Treptow v. Vitellaro-Martorell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAKE TREPTOW, Petitioner/Appellee,

v.

TABITHA VITELLARO-MARTORELL, Respondent/Appellant.

No. 1 CA-CV 25-0421 FC
FILED 05-07-2026

Appeal from the Superior Court in Maricopa County
No. FC2022-091567
The Honorable Charlene D. Jackson, Judge

SPECIAL ACTION JURISDICTION ACCEPTED; RELIEF GRANTED
IN PART, DENIED IN PART

COUNSEL

The Shaw Law Group PLLC, Gilbert
By Bryan C. Shaw
Counsel for Petitioner/Appellee

Tabitha Vitellaro-Martorell, Tempe
Respondent/Appellant Pro-Se
TREPTOW v. VITELLARO-MARTORELL
Decision of the Court

MEMORANDUM DECISION

Chief Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Veronika Fabian joined.

H O W E, Judge:

¶1 Tabitha Vitellaro-Martorell (“Mother”) appeals the family
court’s contempt findings and award of attorney’s fees to Jake Treptow
(“Father”). For the reasons below, we affirm in part and remand in part for
proceedings consistent with this decision.

FACTS AND PROCEDRUAL HISTORY

¶2 Father and Mother share two minor children, born November
2021 and August 2023. The parents were not married and have a long
history of conflict. The parties agreed to mediate in 2022 and the family
court entered their agreed upon final orders for joint legal decision-making
and equal parenting time for their first child. The parties also agreed they
would have telephone access to their first child during their normal waking
hours when with the other parent.

¶3 After their second child was born, both parties moved to
amend the parenting time and child support orders. The family court held
an evidentiary hearing and, in September 2024, continued joint legal
decision-making over the children, adjusted their equal parenting schedule,
and ordered Father to pay child support.

¶4 The family court also ordered the parties to communicate
through Our Family Wizard and set out behavioral and length guidelines
for their messages. The guidelines required messages to be respectful, avoid
name calling, criticizing, and put-downs. The parties were limited to two
initiated messages and two responses per day. Last, the court required the
receiving party to respond in a timely manner, generally on the same day
or within eight hours. The court did not address telephone contact with the
children.

¶5 The family court further found that “Mother without good
cause willfully denied Father 28 days of parenting time.” The court
awarded Father 12 days of makeup parenting time “at a rate of one 24-hour

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period per month during her scheduled three days of parenting time
weekends for twelve months.”

¶6 Mother moved to reconsider the physical custody schedule
so she could obtain consistent childcare. The family court agreed, adjusting
her parenting time schedule. The new schedule provided that Mother
would have the children from Tuesday afternoon to Thursday morning and
Saturday morning to Monday morning. The court did not alter the make-
up parenting schedule.

¶7 Mother and Father’s antagonism continued. Both parents
excluded the other from the children’s medical decisions. Mother sent
messages that exceeded the guidelines’ length limits, violated the daily
message cap, and disparaged Father’s mother. Mother also offered Father’s
make-up time in less than 24-hour increments, provided make-up options
with little advance notice, and pressured Father to forfeit the time. Father
blocked Mother from goodnight calls with the children.

¶8 Both parents petitioned for enforcement and contempt. Father
argued that Mother was in contempt for obstructing his make-up days,
withholding the children’s social security cards, and violating the
communication guidelines. Mother argued that Father blocked goodnight
phone calls with the children, disregarded orders requiring approval for
third-party babysitters, ignored her messages requiring replies, and
excluded her from the children’s medical decisions.

¶9 The family court held an evidentiary hearing in March 2025.
It found Mother in contempt regarding make-up parenting time, the
communication guidelines, and medical decision-making. The court found
Father in contempt concerning medical decision-making and third-party
babysitters. It rejected Mother’s claim about the nighttime phone calls
because the calls were not incorporated into the 2024 final orders and
Father’s social security claim because he had alternative means of getting
the cards. Last, the court awarded Father his attorney’s fees pursuant to
A.R.S. § 25-414(C) to be reduced for his own contemptuous conduct.
Neither party requested findings of fact or conclusions of law. See Ariz. R.
Fam. Law P. 82. Mother filed a notice of appeal and an amended notice of
appeal.

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DISCUSSION

I. Jurisdiction

¶10 “We have an independent duty to determine whether we
have jurisdiction over an appeal.” Desert Palm Surgical Grp., P.L.C. v. Petta,
236 Ariz. 568, 576 ¶ 15 (App. 2015). Mother filed the instant appeal
challenging the family court’s contempt findings and attorney’s fee
sanction. Our jurisdiction is limited to that specifically provided by statute,
Brionna J. v. Dep’t of Child Safety, 247 Ariz. 346, 349 ¶ 7 (App. 2019), and
“contempt and civil sanctions are not appealable,” Stoddard v. Donahoe, 224
Ariz. 152, 154 ¶ 7 (App. 2010). Although Mother filed an appeal, special
action review is the appropriate avenue for review. Stoddard, 224 Ariz. at
154 ¶ 7. We accept special action jurisdiction because Mother has no other
remedy by appeal. See Ariz. R.P. Spec. Act. 11(e), 12(a).

