Brimhall v. Brimhall

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRISTOPHER BRIMHALL, Petitioner/Appellant,

v.

JULIA BRIMHALL, Respondent/Appellee.

No. 1 CA-CV 25-0418 FC
FILED 04-03-2026

Appeal from the Superior Court in Navajo County
No. S0900DO202300383
The Honorable Melinda K. Hardy, Judge

VACATED AND REMANDED

COUNSEL

White Mountain Law Group, P.L.C, Show Low
By Michael R. Ellsworth
Counsel for Petitioner/Appellant

Crider Law Firm, PLLC, Mesa
By Brad J. Crider
Counsel for Respondent/Appellee
BRIMHALL v. BRIMHALL
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Brian Y. Furuya joined.

M O R S E, Judge:

¶1 Christopher Brimhall ("Father") appeals the superior court's
June 2, 2025 ruling enforcing the parties' Arizona Rule of Family Law
Procedure ("Rule") 69 agreement as an order effective February 29, 2024.
For the reasons set forth below, we vacate the superior court's ruling and
remand for further proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Julia Brimhall ("Mother") and Father have three minor
children together. Father filed for divorce in November of 2023. In
February 2024, the superior court entered the parties' consent decree and
dissolved their marriage. The consent decree provided Father would have
sole legal decision-making authority and sole physical custody for the
parties' oldest child and that the parties would have joint legal decision-
making authority and equal parenting time for their two younger children.
On February 29, 2024, the parties entered into a Rule 69 agreement which
further detailed the parties' parenting time arrangement for the two
younger children. Neither party filed that agreement with the superior
court.

¶3 In September 2024, six months after the consent decree,
Mother filed a Petition to Modify Parenting Time and Division of DES
Subsidy, asserting that the parties could not comply with the current order.
Father responded by noting the existence of the parties' unfiled Rule 69
agreement and arguing for a different modification to parenting time. On
October 22, 2024, Father filed the Rule 69 agreement with the superior court.
Mother objected to the filing of the Rule 69 agreement and asked that the
superior court take no action on it. Mother then filed an Amended Petition
to Modify Parenting Time and Division of DES Subsidy ("amended
petition") and a motion for temporary orders, which Father opposed.

¶4 On April 14, 2025, the superior court held a hearing on the
Rule 69 agreement and the amended petition. After the hearing, the

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BRIMHALL v. BRIMHALL
Decision of the Court

superior court found that the parties entered into a valid Rule 69 agreement
on February 29, 2024, and the agreement was in the children's best interests.
After further discussion, the superior court stated that it retroactively
accepted the agreement as of February 29, 2024, even though the agreement
had not been filed at that time.

¶5 After the hearing, Mother filed a Second Amended Verified
Petition to Modify Parenting Time, Division of DES Subsidy and for
Enforcement of Payment Community Debts ("second amended petition").
Father responded, opposing the second amended petition. Father also
moved to dismiss the second amended petition, arguing that A.R.S. § 25-
411 prohibited the superior court from modifying parenting time less than
a year after it approved the Rule 69 agreement at the April 14, 2025 hearing.
In response, Mother argues that, per the court's order, the Rule 69
agreement was dated and accepted more than a year before the second
amended petition.

¶6 The superior court held a hearing in May of 2025 to address
these issues. At the hearing, Father requested the superior court issue a
written final and appealable order on its acceptance of the Rule 69
agreement. Mother did not object. On June 2, 2025, the superior court
issued an order accepting the Rule 69 agreement as an order of the court
and adopting February 29, 2024 as the date of the order. Father timely
appealed. This Court stayed the appeal because the superior court's order
lacked proper Rule 78(c) language. The superior court filed an amended
order with the correct Rule 78(c) language. We have jurisdiction under
A.R.S. §§ 12-2101(A)(1) and -120.21(A)(1).

