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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BROOK LYNN JOHNSON, Petitioner/Appellant,

v.

GREGORY SEAN ESPINOZA, Respondent/Appellee.

No. 1 CA-CV 19-0426 FC

Appeal from the Superior Court in Maricopa County

No. FC2016-007709

The Honorable Justin Beresky, Judge

AFFIRMED

COUNSEL

Corl Law Practice, P.L.L.C., Maricopa

By Robert D. Corl

Counsel for Petitioner/Appellant

FILED 7-14-2020
JOHNSON v. ESPINOZA

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop1 delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.

W I N T H R O P, Judge:

¶1 Brook Lynn Johnson (“Mother”) appeals the family court’s 

post-judgment order modifying legal decision-making authority and 

parenting time as to her child, born in 2014 (“Child”). For the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2016, the State brought an action to establish a 

child support obligation for Gregory Sean Espinoza (“Father”).2 The family 

court ordered the child support obligation in November 2016, after Father’s 

paternity was established by voluntary acknowledgment. Ariz. Rev. Stat.

(“A.R.S.”) § 25-812.

¶3 In December 2016, Father filed a petition to establish legal 

decision-making authority and parenting time for Child and to modify the

child support obligation set in November 2016. In July 2017, the family

court—after holding an evidentiary hearing and considering Child’s best 

interests—awarded Mother and Father joint legal decision-making 

authority over Child. In its best-interests analysis, the family court noted 

that “Mother d[id] not seem very interested in Father being involved in 

[Child]’s life” because up until this point “Father had limited contact with 

[Child] since his birth.” Nonetheless, the court recognized that Father 

sought a “closer relationship with [Child] and d[id] not want to hinder any 

relationship between Mother and [Child].” But, “[a]s a result of the limited 

1 Judge Winthrop replaces the Honorable Kenton D. Jones, who was 

originally assigned to this panel. Judge Winthrop has read the briefs and 

reviewed the record.

2 Father did not file an answering brief. Although we could regard 

this failure as a confession of error, see ARCAP 15(a)(2); Thompson v. 

Thompson, 217 Ariz. 524, 526, ¶ 6 n.1 (App. 2008), in our discretion, we 

decline to do so. See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).
JOHNSON v. ESPINOZA

Decision of the Court

3

amount of contact Father [] had with [Child],” the court implemented an 

eight-week transition period, after which the parties were to share equal 

parenting time. The court entered these orders after considering Mother’s 

“assert[ion that] Father’s girlfriend assaulted Mother[,] and [that] Father 

was involved in the assault.”

¶4 More than a year later, Mother filed a petition to modify legal 

decision-making authority, parenting time, and child support. She also 

filed a motion for post-decree temporary orders without notice, alleging, in 

pertinent part, that Child had witnessed Father and his girlfriend assaulting 

Mother during a parenting-time exchange. The family court dismissed the 

petition and motion, noting it had already “addressed the prior domestic 

violence issue between Mother, Father, and Father’s girlfriend at the time 

the [July 2017] orders were entered.”

¶5 In the months that followed, Mother and Father filed various

petitions and motions concerning custody of Child. Relevant here, in 

December 2018, Father filed a motion for post-decree temporary orders

without notice, as well as a petition to modify legal decision-making, 

parenting time, and child support, requesting he be granted sole legal 

decision-making authority and physical custody of Child and that Mother’s 

parenting time be supervised. Mother responded with a competing 

petition and motion for temporary orders, in which she alleged “[Father] 

and about 3 cars full of people” drove to her house, banged on her doors, 

and attempted to open her windows and that Father’s girlfriend was 

“sexually and physically” abusing Child. After a January 2019 hearing, the 

court entered temporary orders awarding the parties joint legal decisionmaking authority and equal parenting time.

