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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
KATHERINE RYAN, Petitioner/Appellant,
v.
JOHN RUBALCABA, Respondent/Appellee.
No. 1 CA-CV 21-0078 FC
FILED 4-7-2022
Appeal from the Superior Court in Maricopa County
No. FC2018-096340
No. FC2018-096422
The Honorable Joshua D. Rogers, Judge
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
COUNSEL
Pangerl Law Firm PLLC, Phoenix
By Regina M. Pangerl
Counsel for Petitioner/Appellant
Gillespie Shields Goldfarb & Taylor, Phoenix
By Mark A. Shields, David Goldfarb
Counsel for Respondent/Appellee
RYAN v. RUBALCABA
Decision of the Court
MEMORANDUM DECISION
Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.
G A S S, Vice Chief Judge:
¶1 Mother challenges the superior court’s joint legal decision-
making and child support orders. We affirm the superior court’s legal
decision-making order because reasonable evidence supported it. But we
vacate and remand the child support orders because the applicable child
support guidelines were misapplied.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and father are the unmarried parents of a child (R.R.)
born in 2018. Both parents filed petitions to establish paternity, legal
decision-making, parenting time, and child support. The parents did not
dispute paternity. The superior court consolidated the matters and
awarded mother temporary sole legal decision-making authority but did
not award temporary support.
¶3 After trial, the superior court ordered joint legal decision-
making. The superior court also ordered father to pay $49 per month in
ongoing child support and awarded mother $1,078 in retroactive support.
The superior court did not award attorney fees. Mother timely appealed.
This court has jurisdiction under article VI, section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21.A.1 and 12-2101.A.1.
ANALYSIS
I. Joint Legal Decision-Making
¶4 Mother first argues the superior court abused its discretion in
evaluating several best-interests factors. At trial, the parties contested legal
decision-making, and the superior court made written findings on each
factor in A.R.S. §§ 25-403 and -403.01.
¶5 This court reviews legal decision-making orders for abuse of
discretion. Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15 (App. 2013).
A court abuses its discretion when it rules without competent evidence or
2
RYAN v. RUBALCABA
Decision of the Court
commits a legal error in making a discretionary decision. Engstrom v.
McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018). In determining legal decision-
making, the superior court must consider all relevant factors bearing on the
child’s best interests, including the factors enumerated in § 25-403.A. The
superior court also must consider the additional factors specified in § 25-
403.01.B to determine the level of legal decision-making. In a contested
custody matter, the superior court “shall make specific findings on the
record about all relevant factors.” A.R.S. § 25-403.B.
¶6 Regarding “[t]he past, present and potential future
relationship between the parent and the child,” the superior court found
both parents loved the child and enjoyed a close relationship with the child.
See A.R.S. § 25-403.A.1. The superior court also warned the parents their
continued animosity could harm their future relationships with their child.
Mother contests the superior court’s evaluation of the co-parenting
dynamic and argues her feelings toward father are warranted. But this
court does not reweigh credibility determinations, such as whether one
parent harbored “animosity” toward another parent. See Richard M. v.
Patrick M., 248 Ariz. 492, 498, ¶ 23 (App. 2020).
¶7 Mother next argues the superior court did not fully consider
all the evidence from Dr. Delatorre or the Department of Child Safety (DCS)
in weighing father’s mental health. See A.R.S. § 25-403.A.5. Dr. Delatorre
concluded father is attentive and loving towards his children, can identify
threats to the child, and places the child’s needs above his own. The court-
appointed advisor (CAA) also issued a report regarding her investigation—
including her interviews with the parents and her review of the DCS
investigations, mother’s orders of protection (OOP), and the police reports.
The CAA’s report acknowledged father’s conflict with other mothers, but
noted he has joint legal decision-making authority and equal parenting time
with both his other children. Ultimately, the CAA recommended father
have unsupervised parenting time. The superior court considered father’s
psychological evaluation and agreed with the report’s conclusion finding
father “is able to parent.” Mother asks us to reweigh this evidence, which
this court does not do. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).
