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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ELIZABETH ARZOLA
NKA: ELIZABETH GILLETTE,
Petitioner/Appellee,
v.
GABRIEL ARZOLA,
Respondent/Appellant.
No. 1 CA-CV 19-0702 FC
FILED 10-15-2020
Appeal from the Superior Court in Yuma County
No. S1400D0201001367
The Honorable Levi Gunderson, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Curry Pearson & Wooten PLC, Phoenix
By Daniel Seth Riley
Counsel for Petitioner/Appellee
Law Office of Phil Hineman PC, Mesa
By Phillip D. Hineman, Jr.
Counsel for Respondent/Appellant
GILLETTE v. ARZOLA
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.
B A I L E Y, Judge:
¶1 Gabriel Arzola (“Father”) appeals the trial court’s order
modifying legal decision making, parenting time, and child support for his
three minor children. For the following reasons, we affirm the court’s legal-
decision-making and child-support orders, but we vacate the court’s
parenting-time order and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Elizabeth Gillette (“Mother”) married in 2002 and
had three daughters together: J.A.A., born October 2003; L.A., born January
2006; and J.A., born January 2008 (collectively, the “Children”). Mother
filed for dissolution of marriage in December 2010, and the dissolution was
finalized in December 2011.
¶3 Mother subsequently remarried, and in 2017, she petitioned
to relocate with the Children to South Carolina due to her husband’s
military transfer. At that time, both Mother and Father lived in Yuma.
Mother was Children’s primary residential parent and Father exercised
parenting time every other weekend. After a hearing, the trial court
granted Mother’s petition to relocate and adopted a long-distance
parenting plan granting Father summer and holiday parenting time.
Father’s first holiday parenting time was scheduled for December 2017.
¶4 A few weeks before the December 2017 parenting time,
Mother and her husband discovered cuts on J.A.A.’s wrist. After Mother
questioned J.A.A. about the cuts, J.A.A. disclosed that Father had been
sexually abusing her since she was eleven years old. On December 19, 2017,
Mother petitioned to modify legal decision making and parenting time and
moved for emergency temporary orders. The trial court suspended
Father’s parenting time on an emergency basis and set the matter for trial.
Father filed a notice pursuant to Arizona Rule of Family Law Procedure
2(b), requiring strict compliance with the Arizona Rules of Evidence during
the proceeding.
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GILLETTE v. ARZOLA
Decision of the Court
¶5 On June 17, 2019, Mother filed an amended petition seeking
modification of legal decision making (custody), parenting time, and child
support. The amended petition incorporated by reference the allegations
of sexual abuse documented in the December 19, 2017, petition and motion
for emergency temporary orders.
¶6 During a two-day trial, the trial court heard testimony from
witnesses for both sides, including many family members and a licensed
psychologist who performed a psycho-sexual evaluation of Father. After
trial, the court awarded Mother sole legal decision making authority,
designated Mother as the Children’s primary residential parent, required
Father’s parenting time with L.A. and J.A. to be supervised and in the
Children’s home state, and prohibited parenting time with J.A.A. The court
also increased Father’s monthly child support.
¶7 Father timely appealed the trial court’s decision. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶8 Father raises multiple issues on appeal. First, he claims the
trial court made findings that were contrary to the law and not supported
by the evidence. Second, he argues the court abused its discretion by
ordering supervised parenting time as to J.A. and L.A. because insufficient
evidence supported the order and the order does not allow for frequent and
meaningful parenting time. Third, he claims the trial court erred by
adopting findings from the temporary orders in its final order. Fourth,
Father asserts the court erred by attributing minimum wage income to
Mother when calculating child support. Finally, he alleges Mother failed to
properly plead and disclose the specific allegations of sexual misconduct
that J.A.A. disclosed at trial. We address each issue in turn.
