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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN FRENCH, Petitioner/Appellant,

v.

ESTHER MONTIEL, Respondent/Appellee.

No. 1 CA-CV 22-0272 FC

Appeal from the Superior Court in Maricopa County

No. FC2015-004790

The Honorable Glenn A. Allen, Judge

AFFIRMED

COUNSEL

Singer Pistiner, P.C., Scottsdale

By Jason Pistiner

Counsel for Petitioner/Appellant

Tiffany & Bosco P.A., Phoenix

By Kelly Mendoza

Counsel for Defendant/Appellee

FILED 01-24-2023
FRENCH v. MONTIEL

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Justin French (Father) appeals the superior court’s order 

denying his petition seeking to modify parenting time and enforcement of

the existing parenting plan. Because Father has shown no error, we affirm. 

BACKGROUND

¶2 Father and Esther Montiel (Mother) have one minor child. In

2016, the superior court entered orders establishing legal decision-making, 

parenting time, and child support (the parenting plan). In 2019, after Father 

filed a petition to modify parenting time and child support and a petition 

to enforce parenting time, those orders were modified by stipulation. 

¶3 As set forth in that stipulation, Father and Mother share joint 

legal decision-making, and the child lives primarily with Mother. Father’s 

parenting time “consist[s] of alternating Mondays and Wednesdays” and 

“alternating weekends.” During the summer, defined as “from the last day 

of school until the first day of the next school year,” each parent gets two 

weeks of uninterrupted parenting time, i.e., “vacation.”

¶4 In April 2020, Father emailed Mother: “My summer vacation 

dates are July 3rd – 17th.” The same day, Mother emailed back: “I’ll do May 

11–25.” Father then waited until the day before Mother’s chosen dates to 

email, raising “a discrepancy” between Mother’s requested vacation dates 

and the terms of the parenting plan. The child remained with Mother 

throughout the chosen vacation.

¶5 Near the end of Mother’s vacation, on May 20, Father filed a

second “Petition To Modify Parenting Time and Child Support” and a 

“Petition To Enforce Parenting Time.”1 As a “substantial and continuing 

change,” Father alleged that Mother’s brother (Uncle), who had a criminal 

1 Father also filed an “Emergency Motion for Post-Decree Temporary 

Orders Re: Parenting Time,” but the parties stipulated to vacate the 

temporary orders hearing and proceeded on the main petition. 
FRENCH v. MONTIEL

Decision of the Court

3

history, was living with Mother and the child. Father argued that Uncle 

“[wa]s a danger to [the child].” Father sought to suspend Mother’s 

parenting time “until such time as she resides in a residence without 

[Uncle]” and requested that “parenting time be modified such that the 

parties exercise equal parenting time.” Father also alleged that Mother had 

violated the parenting plan by using her two-weeks’ uninterrupted 

parenting time before the school year had ended. 

¶6 The following weekend, Mother and the child were exposed 

to COVID-19 at a family event. The child spent the weekend after with 

Father, during which time Mother began suffering symptoms and went to 

the hospital to be tested but was told not to quarantine. Mother did not 

inform Father and picked the child up Monday morning as scheduled.

Later, Mother and the child both tested positive for COVID-19. Due to 

delays in re-testing, Father did not have parenting time with the child until 

August. 

¶7 Dr. D.J. Gaughan, a psychologist, was appointed by the court 

as an evaluator. After interviews spanning from December 2020 to May 

2021, Dr. Gaughan issued the comprehensive family evaluation (CFE) in 

August 2021, recommending equal parenting time and joint decisionmaking, with Father having the final say. In the meantime—sometime in 

June 2021—Uncle moved out of the home. Trial was then set for January 

2022.

¶8 In the pretrial statement, Father “ask[ed] that the Court adopt 

the recommendations contained in the CFE,” namely that (1) Father have 

the final say in legal decision-making and (2) the parents share equal 

parenting time. He also reasserted his position that “Mother violated 

Father’s parenting time by improperly taking her ‘summer’ vacation when 

school was still in session.” Mother maintained that modification was 

unnecessary, she did not violate the parenting plan, and Father’s child 

support obligations should increase. Given the parenting time lost by 

Father because of the COVID-19 incident, “the parties agree[d] that Father 

w[ould] be entitled to an additional two weeks of uninterrupted parenting 

time during the Summer of 2022.”

