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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAM MALIK, Petitioner/Appellant,

v.

RICHELLE TRINIDADE, Respondent/Appellee.

No. 1 CA-CV 19-0820 FC

Appeal from the Superior Court in Yavapai County

No. V1300DO201780354

The Honorable Don C. Stevens II, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Sam Malik, Phoenix

Petitioner/Appellant

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.

FILED 6-22-2021
MALIK v. TRINIDADE

Decision of the Court

2

C R U Z, Judge:

¶1 Appellant Sam Malik (“Father”) challenges numerous aspects 

of the family court’s rulings denying him unsupervised parenting time, 

finding that a house was the sole and separate property of Appellee Richelle 

Trinidade (“Mother”), and awarding child support and attorneys’ fees to 

Mother. For the reasons set forth below, we affirm in part, vacate in part 

and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father filed for legal separation in August 2017 shortly after 

Mother obtained an order of protection against him. The court later 

converted the case from legal separation to dissolution on Mother’s request. 

The parties have three minor children of the marriage. Mother sought sole 

legal decision-making authority for the children, alleging that Father had a 

significant history of domestic violence.

¶3 Approximately one month later, the parties reached an 

agreement that Mother would receive sole legal decision-making authority 

and Father would receive four hours per week of supervised parenting 

time, which the court memorialized in its temporary orders. The court also 

ordered Father to undergo anger management and parenting counseling. 

Father twice petitioned for unsupervised parenting time, but the parties 

then agreed that he would continue to receive supervised parenting time 

contingent upon his continuing participation in bi-weekly counseling.

¶4 The court set a one-day trial for January 31, 2019, which was 

continued pending the resolution of a criminal case against Father. The 

court granted Father two hours of supervised parenting time per week with 

additional parenting time “to be determined . . . based on the [parenting 

time] supervisor’s reports and any agreements made between [the] Parties”

and directed counsel “to report . . . after disposition of the criminal case.”

¶5 Father again petitioned to modify the temporary orders in the 

interim, alleging that Mother had engaged in “incessant and illegal 

meddling” with his parenting time. Mother, meanwhile, moved for partial 

summary judgment on two issues: (1) that the marriage was irretrievably 

broken; and (2) that the marital home located in Black Canyon City (the 

“Melanie Lane House”) was her sole and separate property.

¶6 On April 19, 2019, the court granted Father “unsupervised 

parenting time . . . on Monday and Wednesday each week with one child 

each day for 2 hours . . . plus one 20-minute telephone call with the child 
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Decision of the Court

3

who did not have parenting time that week.” It later set a June 18, 2019 

evidentiary hearing on Mother’s partial summary judgment motion. Father 

reached a plea agreement in his criminal case before that hearing.

¶7 After hearing testimony from both parties at the June 18, 2019 

hearing, the court denied Mother’s motion for summary judgment without 

prejudice. It set a trial for July 9, 2019, to “address parenting time, claim to 

the house, child support and legal decision making,” but noted Mother’s 

request that trial be continued so her counsel could be present. The court 

ordered Mother to file a motion to continue identifying dates that her 

counsel would be available. She did not do so, but Father did, indicating 

that his counsel had spoken with Mother regarding potential August 2019

trial dates.

¶8 Approximately one week later, the court issued a lengthy

order to address “several motions under advisement” (the “July 3, 2019 

Orders”). Stating that it had “conducted several hearings with the parties 

in the interim” and “reviewed and considered all of the pleadings filed by 

each party, the arguments by or on behalf of each party, and all exhibits,” 

the court granted Mother’s partial summary judgment motion. It also 

denied several motions filed by Father, including:

(1) two motions to compel disclosure of certain medical and 

school records;

(2) a motion for sanctions for Mother’s alleged interference 

with his parenting time;

(3) a motion requesting a power of attorney so that he could 

“address credit issues”;

(4) a motion requesting control of the children’s finances; and

(5) a motion seeking to hold Mother in contempt for violating 

the preliminary injunction entered at the beginning of the 

case.

¶9 The court then addressed legal decision-making authority 

and parenting time, finding that “unsupervised parenting time for [Father] 

would not [be] in the best interests of the children at the present” and 

ordered that Mother would “continue to have sole legal decision-making 

responsibility” and be the sole residential parent. It further stated that 

Father’s supervised parenting time for the twelve months after the children 

started the school year would be established “under terms, conditions and 
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limitations to be solely determined by [Mother] and approved by the 

Court.”

