Anderson v. Wallace

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANA ANDERSON, Petitioner/Appellee,

v.

RYAN WALLACE, Respondent/Appellant.

No. 1 CA-CV 24-0460 FC
FILED 05-06-2025

Appeal from the Superior Court in Navajo County
No. S0900DO202300269
The Honorable Melinda K. Hardy, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Law Office of Michael S. Brogan, Show Low
By Michael S. Brogan
Counsel for Petitioner/Appellee

Aspey Watkins & Diesel, PLLC, Flagstaff
By Zachary J. Markham & Zacharias N. Hope
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 Ryan Wallace (“Father”) appeals from the superior court’s
orders on legal decision-making authority, parenting time, child support,
and attorney’s fees. We vacate and remand the child-support orders
because the court did not make the necessary findings. We affirm all other
orders except the order denying Father’s request for attorney’s fees because
it is not a final order, and we lack appellate jurisdiction to consider it.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Dana Anderson (“Mother”) have one child born in
2020. Mother has an older daughter from another relationship. The parties
and children lived together consistently until early 2022 and intermittently
until late 2022. During the summer of 2022, Father was addicted to fentanyl.
In late November 2022, Father moved to Wisconsin to work on overcoming
his drug addiction. Mother bought his plane ticket, and the parties later
discussed her joining him in Wisconsin.

¶3 Once in Wisconsin, Father worked and, according to him,
stopped using drugs. Father returned to Arizona in July or August 2023
because he had not spoken to his child in over a month. He was also
concerned because Mother’s daughter told him that Mother’s live-in
boyfriend, Axel Ortiz, was abusing the children.

¶4 In August 2023, Mother petitioned to establish sole legal
decision-making authority, parenting time, and child-support orders. Over
the next weeks, both parties filed a flurry of temporary motions with and
without notice. At first, Father sought an emergency temporary order
without notice, alleging that Ortiz hit the parties’ child and that Mother and
Ortiz did not let Father see the child. He also alleged, based on his
conversations with Ortiz’s ex-girlfriend (who became Father’s fiancée), that
Ortiz had a history of domestic violence. In response to the motion, the
court issued a temporary order without notice awarding sole physical
custody of the child to Father and scheduled a temporary-orders hearing

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for September 12, 2023. The court issued a separate order directing Mother
to deliver the child to Father. Father filed a similar motion for temporary
orders with notice.

¶5 Mother immediately sought temporary orders with and
without notice. She alleged that Father was a drug addict, had a history of
domestic violence, had only recently returned to Arizona, and did not have
a stable living situation. A different judge declined Mother’s request for
temporary orders without notice but confirmed the September 12
temporary-orders hearing.

¶6 When Mother did not allow Father to take the child as
ordered, Father petitioned to hold Mother in contempt and to enforce the
order awarding him emergency temporary custody. The court found that
Father’s petitions did not comply with the applicable Rules of Family Law
Procedure but confirmed the September 12 hearing.

¶7 At the temporary-orders hearing, the superior court awarded
sole legal decision-making authority to Mother and granted Father
“reasonable” supervised parenting time. The court also ordered the child
not to have unsupervised contact with Ortiz. The court did not order
temporary child support. Finally, the court ordered Father to take a
hair-follicle drug test.

¶8 After the trial on the petitions, the superior court awarded
Mother sole legal decision-making authority. It gave Father one day a week
of supervised parenting time, with the possibility of unsupervised
parenting time after he completed a batterer’s intervention program, a
drug-abuse counseling program, and a parenting class. The court ordered
Father to pay $400 monthly in child support and $2,000 in unpaid past child
support. The court awarded attorney’s fees to Mother in an amount to be
determined after Mother filed a fee application and affidavit.

¶9 Father moved to alter or amend the ruling, arguing the
evidence did not support the court’s findings and that he was entitled to
unsupervised parenting time because he completed the court-ordered
programs. But Father had only filed a certificate showing he had completed
a co-parenting class.

¶10 Although Father eventually completed additional programs,
that was not the record before the court when it denied the motion. The
denial order included language under Arizona Rule of Family Law
Procedure (“Rule”) 78(b) certifying it as final and appealable even though

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the court had not yet determined the amount of the attorney’s fees award.
Soon after, Father timely filed his appeal.