¶9 After an evidentiary hearing in January 2022, the court denied 

Father’s petition to modify, finding there was no basis for modification

because Uncle had moved out months before trial. The court denied 

Father’s petition to enforce because “the parents [were] following the 

summer schedule” at the time, and in any case, Father waived any objection
FRENCH v. MONTIEL

Decision of the Court

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because “[his] delay in responding to Mother was not reasonable” and “not 

made in good faith.” Father timely appealed.2

DISCUSSION

¶10 Father raises three issues on appeal. First, he argues the court 

erred in finding that there was no change in circumstances based on Uncle’s 

previous co-residence with Mother and child. Second, he argues that the 

court erred in not making findings about the COVID-19 incident. Third, 

Father argues that Mother violated the existing parenting plan, which

warranted a best-interests analysis even absent any change in 

circumstances.

¶11 We review the family court’s rulings on legal decisionmaking and parenting time for an abuse of discretion. Engstrom v. 

McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018). An abuse of discretion occurs 

when the court commits an error of law in drawing a discretionary 

conclusion or when no competent evidence supports the court’s decision. 

Id. We view the record in the light most favorable to sustaining the court’s 

rulings, which we will affirm “if there is any reasonable supporting 

evidence.” Garlan v. Garlan, 249 Ariz. 278, 280–81, ¶ 4 (App. 2020). We 

review the interpretation and application of statutes and court rules de 

novo. State v. Godoy, 244 Ariz. 327, 328, ¶ 7 (App. 2017).

I. The Court Did Not Err in Finding No Change in Circumstances

¶12 Father argues that the court erred in finding no change in 

circumstances warranting modification. We disagree.

¶13 In considering a change in parenting time, the trial court must 

determine “whether there has been a change in circumstances materially 

affecting the welfare of the child,” and if so, whether a change in legal 

decision-making is in the child’s best interests. Black v. Black, 114 Ariz. 282, 

283 (1977); see also Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982) (“Only 

after the court finds a change has occurred does the court reach the question 

of whether a change in custody would be in the child’s best interest.”);

A.R.S. § 25-403(A). “[T]he burden is on the moving party to satisfy the court 

that conditions and circumstances have so changed after the original decree 

as to justify the modification.” Burk v. Burk, 68 Ariz. 305, 308 (1949). The 

2 Father does not appeal the portion of the ruling modifying his child 

support obligations. 
FRENCH v. MONTIEL

Decision of the Court

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court has broad discretion to determine whether a change in circumstances

justifies modification. Pridgeon, 134 Ariz. at 179.

¶14 Father relies on two events as a basis for modification: (1) 

Uncle’s prior cohabitation with Mother and the child, which ended in June 

2021; and (2) the Summer 2020 COVID-19 incident, which Dr. Gaughan

relied on for his August 2021 CFE. We consider each in turn.

A. Mother’s Prior Cohabitation with Uncle

¶15 Father argues that “the change of circumstances only must 

exist at the time a petition to modify is filed.” For that reason, he argues the 

court erred in finding Father’s “sole reason for his petition to modify was 

no longer an issue.” 

¶16 As support, Father relies on Black. There, a mother “had 

cohabited with a boyfriend for several months” before the father petitioned 

for modification, but the mother and boyfriend married before the 

modification hearing. 114 Ariz. at 284. Because the Court found that the 

cohabitation “did have a material effect upon the welfare of the children,” 

id., Father argues “[i]t did not make a difference whether such change of 

circumstances continued to exist up and through trial.” His reasoning is 

flawed. In Black, the Court considered five circumstances and expressly 

declined to find any “one change of circumstance . . . totally sufficient.” Id.

It is also unclear if the Court disregarded the timing of the hearing when it 

found a change in circumstances. See id. In Black, the mother’s boyfriend 

became her husband before trial, presumably making him a more 

permanent fixture in the children’s lives. See id. Here, Uncle relocated before

trial, removing the “circumstance” from which Father, in part, was seeking 

to protect the child. 

¶17 The modification standard requires that there “has been a 

change in circumstances materially affecting the welfare of the child.” Black,

114 Ariz. at 283 (emphasis added). This construction implies at least 

ongoing consequence, if not a persisting condition. See, e.g., Backstrand v. 

Backstrand, 250 Ariz. 339, 343, ¶ 15 (App. 2020) (noting the relocated child 

“has and will continue to engage in new activities, form new relationships, 

and face new challenges” (emphasis added)). 

¶18 Father argues that requiring the condition to persist “would 

be nonsensical[,]” allowing “the opposing party to simply remedy the 

alleged change in circumstances the day before trial and render null and 

void all that occurred leading up to that point.” Given different facts, there 

may very well be lasting consequences that warrant modification. Even so,
FRENCH v. MONTIEL

Decision of the Court

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that determination is for the superior court to make based on the 

particularized facts. See Pridgeon, 134 Ariz. at 179.