¶11 Mother argues that the court erred by (1) holding her in
contempt regarding medical decision-making without Father raising the
issue, (2) finding her in contempt for failing to provide make-up days
despite granting the motion for reconsideration, (3) finding her in contempt
for violating the communication guidelines, (4) rejecting her contempt
arguments regarding goodnight calls, (5) failing to rule on Father’s
violations of the communication guidelines, and (6) awarding attorney’s
fees to Father without specific findings. We address each issue in turn.

II. Medical Decision Making

¶12 Mother first argues that the family court violated her due
process rights by holding her in contempt regarding the medical decision-
making without Father raising the issue in his petition. Due process claims
are issues of law, which we review de novo. Mack v. Cruikshank, 196 Ariz.
541, 544 ¶ 6 (App. 1999). Due process requires “notice and an opportunity
to be heard at a meaningful time and in a meaningful manner.” Curtis v.
Richardson, 212 Ariz. 308, 312 ¶ 16 (App. 2006).

¶13 Mother is correct that Father did not raise medical decision-
making as an issue in his contempt petition. Her argument ignores,
however, that she raised the issue in her petition. Mother put medical
decision-making at issue and should have reasonably expected Father to
contest her allegations with evidence of her own misconduct. Both Mother
and Father presented evidence of each other’s medical decision-making
misconduct at the evidentiary hearing. Therefore, the family court afforded
Mother due process before finding her in contempt.

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Decision of the Court

III. Contempt Findings

¶14 Mother next challenges the family court’s contempt findings
regarding make-up days, violations of the communication guidelines, and
goodnight calls. We review a civil contempt finding for abuse of discretion.
Stoddard, 224 Ariz. at 154 ¶ 9. We accept the family court’s factual findings
unless clearly erroneous. Id. at 154–55 ¶ 9. The court abuses its discretion
by committing legal error or when the record lacks competent evidence to
support its decision. Woyton v. Ward, 247 Ariz. 529, 531 ¶ 5 (App. 2019).

¶15 Contempt is broken down into four classifications. Ong Hing
v. Thurston, 101 Ariz. 92, 98 (1966). As relevant here, “civil contempt is the
disobeyance of a court order directing an act” and “indirect contempt is an
act committed outside the presence of the court.” Id. A finding of civil
contempt requires finding the contemnor “(1) has knowledge of a lawful
court order, (2) has the ability to comply and (3) fails to do so.” Lund v.
Donahoe, 227 Ariz. 572, 583 ¶ 41 (App. 2011).

A. Make-Up Days

¶16 Mother argues that she was not in contempt with respect to
make-up days because the family court’s grant of reconsideration rendered
the court’s earlier make-up parenting time order ambiguous.

¶17 The family court’s final orders required “Mother to provide
one day of makeup parenting time at a rate of one 24-hour period per month
during her scheduled three days of parenting time weekends.” Following
its order, Mother asked Father to abandon his make-up time, offered time
with little advance notice or in less than 24-hour increments, and told Father
if he rejected her options the time was forfeited. The court concluded that
this conduct was willful and contemptuous and the record supports its
finding.

¶18 Mother argues that she did not willfully violate a court order
because the family court’s make-up time order became ambiguous when it
adjusted the parenting-time schedule following her motion for
reconsideration. Not so. The court’s grant of reconsideration did not alter
her obligation to facilitate make-up days. While Mother may plead
confusion since her physical-custody days changed, the family court
assessed her testimony and found that she simply “does not want Father to
have the time.” The family court is in the best position to examine the
witness’ credibility and we defer to its determinations. Hurd v. Hurd, 223
Ariz. 48, 52 ¶ 16 (App. 2009). We discern no abuse of discretion.

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B. Mother’s Communication Guidelines Violations

¶19 Mother further argues that the family court erroneously
found her in contempt for violating the communication guidelines.

¶20 The family court ordered both parents “shall follow the
communication guidelines.” As relevant here, the guidelines require
messages to be brief, informative, and respectful. Further, each parent was
limited to two new messages and two responses per day.

¶21 The court found that Mother’s messages violated these
guidelines. The record supports the court’s findings that some of Mother’s
messages exceeded the guidelines limits and disparaged Father’s mother.