¶10 The court also awarded Mother $12,606 in back child support, 

finding that Father “has never paid any child support” and had 

intentionally withheld child support since filing his original petition “to 

force [Mother] to withdraw her claims.” The court also entered a separate 

$10,000 judgment against Father based on its finding that he “forced 

[Mother] under the threat of having him take the children to Pakistan to 

apply for credit cards and charge $5,000 on each of two cards so that [he] 

could repay his mother an alleged loan.” The court also stated that it would 

award Mother attorneys’ fees because she was the successful party. It then

vacated the July 9, 2019 trial, finding that “the rulings made in this Order 

resolve all remaining issues that would otherwise have to be resolved 

through trial,” but invited either party to file a pretrial statement if he or 

she believed any issues remained unresolved.

¶11 Father did not file a pretrial statement but did move to alter 

or amend the July 3, 2019 Orders, contending that the court’s decision to 

vacate trial deprived him of “an opportunity to back his claims as well as 

cross-examine [Mother].” The court denied that motion. It then entered a 

decree on October 2, 2019, formalizing the July 3, 2019 Orders and awarding 

Mother monthly child support (the “Decree”). That same day, it also issued 

an “Amended Order Re Child Support, Parenting Time and Other Matters” 

that largely mirrored the July 3, 2019 Orders (the “October 2, 2019 Orders”).

¶12 Five days later, the court held a hearing at which the parties 

again reached agreement “as to supervised parenting time for [Father]” (the 

“October 7, 2019 Orders”). The court granted Father two hours per week 

of supervised parenting time and one supervised thirty-minute telephone 

contact with the children each week.

¶13 Father filed a notice of appeal challenging the October 2, 2019 

Orders and the Decree. Approximately one month later, Father filed an 

emergency motion alleging that his visits with the children had stopped 

and again seeking unsupervised parenting time. On December 3, 2019, the 

court denied Father’s motion and vacated the October 7, 2019 Orders, 

directing the parties to “follow the Court’s orders issued October 2, 2019”

(the “December 3, 2019 Order”).

¶14 Approximately one month later, this court stayed Father’s 

appeal because neither the October 2, 2019 Orders nor the Decree were

certified as final under Arizona Rule of Family Law Procedure (“Rule”) 
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78(c). Father then moved for entry of a certified order and filed a separate

“Motion to Correct” the December 3, 2019 Order, arguing, among other 

things, that the October 2, 2019 Orders did not fully resolve parenting time. 

He also moved this court to direct the superior court “to hold an evidentiary 

hearing to uphold [his] Parenting Time.” We revested jurisdiction in the 

superior court “to consider the Motion to Correct . . . and/or to resolve the 

parenting time matter, and to enter a Rule 78(c) order.”

¶15 Father then filed multiple motions asking the superior court 

to vacate or reconsider the parenting time schedule, enter sanctions against 

Mother for interfering with his parenting time, and reinstate the October 7, 

2019 Orders. The court set a March 5, 2020 evidentiary hearing that Father 

did not attend. The court reset the hearing for June 18, 2020.

¶16 After the hearing, the court issued new legal decision-making 

authority and parenting time findings (the “July 23, 2020 Orders”). The 

court awarded Mother sole legal decision-making authority, granted Father 

up to three hours of supervised parenting time on Sundays, and certified 

its orders under Rule 78(c). Father filed a new notice of appeal. We have 

jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-

2101(A)(1).

DISCUSSION

I. The Court Erred In Vacating the July 9, 2019 Trial.

¶17 Father contends the court’s decision to vacate the July 9, 2019 

trial violated his due process rights because the July 3, 2019 Orders were 

entered “without the benefit of [a] hearing, evidence, testimony or crossexamination.” Generally, procedural due process requires an opportunity 

to be heard at a meaningful time and in a meaningful manner. Comeau v. 

Ariz. State Bd. of Dental Exam’rs, 196 Ariz. 102, 106-07, ¶ 20 (App. 1999). We 

review whether the court afforded due process de novo. See Jeff D. v. Dep’t 

of Child Safety, 239 Ariz. 205, 207, ¶ 6 (App. 2016).