DISCUSSION

A. This Court Lacks Appellate Jurisdiction Over the Attorney’s Fee
Award.

¶11 “We have an independent duty to examine whether
jurisdiction exists over matters on appeal.” Hernandez v. Athey, 256 Ariz.
530, 532, ¶ 3 (App. 2023). The superior court issued a signed order resolving
legal decision-making authority, parenting time, and child support. This
order also granted Mother’s request for attorney’s fees but did not
determine the specific amount of the fee award. All the same, the court
found no just reason for delay and directed entry of a final judgment, citing
Rule 78(b). After denying Father’s motion to alter or amend, the court again
cited Rule 78(b).

¶12 An award of attorney’s fees is a single claim. Hernandez, 256
Ariz. at 533, ¶ 7. “Until the court makes the entitlement and awards an
amount, the court cannot certify any portion of the attorney-fees claim
under Rule 78(b).” Id. at ¶ 8. Father cannot appeal the award of attorney’s
fees until that entire claim is resolved. Id. at ¶ 9. Thus, we lack jurisdiction
over the attorney’s fees issue but have jurisdiction over the other issues
under Rule 78(b) and Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(1).

B. The Evidence Supports the Court’s Best-Interests Findings.

¶13 Father argues the superior court misapplied the best-interests
factors in A.R.S. §§ 25-403, -403.03, and -403.04. We review legal
decision-making and parenting-time orders for an abuse of discretion. Nold
v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). An abuse of discretion exists
when the record, viewed in the light most favorable to upholding the
superior court’s ruling, “is devoid of competent evidence to support the
decision.” Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (quotation omitted).
We do not reweigh conflicting evidence and defer to the superior court’s
credibility determinations. Hurd v. Hurd, 223 Ariz. 48, 52, ¶¶ 15-16 (App.
2009).

¶14 Father argues that the superior court did not cite the evidence
it relied on to support several of its best-interests findings. The duty to make
written findings about each factor does not necessarily require the court to
cite all evidence in the record for each finding. See A.R.S. § 25-403(B).
Although doing so is helpful, we may affirm the ruling if any evidence in

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the record supports the findings. See Vincent v. Nelson, 238 Ariz. 150, 155,
¶ 17 (App. 2015) (“We view the evidence in the light most favorable to
sustaining the family court’s findings, and we also determine whether
evidence in the record reasonably supports the family court’s findings.”).
We hold that sufficient evidence supports the findings here.

1. The Evidence Supports the Court’s Domestic-Violence
Findings.

¶15 Father first challenges the superior court’s domestic-violence
findings. The court found that Father committed one or more acts of
“significant domestic violence,” citing Mother’s protective order and her
testimony that Father slammed her against a counter, threw a laptop in her
face, threatened murder and suicide, and damaged property. See A.R.S.
§§ 25-403(A)(8), -403.03(A). Although Father presented contrary testimony,
it was for the superior court to determine credibility and weigh the
conflicting evidence. See Hurd, 223 Ariz. at 52, ¶¶ 15-16. The court
reasonably found that Father perpetrated significant domestic violence.
And the “significant domestic violence” finding alone precluded Father
from obtaining joint legal decision-making authority.

¶16 Under A.R.S. § 25-403.03(A), “joint legal decision-making
shall not be awarded if the court makes a finding of the existence of
significant domestic violence pursuant to § 13-3601,” which includes
offenses implicated by Father’s conduct. See A.R.S. § 13-3601(A) (Domestic
violence includes endangerment, threatening or intimidating, or assault of
a co-parent under A.R.S. §§ 13-1201, -1202, or -1203.). See also DeLuna v.
Petitto, 247 Ariz. 420, 423, ¶ 11 (App. 2019) (“If the court finds . . . the
existence of significant domestic violence, . . . the statute precludes an
award of joint legal decision-making authority.”).