¶6 In April 2019, after holding an evidentiary hearing on 

Mother’s December 2018 petition and taking the matter under advisement, 

the family court found Mother’s allegations of child abuse by Father’s 

girlfriend were not credible and were made to frustrate Father’s 

relationship with Child. The court found that Mother’s continued pursuit 

of these allegations constituted a “sufficient material change in 

circumstances” affecting Child’s welfare. In its best-interests analysis, the 

court characterized the parties’ lack of agreement over custody of Child as

“unreasonable,” and further noted that the parties “exhibited little ability 

to cooperate,” that “Mother ha[d] attempted to mislead the [c]ourt,” and

that “[g]iven the overall circumstances, joint legal decision-making [wa]s 

not logistically possible.” Specifically, the court found:
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Time after time Mother has attempted to block Father’s 

parenting time. First, when the parties were awarded equal 

parenting time with the child, Mother absconded . . . to 

California for seven months with the child. When Father 

discovered Mother’s whereabouts, the parents came to an 

agreement to exercise equal parenting time. Mother has made 

repeated claims [of] abuse to [the Department of Child Safety

(“DCS”)] [] in an attempt to keep the child from Father. 

Mother has alleged Father’s girlfriend physically abused the 

child by hitting him and squeezing his arms, causing bruising. 

Mother then alleged Father’s girlfriend sexually abused the 

child. Mother obtained an injunction against harassment 

against [F]ather’s girlfriend which was ultimately dismissed 

after a hearing. Mother kept the child from Father for 

approximately thirty days without lawful authority until a 

hearing [in January 2019]. Mother’s allegations regarding 

sexual abuse by Father’s girlfriend appear to have been from 

Mother or someone else coaching the child. The Court 

Appointed Advisor, the Best Interests Attorney and this 

Court are all of the opinion that the Child’s alleged statements 

are highly suspect and likely the result of the child being 

coached. Even when Mother took [t]he child to counseling, 

the counseling consisted of Mother telling the child to tell the 

counselor what he said previously.

Based upon these considerations, the court awarded Father sole legal 

decision-making authority over Child.

¶7 The family court then set forth a detailed parenting time plan 

that ensured Mother would have “substantial, frequent, meaningful and 

continuing contact with [her] child,” see A.R.S. § 25-403.01(D), and that was 

“practical” and “maximize[d]” each parent’s parenting time to the extent it 

was in Child’s best interests. The plan specified:

Until the child begins school (presumably in August 2019), 

the parents shall follow the same parenting time schedule as 

set forth in the August 13, 2018 Minute Entry. Once the child 

begins school the child will live primarily with Father. 

Mother shall have parenting time from Friday after school 

until Sunday at 6:00 p.m. for two consecutive weekends, then 

Father will keep the child the third weekend. The parents will 

exercise this 2/weekend at Mother[’s] followed by one 

weekend at Father’s during the school year. Over [s]ummer 
JOHNSON v. ESPINOZA

Decision of the Court

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break the parties will revert back to the equal time parenting 

plan. This schedule assumes Mother still lives in [A]pache 

Junction, approximately 45 minutes from Father and the 

child’s school. Should Mother move significantly closer to 

Father the parents should revert back to equal parenting time 

assuming Mother is able to get the child to school on time.

¶8 Mother timely appealed, and we have jurisdiction pursuant 

to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2).

ANALYSIS

I. Substantial and Continuing Change

¶9 Mother initially argues the family court erred “in concluding 

that Mother’s allegations of sexual abuse by Father’s girlfriend constituted 

a material change in circumstances affecting the welfare of the Child.”

¶10 Under Arizona law, when a party seeks to modify an existing 

legal decision-making or parenting time order, the family court must first 

determine whether there has been a material change in circumstances 

affecting the welfare of the child before it can engage in the best-interests 

analysis. Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15 (App. 2013) 

(citing Black v. Black, 114 Ariz. 282, 283 (1977)); Owen v. Blackhawk, 206 Ariz. 

418, 422, ¶ 16 (App. 2003) (quoting Canty v. Canty, 178 Ariz. 443, 448 (App. 

1994)); see also Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015) (quoting 

Canty, 178 Ariz. at 448). The court’s determination as to whether a change 

in circumstances has occurred “will not be reversed absent a clear abuse of 

discretion, i.e., a clear absence of evidence to support its actions.” Prigdeon 

v. Superior Court, 134 Ariz. 177, 179 (1982) (citing Smith v. Smith, 117 Ariz. 

