De Leon v. Pizarro, Sr.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DIANA DE LEON, Petitioner/Appellee,

v.

EDWIN PIZARRO, SR., Respondent/Appellant.

No. 1 CA-CV 21-0076 FC
FILED 11-30-2021

Appeal from the Superior Court in Maricopa County
No. FC2013-053481
The Honorable Alison Bachus, Judge

AFFIRMED

COUNSEL

Davis Blase Stone & Holder, PLLC, Scottsdale
By Aaron T. Blase
Counsel for Petitioner/Appellee

Edwin Pizarro, Sr., Anthem
Respondent/Appellant
 DE LEON v. PIZARRO, SR.
Decision of the Court

MEMORANDUM DECISION

Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Chief Judge Kent E. Cattani
joined.

P O R T L E Y, Judge:

¶1 Edwin Pizarro, Sr. (“Father”) appeals the family court’s denial
of his petition and amended petition to modify legal decision-making
authority, parenting time, and child support and his motions for
reconsideration. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Diana De Leon (“Mother”) were married in 2006.
They have one child, born in 2007. While Mother was pregnant, the parties
were victims of an armed robbery; Father was shot in the head and suffered
a traumatic brain injury. As a result, Father stopped working and began
receiving social security disability income.

¶3 The parties divorced in 2013. Pursuant to the consent decree
of dissolution, Father was designated the primary residential parent, and
the child would reside with him on weekdays and with Mother on
weekends and other designated time periods. The parties agreed to joint
legal decision-making, with Father having final decision-making authority
regarding educational issues. Mother agreed to pay ongoing child support
and spousal maintenance through May 2016.

¶4 In September 2014, Father was arrested for aggravated assault
against his live-in tenant/female partner and her twelve-year-old son in the
presence of the parties’ child. As a result, Mother filed a petition to modify
the decree; the parties agreed to increase Mother’s parenting time, and
Mother then withdrew her petition and related requests.

¶5 In January 2015, Mother obtained an order of protection
against Father that included the child after Child Protective Services

1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2
 DE LEON v. PIZARRO, SR.
Decision of the Court

reopened a 2013 investigation against Father for hitting the child. In
February 2015, she filed a petition to modify legal decision-making
authority, parenting time, and child support and sought other relief,
claiming that Father had abused the child.

¶6 After Father pled guilty in May 2015 to disorderly conduct, a
class one misdemeanor and domestic violence offense, stemming from the
September 2014 incident, the parties agreed to use a therapeutic
interventionist (“TI”) to rehabilitate the relationship between Father and
the child, an agreement the family court adopted, and the family court
ordered that neither party was required to pay child support.

¶7 In January 2016, Mother obtained an order of protection
against Father prohibiting contact with her and the child. The following
month, the court limited Father’s contact with the child “to that which is
through the appointed [TI].”

¶8 After a May 2016 trial on Mother’s February 2015 petition, the
court found that Father had a substantiated finding of child abuse by the
Department of Child Safety, and since the divorce, Father had committed
acts of domestic violence not only against the child but also in front of the
child by virtue of Father’s repeated conflicts with his girlfriend. The court
further found that the domestic violence was significant and Father had
repeatedly violated the order of protection, which led to his arrest and
conviction for interference with judicial proceedings. The court awarded
Mother sole legal decision-making authority, ordered Father to participate
in a psychological evaluation, and further ordered Father’s parenting time
occur only through the TI.

¶9 Father subsequently made various filings seeking to
challenge, among other things, the appointment of the TI, all of which were
unsuccessful and none of which were appealed. Meanwhile, Father
continued to violate the order of protection and was again arrested. And
because Father refused to cooperate with the TI, the court discharged her in
July 2018.

¶10 In December 2020, Father filed a petition to modify legal
decision-making authority, parenting time, and child support, again
challenging the TI. The family court summarily denied the petition because
it failed to state a material change in circumstances affecting the child’s
welfare had occurred since the last orders were entered. In doing so, the
court reaffirmed the requirement that any parenting time by Father involve
a TI.

3
 DE LEON v. PIZARRO, SR.
Decision of the Court

¶11 Father then immediately filed an amended petition seeking
the same relief, quickly followed by two identical motions for
reconsideration, asking the family court to reconsider its order denying his
original petition to modify. The court denied Father’s amended petition,
noting it was identical to the petition the court had denied several days
earlier, and the motions for reconsideration.

¶12 We have jurisdiction over Father’s timely appeal under
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2).

ANALYSIS

I. Father’s Opening Brief

¶13 Mother contends that Father’s opening brief does not comply
with Arizona Rule of Civil Appellate Procedure (“ARCAP”) 13. She argues
we should dismiss his appeal, treat his arguments as waived, see, e.g., Ritchie
v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009), or strike and disregard all
noncompliant portions of his brief, see, e.g., Flood Control Dist. of Maricopa
Cnty. v. Conlin, 148 Ariz. 66, 68 (App. 1985).

