Lopez v. Scimone

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RON LOPEZ, Petitioner/Appellee,

v.

MARISSA SCIMONE, Respondent/Appellant.

No. 1 CA-CV 21-0220 FC
FILED 5-31-2022

Appeal from the Superior Court in Maricopa County
No. FC2020-071112
The Honorable Susanna C. Pineda, Judge

AFFIRMED

COUNSEL

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin
Counsel for Petitioner/Appellee

Alongi Law Firm PLLC, Phoenix
By Thomas P. Alongi
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass
joined.

P A T O N, Judge:

¶1 Marissa Scimone (“Mother”) appeals the superior court’s
judgment granting joint legal decision-making authority and equal
parenting time to Ron Lopez (“Father”) (collectively “Parents”) after the
superior court found he committed domestic violence against her. She also
appeals her attorneys’ fees award. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father, who never married, had a son in 2018. At
the time of their son’s birth, Parents resided in Father’s home. About a year
after Mother moved out of the home, Father petitioned the superior court
to establish paternity and order joint legal decision-making, equal
parenting time, and child support. Mother sought sole decision-making
authority with Father having two parenting days per week. Parents entered
into an Arizona Rule of Family Law Procedure (“ARFLP”) 69 agreement
stipulating to paternity.

¶3 The superior court held an evidentiary hearing on decision-
making and parenting time, at which Parents and six other witnesses
testified. Most of the testimony centered around Parents’ relationship and
whether Father had anger or violence issues. After hearing the testimony,
the superior court found Father committed domestic violence against
Mother, but that it was not significant under A.R.S. § 25-403.03(A). The
court noted its concerns about Father’s “aggressive” “overbearing
personality” and his alleged ill-treatment of his dog. The superior court
awarded Parents joint decision-making authority, equal parenting time,
and ordered Father to pay Mother $438 in monthly child support. The court
awarded Mother $7,500 in attorneys’ fees under A.R.S. § 25-324.

¶4 Mother unsuccessfully moved to alter or amend the judgment
under ARFLP 83. The superior court entered judgment and Mother timely

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appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Joint Legal Decision-Making

¶5 The superior court must allocate legal decision-making
authority “in accordance with the best interests of the child.” A.R.S. § 25-
403(A). In making that determination, the superior court must consider
“[w]hether there has been domestic violence or child abuse pursuant to
§ 25-403.03.” A.R.S. § 25-403(A)(8).

¶6 We review legal decision-making orders for an abuse of
discretion. See Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018). “An
abuse of discretion occurs when the court commits an error of law that
underlies its exercise of discretion.” Id. We accept the superior court’s
findings of fact unless they are clearly erroneous and review its conclusions
of law de novo. Id. at 590-91.

A. The Superior Court’s Domestic Violence Findings

¶7 On appeal, neither party challenges the superior court’s
finding that Father committed domestic violence. After considering the
evidence, the superior court concluded that although Father committed
domestic violence against Mother, it was not “significant” “in the spectrum
of domestic violence” under A.R.S. § 25-403.03(A).

¶8 Arizona Revised Statutes § 25-403.03(A) provides that “joint
legal decision-making shall not be awarded” if the court finds either
“significant domestic violence” under A.R.S. § 13-3601 or if it “finds by a
preponderance of the evidence that there has been a significant history of
domestic violence.”

¶9 Mother argues that the superior court erred in using three
factors discussed in DeLuna v. Petitto, 247 Ariz. 420, 424, ¶ 15 n.6 (App.
2019), to evaluate the significance of Father’s domestic violence. As in
DeLuna, here the superior court considered “(1) the seriousness of the
particular incident(s) of domestic violence, (2) the frequency or
pervasiveness of the domestic violence, and (3) the passage of time and its
impact” on the victim in concluding significant domestic violence had not
occurred. The legislature has not defined “significant” under A.R.S. § 25-
403.03(A) and, to our knowledge, these factors have not been adopted by
any statute, family court rule, or published opinion. We disagree with

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Mother, however, that because the factors were not mandated by the
legislature or courts, the superior court abused its discretion in considering
them. See DeLuna, 247 Ariz. at 424, ¶ 15 n.6 (the superior court’s use of these
factors “to determine whether the domestic violence and/or history of
domestic violence was ‘significant’ . . . seem[s] reasonable.”).

