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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AMANDA SUE FLYNN, Petitioner/Appellant,

v.

GREGORY SCOTT BROWN, Respondent/Appellee.

No. 1 CA-CV 14-0701 FC

Appeal from the Superior Court in Maricopa County

No. FC2010-092975

The Honorable John R. Hannah, Jr., Judge

The Honorable Peter A. Thompson, Judge

AFFIRMED

COUNSEL

Benes Law & Mediation, Chandler

By Julie A. Benes

Counsel for Petitioner/Appellant

The Wilkins Law Firm PLLC, Phoenix

By Amy M. Wilkins, Heather Coe-Smith 

Counsel for Respondent/Appellee
FLYNN v. BROWN

Decision of the Court

2

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.

G E M M I L L, Judge:

¶1 Amanda Sue Flynn (“Mother”) appeals from the family 

court’s ruling denying her request to discontinue Gregory Scott Brown 

(“Father”)’s parenting time, awarding joint legal decision-making 

authority, and awarding Father attorney fees. On the record before us, we 

discern no abuse of discretion and, therefore, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 In a 2011 dissolution decree, the family court awarded Mother 

sole legal custody and final decision-making authority, and granted Father 

supervised parenting time.

¶3 In 2013, Mother filed a petition to modify parenting time, 

claiming Father sexually molested their minor daughter. On an emergency 

basis, the family court temporarily awarded Mother sole legal decisionmaking authority and suspended Father’s parenting time pending a 

hearing. After a hearing, the family court reaffirmed its emergency 

temporary orders, discontinued the child’s counseling, and scheduled trial. 

¶4 In the joint pretrial statement filed one week before trial, 

Father requested joint legal decision-making authority, to which Mother 

objected, citing procedural irregularities. After a three-day trial, the family 

court issued a sixteen-page ruling, finding “a preponderance of the 

evidence supports the conclusion that Father did not commit sexual abuse 

against his daughter.” The family court concluded that the “most likely 

explanation is that Mother saw what looked to her like a ‘hickey’ on her 

daughter’s neck, asked the child what happened and was told that Father 

‘kissed my neck,” and jumped to a conclusion. “From there Mother 

interpreted everything the child said . . . as sexual behavior.” The family 

court found that Mother’s response shaped the child’s statements “and 

then, over time, the child’s interpretation of events and her emotional 

responses to them.” The family court found Mother’s explanations for 

various disparaging remarks she made about Father or for her actions to 
FLYNN v. BROWN

Decision of the Court

3

keep Father away from the child to be “patently false.” The family court 

also found that Mother had a “lack of objectivity and perspective.” 

¶5 The family court denied Mother’s request for an order 

discontinuing Father’s parenting time and then found a substantial change 

of circumstances that justified changing Mother’s sole legal decisionmaking to joint legal decision-making. The family court also found that 

“Mother’s misguided effort to ‘protect’ the child from Father has placed the 

father/daughter relationship at serious risk” and that “Father has 

established a stable, alcohol-free lifestyle.” The family court concluded that 

“Mother’s insistence on sole legal decision-making power and supervised 

visitation stems from an unhealthy mistrust that is not in the child’s best 

interest.” The family court further noted that Mother “overstated the 

evidence supporting her position. At times been outright untruthful. She 

seems to have convinced herself that Father is actually a threat to the child, 

which may have led her to adopt an ‘end justifies the means’ approach to 

the litigation.”

¶6 In addition to granting joint legal-decision making authority, 

the court modified parenting time, ordered the parties to employ a 

reunification counselor, and awarded Father attorney fees. Mother timely 

appealed. We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 12-2101(A)(2).

DISCUSSION

I. Legal Decision-Making Authority

¶7 Mother argues the family court erred in modifying legal 

decision-making authority in the absence of a petition and without notice, 

citing Arizona Rule of Family Law Procedure (“Rule”) 91(D). Rule 91(D) is 

a prehearing procedural rule requiring compliance with A.R.S. § 25-411 to 

modify child custody. That statute sets forth prehearing procedural 

requirements a party must follow when seeking modification of legal 

decision-making authority. A.R.S. § 25-411(L); In re Marriage of Dorman, 198 

Ariz. 298, 302, ¶ 10 (App. 2000). Rule 91(D) and § 25-411(L) both direct a 

party seeking modification of child support or legal decision-making 

authority to submit an affidavit or petition and give notice so that the court 

may determine whether to hold a hearing. 