DISCUSSION1

¶7 We review the superior court's parenting-time orders for an
abuse of discretion. Ertl v. Ertl, 252 Ariz. 308, 315, ¶ 25 (App. 2021). We
review the interpretation of rules and statutes de novo. Jacobs v. Jacobs, 259

1 Mother's counsel was suspended from the practice of law effective
January 1, 2026. On March 12, 2026, Mother filed a motion to continue the
oral argument based on her attorney's unavailability, but filed the motion
in the superior court. We received the motion on March 17, 2026, the day
before the scheduled argument. That motion is denied as moot. At oral
argument, Mother appeared in propria persona, presented her arguments,
and answered the Court's questions. The Court commends her
performance under less-than-ideal circumstances.

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Ariz. 467, 470, ¶ 16 (App. 2025). We accept the factual findings of the
superior court "unless clearly erroneous." Id.

¶8 Father argues the superior court erred by adopting February
29, 2024, as the date it accepted the parties' Rule 69 agreement. We agree.
The superior court's June 2, 2025 order recited its acceptance of the parties'
Rule 69 agreement and directed the parties to exercise parenting time "in
accordance with" that agreement. Accordingly, it is a judgment. See Ariz.
R. Fam. L. P. 78(a)(1) ("'Judgment' as used in these rules is . . . a decision
defining or modifying legal decision-making, parenting time, or child
support."). Rule 78(g)(2) provides that "[a] judgment is not effective before
entry . . . . A judgment, including a judgment in the form of a minute entry,
is entered when the clerk files it." Ariz. R. Fam. L. P. 78(g)(2).

¶9 There is no dispute that the parties' Rule 69 agreement was
not filed with the superior court until October 22, 2024. Therefore, the Rule
69 agreement was not a decree when the parties agreed to it on February
29, 2024. See Ariz. R. Fam. L. P. 69(b) ("An agreement under this rule is not
binding on the court until it is submitted to and approved by the
court . . . ."); Canty v. Canty, 178 Ariz. 443, 447 (App. 1994). The superior
court did not err by finding the parties entered a valid Rule 69 agreement
on February 29, 2024. The superior court did not err by accepting and
approving the Rule 69 agreement as contemplated by Rule 69(b) either.
However, by ordering the parties to comply with the Rule 69 agreement
retroactively to February 29, 2024, the superior court violated Rule 78(g)(2).2
Accordingly, we vacate the superior court's order to the extent it acts as a
retroactive judgment. On remand, the superior court may determine
whether to enforce the parties' Rule 69 agreement prospectively. See
Ariz. R. Fam. L. P. 69(b). We express no opinion on whether A.R.S. § 25-
411(A) bars Mother's petitions to modify that she filed before the court's
acceptance of the parties' Rule 69 agreement.

2 While a court may issue a retroactive nunc pro tunc judgment to
correct or record a previously rendered judgment under Rule 78(g)(2), the
superior court did not, and could not, do that here. See Shinn v. Ariz. Bd. of
Exec. Clemency, 254 Ariz. 255, 260, ¶ 17 (2022) (observing that a court's
power to enter judgment nunc pro tunc may not be used to "cause an order
or judgment that was never in fact made to be placed on the record"
(cleaned up)); Valley Nat. Bank of Ariz. v. Meneghin, 130 Ariz. 119, 124 (1981)
(explaining that absent fault of the court, "a judgment nunc pro tunc cannot
be entered unless such judgment has been in fact previously rendered").

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BRIMHALL v. BRIMHALL
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¶10 Mother requested attorney fees, but she cites no authority for
her request, so it is denied. See Bank of New York Mellon v. Dodev, 246 Ariz.
1, 12, ¶ 41 (App. 2018). We award Father costs on appeal upon compliance
with ARCAP 21.

CONCLUSION

¶11 We vacate the superior court's acceptance of the parties'
Rule 69 agreement insofar as it relates to parenting time before June 2, 2025,
and remand for further proceedings consistent with this decision.

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

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