¶10 Mother also claims the three factors the superior court applied
fail to adequately capture a “significant history” of domestic violence and
do not fairly address ongoing lower-level abuse like what she experienced.
We disagree. The superior court concluded that Father’s actions were not
“significant as contemplated by statute.” The record shows the court
considered domestic violence as far back as 2017 and noted how Father’s
anger and overbearing personality made Mother feel trapped. But the court
also found that there had been no domestic violence for at least a year and,
based on the frequency and pervasiveness factors it identified, the evidence
did not support a “significant” finding under A.R.S. § 25.403.03(A). The
superior court has the “discretion to weigh the evidence and determine the
degree of the domestic violence’s ‘significance’” under A.R.S. § 25-
403.03(A). DeLuna, 247 Ariz. at 424, ¶ 15 n.6.

1. Misquoting the Statute Was Harmless Error

¶11 Mother next asserts that the superior court materially
misquoted A.R.S. § 25-403.03(A) when it stated that “joint custody shall not
be awarded if the court makes a finding of the existence of significant
domestic violence . . . or if the court finds by a preponderance of the
evidence that there has been significant domestic violence.” She also argues
the court misstated the law when it said, “the admonition in [A.R.S. § 25-
403.03(A)] applies only to ‘significant domestic violence.’”

¶12 Mother is correct that the superior court misquoted A.R.S.
§ 25-403.03(A) on page 5 of the judgment. As previously discussed,
however, the court specifically analyzed the frequency and pervasiveness
of the domestic violence and contemplated Mother’s claims of domestic
violence dating back to 2017. Accordingly, because the court expressly
considered whether there was a significant history of domestic violence,
any mischaracterization of the statutory language by the court, although
error, was harmless. See ARFLP 86 (“At every stage of the proceeding, the
court must disregard all errors and defects that do not affect any party’s
substantial rights.”).

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2. The Presumption Against Joint Legal Decision-
Making

¶13 Where, as here, the superior court finds that an act of
domestic violence occurred, there exists “a rebuttable presumption that an
award of sole or joint legal decision-making to the parent who committed
the act of domestic violence is contrary to the child’s best interests.” A.R.S.
§ 25-403.03(D). Mother argues Father did not present sufficient evidence to
rebut the presumption against joint decision-making.

¶14 Arizona Revised Statutes § 25-403.03(E) lists six factors the
court must consider in determining whether a party has rebutted the
presumption. Here, the superior court made written findings as to each of
those six factors and concluded that Father rebutted the presumption. We
view the facts in the light most favorable to sustaining the court’s findings.
Hefner v. Hefner, 248 Ariz. 54, 57, ¶ 1 n.2 (App. 2019). We will reverse a
decision only if there is “a clear absence of evidence to support” those
findings. Pridgeon v. Super. Ct., 134 Ariz. 177, 179 (1982). The superior court
is in the best position to resolve conflicting evidence. Vincent v. Nelson, 238
Ariz. 150, 155, ¶ 18 (App. 2015).

¶15 Although the superior court’s finding regarding A.R.S. § 25-
403.03(E)(1) (whether joint legal decision making is in the child’s best
interests) was incomplete, the court had already considered each of the
A.R.S. § 25-403 best interests factors in its judgment. The court found “[t]he
child has been raised by both parents since birth . . . [h]is relationship with
each is strong . . . [the child] has a close relationship with Father.” We
presume the court fully considered all of the relevant evidence. See In re
Marriage of Gibbs, 227 Ariz. 403, 410, ¶ 21 (App. 2011). For these reasons,
any error was harmless. See ARFLP 86.

¶16 As relevant to A.R.S. § 25-403.03(E)(6) (whether the parent has
committed any further acts of domestic violence), the superior court
referenced a November 2019 exchange of the child that occurred in front of
Father’s house, where “some form of altercation took place.” The court
concluded Father acted inappropriately by “using the child as leverage”
and used his “power” and the child to “instigate an incident.” The court
reviewed Mother’s footage of the incident and determined it was unclear
whether she fell because of Father or the closing garage door. Thus, the
court did not find any further acts of domestic violence and concluded that
these incidents could be avoided by exchanging the child in a public place.
It did not abuse its discretion in making this finding. Accordingly, the

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record supports the superior court’s determination that Father rebutted the
presumption.

II. No False Or Misleading Claims

¶17 Mother argues Father intentionally misled the superior court
and knowingly made false statements about committing domestic violence.
She argues that the court’s findings to the contrary under A.R.S. §§ 25-
403(A)(7) and -415(A)(2) do not square with its contemporaneous finding
of domestic violence. This issue raises both legal and factual questions.

