Moabi v. Cole

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KARIM FOUAD MOABI, Petitioner/Appellant,

v.

JODI COLE, Respondent/Appellee.

No. 1 CA-CV 24-0862 FC
FILED 08-12-2025

Appeal from the Superior Court in Maricopa County
No. FC2020-000746
The Honorable Glenn A. Allen, Judge

AFFIRMED

COUNSEL

Cervone Law P.C., Phoenix
By Kristina L. Cervone
Counsel for Petitioner/Appellant

Jodi Cole, Phoenix
Respondent/Appellee
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MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge Daniel J. Kiley joined.

F U R U Y A, Judge:

¶1 Karim Fouad Moabi (“Father”) appeals the superior court’s
modification of final legal decision-making authority (“LDM”) and
reallocation of responsibility for fees for a Court Appointed Behavioral
Interventionist (“COBI”). Because the court did not abuse its discretion, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Jodi Cole Vogel (“Mother”), who were not
married, share one minor child (“Child”). After the parties separated, they
cooperated in sharing parenting time with Child. For most of Child’s life,
both parents shared de facto joint LDM and equal parenting time with
Child. However, they disputed where Child should attend school and
eventually both sought final LDM authority for this decision.

¶3 In 2019, Father filed a dual-captioned motion for Temporary
Orders and modification of LDM because neither parent could agree to
where Child should attend middle school. Instead of granting either parent
final LDM over education, the Temporary Orders outlined a five-step
process to solve the issue of Child’s education without granting final say to
either parent. The case was later dismissed.

¶4 Then, in January 2020, the parents’ ability to co-parent
devolved and Father filed a Complaint to Establish Paternity, Legal
Decision-Making, Parenting Time, and Support. Father argued Child’s
exceptional intellect prevented him from forming “normal” social
relationships and staying engaged in the school chosen through the
Temporary Orders. Father believed his choice of private school could
provide a better education for Child’s needs than the current public school.

¶5 Though the court found Mother and Father generally able to
co-parent on all other issues, it determined that one party needed to have
final decision-making authority if they were unable to agree on the matter
of Child’s educational needs. After considering Child’s best interests and

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making supportive findings, the court awarded the parties joint LDM and
“in the event the parties are unable to reach an agreement after they have
made a good-faith effort to reach an agreement on an education-related
issue, Mother shall have final decision-making authority[.]”A year later, the
court dismissed Father’s petition to modify LDM, finding a substantial and
continuing change did not exist, that Father sought the modification only
to enroll Child in Father’s preferred school, and that Child is still doing well
in his current school.

¶6 However, by October 2023, Mother and Child’s relationship
had declined so dramatically that Mother filed a petition to enforce LDM
and parenting time, blaming Father for alienating Child from her. Father
responded that school choice was no longer an issue but shared concern for
Child’s autism and anxiety diagnoses and ongoing weight loss. He then
filed a petition for modification of LDM authority, parenting time and child
support and requested an interview for Child, so Child could advocate for
his own preferences during proceedings.

¶7 Instead, upon Mother’s request, and with Father’s agreement,
the court ordered the appointment of Dr. Marsha Ferrick “for Court
Ordered Behavioral Intervention (“COBI”) services between [Mother] and
[Child].” Though the court had previously considered the parents’ incomes
to be “substantially equal,” the court ordered them to file updated
Affidavits of Financial Information (“AFI”). They agreed Mother would be
responsible for the initial payment of all COBI costs, “subject to reallocation
by the Court following future proceedings, and in the Court’s sole
discretion.” Two months later, Father objected to the COBI’s ongoing
appointment and potential cost reallocation. However, the court denied
Father’s objection, reiterating their prior agreement.

¶8 In the ensuing litigation, the court denied Mother’s motion to
find Father in contempt for not forcing Child to participate in Mother’s
parenting time. But it found that Child is “highly intelligent, but also needs
a tremendous number of services.” The court further warned, that if
“parents are unable to care for him, or the child is unwilling to be parented,
the child needs to be removed from the home and placed into a residential
treatment center to appropriately address his needs.”

¶9 In August 2024, the court held an evidentiary hearing, where
Mother, Father, and Dr. Ferrick testified. Both parties provided evidence of
communication between the parents and Child’s providers and records
from the COBI and medical providers. After hearing the evidence, the court
expressed concern for Child’s health and ordered Child be screened for

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residential treatment center placement. Ultimately, Father interfered with
Child receiving professional assessments and in-patient treatment.

