Cardona v. Ivory

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RACHEL CARDONA, Petitioner/Appellant,

v.

BALLARD IVORY, Respondent/Appellee.

No. 1 CA-CV 24-0574 FC
FILED 08-05-2025

Appeal from the Superior Court in Maricopa County
No. FC2020-004483
The Honorable Melissa M. Zabor, Judge

AFFIRMED

COUNSEL

Slaton Roebuck, PLLC, Scottsdale
By Sandra Slaton
Counsel for Petitioner/Appellant

Ballard-Elisha Ivory, Peoria
Respondent/Appellee

Squire Patton Boggs (US) LLP, Phoenix
By David S. Yates, David S. Norris
Counsel for Amici Curiae Domestic Violence Legal Empowerment and Appeals
Project and The National Family Violence Law Center
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MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Anni Hill Foster joined.

T H U M M A, Judge:

¶1 In this post-decree family court proceeding, Rachel Cardona
(Mother) appeals from an order granting Ballard Ivory’s (Father) petition
to modify parenting time and legal decision-making.1 Because Mother has
shown no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father, who had four children together during
their marriage, initiated divorce proceedings in Ohio. In March 2019, the
Ohio court issued a decree dissolving the marriage with a parenting plan
that allowed Mother to move with the children to Arizona, with Father
having prescribed parenting time. In July 2019, Mother moved to Arizona
with the children; in 2021, Father moved to Arizona. Meanwhile, the
proceeding was transferred from Ohio to Arizona.

¶3 From 2020 through 2023, Mother and Father repeatedly asked
the court to revisit parenting time and legal decision-making, with Father
alleging Mother refused to comply with parenting time orders and Mother
alleging that Father abused the children. Based on Mother’s allegations,
starting in April 2022, the court required Father’s parenting time to be
supervised. At the court’s direction, Kristyn Alcott supervised Father’s
parenting time.

¶4 In March 2023, an evidentiary hearing was held on these
competing positions. Alcott testified and her parenting time reports were
provided to the court. The resulting May 16, 2023 order provided Mother
and Father alternating weeks of parenting time, starting May 19, 2023.

1 Mother urges this court to find that Father’s answering brief is deficient.

Given this appeal involves the best interests of children, this court will
consider the merits and not deem Father’s brief a confession of error. See
Hays v. Gama, 205 Ariz. 99, 102-03 ¶ 18 (2003).

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¶5 That first parenting exchange on May 19, 2023 was
unsuccessful, with Mother calling the police and reporting the children
refused to go with Father. In response, Father filed a petition to enforce and
modify parenting time, seeking a warrant for him to take immediate
custody of the children and alleging Mother failed to comply with the
court’s parenting time order. The court denied the petition, finding it “does
not meet the steep legal requirement set forth by A.R.S. § 25-1061(A).”

¶6 On June 2, 2023, the second scheduled parenting time
exchange, also was unsuccessful. Mother sent a message to Father about 30
minutes after the scheduled exchange time, stating “[i]t is now 6:36 pm and
you have not arrived. I will assume that you don’t intend to collect them
and take them home.” Father responded 40 minutes later that: “I didn’t
think you were going to let me have the kids after the two times I showed
up with no exchange. If you want I can come to the fire station now if that
is fine?” The parties then coordinated an exchange for the next day, which
was again unsuccessful. Around this time, the court ordered the exchanges
be supervised by a third party.

¶7 On June 16, 2023, the third scheduled parenting time
exchange, again was unsuccessful. Mother was not present, sending her
significant other instead. Alcott, who supervised the exchange, reported
that the exchange lasted about an hour, that Mother’s significant other “did
nothing to assist” and that another individual identified as Mother’s friend
and a state legislator, interfered with the exchange.

¶8 On June 27, 2023, Father filed a petition and a motion for
temporary orders without notice to enforce parenting time and to modify
legal decision-making, parenting time and child support. Among other
things, Father asked the court to enforce parenting time orders and issue a
warrant under A.R.S. § 25-1061(A) for the police to take custody of the
children to transfer them to Father, alleging Mother failed to “cooperate and
transfer” the children on May 19, 2023; June 2, 2023 and June 16, 2023, all in
violation of the May 16, 2023 order. Father alleged changes in circumstances
including: (1) “a drastic decline in the Children’s behavior,” (2) Mother’s
refusal to provide court-ordered parenting time and (3) a “parental
alienation scheme” by Mother.