¶8 Mother claims the superior court erred in concluding, under
§ 25-403.A.6, she withheld the child and father had to call the police. The
superior court found credible father’s claims of mother’s parental
interference. This court does not reweigh such evidence on appeal. Hurd,
223 Ariz. at 52, ¶ 16.
3
RYAN v. RUBALCABA
Decision of the Court
¶9 Finally, mother objects to the superior court’s characterization
of her alleging father “abused” R.R. Instead, mother characterizes her
report to DCS as “safety concerns”—not abuse allegations—arising after
R.R.’s arm sustained a second-degree burn from a birthday candle. The
superior court did not err in using the term abuse when considering
whether father either burned R.R. or carelessly allowed the child to be
burnt. The superior court ultimately concluded—and mother apparently
agrees—the evidence did not support a finding of child abuse. Because the
superior court made the requisite findings under each factor, and the
evidence supported those findings, the superior court did not abuse its
discretion. See In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13 (1999) (this court
examines “the record only to determine whether substantial evidence exists
to support” the superior court’s action).
II. Domestic Violence Against Mother
¶10 Mother also argues the superior court erred in finding father
did not commit significant domestic violence against her. See A.R.S. § 25-
403.03.A (significant domestic violence or a significant history of domestic
violence precludes the abusing parent from having joint legal decision-
making authority). Mother alternatively asserts father failed to rebut the
presumption against joint legal decision-making in § 25-403.03.C–E for
parents found to have committed domestic violence.
¶11 Under § 25-403.03.A, when one parent has engaged in
significant domestic violence or has a significant history of domestic
violence, the superior court shall not award joint legal-decision making.
When subsection A does not apply but one parent has committed an act of
domestic violence against another parent, § 25-403.03.D creates “a
rebuttable presumption that an award of sole or joint legal decision-making
to the [offending] parent . . . is contrary to the child’s best interests.” “Before
awarding sole or joint legal decision-making authority to the offending
parent, the [superior] court must make specific findings on the record”
regarding whether sufficient evidence rebuts the presumption and must
consider the § 25-403.03.E factors. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 12
(App. 2019).
A. The Orders of Protection
¶12 Once alleged, the superior court must first determine if a
parent committed domestic violence. See A.R.S. § 25-403.03.C. Here, the
superior court found father did.
4
RYAN v. RUBALCABA
Decision of the Court
¶13 At the 2018 hearing on her OOP, mother alleged father twice
held her in a room against her will, stalked her via a phone app and her
dating profile, and attempted to force sexual intercourse on her. Father
testified that when mother was attempting to break up with him, he was
making his case for fixing the relationship and keeping the family together.
He admitted he tried to “hold her” the night she rebuffed him and then
followed her from room to room. The commissioner heard the actual events
as they unfolded because mother introduced a three-hour audio recording
of the evening.
¶14 The commissioner upheld the 2018 OOP based on father’s
admission he followed mother from room to room during the arguments.
The commissioner expressed concern over the use of a phone app to track
mother’s movements. And, though the commissioner did not find mother
established attempted rape, the commissioner did tell father he had
“significant boundary issues” and he needed to address them in therapy.
¶15 Mother sought to renew the OOP in 2019. She first alleged
father tampered with her refrigerator while she was on vacation and ruined
her stored breastmilk. Second, she alleged father harassed her by filing 16
police reports about custodial interference. The superior court dismissed
the 2019 OOP, stating though the parties were in a high-conflict dispute and
father’s acts may have been excessive, mother did not meet her burden of
proving harassment.
¶16 Other than objecting to our review of the OOP transcripts,
mother does not challenge the superior court’s evidentiary findings under
§ 25-403.03.C. Mother argues our review should be limited to the OOP itself,
not the hearing transcripts. But the transcripts of both hearings are in the
record, the parents agreed to introduce the transcripts, and most of the
above facts also came into evidence through the CAA’s testimony. Further,
this court may take judicial notice of the superior court’s transcripts. See
Ariz. R. Evid. 201(b)(2) (a court may take judicial notice of indisputable facts
if they “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned”); State v. Rhome, 235 Ariz. 459,
461, ¶ 7 (App. 2014) (this court may take judicial notice of its own records).