¶18 Arizona Revised Statutes § 25-403(A)(7) is a best interests
factor addressing whether either parent intentionally misled the court. The
superior court found there was no credible evidence regarding this factor.
Arizona Revised Statutes § 25-415 is a sanctions statute for litigation
misconduct. The court found that neither parent “knowingly accused the
other parent of making a false claim” under A.R.S. §§ 25-403, -403.03 or
-403.04 with knowledge that the claim was actually true. These are issues
of fact which we review for an abuse of discretion. Hurd v. Hurd, 223 Ariz.
48, 52, ¶ 19 (App. 2009). We “give due regard to the trial court’s
opportunity to judge the credibility of the witnesses,” and we do not re-
weigh conflicting evidence or redetermine the preponderance of the
evidence. Id. at ¶ 16. We have reviewed Father’s testimony and it
reasonably supports the court’s findings.

¶19 Mother does not cite any authority for her conclusion that a
domestic violence finding requires a different legal result than the one
reached by the superior court. And she fails to explain how the purported
errors prejudiced her. See Fuentes v. Fuentes, 209 Ariz. 51, 57, ¶ 27 (App.
2004) (we will not disturb an evidentiary ruling “absent both a clear abuse
of discretion and resulting prejudice.”). We find no abuse of discretion by
the superior court.

III. Equal Parenting Time Under A.R.S. § 25-403.03(F)

¶20 Mother argues the superior court erred when, after finding
that Father had committed domestic violence, it awarded him equal
parenting time without making specific findings of fact under A.R.S. § 25-
403.03(F). After it finds an act of domestic violence, the superior court
determines whether the offending parent has satisfied the burden of
proving “that parenting time will not endanger the child or significantly
impair the child’s emotional development.” See A.R.S. § 25–403.03(F).

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¶21 We review the superior court’s parenting time orders for an
abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 421–22, ¶ 12 (App.
2003). We will affirm if the record has competent evidence to support the
order. See Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999). We presume that the
superior court knows and applies the law. Fuentes, 209 Ariz. at 58, ¶ 32
(citation omitted).

¶22 The record supports the superior court’s finding that Father
met his burden under A.R.S. § 25-403.03(F). At the outset of its judgment,
the court considered and made specific findings as to each of the best
interests factors in A.R.S. § 25-403(A). See A.R.S. § 25-403(B). The court
explained that when it considered whether there was domestic violence
under A.R.S. § 25-403.03(C), it did so both in the context of decision-making
and parenting time. At the conclusion of its A.R.S. § 25-403.03(C) analysis,
the court cited to A.R.S. § 25-403.03(F) and imposed a condition that Father
complete a domestic violence course. Finally, the court found that the
parenting plan was “practical and also maximizes each parent’s parenting
time to the extent it is [in] the child’s best interests.” These factors
adequately demonstrate that the superior court applied the appropriate law
to the facts. We find no abuse of discretion.

IV. Attorneys’ Fees

¶23 Arizona Revised Statutes § 25-324(A) authorizes the superior
court to award attorneys’ fees after considering the parties’ financial
resources and the reasonableness of their legal positions. We review an
award of attorneys’ fees for an abuse of discretion. Medlin v. Medlin, 194
Ariz. 306, 309, ¶ 17 (App. 1999). After considering the reasonableness of the
parties’ positions and the disparity in financial resources, the superior court
awarded Mother a portion of her attorneys’ fees.

¶24 Mother asserts the superior court abused its discretion by
awarding her $7,500 when she requested over $19,000. Father objected to
much of the billing by the non-lawyer timekeepers. He argued that some
of the items were routine and should have been performed by non-
timekeepers. He further argued that some of the paralegal time utilized
block billing. The superior court agreed with Father. After review, we find
no abuse of discretion in the superior court’s award of $7,500.

ATTORNEYS’ FEES ON APPEAL

¶25 Both parties request attorneys’ fees on appeal under A.R.S.
§ 25-324. After considering the reasonableness of the parties’ positions and
their financial resources, we decline to award either party attorneys’ fees on

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appeal. As the successful party, we award Father his costs on appeal after
compliance with Arizona Rule of Civil Appellate Procedure 21. See A.R.S.
§ 12-341.

CONCLUSION

¶26 We affirm.

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

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