249, 253 (App. 1977) and Bailey v. Bailey, 3 Ariz. App. 138, 141 (1966)).

¶11 Mother points to evidence in the record that she presented to 

the family court, namely photographic evidence allegedly demonstrating 

physical abuse of Child by Father’s girlfriend and Mother’s own testimony 

that Child had previously admitted to being inappropriately touched by 

Father’s girlfriend to a DCS investigator. The family court apparently did 

not find this evidence persuasive, and we will not second-guess its 

evaluation of Mother’s credibility. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 

284 (App. 2019) (“On appeal, we do not reweigh the evidence but defer to

the family court’s determinations of witness credibility and the weight 

given to conflicting evidence.”) (citing Gutierrez v. Gutierrez, 193 Ariz. 343, 

347, ¶ 13 (App. 1998)). Sufficient evidence exists to support the court’s 

findings that Mother repeatedly made false or questionable allegations of 
JOHNSON v. ESPINOZA

Decision of the Court

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child abuse in an attempt to block Father’s parenting time with Child and 

that these circumstances constituted a material change affecting Child’s 

welfare. Accordingly, we find no error.

II. Legal Decision-Making Authority

¶12 Mother argues the family court erred in awarding sole legal 

decision-making authority of Child to Father. Mother is specifically 

dissatisfied with the court’s examination and resolution of several bestinterests factors identified within A.R.S. § 25-403(A).

¶13 We review an order modifying legal decision-making 

authority for an abuse of discretion. See DeLuna v. Petitto, 247 Ariz. 420, 423, 

¶ 9 (App. 2019) (citing Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 

2018)). “The trial court is in the best position to judge the credibility of 

witnesses, the weight of evidence, and also the reasonable inferences to be 

drawn therefrom.” Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 171 

(1971) (citing Rogers v. Greer, 70 Ariz. 264, 270 (1950) and Cavazos v. Holmes 

Tuttle Broadway Ford, Inc., 104 Ariz. 540, 543 (1969)). Thus, we do not 

reweigh evidence on appeal, Reek v. Mendoza, 232 Ariz. 299, 303, ¶ 14 (App. 

2013) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 

2002) and Premier Fin. Servs. v. Citibank (Ariz.), 185 Ariz. 80, 86-87 (App. 

1995)); rather, we view the evidence in the light most favorable to sustaining 

the court’s findings and determine “whether evidence in the record 

reasonably supports” those findings. Vincent, 238 Ariz. at 155, ¶ 17 (citing

Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2009)). Reviewing each factor 

raised by Mother, we find no error.

¶14 Section 25-403(A)(1) directs the family court to consider “[t]he 

past, present and potential future relationship between the parent and the 

child.” The court here found that Child “seem[ed] to be well-bonded with 

both parents.” Mother asserts the finding is unsupported by the evidence 

because it “completely ignore[s] the fact that Child was raised exclusively 

by Mother for the first two and a half years of his [by-]then three year old 

life until Father was ordered to pay [c]hild support.” The record reflects, 

however, that the court had previously acknowledged Father’s “limited 

contact” with Child, see supra ¶ 3, but nevertheless found equal parenting 

time appropriate back in July 2017. Mother also admitted to the court that: 

“things have been going pretty good,” Child had not “been crying” and 

seemed “excited to see his dad lately,” she had noticed Father and Child 

“bonding some” which made her “happy,” and she wanted Child “to have 

a relationship with . . . [Father].”
JOHNSON v. ESPINOZA

Decision of the Court

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¶15 Section 25-403(A)(2) directs the family court to consider “[t]he 