¶19 On this record, Father did not substantiate his claim that 

“irreparable harm . . . may occur,” or even that Uncle’s co-residence would 

materially affect the child’s welfare. As Dr. Gaughan testified, Father could 

reasonably prefer that his child not live with Uncle because of Uncle’s

criminal record. But as Dr. Gaughan recognized, none of Uncle’s crimes 

involved children, domestic violence, or drugs. Nor was Uncle alone with 

the child. Moreover, Uncle lived in the home with Mother and the child for

over a year without any alleged harm. Father concedes that Uncle moved 

out before trial.

¶20 Furthermore, the court did not abuse its discretion in finding 

that Uncle’s prior co-residence “was no longer an issue,” particularly when 

Father failed to allege how Uncle’s presence in the home had negatively 

affected the child. In finding no substantial change in circumstances, the 

court applied the correct legal standard for modification.

B. The COVID-19 Incident and Dr. Gaughan’s 

Recommendations

¶21 Father next argues that the court erred by “not making any 

findings and ignoring [the COVID-19 incident], which formed the basis for 

Dr. Gaughan to recommend equal parenting time and Father having final 

say over legal decision-making.” We disagree. 

¶22 To begin, legal decision-making was not at issue because 

neither party included this request in their pleadings. Father instead relies 

on the fact that “the parties filed a joint pretrial statement that agreed that 

modification of legal decision-making authority was an issue in this 

matter.” To be clear, Mother did not agree that legal decision-making 

authority was at issue. Rather, she included her position that “[t]he parties 

should continue to share joint legal decision-making” and “[t]here is no valid 

reason for Father to have final authority.” (Emphasis added.)

¶23 Although “[t]he joint pretrial statement supersedes the 

pleadings and controls the subsequent course of the litigation,” Reyes v. 

Town of Gilbert, 247 Ariz. 151, 159, ¶ 35 (App. 2019) (quotation and citation 

omitted), it does so by requiring the parties to disclose witnesses and 

evidence, and to identify what claims and defenses remain at issue, see Ariz. 

R. Fam. Law P. 76.1(f)–(h). As Father concedes, the pretrial statement serves 
FRENCH v. MONTIEL

Decision of the Court

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to limit and simplify the scope of the trial.3 See Walters v. First Fed. Sav. & 

Loan Ass’n of Phx., 131 Ariz. 321, 325 (1982); Aetna Cas. & Sur. Co. v. Dini, 169 

Ariz. 555, 557 (App. 1991) (noting pretrial statement “narrow[s] the scope 

of the . . . issues to those which are truly legitimate”). 

¶24 Father also argues that legal decision-making was at issue 

because Mother stipulated to the CFE, and Dr. Gaughan then 

recommended a change to legal decision-making. But the CFE does not 

define the scope of litigation; it aids the court and the parties in resolving 

the issues. See DePasquale v. Superior Court, 181 Ariz. 333, 336 (App. 1995);

see also A.R.S. § 25-405(B) (“The court may seek the advice of professional 

personnel . . . .”). The court may have muddied the waters by issuing a 

generic order for “[l]egal decision-making recommendations,” but Father 

cannot claim the benefit of this phrasing any more than he can attribute

placing legal decision-making at issue to Mother.

¶25 Nonetheless, Father suggests that trial evidence about the 

COVID-19 incident placed legal decision-making at issue. Not so. The 

COVID-19 incident was relevant to properly pled issues: namely, parenting 

time enforcement, as Father argued Mother wrongfully interfered with his 

parenting time. The court also could have considered how the interference 

related to the best-interests factors if it moved forward with a modification. 

Moreover, Father did not move to amend the pleadings at trial or otherwise 

object when the judge repeatedly emphasized that “[w]e’re not here to 

change legal decision-making because nobody is asking to do that.” 

¶26 Because Father could not raise new legal issues in the pretrial 

statement or at trial, nor could Dr. Gaughan place legal decision-making at 

issue, the court did not abuse its discretion in declining to consider 

modification of legal decision-making.

3 The cases cited by Father support this point. See Norman v. Del Elia, 

111 Ariz. 480, 482 (1975) (excluding exhibit at trial that was “not listed in 

the pretrial statement”); Calderon v. Calderon, 9 Ariz. App. 538, 539–41 (1969) 

(excluding exhibit not produced pursuant to pretrial order, particularly as 

no explanation for delay was provided and “counsel [did not] move to have 

the pretrial order amended to enlarge the issues”); Wright v. Demeter, 8 Ariz. 

App. 65, 68 (1968) (excluding witness testimony “no[t] mention[ed] . . . in 

the pre-trial memorandum or pre-trial order”); Loya v. Fong, 1 Ariz. App. 