¶14 Father’s opening brief falls short of the requirements of
ARCAP 13 in several respects. See ARCAP 13(a)(4)-(5), (7). Nevertheless,
we decline to summarily reject Father’s appeal and will address the merits
given that the best interests of a child are involved. See In re Marriage of
Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002). We rely, however, on our review
of the record for our recitation of the facts, see State Farm Mut. Auto. Ins. Co.
v. Arrington, 192 Ariz. 255, 257 n.1 (App. 1998), and view the evidence in the
light most favorable to sustaining the court’s rulings, In re Marriage of Yuro,
192 Ariz. 568, 570, ¶ 3 (App. 1998). And we limit our review of the
contentions made in Father’s reply brief to those “strictly confined to
rebuttal of points made in [Mother’s] answering brief.” ARCAP 13(c).

II. The Merits

¶15 Father argues that the family court abused its discretion in
denying his petition, amended petition, and motions for reconsideration.
He primarily challenges the court’s refusal to lift a requirement that his
parenting time with his son be conducted with the assistance of a TI.

¶16 We review the family court’s denial of a petition for legal
decision-making and parenting time for an abuse of discretion, Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013), and the denial of a motion for
reconsideration, Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009). To

4
 DE LEON v. PIZARRO, SR.
Decision of the Court

obtain a change in previous “custody” orders, Father must demonstrate a
material change in circumstances affecting the child’s welfare. Canty v.
Canty, 178 Ariz. 443, 448 (App. 1994) (citing Pridgeon v. Superior Court, 134
Ariz. 177, 179 (1982)).

¶17 In his December 2020 petition, amended petition, and
motions for reconsideration, Father sought to modify the parties’ legal
decision-making authority, parenting time, and child support. The family
court denied Father’s amended petition, finding it identical to the petition
the court had just denied and ruling that “[t]he petition remains denied
because it fails to state a material change in circumstances affecting the
child’s welfare has occurred since the last orders were entered.” And the
court found “no good cause” for granting Father’s motions for
reconsideration.

¶18 Father has shown no abuse of the court’s discretion. As the
court recognized, Father failed to allege the required material change in
circumstances since the entry of the last orders. The required path set forth
in those orders, since 2016, was for Father to “continue to work through a
TI prior to resuming a ‘normal’ parent/child relationship.” Although
Father has acknowledged that therapeutic intervention was necessary, he
has refused to cooperate with the TI, and the court discharged her in July
2018.

¶19 For any parenting time to begin, Father must, at a minimum,
follow the court’s orders by first re-engaging in the therapeutic intervention
process with a TI and demonstrating that in-person contact with the child
is safe and appropriate. The family court’s orders in December 2019 and
December 2020 confirmed the court would replace the TI upon submission
of a stipulated name or list from the court’s behavioral health provider
roster. Father has failed to follow through with the court’s orders and has
not proposed a different person to be the TI to the court.

¶20 On this record, the family court correctly found Father failed
to demonstrate a material change in circumstances affecting the child’s
welfare had occurred since the last orders were entered. Accordingly, the
court did not abuse its discretion in denying Father’s amended petition and
motions for reconsideration.

III. Other Issues Father Seeks To Raise In This Appeal

¶21 Father seeks to raise other issues here, none of which show
error by the family court. First, to the extent that Father’s appeal asks us to
examine the family court’s prior orders, we lack appellate jurisdiction to do

5
 DE LEON v. PIZARRO, SR.
Decision of the Court

so. Father did not file a timely notice of appeal from those orders, and the
time to do so has long since passed. Second, Father’s reliance on Arizona
Rule of Family Law Procedure (“Rule”) 72 in asserting that the Rule
prohibits reappointment of a TI by the court “on its own accord,” is
misplaced. Contrary to Father’s assumption, the TI is not a Family Law
Master under Rule 72. Instead, the TI is appointed by the court through
Rule 95(b), which permits the court to “order parties to engage in
behavioral or mental health services, including counseling and therapeutic
interventions.” Third, we reject Father’s unsupported request that we
order Mother to “reimburse Father for all social security dependent benefits
she has received on the child’s behalf since February 1, 2015.” On this
record the issue was not raised with the family court nor addressed by
it. As a result, it is waived.

IV. Attorneys’ Fees and Costs on Appeal

¶22 Mother requests attorneys’ fees and costs on appeal pursuant
to A.R.S. §§ 24-324(A), 25-324, 12-349(A)(1), and 12-342, as well as ARCAP
21 and 25. We treat Mother’s citation to A.R.S. § 24-324(A) as a
typographical error. As for Mother’s request for fees based on § 25-324, the
record indicates Mother has substantially greater financial resources than
Father, and although Father’s opening brief was deficient, in our discretion,
we decline to award fees on that basis. Further, Mother has provided no
support for her request for an award of attorneys’ fees based on § 12-
349(A)(1) or ARCAP 25, and we use sparingly the power to punish litigants
for prosecuting frivolous appeals. See Price v. Price, 134 Ariz. 112, 114 (App.
1982). Finally, ARCAP 21 is not independent authority for an award of fees.
See Freeman v. Sorchych, 226 Ariz. 242, 252-53, ¶ 31 (App. 2011).
Accordingly, we deny Mother’s request for attorneys’ fees on appeal. We
award Mother taxable costs upon compliance with ARCAP 21.

CONCLUSION

¶23 The family court’s orders denying Father’s petition, amended
petition, and motions for reconsideration are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

6