Diacos v. Ringwald

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AMANDA DIACOS, Petitioner/Appellee,

v.

JOSH RINGWALD, Respondent/Appellant.

No. 1 CA-CV 23-0717 FC
FILED 01-28-2025

Appeal from the Superior Court in Navajo County
No. S0900D0201500314
The Honorable Melinda K. Hardy, Judge

VACATED AND REMANDED

COUNSEL

Modern Law, PLLC, Mesa
By Kylie Bigelow
Counsel for Petitioner/Appellee

Law Offices of Dennis G. Bassi, PLLC, Mesa
By Dennis G. Bassi
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which Presiding
Judge Cynthia J. Bailey and Judge Angela K. Paton joined.

F O S T E R, Judge:

¶1 Josh Ringwald (“Father”) appeals the superior court’s decision to
modify legal decision making, parenting time and child support. For the reasons
that follow, this Court vacates the superior court’s legal decision making and
parenting time orders and remands for proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Amanda Diacos (“Mother”) were never married and are
the parents of B.R. (“Child”) born in 2012. In 2015, the court entered a temporary
order adopting the parties’ agreement for joint legal decision making and shared
parenting time. In 2020, the court entered a final order granting Father sole legal
decision making authority, designating him as the primary residential parent and
allowing Mother to exercise parenting time upon a request to Father. In 2023,
Mother petitioned to modify legal decision making, parenting time and child
support and to hold Father in contempt for violating the 2020 order.

¶3 Mother sought joint legal decision making and designation as the
primary residential parent. Father filed a cross-petition to establish child support.
Mother moved to invoke strict compliance with the Arizona Rules of Evidence. See
Ariz. R. Fam. Law P. 2(a). At an evidentiary hearing, both parties testified and
presented evidence including text messages, witness testimony and letters relating
to their conduct.

¶4 Following the hearing, the court found Father (1) “placed barriers to
Mother’s exercising her parenting time” and (2) “engaged in a pattern of behavior
of parental alienation whereby Father has intentionally and willfully distanced the
child from Mother or has tried to turn the child against Mother.” The court
determined Father’s conduct resulted in a significant history of domestic violence
against Mother. The court concluded Father was “precluded from being awarded
joint legal decision making.” The court granted Mother sole legal decision making,
named her the primary residential parent and awarded her child support.

¶5 This Court has jurisdiction under A.R.S. § 12-120.21(A)(1).

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DISCUSSION

¶6 Father raises three issues on appeal. First, Father argues the court
misapplied A.R.S. § 25-403.03, which governs domestic violence offenses. Next,
Father argues the superior court considered exhibits not admitted into evidence
and improperly admitted other evidence. Lastly, Father argues insufficient
evidence supports the superior court’s best interests findings.

¶7 A modification of legal decision making is reviewed for an abuse of
discretion. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). An abuse of
discretion occurs when the evidence does not support the decision or “when the
court commits an error of law in the process of reaching a discretionary
conclusion.” Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018) (citation
omitted). Questions of statutory interpretation are reviewed de novo. Nicaise v.
Sundaram, 245 Ariz. 566, 567, ¶ 6 (2019).

I. The court’s domestic violence finding was contrary to law.

¶8 A court modifying legal decision making and parenting time must
consider the child’s best interests. A.R.S. § 25-403(A). One relevant factor is
“whether there has been domestic violence or child abuse pursuant to § 25-403.03.”
A.R.S. § 25-403(A)(8). A court must not award joint legal decision making if it finds
either “significant domestic violence” under § 13-3601 or “by a preponderance of
the evidence that there has been a significant history of domestic violence.” A.R.S.
§ 25-403.03(A). Thus, the first question a court must answer is whether any
domestic violence occurred.

