Kirk v. Kirk

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TARA DANIELLE KIRK, Petitioner/Appellee,

v.

JOSHUA STUART KIRK, Respondent/Appellant.

No. 1 CA-CV 25-0559 FC
FILED 06-23-2026

Appeal from the Superior Court in Maricopa County
No. FC2018-092413
The Honorable Quintin H. Cushner, Judge

AFFIRMED

COUNSEL

James Portman Webster Law Office, PLC, Mesa
By James Portman Webster
Counsel for Respondent/Appellant

Stanley David Murray Attorney at Law, Scottsdale
By Stanley D. Murray
Counsel for Petitioner/Appellee
KIRK v. KIRK
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Daniel J. Kiley and Judge Cynthia J. Bailey joined.

W I L L I A M S, Judge:

¶1 Joshua Stuart Kirk (“Father”) appeals the superior court’s
order denying his petition to modify legal decision-making authority and
parenting time. Because he has shown no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 When Father and Tara Danielle Kirk (“Mother”) divorced in
2020, their four children ranged in age from four to nine years old. In the
dissolution decree, the superior court found the parties had a difficult time
making decisions together about the children, in part because Father
struggled to manage both his emotions and his personal relationships.
Given these challenges, the court: (1) ordered the parties to share joint legal
decision-making authority, with Mother having final say “in the event of
an impasse,” (2) ordered Father to see a counselor twice a month for twelve
months, and (3) designated Mother the children’s primary residential
parent, awarding Father parenting time every other weekend, alternating
holidays, and two non-consecutive weeks every summer.

¶3 In 2023, Father petitioned to modify the decree, seeking joint
legal decision-making authority—with no one having final say—and equal
parenting time. Mother opposed the proposed modifications, counter-
petitioned to enforce the order requiring Father to undergo counseling, and
sought child support arrearages. She later requested sole legal decision-
making authority.

¶4 After holding an evidentiary hearing on the motions, the
superior court entered an under-advisement ruling. Specific to this appeal,
the court found: (1) a change in circumstances materially affecting the
welfare of the children based on the parties’ disagreements about medical
treatment for the children and “the growth and development” of both
parties’ relationships with the children, and (2) neither party’s proposed
modifications served the children’s best interests. Although the court

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denied Father’s request for equal parenting time, it added one midweek
overnight visit to his existing parenting-time schedule.

¶5 After the superior court denied his motion to alter or amend
the order, Father timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution, and A.R.S. § 12-2101(A)(2).

DISCUSSION

¶6 Father challenges the superior court’s denial of his requests
for joint legal decision-making authority, with neither parent having final
say, and equal parenting time. He contends the evidence does not support
either ruling and that the court failed to make the statutorily mandated
findings of fact.

¶7 Under A.R.S. § 25-403(A)-(B), a court determining legal
decision-making or parenting time, whether “originally or on petition for
modification,” must “consider all factors that are relevant to the child’s
physical and emotional well-being” and “make specific findings on the
record about all relevant factors and the reasons for which the decision is in
the best interests of the child.” To determine the appropriate “level of
decision-making,” a court must also consider, as relevant here: (1) whether
the parents agree to joint legal decision-making, (2) whether a lack of
agreement is unreasonable or influenced by an issue unrelated to the
children’s best interests, and (3) the abilities of the parents to cooperate in
decision-making about the children to the extent required by a court order.
A.R.S. § 25-403.01(B).

¶8 Because Father partially grounds his arguments in statute, he
asserts that the superior court’s rulings are subject to de novo review. But a
challenge to the sufficiency of factual findings does not present an issue of
statutory interpretation or other question of law. Accordingly, we review
the denial of Father’s petition to modify for an abuse of discretion.
Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020). Under this
standard, we will not reweigh the evidence and instead “defer to the
[superior] court’s determinations of witness credibility and the weight
given to conflicting evidence.” Lehn v. Al-Thanayyan, 246 Ariz. 277, 284,
¶ 20 (App. 2019). We will accept the court’s findings of fact unless they are
clearly erroneous, considering only whether evidence reasonably supports
them. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019); Hurd v. Hurd,
223 Ariz. 48, 52, ¶ 19 (App. 2009). Finally, on review, we may “infer from
any judgment the findings necessary to sustain it if such additional findings
do not conflict with express findings and are reasonably supported by the

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evidence.” Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984) (citation
modified).