B. “Significant” Domestic Violence
¶17 The superior court must next consider whether the domestic
violence was “significant” under § 13-3601 or if a preponderance of the
evidence established “a significant history of domestic violence.” A.R.S.
§ 25-403.03.A. A finding under one or the other precludes an award of sole
5
RYAN v. RUBALCABA
Decision of the Court
or joint legal decision-making authority to the abusing parent. Id. After
consideration, the superior court found neither significant domestic
violence nor a significant history of domestic violence. Mother challenges
those determinations.
¶18 To begin, the superior court did not fail to recognize “a
significant history of domestic violence” precludes joint legal decision-
making. The superior court’s order explicitly recognized § 25-403.03.A
contemplates either significant domestic violence or a significant history of
such. Ultimately, it found father’s “acts in the spectrum of domestic
violence do not constitute significant as contemplated by the statute.” The
superior court’s reference to significance covers both § 25-403.03.A
grounds.
¶19 In doing so, the superior court considered the following
factors to test the significance of the domestic violence: (1) the seriousness
of the incident of domestic violence, (2) the frequency or pervasiveness of
the domestic violence, (3) and the passage of time and its impact. See
DeLuna, 247 Ariz. at 424, ¶ 15 n.6. The superior court has the “discretion to
weigh the evidence and determine the degree of the domestic violence’s
‘significance’” under § 25-403.03.A. See id. at ¶ 15. The superior court
condemned father’s actions, but concluded the acts were not significant and
did not constitute a significant history of domestic violence when
considered “in the spectrum of domestic violence.”
¶20 The evidence in the record shows the events in question all
occurred over approximately four weeks—shortly before and then after
their child was born. Based on the superior court’s findings, the events did
not involve physical violence or threats and did not last for a lengthy time.
In 2018, the commissioner did not find the attempted rape allegation
proven. In 2019, the superior court deemed mother’s allegations of father’s
harassment—because he repeatedly called the police—insufficient for an
order of protection. Because evidence in the record supports the superior
court’s finding father’s domestic violence was neither significant nor
evidenced a significant history, the superior court did not abuse its
discretion. Pridgeon v. Super. Ct., 134 Ariz. 177, 179 (1982).
C. Rebutting the Domestic-Violence Presumption
¶21 Mother contends the superior court erred in finding father
rebutted the presumption against joint legal decision-making authority.
The superior court made written findings as to each of the six § 25-403.03.E
factors. The superior court went on to find no other domestic-violence
6
RYAN v. RUBALCABA
Decision of the Court
incidents had occurred and if it awarded either mother or father sole
decision-making authority, the award would result in an abuse of that
authority to the other parent’s detriment. See A.R.S. § 25-403.03.E.1, .6.
Accordingly, the superior court made written findings regarding why
father overcame the presumption and considered the § 25-403.03.E factors.
The order for joint legal decision-making demonstrates the superior court
engaged in the necessary inquiry regarding the child’s best interests, and
the record contains sufficient evidence to support the superior court’s
findings. Mother has shown no legal or factual error sufficient to warrant
reversal. See Engstrom, 243 Ariz. at 471, ¶ 4. The superior court did not abuse
its discretion in finding father rebutted the presumption against joint legal
decision-making.
III. Child Support
¶22 Mother argues the superior court abused its discretion in
calculating prospective and retroactive child support by: (1) over-crediting
father’s business expenses, (2) using incorrect 2018 and 2019 incomes for
mother, (3) giving father credit for paying support for his other two
children, and (4) crediting father with equal parenting time for the
arrearage calculation. Because we agree with mother on the third and
fourth issues, we need not resolve her remaining claims.
¶23 This court reviews de novo the superior court’s interpretation
of the 2018 Arizona child support guidelines in A.R.S. § 25-320 appendix
(2018 guidelines). Sherman v. Sherman, 241 Ariz. 110, 113, ¶ 9 (App. 2016);
see also Patterson v. Patterson, 226 Ariz. 356, 358–59, ¶¶ 4, 7 (App. 2011). But
this court reviews a child support award for an abuse of discretion and
accepts the superior court’s “factual findings unless clearly erroneous.”