¶9 Later on June 27, 2023, the court entered temporary orders
granting Father sole legal decision-making authority and reducing
Mother’s parenting time up to two hours, supervised, each month. The
court also issued an ex parte warrant for Father to take custody of the
children, finding “Mother has refused to turn over the children for any

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parenting time since May 16, 2023.” Avondale Police executed the warrant
later that day, transferring the children to Father.

¶10 On June 30, 2023, the court held a hearing on Father’s motion
for temporary orders. Alcott testified and the court received in evidence her
supervised parenting time report addressing the unsuccessful exchange on
June 16, 2023. After the hearing, the court affirmed the June 27, 2023
temporary orders, relying on Alcott’s testimony and report.

¶11 In August 2023, Mother moved to remove Alcott as parenting
time supervisor, claiming bias and inability to pay Alcott’s fees. The court
denied the motion, finding Mother failed to show bias or that Alcott’s fees
were unjustifiable. In October 2023, again Mother moved to change the
parenting time supervisor, again expressing concerns about Alcott. The
court granted Mother’s motion, finding she was unable to pay Alcott’s fees.
In February 2024, Tanya Salazar, one of the individuals suggested by
Mother, became the new parenting time supervisor and began submitting
reports of her observations.

¶12 The court set a final orders hearing for April 2024 to consider
Father’s June 2023 filings. During a March 2024 pre-hearing deposition,
Father stated Alcott could be a witness at the April 2024 hearing. Father,
however, did not submit a pretrial statement. Mother filed a pretrial
statement, primarily denying Father’s allegations and listing the transcript
of the June 2023 hearing as an exhibit.

¶13 At the April 2024 evidentiary hearing, Mother, Father and
Salazar testified. Mother testified that Father abused her and the children
and that Father refused to cooperate during the exchanges at issue. Mother
had Salazar testify about Salazar’s observations while supervising Mother’s
parenting time. Alcott did not testify. Although Mother had listed the
transcript from the June 2023 hearing as an exhibit, she did not offer that
exhibit at the hearing and that transcript is not part of the record on appeal.
Mother sought to have her son, who was almost 18, testify, be interviewed
by the court in chambers or be interviewed by Conciliation Services about
Father’s abuse in 2019. The court precluded him from testifying and denied
the interview requests, noting “[t]oday is the day of the trial and that’s
something I would have wanted to pursue well before now.”

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¶14 In a June 2024 order, the court partially granted the relief
requested in Father’s June 2023 filings, designating Father as primary
residential parent with Mother having parenting time every Wednesday
and every other weekend.

¶15 This court has jurisdiction over Mother’s timely appeal from
that June 2024 order pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-2101(A)(2) and -120.21(A)(1).2

DISCUSSION

I. The Court Did Not Abuse Its Discretion When It Relied on Alcott’s
Supervised Parenting Time Observations.

¶16 In partially granting the relief Father requested in his June
2023 filings, the court found:

[Mother’s] testimony and Ms. Salazar’s
testimony simply are not credible. The Court
finds that their claims continue to push
Mother’s false narrative regarding Father’s
abusive nature . . . [Salazar’s] reports of the
children in Father’s care read like a Charles
Dickens’ novel . . . . These reports and claims by
both Mother and Ms. Salazar stand in stark
contrast to what was witnessed by Ms. Alcott.

Mother argues the court’s reliance on Alcott’s observations violated her due
process rights because they were not “subjected to adversary testing at trial,
because neither Alcott herself, nor the reports were part of the trial.” As a
result, Mother argues, she did not have notice and a meaningful
opportunity to be heard as to Alcott’s observations.

¶17 Due process entitles a party advance notice and an
opportunity to contest adverse evidence. Cruz v. Garcia, 240 Ariz. 233, 236
¶ 11 (App. 2016) (citing cases). “It is fundamental to due process that a court
provide a forum for witness testimony, and that it refrain from resolving

2 The court acknowledges and appreciates the amicus brief filed by
Domestic Violence Legal Empowerment and Appeals Project and the
National Family Violence Law Center. To the extent the amici ask the court
to address issues and arguments the parties did not raise, the court declines
that request. See Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 84 (1981)
(amicus curiae may not create, extend or enlarge issues) (citing cases).