¶18 The July 3, 2019 Orders state that the court had “conducted 

several hearings with the parties in the interim” and had “reviewed all of 

the pleadings and testimony received from the parties in this matter.” And 

Father’s characterization of the June 18, 2019 hearing as a “pre-trial 

hearing” appears to be inaccurate, as the court heard testimony from both 

parties and a third witness Mother listed in the parties’ joint pretrial 

statement. Father did not provide a transcript of this hearing. We therefore 

must assume the evidence presented would support the superior court’s 

findings and conclusions. Hefner v. Hefner, 248 Ariz. 54, 60, ¶ 19 (App. 2019).
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¶19 But the court’s post-hearing minute entry directing “both 

parties [to] submit to the Court a proposed parenting time plan” and stating 

that it still intended to conduct a trial “that will address parenting time, 

claim to the house, child support and legal decision making” suggests the 

evidence presented as of June 18, 2019, did not pertain to, or at least did not 

completely resolve, those issues. Furthermore, the court directed the 

parties to file “exhibits relating to the Motion for Summary Judgment” but 

not exhibits relating to parenting time, child support, or legal decisionmaking authority. As such, nothing in the record suggests the court gave

Father reasonable notice that it would decide any issues beyond those

raised in Mother’s partial summary judgment motion based on the

evidence presented as of June 18, 2019. See, e.g., Huck v. Haralambie, 122 

Ariz. 63, 65 (1979) (“An elementary and fundamental requirement of due 

process in any proceeding which is to be accorded finality is notice 

reasonably calculated, under all the circumstances, to apprise interested 

parties of the pendency of the action and afford them an opportunity to 

present their objections.”) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 

339 U.S. 306, 314 (1950)).

¶20 This does not conclude our review, as “[d]ue process errors 

require reversal only if a party is thereby prejudiced.” Volk v. Brame, 235 

Ariz. 462, 470, ¶ 26 (App. 2014). Prejudice is apparent here because the 

court entered orders on legal decision-making authority, parenting time, 

and child support while simultaneously vacating the trial at which the 

parties were to present evidence on those issues. And while the July 3, 2019 

Orders were not final, the court largely incorporated them into the October 

2, 2019 Orders and the Decree without conducting any evidentiary hearings 

in the interim.

¶21 We find there was sufficient evidence that Father’s due 

process rights were violated. Further, Mother failed to file an answering 

brief, which we deem a confession of reversible error as to this issue only. 

Beck v. Beck, 9 Ariz. App. 77, 78 (1969); see also McDowell Mountain Ranch 

Cmty. Ass’n v. Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007). The court

therefore erred in entering these orders without conducting the scheduled 

trial.

II. The Court Did Not Err in Its Rulings on Mother’s Partial Summary 

Judgment Motion or Father’s Various Motions or in Awarding 

Attorneys’ Fees.

¶22 Not all of the July 3, 2019 Orders raise due process concerns. 

Father also challenges the court’s rulings on some of his then-pending 
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motions, each of which was fully briefed. We address those challenges 

below as necessary.

A. Summary Judgment Re: The Melanie Lane House

¶23 Father challenges the court’s ruling granting partial summary 

judgment to Mother regarding the Melanie Lane House. We review that

ruling de novo. Palmer v. Palmer, 217 Ariz. 67, 69, ¶ 7 (App. 2007). Summary 

judgment should be granted only “if the facts produced in support of [a] 

claim . . . have so little probative value, given the quantum of evidence 

required, that reasonable people could not agree with the conclusion 

advanced by the proponent of the claim.” Orme School v. Reeves, 166 Ariz. 

301, 309 (1990).

¶24 Father contends on appeal without citing any authority that 

“social security disability/retirement payments are considered to be 

community property during the marriage.” This is incorrect. See McNeel v. 

McNeel, 169 Ariz. 213, 214 (App. 1991) (“Disability benefits are the separate 

property of the spouse suffering the disability.”); Luna v. Luna, 125 Ariz. 

120, 123 (App. 1979) (“[T]he Social Security disability benefits received by 

petitioner are his separate property and no offsetting award can be made to 

respondent/appellee.”). Moreover, he presented no evidence to refute 

Mother’s evidence that she was the sole owner of the Melanie Lane House, 

that she purchased it before the parties were married, and that she made 

the mortgage payments from her Social Security disability benefits, which 

she kept in a separate account.

¶25 Father also presented no evidence to support his contentions

that Mother “agreed to add [him] to the deed . . . as an equal and co-owner 

of the property” or that the parties commingled community funds with 

Mother’s disability benefits. He also presented no evidence to support his

“vehement” denial that Mother used her disability benefits to pay down the 

mortgage. On this record, we cannot say the court erred in granting 

summary judgment.