¶8 Here, the family court had already scheduled a trial on 

Mother’s petition to modify parenting time when Father requested joint 

legal decision-making authority in the joint pretrial statement. Although 

he failed to make his request in a formal petition, the joint “pretrial 
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Decision of the Court

4

statement controls the subsequent course of the litigation” and has “the 

effect of amending the pleading.” Carlton v. Emhardt, 138 Ariz. 353, 355

(App. 1983); see also Ariz. R. Fam. Law P. 34(b) (family court may allow the 

pleadings to be amended when merits of the action will be served and no 

prejudice results). The parties submitted the joint pretrial statement one 

week before the first day of trial and more than five weeks before the final 

day of trial. Mother’s objection in the joint pretrial statement to Father’s 

request to modify legal decision-making authority is evidence she had prior

notice.

1 There was no procedural error in the family court’s modification. 

¶9 Moreover, a party must challenge a failure to comply with § 

25-411’s procedural requirements via special action “prior to a resolution 

on the merits.” Dorman, 198 Ariz. at 302, ¶ 11. When, as here, the family 

court “conducted an evidentiary hearing, reviewed the merits of the case, 

and determined there was sufficient cause to modify” legal decisionmaking authority, “[i]t is too late to obtain effective appellate review of 

alleged noncompliance with the prehearing procedural requirements of § 

25-411.” Id. at 303, ¶ 11. Thus, Mother’s argument that the family court 

erred in modifying legal decision-making authority in the absence of a 

formal petition is moot. 

II. Evidentiary Issues, Factual Findings, and Rulings

¶10 Mother also challenges the family court’s finding of changed 

circumstances, the court’s ruling permitting Father to offer an alternative 

explanation for the source of the mark on the child’s neck, the court’s 

finding that Father’s alternative explanation is “more consistent with the 

evidence” than is sexual molestation, its reliance on testimony from a prior 

hearing, and the award of attorney fees.2

 

1 Mother claims that had Father “retained a custody evaluator, Mother 

would have been on notice of Father’s intent” to modify “custody/legal 

decision making.” However, hiring a custody evaluator is not a condition 

precedent to modifying legal decision-making authority. See A.R.S. §§ 25-

403(A), 25-403.01.

2 Mother also challenges the court’s November 21, 2013 ruling 

discontinuing counseling for the minor child. Mother does not develop this 

argument, however, nor has she shown that she was prejudiced by that 

ruling. Accordingly, we decline to address it. See Polanco v. Indus. Comm’n 

of Ariz., 214 Ariz. 489, 491 n.2, ¶ 6 (App. 2007) (declining to address an 
FLYNN v. BROWN

Decision of the Court

5

¶11 We review evidentiary rulings for abuse of discretion. Larsen 

v. Decker, 196 Ariz. 239, 241, ¶ 6 (App. 2000). We will not set aside factual 

findings unless they are clearly erroneous. In re Marriage of Berger, 140 Ariz. 

156, 161 (App. 1983). We review an award of attorney fees under A.R.S. § 

25-324 for abuse of discretion. Rinegar v. Rinegar, 231 Ariz. 85, 90, ¶ 22 (App. 

2012). 

¶12 We are unable to determine whether the court abused its 

discretion in making findings regarding changed circumstances, Father’s 

alternative explanation, and award of attorney fees because Mother did not 

provide transcripts of the trial proceedings. As the appellant, Mother “is 

responsible for making certain the record on appeal contains all transcripts 

or other documents necessary for us to consider the issues raised on 

appeal.” Baker v. Baker, 183 Ariz. 70, 73 (App. 1995); see also ARCAP 

11(c)(1)(B) (appellant must include transcripts on appeal if contending that 

a judgment, finding, or conclusion is unsupported by or contrary to the 

evidence). In the absence of a transcript, we must assume the evidence at 

trial supports the court’s findings. Baker, 183 Ariz. at 73. 