interaction and interrelationship of the child with the child’s parent or 

parents, the child’s siblings and any other person who may significantly 

affect the child’s best interest.” Mother argues the “court completely 

ignored the fact that placing Child with Father put[] him almost exclusively 

within the care of Father’s girlfriend due to his work schedule,” which she 

contends is not in Child’s best interests because, according to Mother,

Father’s girlfriend “had already lost custody of her own biological child 

most likely due to mental health issues.” The record reflects that although 

Mother obtained an injunction against harassment against Father’s 

girlfriend after noticing bruises on Child’s arm, the injunction was 

dismissed after a hearing. Moreover, the court-appointed advisor testified 

she had no evidence to say Child was being abused in Father’s home. The 

record further reflects that Father’s girlfriend voluntarily gave up a child at 

birth approximately eleven years ago because she felt allowing her brother

to adopt would provide the child better opportunities. These circumstances 

do not suggest that Father’s girlfriend is currently an inappropriate 

caregiver to Child.

¶16 Section 25-403(A)(5) directs the family court to consider “[t]he 

mental and physical health of all individuals involved.” Mother contends 

the family court “completely ignored” this factor, “particularly with respect 

to Father’s girlfriend.” To the contrary, the court here found there was “[n]o 

credible evidence presented” on this factor—a finding that is well within the 

court’s discretion to make, see supra ¶ 11. (Emphasis added.)

¶17 Section 25-403(A)(6) directs the family court to consider

“[w]hich parent is more likely to allow the child frequent, meaningful and 

continuing contact with the other parent.” Mother argues the court’s 

finding that she had acted deliberately to thwart Father’s relationship with 

Child, see supra ¶ 6, is not supported by the record. We disagree. First, the 

record reflects Mother admitted to absconding with Child to California for 

seven months in 2017. She also admits on appeal that she kept Child from 

Father for an additional thirty days, without lawful authority, before the 

January 2019 hearing on temporary orders.3

3 To be sure, as Mother contends on appeal, the record likewise 

reflects Father withheld Child from Mother for some period of time 

beginning in January 2018, but he apparently “did so because he fear[ed] 

Mother w[ould] flee to C[alifornia] again once she [got] the child back.” 
JOHNSON v. ESPINOZA

Decision of the Court

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¶18 Mother also asserts the family court’s finding that she has 

made repeated claims of abuse to keep Child from Father is based on the 

superior court’s “opinion, not evidence.” We again disagree. The family 

court previously resolved the issues surrounding the alleged assault of 

Mother by Father’s girlfriend in the course of its initial custody and 

parenting time orders. Yet, Mother continued to repeat the allegation. The 

court also noted the dismissal of Mother’s injunction against Father’s 

girlfriend for harassment related to allegedly abusing Child. This supports 

the court’s finding that Mother has continued to make stale and/or 

unsubstantiated claims of child abuse in an attempt to keep Child from 

Father.

¶19 Further, the family court’s finding that “Mother’s allegations 

regarding sexual abuse by Father’s girlfriend appear to have been from 

Mother or someone else coaching the child” is supported by the courtappointed advisor’s testimony. The advisor expressed concerns with 

Mother’s involvement in Child’s therapy sessions—sessions the advisor 

believed Child did not need—where “Mother [wa]s actually telling the 

child to tell the therapist what the child ha[d] told Mother,” rather than 

encouraging Child to tell the therapist, in his own words, what had 

happened.

¶20 In sum, we cannot say the record is devoid of evidence 

reasonably supporting the family court’s findings.4 The court’s findings are 

sufficient to support its decision to award Father sole legal decision-making 

authority.

Regardless, Father’s conduct is not relevant to whether Mother acted 

deliberately to interfere with his relationship with Child.

4 Mother also argues A.R.S. § 25-411(L) requires the facts necessary to 

support a change in legal decision-making authority and parenting time be 

contained in an affidavit or verified petition. That statute, however, “is a 

prehearing procedural statute and its purpose is, in part, to prevent 

repeated or insubstantial motions for modification.” In re Marriage of 

Dorman, 198 Ariz. 298, 302, ¶ 11 (App. 2000) (internal quotation and 

citations omitted). Once the family court holds an evidentiary hearing, “the 

time for achieving the statute’s intended protections . . . has passed,” and 

the court may thereafter rely on the evidence and testimony presented in 

making its decision regarding legal decision-making and parenting time.