I. Standard of Review.
¶9 We review custody and parenting time orders for an abuse of
discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). We will not
disturb the trial court’s findings unless there is “a clear absence of evidence”
in the record to support them. Pridgeon v. Superior Court, 134 Ariz. 177, 179
(1982). We defer to the trial court and will not reweigh evidence because
the trial court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.”
Richard M. v. Patrick M., 248 Ariz. 492, 498, ¶ 23 (App. 2020); Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002).
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GILLETTE v. ARZOLA
Decision of the Court
II. The Trial Court’s Findings Were Supported by the Evidence and
Were Not Contrary to Law.
¶10 Father claims the trial court discounted his expert’s testimony
that he was not sexually deviant, failed to properly consider paternal
grandmother’s and aunt’s observations regarding his previous bonded
relationship to J.A.A., and did not properly weigh J.A.A.’s veracity against
his denials of improper behavior and the lack of corroborating evidence of
abuse. These assertions ask this Court to reweigh the evidence presented
at trial, which we will not do. See Jesus M., 203 Ariz. at 282, ¶ 12. We find
no abuse of discretion.
III. The Trial Court Erred by Failing to Make Findings Under § 25-
403.03.
¶11 Father next argues the court abused its discretion by
“bootstrapping” J.A.A.’s testimony to its determination of parenting time
with J.A. and L.A. and not allowing frequent and meaningful parenting
time with J.A. and L.A. These arguments fail, but we vacate the court’s
parenting time order because the court failed to make findings under § 25-
403.03.1
¶12 Generally, although courts must “adopt a parenting plan that
provides for both parents to share legal decision-making regarding their
child and that maximizes their respective parenting time,” they must do so
“[c]onsistent with the child’s best interests.” A.R.S. § 25-403.02(B). When
determining the child’s best interests, the court must consider the factors
listed in § 25-403(A), which include “[w]hether there has been domestic
violence or child abuse pursuant to § 25-403.03.” A.R.S. § 25-403(A)(8). The
court may consider domestic violence or child abuse against other
children. See A.R.S. § 25-403.03(B). And “[i]f the court finds that a parent
has committed an act of domestic violence, that parent has the burden of
proving to the court's satisfaction that parenting time will not endanger the
child or significantly impair the child's emotional development.” A.R.S.
1 Father has failed to provide “citation to supporting legal authority”
for his contentions regarding the parenting-time order as required by
ARCAP 13(a)(7). This is an appropriate ground for this court to find these
arguments waived. See Sholes v. Fernando, 228 Ariz. 455, 461, ¶ 16 (App.
2011). However, Mother has not objected to this deficiency in Father’s brief,
and in the exercise of our discretion we overlook the defect and will not
deem the arguments waived. See Delmastro & Eells v. Taco Bell Corp., 228
Ariz. 134, 137, ¶ 7 n.2 (App. 2011).
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GILLETTE v. ARZOLA
Decision of the Court
§ 25-403.03(F). In a contested legal-decision-making or parenting-time case,
the court must make specific findings on the record about all relevant
factors under § 25-403(A) and the reasons for which the decision is in the
best interests of the child. A.R.S. § 25-403(B).
¶13 Here, sufficient evidence supported the trial court’s findings
regarding Father’s abuse of J.A.A., and the court properly considered this
factor in making its parenting-time order as to all three children. See A.R.S.
§ 25-403(A)(8); see also A.R.S. § 25-403.03(B) (“The court shall consider
evidence of domestic violence as being contrary to the best interests of the
child. The court shall consider the safety and well-being of the child and of
the victim of the act of domestic violence to be of primary importance.”)
(emphasis added). Similarly, requiring parenting time to take place in
Mother’s and the Children’s home state was within the court’s discretion.
See A.R.S. § 25-408(G) (stating that when a child is relocated, “[t]o the extent
practicable the court shall also make appropriate arrangements to ensure the
continuation of a meaningful relationship between the child and both
parents”) (emphasis added). However, the court did not make any findings
pursuant to § 25-403.03(F), and such findings must be made on the record
and cannot be presumed or implied. DeLuna v. Petitto, 247 Ariz. 420, 425,
¶¶ 18–19 (App. 2019). Accordingly, we must vacate the parenting-time
order as to all three children and remand for reconsideration in accordance
with § 25-403.03(F). See id.; see also A.R.S. § 25-403(B).