¶9 Domestic violence is defined under Title 13 or Title 25. Engstrom, 243
Ariz. at 473, ¶ 13 (“It is the Legislature’s job to define what conduct constitutes
‘domestic violence.’”); see also A.R.S. §§ 13-3601(A), 25-403.03(D). A court may find
domestic violence under Title 13 when a parent’s conduct meets the elements of
specific criminal offenses proscribed in the statute. See A.R.S. § 13-3601(A). On the
other hand, a court may classify conduct as domestic violence under Title 25 if it
meets the elements described under § 25-403.03(D), which focuses on the harm
that occurred. See A.R.S. § 25-403.03(D). “[N]either statutes nor case law define
domestic violence as a nebulous concept subject to ad hoc facts, particularly where
a parent’s fundamental rights are at stake.” Engstrom, 243 Ariz. at 473–74, ¶ 14. For
this reason, courts have held that only those acts defined in § 13-3601 or those
defined in § 25-403.03(D) constitute domestic violence. See Engstrom, 243 Ariz. at
474, ¶ 15; see also Paredes-Gabriel v. Riva, 1 CA-CV 18-0328 FC, 2019 WL 1959588, at
*4, ¶ 18 (Ariz. App. May 2, 2019) (mem. decision) (relying on a limited definition
of domestic violence found in § 25-403.03(D)).

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¶10 Here, the court stated that “acts [of domestic violence] may include,
but is not limited to, the prescribed conduct pursuant to A.R.S. § 13-3601.”
(Emphasis added). In support of its findings, the court cited Father exerting
control, invoking fear in Mother by sending disparaging text messages and
belittling Mother. But the court did not identify any conduct by Father that
equated to a statutorily defined act of domestic violence. See Engstrom, 243 Ariz. at
474, ¶ 16.

¶11 Mother argues on appeal that sufficient evidence supports a finding
of domestic violence under § 13-3601. She argues that Father’s acts constituted (1)
custodial interference (§ 13-1302(A)(3)) and (2) harassment (§§ 13-2916 and -2921).
“Implied in every judgment, in addition to the express findings made by the court,
are any additional findings necessary to sustain the judgment, if reasonably
supported by the evidence and not in conflict with the express findings.” Gen. Elec.
Cap. Corp. v. Osterkamp, 172 Ariz. 191, 193 (App. 1992).

¶12 Custodial interference requires that the offending parent share joint
legal custody with the other parent. A.R.S. § 13-1302(A)(3). At the time Mother
petitioned to modify, Father had sole legal decision making authority. Similarly,
the crime of harassment through electronic communication can occur when a
person knowingly harasses another person such as by “[d]irecting any obscene,
lewd or profane language or suggesting any lewd or lascivious act to the person”
or “[o]therwise disturbing by repeated anonymous, unwanted or unsolicited
electronic communications the peace, quiet or right of privacy of the person.”
A.R.S. § 13-2916(A). Harassment is defined as conduct that “would cause a
reasonable person to be seriously alarmed, annoyed, humiliated or mentally
distressed.” A.R.S. § 13-2921(E). The statute requires the harassing acts cause such
effect or effects. Id. While the record demonstrates that Mother was distressed over
communications with Father, the court’s findings do not establish the elements,
including Father’s intent, were reasonably supported by the evidence presented at
trial. See Engstrom, 243 Ariz. at 473, ¶ 13 (“[A]cting in a controlling manner might
be distasteful, but those actions do not necessarily support the legal conclusion
that [Father] is a perpetrator of domestic violence.”); see also Baker v. State, 16 Ariz.
App. 463, 467 (1972) (“It is not rational to assume that merely because a person
uses obscene, lewd or profane language over the telephone one can conclude the
person is doing so with the intent proscribed by the statute.”). Because the record
does not show the elements of these crimes were established, this Court will not
infer the superior court made such findings.

¶13 For these reasons, the court’s orders on legal decision making and
parenting time are vacated and remanded. On remand, the superior court must
consider whether Father’s conduct amounted to a statutorily defined act of
domestic violence as defined by § 13-3601 or § 25-403.03(D). See Engstrom, 243 Ariz.

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at 474, ¶ 16. If the superior court determines that Father’s conduct amounted to
domestic violence pursuant to statute, the court must then determine whether it
was “significant violence pursuant to § 13-3601” or whether a “significant history
of domestic violence” existed to preclude Father from an award of joint legal
decision making. A.R.S. § 25-403.03(A). If domestic violence occurred but was not
“significant” to preclude joint legal decision making, the court must determine
whether the “act of domestic violence,” as defined in § 25-403.03(D), provides a
rebuttable presumption that joint legal decision making is contrary to the child’s
best interests. A.R.S. § 25-403.03(D). If the requirements of § 25-403.03(D) are met,
then Father must be provided with an opportunity to rebut the presumption.
A.R.S. § 25-403.03(E).