Id.
JOHNSON v. ESPINOZA

Decision of the Court

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¶21 Nor does the record support Mother’s assertion of judicial 

bias based upon the family court’s determination that “Mother has 

attempted to block Father’s parenting time.” “A trial judge is presumed to 

be free of bias and prejudice.” Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 22 

(App. 2011). Therefore, “[a] party must show by a preponderance of the 

evidence that the judge was, in fact, biased.” Id. (citing State v. Ramsey, 211 

Ariz. 529, 541, ¶ 38 (App. 2005)). Mother has failed to establish the existence 

of any judicial bias, and our independent review of the record reveals none.

III. Parenting Time

¶22 Mother argues the family court erred when it modified her

parenting time without making the requisite findings under A.R.S. § 25-

411(J). That section states:

The [family] court may modify an order granting or denying 

parenting time rights whenever modification would serve the 

best interest of the child, but the court shall not restrict a 

parent’s parenting time rights unless it finds that the parenting 

time would endanger seriously the child’s physical, mental, 

moral or emotional health.

A.R.S. § 25-411(J) (emphasis added). We review an order modifying 

parenting time for an abuse of discretion but review “the interpretation of 

statutes de novo.” See DeLuna, 247 Ariz. at 423, ¶ 9 (citing Engstrom, 243 Ariz. 

at 471, ¶ 4).

 

¶23 Mother characterizes the parenting time schedule designed 

by the court as a “restriction” that should have triggered additional 

findings pursuant to A.R.S. § 25-411(J). The term “restrict” is not defined 

by A.R.S. § 25-411, but we look to the entire phrase and, accordingly, read 

the limitation upon the family court’s power to “restrict a parent’s

parenting time rights” as referring to the manner in which parenting time is 

exercised—such as via supervision or in the instance where parent and 

child are in different states. See, e.g., Hart v. Hart, 220 Ariz. 183, 187, ¶ 16 

(App. 2009) (concluding the finding of serious endangerment in what is 

now A.R.S. § 25-411(J) was a necessary prerequisite to ordering supervised 

parenting time). Here, however, the mere reduction in Mother’s parenting 

time hours during the school term, consistent with Child’s best interests,

did not amount to a “restriction” of her parenting time rights. Thus, specific

A.R.S. § 25-411(J) findings were unnecessary, and the court had discretion

to modify parenting time consistent with Child’s best interests upon 

considering the factors contained in A.R.S. § 25-403(A). See A.R.S. § 25-
JOHNSON v. ESPINOZA

Decision of the Court

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411(J) (authorizing the family court to modify parenting time “whenever 

modification would serve the best interest of the child”); A.R.S. § 25-403(A) 

(“The court shall determine . . . parenting time, either originally or on a 

petition for modification, in accordance with the best interests of the 

child.”).

¶24 Moreover, as set forth in detail in Section II, the court’s bestinterests findings and decision to modify parenting time are more than 

adequately supported by the record. Mother made repeated allegations of 

physical and sexual abuse by Father’s girlfriend, which allegations the court 

found were not credible and represented an attempt to keep Child from 

Father and to deliberately mislead the court. In addition, the court found 

Mother attempted to block Father’s parenting time both when she

absconded with Child to California for seven months and later when she 

unlawfully kept Child from Father for an additional thirty days. The record 

also reflects Mother unilaterally initiated counseling therapy for Child 

when—as the court-appointed advisor testified—there was no evidence 

indicating Child needed such therapy. Finally, the court also appropriately 

considered the practical implications of Child’s living arrangement in

adjusting parenting time, including the forty-five-minute drive from 

Mother’s house to Father’s, Child’s school location and schedule, and 

Mother’s ability to get Child to school on time. On this record, the court 

did not abuse its discretion in adjusting parenting time.

CONCLUSION

¶25 The family court’s orders are affirmed.

¶26 Mother requests an award of attorneys’ fees incurred on 

appeal pursuant to A.R.S. § 25-324(A), (C). In our discretion, we deny her 

request.