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matters of credibility on documents alone.” Volk v. Brame, 235 Ariz. 462, 464
¶ 2 (App. 2014). This court reviews constitutional issues de novo. McGovern
v. McGovern, 201 Ariz. 172, 175 ¶ 6 (App. 2001).

¶18 Alcott supervised Father’s and then Mother’s parenting time
until the first part of 2024. Alcott testified at the March 2023 hearing on
Mother’s September 2021 petition to modify—which also addressed issues
regarding parenting time supervision—and the June 2023 temporary orders
hearing, but not at the April 2024 hearing. Alcott’s parenting time reports,
which had been provided to the court, were not received as exhibits at the
April 2024 hearing but were referenced in other witness testimony.
Additionally, Mother did not list Alcott’s reports as exhibits in her pretrial
statement, but stated that she “will introduce” the transcript of the June
2023 hearing at the April 2024 hearing. Ultimately, however, Mother did
not introduce that transcript at the hearing, but clearly acknowledged its
relevance for the issues being addressed at that hearing.

¶19 At that same hearing, Salazar testified that she wrote in a
March 2024 report that “[i]t is concerning to this supervisor that Father’s
narrative and the previous supervisor, Ms. Alcott’s narrative, do not match
the children’s current state. . . .” As Mother’s witness, Salazar challenged
Alcott’s observations, putting them at issue. The court also received,
without objection, evidence about the June 2023 parenting time exchanges
involving Alcott.

¶20 In addressing the past, present and potential future
relationship between parents and the children, one of eleven best interests
factors identified in A.R.S. § 25-403(A), the court noted that, after the
temporary orders hearing in June 2023, the court reduced Mother’s
parenting time and required that it be supervised. Considering Mother’s
claims that the children were suffering and struggling while living almost
full-time with Father, the court found her testimony (as well as Salazar’s
testimony) “simply are not credible.” In doing so, the court correctly
observed that Alcott supervised parenting time for both parents for a time
and that Salazar began supervising Mother’s visits in February 2024. In
chronologically summarizing the supervision reports for both, the court
noted Salazar’s reports of the children in Father’s care from 2024 contrasted
with Alcott’s reports from March and August 2023.

¶21 In considering the evidence received at the April 2024
hearing, including testimony from Mother, Father and Salazar as well as
documentary evidence, including Alcott’s reports, the June 2024 ruling
noted Alcott’s observations stood in contrast to testimony by Mother and

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Salazar. Absent any notice that the court might rely on Alcott’s reports,
Mother might not have had a meaningful opportunity to be heard as
required by due process. See Cruz, 240 Ariz. at 238 ¶ 17. Here, however, the
June 2023 temporary orders hearing and the April 2024 final orders hearing
both addressed Father’s June 2023 filings. Supervision of parenting time
was a key issue throughout. Mother acknowledged this by calling Salazar
as a witness at the April 2024 hearing. Mother had an opportunity to cross-
examine Alcott and challenge her reports at both the March 2023 and the
June 2023 hearings. Mother also could have done so again at the April 2024
hearing, if she had called Alcott to testify. Mother, however, did not call
Alcott as a witness at the April 2024 hearing. On this record, Mother had
advance notice of the relevance of Alcott’s observations, had an
opportunity to challenge them at the April 2024 hearing and, in fact,
actually challenged them at that hearing, even though Alcott did not testify
at that hearing.

¶22 “Due process errors require reversal only if a party is thereby
prejudiced.” Volk, 235 Ariz. at 470 ¶ 26. In making its finding, the court did
not solely rely on Alcott’s reports to counter Salazar’s and Mother’s
testimony. The court also weighed testimony from Salazar, which appeared
to conflict with information from Alcott and also, at times, from Mother’s
testimony. The court also considered Father’s testimony, which certainly
conflicted with Mother’s testimony, and the other evidence offered by the
parties and received by the court. On this record, Mother has shown no due
process denial resulting in prejudice.