B. Denial of Father’s Motions for Access to Medical and School 

Records

¶26 Father also challenges the court’s denial of his motions 

seeking access to the children’s medical and school records. The court 

initially granted him access to the children’s school records in the July 3, 

2019 Orders but revoked that access in the October 2, 2019 Orders. It also 

denied Father’s medical records requests in the October 2, 2019 Orders, 

finding that he did not seek the records in good faith because “there is no 
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evidence that the minor children have suffered injuries or trauma while in 

[Mother’s] care, and the evidence is in fact to the contrary.” The court 

further found that Father was “likely to use any information he can obtain 

to support his attacks of [Mother].”

¶27 Father does not challenge these findings on appeal, nor does 

he develop his arguments beyond quoting a portion of Arizona’s Parents’ 

Bill of Rights. See A.R.S. § 1-602(A). He therefore has waived them. Sholes 

v. Fernando, 228 Ariz. 455, 461, ¶ 16 (App. 2011).

C. Denial of Father’s Motion Alleging Violations of the 

Preliminary Injunction

¶28 Father also challenges the court’s denial of his motion for 

contempt and for sanctions for Mother’s alleged violations of the 

preliminary injunction.

¶29 The alleged violations he presented to the superior court 

related to the Melanie Lane House, which we address above. Father adds 

new allegations on appeal that Mother “removed [him] from the auto 

insurance, medical insurance as well as sell his personal property in yard 

sales,” but cites no record support. He therefore has waived these 

arguments as well. Sholes, 228 Ariz. at 461, ¶ 16.

D. Attorneys’ Fee Award to Mother

¶30 Father also challenges the court’s attorneys’ fee award to 

Mother. We address the award separately from the due process issues 

discussed above because the court may consider awarding fees “from time 

to time.” A.R.S. § 25-324(A). We review the award for an abuse of 

discretion. Murray v. Murray, 239 Ariz. 174, 179, ¶ 20 (App. 2016).

¶31 Father did not respond to Mother’s fee application. He cannot 

raise new objections for the first time on appeal. See K.B. v. State Farm Fire 

& Cas. Co., 189 Ariz. 263, 268 (App. 1997). We note, however, that the court 

awarded Mother fees because she was “the successful party.” Fee recovery

under § 25-324(A) does not hinge on a party’s success, but rather on 

consideration of both parties’ financial resources and the reasonableness of 

their positions. A.R.S. § 25-324(A); Quijada v. Quijada, 246 Ariz. 217, 222, 

¶ 15 (App. 2019).

¶32 Nonetheless, the court made multiple findings on Father’s 

unreasonable positions, stating that he had “acted in bad faith at almost 

every stage in these proceedings,” “intentionally withheld child support to 
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force [Mother] to withdraw her claims,” and filed multiple motions that 

were “not well taken, not supported by the facts or the law, and not made 

in good faith.” The court also found Mother’s decision to retain counsel

was “reasonable and necessary due to [Father’s] actions.” We therefore 

reject Father’s bald contention that the court did not “determine if his 

positions were reasonable.”

¶33 Father also contends the court ignored that he was 

“destitute.” The court considered and discredited his claim of poverty.

¶34 Father also contends the court did not find that he filed his 

petition in bad faith, without factual or legal grounds, or for an improper 

purpose under § 25-324(B). The court need not make § 25-324(B) findings

to award fees under § 25-324(A). See Cruz v. Garcia, 240 Ariz. 233, 238, ¶ 19 

(App. 2016) (treating subsections (A) and (B) as separate matters). For these 

reasons, we affirm the fee award.

E. Father Does Not Challenge the July 23, 2020 Parenting Time 

Orders

¶35 As noted above, the court entered new parenting time orders 

on July 23, 2020, following a separate evidentiary hearing. Father does not 

challenge these orders on appeal and did not provide the relevant hearing 

transcript. Those orders therefore are affirmed. See Hefner, 248 Ariz. at 60, 

¶ 19 (“Because we are unable to review the evidence, we assume it would 

support the court’s findings and conclusions.”).

CONCLUSION

¶36 We vacate the Decree, the October 2, 2019 Orders, and the July 

3, 2019 Orders on all issues except those affirmed in sections II(A)-(E) of this 

decision and remand for an evidentiary hearing. We do not award 

attorneys’ fees or costs because Father was not represented by counsel in 

this appeal and Mother did not file an answering brief.