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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AMY JO DAURIO, Petitioner/Appellant,

v.

STEVEN L. DAURIO, Respondent/Appellee.

No. 1 CA-CV 20-0070 FC

 1 CA-CV 20-0492 FC

Appeal from the Superior Court in Maricopa County

No. FC 2011-002723

The Honorable Kerstin G. LeMaire, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

APPEARANCES

Thomas P. Alongi PLLC, Phoenix

By Thomas P. Alongi

Counsel for Petitioner/Appellant

Steven L. Daurio, Phoenix

Respondent/Appellee

FILED 5-20-2021
DAURIO v. DAURIO

Decision of the Court

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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Amy Jo Garner (“Mother”) appeals the superior court’s denial 

of both her 2019 and 2020 petitions to modify legal decision-making and 

parenting time. For the following reasons, we affirm in part, vacate in part, 

and remand. 

BACKGROUND

¶2 Mother and Steven Daurio (“Father”) divorced in 2012. They 

have one child, A.D., born in 2005. The decree of dissolution ordered “joint 

legal custody” and essentially equal parenting time. In 2016, Mother 

petitioned for modification of legal decision-making and parenting time, 

alleging Father was abusive towards their child. In 2017, Father also 

requested modification, asserting Mother had a history of making false 

allegations, denying Father contact with A.D., and attempting to alienate 

A.D. from Father. 

¶3 After an evidentiary hearing, the superior court found it was 

in A.D.’s best interests to grant Father sole legal decision-making authority 

(the “2017 Order”), reasoning in part that Mother had “actively thwart[ed]

efforts for the child to have contact or a healthy relationship with Father.”

The court also found that Father’s relationship with A.D. could improve by 

restricting Mother’s parenting time and thus the court imposed a six-phase 

parenting time plan. After Father and A.D. completed an intensive 

intervention, Mother would have no contact with A.D. for at least 30 days. 

Then she would be able to regain parenting time when the therapeutic 

interventionist believed it was in A.D.’s best interests. Mother would begin 

with biweekly, three-hour visits. Upon reaching the final, sixth phase, 

Mother would have unsupervised parenting time every first, third, and 

fourth weekend of the month, and share roughly equal time with Father 

during summers and holidays.

¶4 The family progressed through all six phases outlined in the 

2017 Order. Mother then petitioned for a modification of parenting time 
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and legal decision-making, asserting her progress through all six phases 

indicated a material change in circumstances.

¶5 In December 2019, despite finding that Mother had

“substantially complied” with the 2017 Order, the superior court denied her 

petition to modify (the “2019 Order”). As to parenting time, the court 

reasoned that Mother’s compliance had been presumed, A.D. was thriving 

under the current plan, and it was not “in the child’s best interest to change 

a plan under which he is currently thriving.” The court also considered 

“how much parenting time is already afforded Mother under said plan.”

Addressing legal decision-making, the court found Mother continued to 

make A.D. feel guilty about spending time with Father. Mother timely 

appealed the 2019 Order. 

¶6 Only days later, Father discharged a taser while quarreling 

with A.D. A.D. texted Mother that Father had purposefully fired the taser 

at him. In response, Mother requested temporary emergency orders and 

petitioned to modify parenting time and legal decision-making. At a 

hearing on the temporary orders, Father testified he was trying to secure 

the taser and keep it safe from A.D. when the device accidentally 

discharged. The superior court found Father’s testimony credible and 

issued an order (the “2020 Order”) denying Mother’s requests for 

temporary orders. In the same minute entry, the court also dismissed

Mother’s petition for permanent modifications to parenting time and legal 

decision-making. Mother timely appealed the dismissal of her petition, and 

the two appeals were consolidated.1 

DISCUSSION

A. The 2019 Order

¶7 We review modification of parenting time and legal decisionmaking orders for an abuse of discretion. Baker v. Meyer, 237 Ariz. 112, 116,

¶ 10 (App. 2015). We view the evidence in the light most favorable to 

upholding an order and will affirm if the order is supported by reasonable 

1 Although Father has filed pleadings in the superior court and 

represented himself at the evidentiary hearings at issue here, he did not file 

an answering brief. We could consider this failure a concession of the errors 

asserted by Mother. See State ex rel. McDougall v. Superior Court, 174 Ariz. 

