d 998, 1002 (App. 2015). Moreover, when determining whether to grant 

sole or joint legal decision-making, the court not only considers the § 25-403 

factors, but also four factors in § 25-403.01(B):

1. The agreement or lack of an agreement by the parents 

regarding joint legal decision-making.

2. Whether a parent’s lack of an agreement is unreasonable or 

is influenced by an issue not related to the child’s best 

interests.

3. The past, present and future abilities of the parents to 

cooperate in decision-making about the child to the extent 

required by the order of joint legal decision-making.
ZIMMERMAN v. ZIMMERMAN

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4. Whether the joint legal decision-making arrangement is 

logistically possible.

¶7 And when a court creates or modifies a parenting plan, the 

plan must include:

1. A designation of the legal decision-making as joint or sole 

as defined in § 25-401.

2. Each parent’s rights and responsibilities for the personal 

care of the child and for decisions in areas such as education, 

health care and religious training.

3. A practical schedule of parenting time for the child, 

including holidays and school vacations.

4. A procedure for the exchanges of the child, including 

location and responsibility for transportation.

5. A procedure by which proposed changes, . . . disputes and 

alleged breaches may be mediated or resolved, which may 

include the use of conciliation services or private counseling.

6. A procedure for periodic review of the plan’s terms by the 

parents.

7. A procedure for communicating with each other about the 

child, including methods and frequency.

8. A statement that each party has read, understands and will 

abide by the notification requirements of § 25-403.05, 

subsection B.

A.R.S. § 25-403.02(C).

¶8 In resolving Father’s petition, the family court acknowledged 

the relevant statutory requirement, and then listed and discussed each of 

the § 25–403 factors. In fact, the court made specific findings and explained 

its reasons regarding the relevant statutory factors and the children’s best 

interests. Accordingly, the court made adequate best interests findings 

under A.R.S. § 25–403. See Owen, 206 Ariz. at 421-22, ¶ 12, 79 P.3d at 670-

71; In re Marriage of Diezsi, 201 Ariz. 524, 525-26, ¶ 4, 38 P.3d 1189, 1191 (App. 

2002).
ZIMMERMAN v. ZIMMERMAN

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¶9 Additionally, in resolving Father’s request to modify the legal

decision-making order, the court considered and discussed each of the

§ 25–403.01 factors. Although the ruling implicitly noted that there was no 

agreement about joint legal decision-making, see A.R.S. § 25–403.01(B)(1),

the court found that “when conflict has been increased, Mother and Father 

are less able to cooperate effectively in decision-making.” See A.R.S. § 25-

403.01(B)(3). The court also noted that “[i]t is unclear whether the present 

level of conflict can be reduced sufficiently to allow joint legal decisionmaking.” See A.R.S. § 25-403.01(B)(4).

¶10 Finally, the court’s parenting plan included each of the 

required elements. See A.R.S. § 25-403.02(C). Therefore, the court 

sufficiently considered the statutory factors, and we find no abuse of 

discretion.

III. Child support

¶11 Father also asserts that the family court erred because there 

was a change in circumstances that justified modifying the amount set forth 

in the Texas child support award. A modification of child support may be 

warranted when there is “[a] substantial variance between an existing child 

support order and an amount resulting from application of the new 

guidelines . . . .” A.R.S. § 25-320 app. § 29(B) (2015) (“Guidelines”). “A 

variance of at least 15% would be evidence of a substantial and continuing 

change of circumstances.” Id. A child support order can only be modified 

if the party seeking the modification demonstrates a substantial and 

continuing change in circumstances. A.R.S. § 25–327(A); Jenkins v. Jenkins,

215 Ariz. 35, 39, ¶ 16, 156 P.3d 1140, 1144 (App. 2007) (citations omitted). 

“The decision to modify an award of child support rests within the sound 

discretion of the [family] court and, absent an abuse of that discretion, will 

not be disturbed on appeal.” Little, 193 Ariz. at 520, ¶ 5, 975 P.2d at 110.

¶12 The testimony presented at the evidentiary hearing

demonstrated a substantial and continuing change of circumstances that 

required the family court to consider modifying child support. First, both 

parties have relocated to Arizona. Second, Father’s monthly income 

increased from $7,947 to $10,833. And third, Mother had part-time 

employment.

¶13 After the court denied Father’s modification petition, he filed 

a motion to alter or amend the court’s order and attached two child support 

worksheets. He asserted that based on the worksheets, the child support 

award should be $735.95, if both parents were the primary residential 
ZIMMERMAN v. ZIMMERMAN

Decision of the Court

6

parents, or $1,490.62, if mother was the primary residential parent. Both of 

Father’s worksheets, however, reduced his income because he is now 

supporting four stepchildren. Although it is laudatory that Father is 

supporting his stepchildren, that support cannot be considered when 

determining Father’s obligation to support his own children or when 

modifying child support. See Guidelines § 2(D) (“A parent’s legal duty is 

to support his or her natural or adopted children. The ‘support’ of other 

persons such as stepchildren . . . is deemed voluntary and is not a reason 

for an adjustment in the amount of child support determined under the 

guidelines.”).

¶14 Although Mother did not seek an increase in child support 

based on Father’s increased income, Father requested a modification and 

renewed his request by filing a motion to amend the court’s order. Because 

the record demonstrates a substantial and continuing change from the 2010 

divorce, the family court was required by the Guidelines to examine the 

gross income of both parents, even if the court has to impute full-time 

income to Mother at minimum wage, along with the other relevant factors, 

to determine whether there has been at least a 15% variance between the 

Texas child support order and the Arizona Child Support Guidelines. See

Guidelines § 29(B). If, after the calculation, modification is warranted, the 

child support award should be modified unless the court makes specific 

findings to support a deviation, even if it maintains the current award. See 

Guidelines § 20.

¶15 In resolving the child support modification, the family court 

did not determine whether there was a 15% variance. The court was 

required to “run the numbers” to determine what the support should have 

been and then determine whether a deviation was appropriate by listing 

specific findings. Accordingly, we reverse the order denying any child 

support modification, and remand to allow the court to consider all the 

relevant factors under the Guidelines.

IV. Attorney’s fees

¶16 Finally, Father contends that the family court erred by 

awarding Mother attorney’s fees. Specifically, Father asserts that the court 

did not make proper findings or consider that Mother receives student 

loans. We disagree.

¶17 We review an award of attorney’s fees pursuant to § 25–324 

for an abuse of discretion. In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 26, 

5 P.3d 911, 917. Here, after briefing, the court granted Mother $25,000 in 
ZIMMERMAN v. ZIMMERMAN

Decision of the Court

7

attorney’s fees. Father requested specific findings about the attorney’s fees,

and the court made specific findings. The court was aware of the 

reasonableness of the positions the parties took throughout the proceedings 

as well as their financial circumstances. We find no abuse of discretion in 

the attorney’s fee ruling.

¶18 Both parties request attorney’s fees and costs on appeal. After 

considering the parties’ financial resources and the reasonableness of their 

positions on appeal, in the exercise of our discretion, we deny both parties

request for attorney’s fees and costs on appeal.

CONCLUSION

¶19 For the following reasons, we affirm the family court’s order 

denying Father’s petition to amend legal decision-making, parenting time, 

but reverse the child support ruling and remand for a recalculation and 

determination of child support.