II. Other considerations on remand.

¶14 Father challenges the court's decision on several grounds distinct
from the domestic-violence issue. This Court addresses these arguments insofar as
they may affect the issues on remand.

A. Exhibit 7

¶15 Father argues the court improperly overruled his objection to Exhibit
7, which contained text messages between the parties that Father claimed were
incomplete, under Arizona Rule of Evidence (“Rule”) 106. Ariz. R. Evid. 106 (an
adverse party may require introduction of any other relevant part of a statement
that a party introduces for fairness considerations). This Court “will not disturb [a
superior court’s] evidentiary ruling absent a clear abuse of discretion and resulting
prejudice.” Johnson v. Provoyeur, 245 Ariz. 239, 241–42, ¶ 8 (App. 2018).

¶16 Rule 106 does not require the admission of the entirety of a piece of
evidence but “only the portion of a statement ‘necessary to qualify, explain or
place into context the portion already introduced.’” State v. Buccheri-Bianca, 233
Ariz. 324, 333, ¶ 34 (App. 2013) (quoting State v. Cruz, 218 Ariz. 149, 162, ¶ 58
(2008)). Here, Father did not deny the accuracy of the admitted texts. Father could
have cured any incompleteness by admitting his own Exhibit D, which was his
characterization of the parties’ correspondence, as listed in his pretrial statement.
See State v. Copeland, 253 Ariz. 104, 119, ¶ 42 (App. 2022) (the court does not abuse
its discretion when it includes necessary exhibits nor when a party fails to
introduce evidence to provide context). Thus, the court did not abuse its discretion
in admitting Exhibit 7.

B. Exhibits 2 and 3

¶17 Father also argues the court committed fundamental error by
considering Exhibit 2, a summary of Mother’s adult daughter’s observations of

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Mother and Father’s relationship, which was not admitted at trial, and relying on
Exhibit 3, an aunt’s observations of her relationship with Child, which he claims
is hearsay. But this Court assumes on remand that the superior court will not
consider evidence that was not admitted.

III. Best interests factors and child support.

¶18 Father challenges the court’s best interests findings as to factors two
(interaction and interrelationship with the child’s parent and extended family);
three (child’s adjustment to home, school and community); four (the wishes of the
child, if the child is of suitable age and maturity); five (mental and physical health
of all individuals involved); six (which parent is likely to allow the child frequent,
meaningful and continuing contact with the other parent); seven (whether one
parent intentionally misled the court for preference) and eight (whether there has
been domestic violence or child abuse). A.R.S. § 25-403(A)(2)–(8). Given that the
court’s domestic violence finding was error, the court must make new best
interests findings on remand. See DeLuna, 247 Ariz. at 425, ¶ 22 (superior court
should require parties on remand to “present updated information” regarding
best interests findings). For this reason, this Court does not address Father’s
arguments.

¶19 Father also argues that the court’s order as to child support was in
error. To the extent that any new findings or orders may impact the current
parenting time and child support orders, the parties may request a review of the
child support order.

IV. Attorneys’ Fees.

¶20 Father requests his costs and attorneys’ fees for this appeal pursuant
to §§ 25-324(A) and -415(A)(2). Although § 25-324(A) applies in dissolution actions
and post-dissolution proceedings, under “chapter 4, article 1 of [Title 25],”
including A.R.S. § 25-403, the award is discretionary. A.R.S. § 25-324(A); see also
Cummings v. Cummings, 182 Ariz. 383, 388 (App. 1994) (citation omitted). Father’s
request for attorneys’ fees is denied. Section 25-415 governs sanctions for litigation
misconduct. As there is no evidence that Mother presented false claims or violated
a court order, § 25-415 does not apply. As the successful party on appeal, however,
this Court awards Father his costs pursuant to § 12-341, upon his compliance with
Arizona Rule of Civil Appellate Procedure 21.

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CONCLUSION

¶21 For the reasons above, this Court vacates the findings of domestic
violence and orders regarding legal decision making and parenting time and
remands for further findings and decisions consistent with this decision.

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

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