450, 452 (App. 1993). But given the interests at stake, in our discretion we 

consider the merits of the appeal. Cardoso v. Soldo, 230 Ariz. 614, 616, ¶ 4 n.1 

(App. 2012).
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evidence. See Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015). When 

considering a petition to modify parenting time and legal decision-making, 

the superior court engages in a two-step analysis by determining (1) 

whether a change in circumstances occurred that materially affects the 

child’s welfare, and, if so, (2) whether the child’s best interests require a 

change in custody. Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15 (App.

2013) (citation omitted).

1. Parenting Time

¶8 As a general rule, “the court shall adopt a parenting plan that 

. . . maximizes [the parents’] respective parenting time,” so long as it is 

consistent with the child’s best interests. A.R.S. § 25-403.02(B); see also

A.R.S. § 25-103(B)(1) (“[A]bsent evidence to the contrary, it is in a child’s 

best interest . . . [t]o have substantial, frequent, meaningful and continuing 

parenting time with both parents.”)

¶9 Here, the superior court found no material change in 

circumstances as to parenting time because, in part, the 2017 Order

contemplated Mother’s compliance and it was not in A.D.’s “best interest 

to change a plan under which he is currently thriving.” Mother argues the 

superior court erred by considering best interests to determine whether a 

material change in circumstances occurred. 

¶10 Under the material change analysis, a court looks to whether 

any changes affect the welfare of the child. See Backstrand v. Backstrand, 250 

Ariz. 339, 343, ¶ 14 (App. 2020). “Whether the changes are ultimately 

positive or negative is immaterial to the change-of-circumstances inquiry.” 

Id. at ¶ 16. Thus, a court only proceeds to a best interests analysis after 

finding a material change in circumstances. See id. at ¶ 14. Here, the 

superior court found that Mother had substantially complied with the 2017 

Order, indicating her actions and behavior were significant enough that the 

court-appointed therapist approved the transition between the six phases. 

Yet the court found no material change in circumstances, relying in large 

part on best interests evidence—how well A.D. was doing under the current 

plan. Thus, we vacate the 2019 Order denying Mother’s petition for 

modification of parenting time. 

2. Legal Decision-Making 

¶11 Similar to parenting time, the superior court is obligated to

“adopt a parenting plan that provides for both parents to share legal

decision-making regarding their child,” to the extent it is consistent with

the child’s best interests. A.R.S. § 25-403.02(B).
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¶12 Mother argues her progress through the six phases of the 2017

Order indicates there was a material change in circumstances. She also

points to the family’s self-reported progress in therapy, and her son’s

statements to the therapist that he would like to return to a 50/50 plan.

¶13 To show a material change in circumstances, Mother must

prove the purported change (1) affects the child’s welfare and (2) “justifies

departing from the principles of res judicata underlying the order currently

in place.” Backstrand, 250 Ariz. at 344, ¶ 16. The record includes reasonable

evidence, however, that Mother still makes A.D. feel guilty for spending

time with Father. For instance, Mother said her feelings were hurt when

A.D. asked to spend another night at Father’s house, adding that A.D.

should not ask her for money. Thus, we affirm the 2019 Order’s decision as

to legal decision-making.

B. The 2020 Order

¶14 In this consolidated appeal, Mother also argues the superior

court erred when it dismissed her 2020 petition to modify parenting time 

and legal decision-making after only holding a hearing on temporary 

orders. She contends this dismissal violated her due process rights. “[A] 

parent is entitled to due process whenever his or her custodial rights to a 

child will be determined by a proceeding.” Smart v. Cantor, 117 Ariz. 539, 

542 (1977) (citation omitted). “Due process entitles a party to notice and an 

opportunity to be heard at a meaningful time and in a meaningful manner

. . . [and] to offer evidence and confront adverse witnesses.” Curtis v. 

Richardson, 212 Ariz. 308, 312, ¶ 16 (App. 2006) (citations omitted).

¶15 To support her argument, Mother cites Cruz v. Garcia, in 

which we held the trial court violated due process by issuing an order on 

legal decision-making after conducting a trial that only covered parenting 

time. 240 Ariz. 233, 237, ¶¶ 14–16 (App. 2016). Mother also cites Cook v. 