¶13 In any event, based on the limited record before us, Mother’s 

arguments fail. Mother’s contention that the family court did not find 

changed circumstances is contradicted by the plain language of the family 

court’s ruling, which unequivocally found a “substantial change of 

circumstances.” The family court also did not err in permitting Father to 

testify about an alternative explanation for the child’s injury. S. Ariz. Freight 

Lines v. Jackson, 48 Ariz. 509, 517–18, (1936) (stating it was not error for a 

defendant “to offer a possible explanation of the cause of the physical 

condition of the plaintiff when that cause is one of the material issues of the 

case”). Because we do not reweigh evidence on appeal, we discern no error 

in the family court’s finding that Father’s alternative explanation “is more 

consistent with the evidence.” See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 

2009). 

¶14 As to Mother’s challenge to the attorney fees award, although 

the family court may award attorney fees pursuant to A.R.S. § 25-324 based 

on either a disparity in the parties’ financial resources or the reasonableness 

of the positions, Magee v. Magee, 206 Ariz. 589, 591 n.1, ¶ 8 (App. 2004), the 

family court here did not specify the basis for its award. Mother argues that 

since the parties’ financial resources were substantially equivalent, the 

family court must have made its ruling based on the reasonableness of the 

 

argument a party mentioned only in passing and for which no supporting 

legal authority was cited). 
FLYNN v. BROWN

Decision of the Court

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parties during litigation and that, because Mother was reasonable and 

Father was not, the family court erred in awarding Father attorney fees. 

Although not specifically stated in the attorney fees section of its ruling, the 

family court clearly viewed Mother’s positions as unreasonable, given its 

view that Mother “overstated the evidence supporting her position,” was

“outright untruthful,” gave “patently false” explanations, and “adopt[ed] 

an ‘ends justifies the means’ approach to the litigation.” An unreasonable 

position can include making misrepresentations and false allegations 

without good cause. Mangan v. Mangan, 227 Ariz. 346, 351–52, ¶ 25 (App. 

2011). Because the abuse of discretion standard acknowledges the family

court’s opportunity to observe whether the parties’ positions were 

reasonable, we discern no error. See Graville v. Dodge, 195 Ariz. 119, 131, ¶ 

56 (App. 1999).

¶15 Mother’s isolated challenges to various findings she alleges 

are contrary to the evidence also do not warrant relief. Mother contends 

the family court misread the forensic interviewer’s report or misheard the 

forensic interview. Yet, Mother fails to explain how the asserted error 

ultimately affected the family court’s ruling.

¶16 Mother also argues the family court improperly found that

Mother shaped the minor child’s descriptive terms and improperly 

disregarded the minor child’s reports of inappropriate touching. Although 

we do not have the trial transcripts, it appears from the record before us 

that the forensic interviewer and/or an expert witness testified about these 

issues at trial. The family court, as fact finder, determines what weight to 

give expert testimony. Sholty v. Sherill, 129 Ariz. 458, 461 (App. 1981). 

Again, we do not reweigh conflicting evidence on appeal but rather defer 

to the “trial court’s opportunity to judge the credibility of the witnesses.” 

Hurd, 223 Ariz. at 52, ¶ 16.

¶17 Finally, Mother challenges the family court’s reliance on 

testimony given by the daughter’s step-mother at the temporary orders 

hearing. Father listed the step-mother as a witness for trial without 

objection from Mother, but the step-mother did not testify at trial. Mother 

listed as a trial exhibit the recording of the prior hearing at which the stepmother testified. After hearing all the evidence at trial, the family court took 

the matter under advisement and had access to the step-mother’s prior 

recorded testimony. Although the family court’s ruling does cite step-
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Decision of the Court

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mother’s prior testimony, Mother does not explain how that reliance 

prejudiced her.3 We find no prejudice and discern no error. 

CONCLUSION

¶18 Finding no abuse of discretion or clear error, we affirm. 

Because Father prevailed, we award him his taxable costs of appeal upon 

his compliance with Arizona Rule of Civil Appellate Procedure (ARCAP) 

21. Father also requested attorney fees on appeal under A.R.S. § 25-324. 

Upon consideration of the record before us regarding the parties’ financial 

resources and the reasonableness of their positions, we also award Father 

an amount of reasonable attorney fees to be determined after Father’s 

compliance with ARCAP 21.

 

3 Mother points out the family court incorrectly stated that “Mother’s

attorney had an opportunity to cross-examine the witness” at the prior 

hearing; in fact, Mother was unrepresented at the time. Nevertheless, she

cross-examined the step-mother herself, and was therefore not denied the 

right to confront a witness.