482, 485–86 (1965) (finding error when court allowed testimony on issue 

eliminated in pretrial order). 
FRENCH v. MONTIEL

Decision of the Court

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¶27 We now consider Father’s argument that he was entitled to 

findings on the COVID-19 incident to the extent that itrelated to his petition 

to modify parenting time. As Father notes, the COVID-19 incident occurred 

after he filed his petition to modify parenting time, so he could not have 

included it in the original petition. But Father could have sought leave to 

amend or moved to amend the pleadings at trial, and he did neither. See 

Ariz. R. Fam. Law P. 28 (a), (b). 

¶28 In the pretrial statement, Father quoted Dr. Gaughan’s 

findings relating to the COVID-19 incident. He did not contend that the 

incident—which occurred in the Summer of 2020—was a change in 

circumstances. Nor did Father argue, as he does for the first time on appeal,

that Dr. Gaughan’s findings based on the incident were “in and of 

[them]sel[ves]” a change in circumstances. See Van Loan v. Van Loan, 116 

Ariz. 272, 274 (1977) (noting that an issue not raised “at the trial level” has 

been waived). At trial, Father’s counsel argued that “the COVID issue could 

be both from an enforcement standpoint, but also as a substantial 

continuing change of circumstances [standpoint], being a medical decision 

that Mother (indiscernible) did not take into account the best interest of the 

child.” (Emphasis added.) In addition, when the court observed that “if [it] 

d[id]n’t get evidence on a substantial and continuing change, you don’t 

pass go,” Father did not argue that the COVID-19 incident was a change in 

circumstances warranting modification. In context, the court could have 

reasonably interpreted Father’s argument as going to best interests under 

A.R.S. § 25-403. And because the court found no change in circumstance, it 

could not proceed to a best-interests analysis. See Pridgeon, 134 Ariz. at 180.

¶29 For these reasons, the court was within its discretion not to

address the COVID-19 incident within the context of Father’s petition to 

modify.4 The court, therefore, did not err in terminating its analysis once it 

found Father had failed to show there had been a material change in 

circumstances.

II. The Court Did Not Err in Denying Father’s Petition to Enforce

¶30 Alternatively, Father argues that Mother violated the existing 

parenting plan by taking her vacation time with the child prior to the 

4 Although the court also did not address the COVID-19 incident 

within the context of its enforcement findings, we note that Father waived 

any such argument by failing to raise it on appeal.
FRENCH v. MONTIEL

Decision of the Court

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conclusion of the school year. Citing A.R.S. § 25-411(A), he argues the court 

erred by not conducting a best-interests analysis. We disagree.

¶31 In its order, the court found that “[t]he parties acknowledged 

that the child’s normal school year was impacted by COVID-19, and that 

the regular school session ended in March 2020. It was not clear at trial if 

the child had mandatory classes . . . at home, but the parties did agree that 

they were exercising their parenting time under the summer schedule 

during the vacation in question.” In any case, because Father did not object 

until the day before Mother’s planned vacation was to begin, and 30 days 

after receiving notice of the planned dates, the court found Father had 

waived any contest. 

¶32 Father argues that “informing Mother her intended vacation 

dates violated the parties’ orders” was “clear evidence that Father 

intentionally did not wish to abandon his right and instead wished to assert 

his rights under . . . the [parenting plan].” By emphasizing his objection, he 

altogether disregards the timing of that objection and his delay in raising it.

As he conceded at trial, any earlier objection was “voiced to [Father’s] 

attorney” and “[n]ot to Mother.” Twenty-nine days of silence can be 

reasonably interpreted as acquiescence. See Compass Bank v. Bennett, 240 

Ariz. 58, 60, ¶ 11 (App. 2016) (noting that waiver includes “such conduct as 

warrants an inference of . . . an intentional relinquishment [of a known 

right]” (citation and quotation omitted)). And even if Father’s objection 

were reasonable, raising it the day before her scheduled vacation was not. 

¶33 Therefore, the court did not abuse its discretion in finding 

Father had waived his enforcement claim because Father’s objection to 

Mother’s vacation dates was untimely and “not made in good faith.”5

5 Given this conclusion, we need not reach Father’s arguments that (1) 

Mother violated the parenting plan, and (2) a best-interests analysis was 

necessary. See A.R.S. § 25-411(A).
FRENCH v. MONTIEL

Decision of the Court

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CONCLUSION

¶34 For the reasons above, we affirm. Both parties request their 

attorney’s fees incurred on appeal under A.R.S. § 25-324. Father’s position 

on legal decision-making—i.e., that an issue first disputed in a pretrial 

statement is properly before the court—was unreasonable. In addition, 

Father’s income is almost four times greater than Mother’s. We, therefore,

award Mother reasonable attorney’s fees and costs on appeal subject to 

compliance with ARCAP 21.