¶17 But although a finding of significant domestic violence bars
an award of joint legal decision-making authority, the court must still
analyze whether the other parent’s sole authority will serve the child’s best
interests. Although Father did not request sole authority, his request for
joint authority placed the sole-authority analysis fairly at issue. See
Sundstrom v. Flatt, 244 Ariz. 136, 138, ¶ 7 (App. 2017) (“Neither the rule nor
the statute require the party who is ultimately granted legal decision-
making of the children to be the party that originally petitioned the court.”);
cf. Cruz v. Garcia, 240 Ariz. 233, 236-37, ¶¶ 11-14 (App. 2016) (Due process
was denied when the court modified legal decision-making authority
despite neither parent requesting a change.). So, here, the superior court

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correctly addressed all the best-interests factors under A.R.S.
§§ 25-403, -403.03, and -403.04.

¶18 Father challenges the superior court’s finding that he did not
rebut the presumption against sole authority created by his domestic
violence under A.R.S. § 25-403.03(D). Section 25-403.03(D) provides that a
rebuttable presumption against sole or joint authority arises when a parent
commits “domestic violence,” defined within that subsection to include
placing a co-parent in reasonable apprehension of imminent serious
physical injury or engaging in behavior justifying awarding the co-parent
an ex parte protective order. Here, the court considered Father’s conduct as
creating an adverse presumption under A.R.S. § 25-403.03(D) and found he
failed to rebut it under A.R.S. § 25-403.03(E), which specifies that the factors
relevant to rebuttal include whether a perpetrator has completed
rehabilitative programs.1 Reasonable evidence showed that Father
committed domestic violence and, at the time of the court’s ruling, had
failed to complete his court-ordered counseling and classes. This supports
the court’s finding of an unrebutted presumption against awarding Father
legal-decision making authority.

2. The Evidence Supports the Court’s Drug-Abuse Findings.

¶19 Father next challenges the superior court’s findings about his
drug abuse. Under A.R.S. § 25-403.04(A), if the court finds that a parent
abused drugs within twelve months before the filing of a petition for legal
decision-making authority or parenting time, there is a rebuttable
presumption that it is not in the child’s best interests to award that parent
sole or joint legal decision-making authority. Factors relevant to rebuttal
include the lack of a drug conviction in the past five years, the results of
drug testing for six months, and the results of a drug screening by an
approved facility. A.R.S. § 25-403.04(B).

¶20 The superior court found Father had abused drugs in the
twelve months before Mother’s petition and that he had not rebutted the

1 Although the court did not specifically cite A.R.S. § 25-403.03(D), it
did cite A.R.S. § 25-403.03(E). In so doing, the court erroneously described
Father’s failure to rebut a presumption against joint legal decision-making
authority. Because A.R.S. § 25-403.03(A) applied, the only authority at issue
was sole. But the court’s misstatement was not material here.

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statutory presumption.2 Ample evidence in the record supports the court’s
finding that Father used drugs in the relevant period. Father admitted he
abused fentanyl until at least November 2022. And reasonable evidence
supports the court’s finding that Father failed to rebut the adverse
presumption resulting from his drug use. To be sure, the court found
Father’s mental health was improving, and no evidence showed he was
convicted of a drug offense in the last five years. And Father also offered
two drug-testing reports showing negative results. But it is not clear from
the record whether the tests screened for fentanyl. Father failed to provide
the foundation needed for the court to conclude, as Father urged, that the
negative opiate test included fentanyl.

¶21 Father failed to offer other evidence to rebut the statutory
presumption. His admitted history of heroin abuse, recovery, relapse with
fentanyl abuse, and the short sobriety period support the court’s ruling.

3. The Evidence Supports the Court’s Additional Findings.

¶22 Father next challenges the superior court’s findings under
A.R.S. § 25-403. He first challenges the finding that he did not have a good
relationship with the child when he was addicted to fentanyl. See A.R.S.
§ 25-403(A)(1) (parent and child’s past, present, and future relationship).
The evidence supports the court’s finding. Father testified that he had little
contact with the child during the month he was detoxing in Wisconsin. And
Mother testified that Father would leave for significant periods without
telling her where he was in the months before he left for Wisconsin.