¶9 With these principles in mind, we consider the relevant
evidence presented at the evidentiary hearing. Mother testified that: (1) co-
parenting with Father is “[e]xtremely difficult”; (2) several medical
providers have refused to continue treating the children because of Father’s
“constant outbursts and yelling” during appointments; (3) she has largely
kept Father informed of the children’s medical care, though
acknowledging, in some instances, she sought medical care and life
coaching for the children without consulting Father; (4) Father objects to the
children taking prescription medication, preferring natural remedies and
refusing to administer medications to the children during his parenting
time; (5) Father failed to comply with the decree’s order to seek counseling
for the twelve months following the divorce, only beginning counseling
four years after the decree was entered; (6) Father usually exercises
parenting time from Saturday evening until Monday morning, despite
Mother encouraging him to pick up the children on Friday evenings; (7)
equal parenting time is not in the children’s best interests because they
return home “emotionally distraught” after visiting Father and require a
“reset day” to regulate their emotions; (8) since the divorce, Father has
exercised only one week of vacation time with the children; and (9) joint
legal decision-making, without granting her final decision-making
authority, would not be feasible because the parties would constantly be
requesting court intervention to resolve their disputes.

¶10 Father, for his part, testified that: (1) he enjoys a warm, close
relationship with each of the children; (2) the children love his wife, their
stepmother, “very much”; (3) the parties’ two eldest children would like to
live with him full-time; (4) he has exercised considerable parenting time,
“spend[ing] long periods” with the children; (5) his schedule could
accommodate “a 50/50 parenting time schedule,” though acknowledging
he does not consistently have the same days off and sometimes travels out
of town for weeks at a time; (6) he did not begin counseling until 2024 but
has since participated in weekly counseling sessions; (7) Mother has, at
times, not consulted him concerning the children’s medical care and has
made medical decisions without his input; (8) he did not yell during
medical visits or otherwise experience any difficulty regulating his
emotions, though admitting he has “raised” his voice and had tense
exchanges with medical providers; (9) he does not approve of some of the
children’s medical providers and disagrees with some of their treatment
plans; and (10) the court could appoint “a parenting coordinator” to resolve
the parties’ disputes over the children’s care.

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¶11 Based on the evidence presented, the superior court entered a
detailed order making specific findings for each of the A.R.S. §§ 25-403(A)
and -403.01(B) factors, including: (1) the children love their parents and
their step-parents; (2) the parties have a high-conflict relationship; (3)
Mother failed to inform Father of some medical appointments and engaged
some medical providers without his knowledge and consent; (4) Father
continues to have “mental health concerns” and “credible evidence”
established that he has “engaged in inappropriate behavior” with a medical
provider; and (5) the parties’ failure to communicate and cooperate is
contrary to “the best interests of the children’s health needs.”

¶12 Given these findings, the superior court denied both parties’
modification requests. Instead, the court ordered that “each parent shall
give good faith considerations to the views of the other and put forth best
efforts to reach a consensus decision,” but in the event “they cannot agree
after making a good faith effort to reach an agreement, [Mother] shall have
the ability to make the final decision.” The court also added a midweek visit
with Father to maximize his parenting time to the extent “practical” and “in
the children’s best interests.”

¶13 The record supports the superior court’s findings and
conclusions. Father appears to fault the court for failing to specify what
evidence supported particular findings. Our cases, however, find error
when courts fail to make findings altogether, not when they fail to support
them with citations to the record. See Nold v. Nold, 232 Ariz. 270, 274, ¶ 15
(App. 2013) (collecting cases). Father cites no legal authority, and our
review reveals none, supporting a requirement that the court must identify
what evidence supports each finding in its decision. See Francine C. v. Dep’t
of Child Safety, 249 Ariz. 289, 296, ¶ 14 (App. 2020) (explaining the superior
court “does not have to detail each fact that supports its ruling” if the
findings “include all of the ultimate facts”) (citation modified). Moreover,
the hearing transcripts are replete with evidence establishing the parties’
high-conflict relationship that has interfered with the children’s medical
care. In fact, Father’s briefing details the parties’ ongoing, fervent disputes
over the children’s medical treatment. On this record, sufficient evidence
supports the court’s determination that absent Mother having final
decision-making authority, these disagreements could cause a delay in the
children receiving medical care. Given the uncontroverted evidence that
Father has not been fully exercising the parenting time allowed in the
decree and maintains an unpredictable work schedule requiring out-of-
town travel, the record also supports the court’s order of increased, but less
than equal, parenting time. Father has shown no abuse of discretion.

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CONCLUSION

¶14 We affirm. Both parties request an award of attorneys’ fees
and costs on appeal under A.R.S. § 25-324. After considering the parties’
financial resources and the reasonableness of their positions, we order the
parties to pay their own attorneys’ fees on appeal. However, Mother is
entitled to her costs on appeal under A.R.S. § 12-342(A) upon compliance
with ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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