II. The Court Did Not Abuse Its Discretion When It Considered
Salazar’s Testimony and Reports.

¶23 During the April 2024 evidentiary hearing, Salazar testified:

It is concerning to this supervisor that Father’s
narrative and the previous supervisor, Ms.
Alcott’s narrative, do not match the children’s
current state, as the children look severely
neglected, since they come to the visits starving
with very dirty and ripped clothes and smelly,
with indication of not having showered in
several days. They also seem sick, wear broken
glasses, and have [an] embedded orthodontic
appliance in their mouth, wear shoes that no
longer fit, and overall, are in a very depressive,

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scared mental state, and conveying ongoing
abuse and neglect.

¶24 As noted above, the court found that the testimony from
Salazar and Mother “simply are not credible.” On appeal, Mother argues
Salazar was “a disinterested witness with unimpeached and
uncontradicted evidence devoid of intrinsic or extrinsic suspicions” and
that “the trial court arbitrarily rejected her supervised parenting time
reports.” Along with being in conflict with Alcott’s observations, evidence
provided by Salazar was otherwise contradicted at the hearing. During the
hearing, Father directly challenged Salazar’s evidence, including testifying
to refute her factual assertions and to her bias. As noted above, even
Mother’s testimony contradicted Salazar’s observations at times.

¶25 Mother essentially asks the court to reweigh the superior
court’s determination of witness credibility and the weight given to
conflicting evidence, something this court will not do. See Lehn v. Al-
Thanayyan, 246 Ariz. 277, 284 ¶ 20 (App. 2019). On this record, Mother has
shown no error in the court’s credibility determination and weight given to
Salazar’s evidence.

III. Mother Has Shown No Abuse of Discretion in the Superior Court
Precluding Her Son from a Different Father from Testifying to
Impeach Father’s Testimony.

¶26 The court found no credible evidence of domestic violence or
child abuse was presented, noting that:

Mother has alleged domestic violence and child
abuse by Father for years. Her reports to police
and [the Department of Child Safety] have been
unsubstantiated. The Court notes that Father
has admitted to hitting [Mother’s son from a
different father] with a belt, in July of 2020.
Father notes that it was discipline and that he
was instructed to do so by Mother, which she
denies. He adamantly denies any child abuse of
the children, and the Court finds that there has
been no credible evidence to support Mother’s
claims.

The court did not permit Mother’s minor son from a different father (who
Father admitted to hitting with a belt) to testify, noting a blanket rule
against minors testifying, the “very sensitive” subject matter of the

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testimony and the remoteness of the events. The court also denied a request
that he be interviewed by the court in chambers or by Conciliation Services
because the request, made during the evidentiary hearing, was untimely.
This court reviews the preclusion of a witness from testifying for an abuse
of discretion. See State v. Carlos, 199 Ariz. 273, 277 ¶ 10 (App. 2001).

¶27 Mother argues the superior court erred because A.R.S. § 12-
2202(2) indicates that children 10 years or older who are competent are
eligible to testify. Noting the child she wished to call as a witness was
almost 18 years old at the time, Mother further argues the superior court
erred because “very sensitive subject” is not an enumerated ground to
preclude a witness under A.R.S. § 12-2202(2). Mother misreads this statute.
Section 12-2202(2) excludes as witnesses in a civil action “[c]hildren under
ten years of age who appear incapable of receiving just impressions of the
facts respecting which they are to testify, or of relating them truly;” it does
not limit the court’s discretion to exclude witness testimony on other
grounds.

¶28 Mother argues the court erred by failing to make a
competency decision under Arizona Rule of Evidence 601. But the record
does not indicate that the court precluded the testimony based on the
individual’s lack of competency. Instead, noting the potential witness’
youth, the court noted a policy it had to not allow young witnesses to testify
in court, that the subject matter of the testimony was “very sensitive” and
the events were too remote.