¶23 Father also challenges the finding that he has a “history of
depression, high anxiety, and suicidal ideations.” See A.R.S. § 25-403(A)(5)
(parties’ mental health). Again, the evidence supports the court’s finding.
Mother testified to Father’s past mental-health issues and his fentanyl
abuse, and her credibility was for the court to decide. See Imperial
Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 72 (App. 1986) (“It is well
established that the testimony of an interested party is competent evidence;
interest merely goes to its credibility.”). Father claims the court ignored the
psychological evaluation he provided and the testimony about his sobriety
and Mother’s drug use. The court did not abuse its discretion by giving

2 Like with its findings about the presumption created by Father’s
domestic violence, the court erroneously described the presumption as
pertaining to joint legal decision-making authority when the only authority
at issue was sole. But again, the misstatement was not material.

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more weight to certain evidence or disregarding evidence it considered
unreliable. See Hurd, 223 Ariz. at 52, ¶ 16. The lack of findings on each piece
of evidence does not mean the court ignored it. Rather, it shows that the
court did not find certain evidence and testimony credible and weighed it
accordingly. We defer to that determination. See id.

¶24 The court must also consider “[w]hich parent is more likely to
allow the child frequent, meaningful and continuing contact with the other
parent.” A.R.S. § 25-403(A)(6). The superior court found this factor did not
apply because “Mother has acted in good faith to prevent the child from
witnessing an act of domestic violence.” Father argues this was error
because he offered evidence that Mother did not comply with the
emergency custody order and refused a family dinner invitation.3 We
disagree. Because Father committed domestic violence, the court properly
concluded that Mother’s failure to comply with the emergency custody
order was reasonable. And we presume the failure to mention the dinner
invitation means the court did not give any weight to the evidence. See supra
¶ 22. We do not reweigh the evidence or best-interests factors, and the
record supports the court’s findings on this factor. Hurd, 223 Ariz. 52, ¶ 16.

¶25 The superior court also found that Father was intentionally
misleading in trying to persuade the court to give him a legal
decision-making and parenting-time preference. See A.R.S. § 25-403(A)(7).
The court cited Father’s failure to mention his past fentanyl abuse and
domestic violence in his emergency petition for temporary orders. The
court also found Father not credible when he testified that the
parenting-time supervisor did not supervise his parenting time with the
child.

¶26 Father contends that there was no domestic violence to
address, so he was not misleading the court. We have addressed the
evidence of Father’s domestic violence in the record. See supra ¶¶ 15-17.
Father’s emergency petition alleged that Mother’s boyfriend, Ortiz, had
abused the child. Still, the court could find that Father misled the court
when he failed to mention his past addiction and recent sobriety. We reject

3 Father also claims that Mother has denied him parenting time since
the final order, but this alleged post-decree conduct is not in the record and
was not considered by the superior court. So we do not consider it on
appeal. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4 (App.
1990) (An appellate court’s review is limited to the evidence before the
superior court.).

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Father’s contention that his substance abuse was “not pertinent” because
he had been sober for several months. Father admitted to fentanyl abuse
during the year before these proceedings, a relevant factor under A.R.S.
§ 25-403.04. The court reasonably found Father intentionally tried to
mislead the court by failing to mention his drug use and domestic violence.

¶27 Father argues that Mother sought to mislead the court by
alleging that he abandoned the child. But the court never found that Father
abandoned the child. Rather, the court found, consistent with Father’s
testimony, that he moved away to get sober and avoid bad influences in
Arizona.

4. The Court Properly Balanced the Findings.

¶28 Father argues that the finding that his relationship with the
child was improving and several other factors weigh in his favor. See A.R.S.
§ 25-403(A)(2) (child has a good relationship with both parents and
extended family), (3) (child is adjusted to home, school, and community),
(4) (child is not of suitable age to express his wishes), (5) (Father’s mental
health is improving). He argues that the court instead gave more weight to
the domestic-violence and drug-use findings. Balancing the A.R.S. § 25-403
findings is the province of the superior court. Hurd, 223 Ariz. at 52, ¶ 16.
We will not reweigh the evidence. Id.

¶29 We hold that the superior court correctly denied joint
decision-making authority under A.R.S. § 25-403.03(A) and acted within its
discretion to deny Father sole authority based on the child’s best interests
under A.R.S. §§ 25-403, -403.03, and -403.04.