Sherman, 241 Ariz. at 112–13, ¶ 9. Under the 2018 guidelines, § 6.D, “An
amount may be deducted from the gross income of a parent for support of
natural or adopted children of other relationships not covered by a court
order.”
¶24 The superior court’s child support worksheet credited father
with $1,307 in child support not ordered. That obligation tracks the 2018
guidelines support chart for a parent with father’s income and two children.
But father testified he has court-ordered child support obligations for his
other two children. Because his other children are covered by a child
support order, he cannot qualify for § 6.D deductions.
¶25 Additionally, father would not qualify for § 6.C deductions.
Under the 2018 guidelines, § 6.C, “An amount shall be deducted from the
7
RYAN v. RUBALCABA
Decision of the Court
gross income of a parent for children of other relationships covered by a
court order for whom they are the primary residential parent.” Father
testified he has an equal parenting time schedule—specifically, a 2-2-3
schedule—with each of his other children. Because father does not have
physical parenting time with his other children for the greater part of the
year, he is not a primary residential parent under the guidelines and § 6.C
is inapplicable.
¶26 Father may be eligible for court-ordered child support
deductions under § 6.B. According to father’s affidavit of financial
information, he pays $507 per month in court-ordered support for his other
two children. Mother argues father was not paying his other child support,
and, therefore, he did not qualify for a deduction under § 6.B (a parent may
be credited for child support only “if [it is] actually being paid”). The
parents presented conflicting and limited evidence on this issue. Because
the superior court credited father with § 6.D deductions, it did not resolve
whether father qualifies under § 6.B. The superior court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.” Richard, 248 Ariz. at 498, ¶ 23
(citation omitted). Accordingly, we leave the resolution of this issue to the
superior court on remand.
¶27 Though our holding discusses the 2018 guidelines, we
recognize the 2022 child support guidelines will apply on remand unless
the parties agree otherwise. See A.R.S. § 25-320 app. (2022 guidelines),
§ XVII.A. Under the 2022 guidelines, § II.B.2 covers deductions for other
support obligations. Section II.B.2.e permits the superior court to deduct
either the amount of court-ordered support or the standard support
deduction—whichever is higher—for parents with equal parenting time.
Though the superior court may apply § II.B.2.c deductions on remand, we
note that even if the superior court were to provide father the same
credits—and leaving all other variables as constant—the child support
calculation would still differ slightly under the 2022 guidelines.
¶28 The superior court also credited father with equal parenting
time for past-due support. In its temporary orders, the superior court
awarded father 3 four-hour blocks of parenting time each week. But under
the 2018 guidelines, § 11.C.4, each block of father’s parenting time counted
for 25% of a day. Father could not be credited with equal parenting time for
retroactive support. See Simpson v. Simpson, 224 Ariz. 224, 226, ¶ 9 (App.
2010) (retroactive support requires the superior court to “apply the
guidelines to the factual circumstances as they existed in the previous
8
RYAN v. RUBALCABA
Decision of the Court
months for which the court is ordering child support”). For purposes of
remand, this calculation is the same under the 2022 guidelines. See § V.C.2.c.
¶29 Because the superior abused its discretion in calculating
prospective and retroactive child support, we vacate both support orders.
ATTORNEY FEES ON APPEAL
¶30 Both mother and father request attorney fees on appeal.
Mother cites both §§ 25-809 and -324 as the bases for a fee award. Father
cites only § 25-324. This court may award attorney fees after considering the
financial resources and reasonableness of the parties’ legal positions. A.R.S.
§§ 25-324.A, -809.G. After considering those factors, we decline to award
attorney fees on appeal. Because mother obtained partial success on appeal,
we award mother her costs on appeal upon compliance with ARCAP 21.
See Henry v. Cook, 189 Ariz. 42, 44 (App. 1996) (under § 12-341, “the party
who obtains partial success is entitled to recover” costs).
CONCLUSION
¶31 We affirm the superior court’s legal decision-making order
but vacate and remand the child support orders.
AMY M. WOOD • Clerk of the Court
FILED: AA
9