¶29 Focusing on the topic of the profferred testimony and
remoteness, the superior court properly could preclude the testimony
under Arizona Rule of Evidence 403 or 611. See Yauch v. S. Pac. Transp. Co.,
198 Ariz. 394, 403 ¶ 25 (App. 2000) (noting this court may affirm preclusion
of evidence on any ground supported by the record). The evidence was
offered to refute Father’s testimony that, in 2019, he struck Mother’s elder
child with a belt, as opposed to striking the child with a belt buckle, or that
he did so at Mother’s direction. At the hearing, Father testified to hitting the
child, disputing whether it was with a belt or a belt buckle and whether
Mother told him to do it. Mother testified the child was abused by Father
“for a long time.” Thus, the undisputed record evidence — including
Father’s own admission — was that Father had hit the child in 2019 with a
belt.

¶30 Mother sought to call the child to try to impeach Father’s
testimony. Because the undisputed evidence was that Father had hit the
child with a belt, and the court heard Mother’s testimony that contradicted

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Father’s testimony, the superior court properly could conclude that the
relevance of the child’s testimony about the matter was substantially
outweighed by a danger of “undue delay, wasting time, or needlessly
presenting cumulative evidence.” Ariz. R. Evid. 403; see also State v. Soto-
Fong, 187 Ariz. 186, 199 (1996); Ariz. R. Evid. 611(a) (noting “court should
exercise reasonable control” over courtroom proceedings to “make those
procedures effective for determining the truth;” “avoid wasting time” and
“protect witnesses from harassment or undue embarrassment”). Moreover,
“[t]he exclusion of repetitious or cumulative evidence does not require
reversal by an appellate court.” State ex rel. La Sota v. Ariz. Licensed Beverage
Ass’n, Inc., 128 Ariz. 515, 523 (1981); see also Johnson v. Provoyeur, 245 Ariz.
239, 244-45 ¶¶ 18-20 (App. 2018) (applying similar approach in family
court); Ariz. R. Fam. L.P. 86 (“Unless justice requires otherwise, an error in
admitting or excluding evidence . . . is not grounds for . . . vacating,
modifying, or otherwise disturbing a judgment or order.”).

¶31 Finally, Mother has not shown, with supporting authority,
that the superior court was required to interview the child in chambers (or
that it abused its discretion in declining to do so) or that the court erred in
not having the child interviewed by Conciliation Services. That is
particularly true where those requests were made during the April 2024
hearing itself, not before. See Ariz. R. Evid. 611. On this record, Mother has
shown no error in the superior court’s exclusion of this testimony.

IV. Mother Has Not Shown that Prior Proceedings Tainted the June
2024 Order.

¶32 Mother argues the superior court “sign[ed] the [June 27, 2023]
warrant based upon false facts” that “amounted to nothing less than fraud
upon the trial court by Father and tainted the entire proceeding.” To the
extent Mother seeks to challenge the June 27, 2023 warrant, this court lacks
appellate jurisdiction to do so. See Gutierrez v. Fox, 242 Ariz. 259, 264 ¶ 12
(App. 2017) (special action is proper challenge to warrant); Frimmel v.
Sanders, 236 Ariz. 232, 235 ¶ 1 (App. 2014) (similar); Ariz. R.P. Spec. Act.
4(c). To the extent Mother argues erroneous or fraudulent evidence in the
proceedings leading up to the June 2023 warrant impermissibly tainted the
June 2024 order, the record does not support that argument.

¶33 The June 2024 order references the June 27, 2023 warrant by
stating it “was issued because the children were refusing to go with Father
for his parenting time.” Mother does not argue this finding was false or
based on false evidence. To the contrary, Mother herself concedes that the
children refused to go with Father on the dates at issue.

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¶34 To the extent Mother argues the proceedings leading up to the
June 27, 2023 warrant biased the judge at the April 2024 hearing, Mother
knew about those proceedings long before that hearing. She had the
opportunity to challenge the findings at the June 30, 2023 temporary orders
hearing, where she and Father both testified, and at the April 2024 hearing
as well. And, in fact, Mother challenged those findings at the April 2024
hearing, albeit without claiming bias. She did not seek a change of judge
based on bias in advance of the April 2024 hearing or otherwise. By waiting
until her appeal to press bias, she waived any such issue. Cont’l Lighting &
Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12
(App. 2011) (arguments not raised with the trial court are waived on
appeal). Mother has not shown that prior proceedings tainted the June 2024
order.

CONCLUSION

¶35 The June 2024 order is affirmed.

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

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