C. The Record Supports the Court’s Parenting-Time Orders.

¶30 Father argues that the superior court “grossly restrict[ed]” his
parenting time by limiting him to six hours of supervised parenting time
every other week and conditioning unsupervised and overnight parenting
time on his completion of a batterer’s intervention program, drug-abuse
counseling, and a parenting class.

¶31 A court must maximize parents’ parenting time, but only as
consistent with the child’s best interests under A.R.S. §§ 25-403, -403.03, and
-403.04. A.R.S. § 25-403.02(B); see also A.R.S. § 25-103(B). When a parent has
committed domestic violence, he or she must prove “to the court’s
satisfaction that parenting time will not endanger the child or significantly
impair the child’s development.” If that burden is met, “the court shall place
conditions on parenting time that best protect the child and the other parent

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from further harm.” A.R.S. § 25-403.03(F). Such conditions may include
supervised parenting time and no overnight parenting time. A.R.S.
§ 25-403.03(F)(2), (6). Here, the record shows Father committed significant
domestic violence and had a history of drug abuse. See supra ¶¶ 15-20. Thus,
the superior court was within its discretion to restrict Father’s parenting
time to protect the child by requiring supervision and prohibiting overnight
visits until he completed rehabilitative programs.

¶32 Father contends he is automatically entitled to overnight
parenting time because he satisfied the program requirements and filed
corresponding certificates of completion. We disagree. This portion of the
parenting-time order is not self-effectuating. The order does not grant
overnight parenting time. Rather, consistent with A.R.S.
§§ 25-403.02(B), -403.03(F)(6), and -403.04(A)(2), the order limits Father to
non-overnight parenting time. Removing the prohibition on overnight
parenting time requires changing the amount of parenting time. As the
order is written, if Father wants more or overnight parenting time, he must
petition under A.R.S. § 25-411 unless Mother agrees.

¶33 In contrast, the supervised parenting time requirement states
that Father may have unsupervised parenting time after satisfying the
program-completion requirements. This portion of the order is
self-effectuating and does not require further action because the amount of
parenting time remains the same, and only the supervision restriction
changes. See Gish v. Greyson, 253 Ariz. 437, 447, ¶ 48 (App. 2022).

D. The Record Does Not Include the Required Child-Support
Findings.

¶34 The superior court ordered Father to pay $400 monthly in
child support and found that he owed $2,000 in past child support. Father
challenges the figures in the missing child support worksheet.

¶35 We review a child support award for an abuse of discretion.
Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 7 (App. 2015). Under the Child
Support Guidelines, A.R.S. § 25-320, Appx., (“Guidelines”) § X(D)(1), “[t]he
court must make findings in the record as to: Child Support Income;
Adjusted Child Support Income; Basic Child Support Obligation; Adjusted
Basic Child Support Obligation; each parent’s Proportionate Share of the
Adjusted Basic Child Support Obligation; and the Final Child Support
Order.” The court can attach these findings in a Child Support Worksheet
to the final order. See Guidelines § X(D)(2).

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¶36 Here, the court did not include a worksheet. Nor did the court
make all the necessary findings orally on the record or in the written order.
The order included only child support income and the final child support
order. Thus, we cannot address Father’s contentions on appeal. Because the
record lacks the necessary findings, we vacate the child-support orders and
remand for reconsideration.

ATTORNEY’S FEES AND COSTS ON APPEAL

¶37 Both parties request an award of attorney’s fees and costs on
appeal under A.R.S. § 25-324. After considering the parties’ financial
resources and the reasonableness of their positions, we find Mother is
entitled to a portion of her attorney’s fees on appeal. Father took
unreasonable positions on appeal. He asked this court to determine witness
credibility differently than the superior court, which saw and heard the
witnesses firsthand. He challenged the finding that he had a history of drug
abuse despite admitting to it at trial. Finally, he unreasonably asked this
court to reweigh the best-interests factors and reach a different result.
Although the child support order warrants a remand, we do not address
the merits of Father’s child-support argument because of the deficient
record. For these reasons, we award Mother a portion of her reasonable
attorney’s fees and costs on appeal upon compliance with Arizona Rule of
Civil Appellate Procedure 21.

CONCLUSION

¶38 We vacate the child-support order and remand for
reconsideration. We affirm the legal decision-making and parenting-time
orders.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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