Losnegard, where we concluded the trial court violated due process when it 

ruled on child support after a hearing limited to a custody determination. 

228 Ariz. 202, 205–06, ¶¶ 16–19 (App. 2011). Mother contends her due 

process rights were likewise violated because the superior court issued an 

order on permanent modifications after only holding a hearing on 

temporary orders. 

¶16 Mother’s reliance is misplaced. In both Cruz and Cook, we 

held due process was violated because the trial court held a hearing on one 

issue, but then decided another. See Cruz, 240 Ariz. at 237, ¶¶ 14–16; Cook, 

228 Ariz. at 205–06, ¶¶ 16–19. Here, Mother sought the same relief for the 
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same reasons in her motion for temporary orders and her petition to 

modify—a change in parenting time and legal decision-making because 

Father allegedly assaulted A.D. Mother had an unfettered chance to make 

her arguments and present her evidence at the temporary orders hearing.

¶17 The superior court also has discretion as to whether holding 

a hearing on a petition to modify is necessary. Under A.R.S. § 25-411(L), 

“[t]he court shall deny the motion unless it finds that adequate cause for 

hearing the motion is established by the pleadings, in which case it shall set 

a date for hearing on why the requested modification should not be 

granted.” The purpose of requiring adequate cause “is to spare the parties 

and the child the cost, disruption, and potential trauma of a full 

modification hearing.” DePasquale v. Superior Ct., 181 Ariz. 333, 335 (App.

1995). But the court has discretion to hear arguments and take evidence to 

reach a more informed decision. Id. Because the court had already heard 

evidence at the temporary orders hearing on the alleged assault and 

accepted Father’s version of the incident, Mother was not entitled to 

another evidentiary hearing on the petition to modify addressing the same 

issues. Thus, the court did not violate her due process rights by failing to 

hold such a hearing. 

¶18 Mother argues nonetheless that because the superior court 

limited the March 2020 hearing to only her request for temporary orders, 

she did not pursue her argument that Father had retaliated against her for 

filing the 2020 requests for temporary and permanent modifications.

Mother contends she was not given a meaningful opportunity to be heard 

on that issue. Her request for permanent modification, however, was based 

only on the alleged assault. Mother never filed an amended petition or an 

additional petition raising the retaliation issue. Because the issue was 

outside the scope of her petition to modify, the court did not violate 

Mother’s due process rights. See A.R.S. § 25-411(L) (noting that a petition 

to modify should be denied unless “adequate cause . . . is established by the 

pleadings”).

¶19 Finally, Mother points out that the superior court informed 

the parties that it considered Father’s pro per response to Mother’s petition 

to modify as a motion to dismiss. Therefore, the court invited Mother to 

file a response no later than March 24, 2020, but nonetheless issued its 

ruling on March 11. Mother contends the court violated her due process 

rights by dismissing the case before receiving the invited response. 

¶20 We disagree. Though a non-moving party has a right to 

respond to a motion, see Ariz. R. Fam. L. P. 35(a)(3), Mother already 
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presented her argument and evidence on the alleged assault at the 

temporary orders hearing. Thus, while the court erroneously ruled before 

Mother filed her response, the error does not require reversal. Due process 

requires that a party receive adequate notice and an opportunity to be heard 

on the issue. Curtis, 212 Ariz. at 312, ¶ 16. As noted, Mother already had 

the opportunity to be heard on the dispositive issue of her motion for 

permanent modifications, the alleged assault with the taser. Because the 

court already decided this dispositive issue, finding the incident to be 

accidental, the court did not violate Mother’s due process rights by ruling 

on the petition before she could file her response to the motion to dismiss. 

CONCLUSION

¶21 We affirm the superior court’s denial of Mother’s 2019 and 

2020 petitions to modify legal decision-making. We vacate the court’s order 

denying Mother’s 2019 petition to modify parenting time and remand for 

further proceedings. On remand, the court shall reconsider the petition for 

modification of parenting time in light of current circumstances. Mother 

requests attorneys’ fees and costs under A.R.S. §§ 25-324(A), -415(A)(2). In 

our discretion, we deny her request.