IV. The Trial Court Did Not Err by Adopting Findings from the
Temporary Orders.
¶14 Father argues the trial court erred by adopting findings from
the temporary orders. He claims the court based its final order on hearsay
evidence from the temporary orders that was not presented at the final
hearing.
¶15 Father’s opening brief does not identify the findings to which
he refers as required by ARCAP 13(a)(7). However, the record does not
appear to support Father’s argument. In its order, the trial court only
mentioned temporary orders in its recitation of the procedural history of
the case. A court may judicially notice procedural facts. See In re Marriage
of Kells, 182 Ariz. 480, 483 (App. 1995); Ariz. R. Evid. 201(b); see also Matter
of Ronwin, 139 Ariz. 576, 580 n.4 (1983) (“We take notice that the cases exist,
that allegations are made, etc. We cannot and do not take notice of the truth
or falsity of specific allegations except as established by final judgment.”).
The court therefore did not abuse its discretion by noticing the procedural
facts of the case.
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GILLETTE v. ARZOLA
Decision of the Court
V. The Trial Court Did Not Err by Attributing Mother with Minimum
Wage Income.
¶16 Father alleges the trial court erred by failing to impute income
to Mother based on her prior employment before her return to college. “The
decision to modify an award of child support rests within the sound
discretion of the trial court and, absent an abuse of that discretion, will not
be disturbed on appeal.” Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999).
¶17 “[W]hen a parent is unemployed or working below his or her
full earning potential, a trial court . . . may impute income to that parent, up
to full earning capacity, if the parent’s earnings are reduced voluntarily and
not for reasonable cause.” Id. at 521, ¶ 6; see also A.R.S. § 25-320 app. § 5(E)
(2018) (“Guidelines”). “[T]he trial court may elect not to impute income to
a parent if he or she is enrolled in reasonable occupational training that will
establish basic skills or is reasonably calculated to enhance earning
capacity.” Little, 193 Ariz. at 521, ¶ 6; Guidelines § 5(E)(2).
¶18 The trial court accordingly had discretion to impute income
to Mother while she completed her bachelor’s degree. In any event, Father
did not present any evidence at trial of Mother’s income at previous jobs.
Accordingly, the trial court did not abuse its discretion by attributing
minimum wage income to Mother.
VI. Father Waived his Disclosure and Pleading Arguments by Not
Bringing Them in the Trial Court.
¶19 Finally, Father argues that Mother failed to properly plead
and disclose evidence presented at trial. He claims Mother did not provide
proper notice of the details of J.A.A.’s allegations of molestation or the
specifics about J.A.A.’s cutting behavior. Although Father claims he
objected to the admission of this evidence, the record shows no objection.
In fact, Father referred to J.A.A.’s allegations during his opening statement
and elicited testimony on those issues during cross-examination of J.A.A.
Because Father did not object at trial, he has waived this argument. Odom
v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18 (App. 2007) (“Generally,
arguments raised for the first time on appeal are untimely and deemed
waived.”).
VII. Fees
¶20 Mother requests an award of her attorneys’ fees and costs,
arguing Father’s appeal was frivolous and Father has greater financial
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GILLETTE v. ARZOLA
Decision of the Court
resources than her. See Ariz. R. Civ. App. P. 25; A.R.S. § 25-324(A). In
exercise of our discretion, we decline to award attorneys’ fees or costs.
CONCLUSION
¶21 For the foregoing reasons, we affirm the trial court’s order
modifying legal decision making and child support. However, we vacate
the court’s parenting-time order and remand for findings under § 25-
403.03(F).
AMY M. WOOD • Clerk of the Court
FILED: AA
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