¶22 Mother argues that the guidelines were advisory and
subjective. We are not persuaded. The parties were ordered to follow the
guidelines and whether particular messages violated the guidelines is a fact
question for the family court to decide. Stoddard, 224 Ariz. at 154–55 ¶ 9.
Our review is limited to whether the court committed legal error and
whether the record supported its decision. Woyton, 247 Ariz. at 531 ¶ 5. We
discern no abuse of discretion.

C. Goodnight Calls

¶23 Mother next argues the family court erred by finding that no
order required goodnight calls.

¶24 Here, the family court erroneously found that the order for
goodnight calls was part of the temporary orders and thus terminated upon
entry of the court’s final decree. See Ariz. R. Fam. Law P. 47(k)(1)
(“Temporary orders . . . terminate and are unenforceable . . . following entry
of a final decree.”). Mother and Father agreed to telephone contact in the
2022 mediation. The court approved their mediation agreement and
entered it as a final judgment. See Ariz. R. Fam. Law P. 78(c). Following their
second child’s birth, the parties began operating under a series of
temporary orders, none of which addressed or modified the telephone
contact provision. Then, the court entered final orders for both children in
September 2024 without a telephone contact provision. The court’s ruling,
however, contained the following provision:

IT IS ORDERED affirming all Orders currently in place,
except as expressly modified herein.

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¶25 The telephone contact agreement was part of the 2022
mediation agreement, not any temporary orders that were terminated. The
provision was still in place and not expressly modified by any subsequent
agreement. Therefore, the provision was incorporated into the 2024 final
orders and the court erred by finding it terminated. We vacate this portion
of the under advisement ruling and remand so that the family court may
consider whether Father had knowledge that this portion of the order was
still enforceable. See Lund, 227 Ariz. at 583 ¶ 41 (civil contempt requires a
finding that the contemnor “has knowledge of a lawful court order”).

IV. Father’s Communication Guidelines Violations

¶26 Mother next argues that the family court did not rule on
Father’s failure to respond to messages within the timeframe required by
the guidelines provided. We review issues of law and the interpretation of
rules de novo. Vera v. Rogers, 246 Ariz. 30, 33 ¶ 11 (App. 2018); Michaelson
v. Garr, 234 Ariz. 542, 544 ¶ 5 (App. 2014).

¶27 After a party petitions the family court for contempt, the court
may hold an evidentiary hearing where it “must” determine whether the
petitioner has established elements of contempt. Ariz. R. Fam. Law P.
92(d)(2); Lund, 227 Ariz. at 583 ¶ 41. Then, the court “must enter a written
order granting or denying the petition for contempt.” Ariz. R. Fam. Law P.
92(e) (emphasis added).

¶28 Here, the family court’s communication guidelines ordered
both parents to respond in a timely manner, generally the same day or
within eight hours. Mother petitioned the family court to find Father in
contempt for his failure to timely respond to her messages. She maintained
her argument in her pre-hearing filings and presented supporting
testimony at the evidentiary hearing. The court’s under advisement ruling
did not address Father’s alleged violations. Mother properly petitioned and
maintained her argument, and the court erred by failing to rule.

¶29 Father argues that the family court’s failure to rule was not
error because Mother did not request findings of fact or conclusions of law.
See Ariz. R. Fam. Law P. 82(a). If a party does not request findings of fact or
conclusions of law, this Court “must assume that the trial court found every
fact necessary to support its ruling and must affirm if any reasonable
construction of the evidence justifies the decision.” Horton v. Mitchell, 200
Ariz. 523, 526 ¶ 13 (App. 2001) (quotation modified). Failure to request
findings does not relieve the court of its obligation to make the decision. Cf.
State v. Martinez, 226 Ariz. 464, 467 ¶ 12 (App. 2011) (holding that the trial

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Decision of the Court

court abused its discretion in failing to address the petitioner’s arguments).
Here, we are not asked to assume the rationale underlying the court’s
decision; rather, Father asks us to assume the family court’s ruling which
we cannot do. Because the court erred, we remand so the court may
supplement its ruling.

V. Attorney’s Fees

¶30 Last, Mother challenges the family court’s award of attorney’s
fees to Father pursuant to § 25-414. Because the award was premised on
both parties’ contempt, we vacate the award so the court may reevaluate
each party’s arguments on remand.

CONCLUSION

¶31 We affirm the family court’s contempt findings regarding
medical decision-making, make-up days, and Mother’s violations of the
communication guidelines. We vacate the court’s findings concerning
telephone access and the attorney’s fee award, and remand for
reconsideration and to decide whether Father violated the communication
guidelines.

¶32 Father requests his appellate attorney’s fees and costs
pursuant to Arizona Rule of Civil Appellate Procedure 21(a) and A.R.S.
§§ 25-324 and -809(G). We decline his request in our discretion.

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

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