¶10 The court entered final orders for LDM, parenting time, and
child support in October 2024. It found both parties to have made
unreasonable arguments at times but ultimately granted Mother final LDM
on medical and education issues. It also ordered that each parent bear one-
half of the COBI expenses.

¶11 Father appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) §§ 12-2101(A)(1) and -120.21(A)(1).

DISCUSSION

¶12 We must affirm a court’s modification of LDM and
reallocation of COBI fees, absent an abuse of discretion. Nold v. Nold, 232
Ariz. 270, 273 ¶ 11 (App. 2013). An abuse of discretion occurs when the
record does not contain competent evidence to support the court’s decision,
or the court commits an error of law. Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 19
(App. 2009). We review interpretations of statutes and guidelines de novo,
Milinovich v. Womack, 236 Ariz. 612, 615 ¶ 7 (App. 2015), but it is the superior
court’s role to weigh the evidence and determine credibility, Gutierrez v.
Gutierrez, 193 Ariz. 343, 347 ¶ 13 (App. 1998). Unless factual findings are
clearly erroneous, we defer to the court’s weighing of evidence and its
assessments of credibility. Engstrom v. McCarthy, 243 Ariz. 469, 471 ¶ 4
(App. 2018).

I. The Court Did Not Err by Admitting and Considering Any of Dr.
Ferrick’s Testimony.

¶13 Father argues Dr. Ferrick’s testimony was outside the scope
of her COBI appointment and therefore could not be used as competent
evidence to support the court’s findings.

¶14 “We will not disturb a trial court’s rulings on the exclusion or
admission of evidence unless a clear abuse of discretion appears and
prejudice results.” Roaf v. Stephen S. Rebuck Consulting, LLC, 257 Ariz. 452,
456 ¶ 11 (2024) (quoting Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506
(1996)). When Father objected to Dr. Ferrick’s testimony during the hearing,
the court responded “it’s silly to say that she can’t testify to the scope of her
appointment at a trial with the parties that agreed to appoint her. I think
that’s an unreasonable position to take.” We agree.

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¶15 Dr. Ferrick’s COBI appointment began with the consent of
both parents, was ordered without any restriction as to her scope of work,
occurred with participation from both parents, and finished long before the
hearing took place, giving Father more than adequate notice of her
evaluation. Father did not object to the COBI order’s scope or request his
own expert. At the evidentiary hearing, Dr. Ferrick testified to her
qualifications, the scope of her appointment, the one report she filed in
April of 2024, and that “[a] COBI is to do a therapeutic intervention at a
very precise level.” The court allowed Dr. Ferrick to testify to her belief that
Child’s “body weight is impacting his thinking, and his engagement with
the parents” because of its relevance to her appointment as a COBI. In her
testimony, Dr. Ferrick explained what she learned during her COBI
appointment, including her belief that

[Child] is acting out a delusional component that he’s sharing
with his father. It’s . . . a cross-parenting issue. And Dad had
an eating disorder . . . as a young man, and Father had shared
that with [her]. I think this is [Child] . . . both under stress and
under kind of Father’s illusion with his eating disorder piece,
and the negativity around Mother, part of that.

¶16 Dr. Ferrick further testified to her belief that Child has
“annihilate[d] Mother from his life” because pleasing Father is so important
to Child. Dr. Ferrick also shared Father’s academic ambitions for Child,
combined with Child’s drive to please Father, “creates a lot of anxiety for
[Child],” and that she had referred the family back to the family doctor and
Child’s pediatrician to address Father’s concern that she mischaracterized
Child’s condition as a behavioral issue, rather than an organic medical
problem. Dr. Ferrick testified that Child’s follow-up care did not find an
organic cause to his eating issues and she agreed with that assessment.

¶17 All this testimony was predicated on Dr. Ferrick’s personal
observations, obtained through her COBI appointment, and synthesized
using her own education and experience. It was directly and highly relevant
to resolution of the issues joined by Father’s petition. The court was not
required to ignore it simply because Father believed it exceeded the scope
of the COBI appointment.

¶18 Father argues the court’s findings are “unclear as to what
competent evidence was used” to modify LDM, constituting an abuse of its
discretion when modifying final LDM authority. But the court clearly
outlines all relevant factors to the best interests of the child as required by
A.R.S. § 25-403. Moreover, the court adequately supported its analysis of all

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factors, not only with Dr. Ferrick’s testimony, but also with other evidence
provided by the parties, such as communication between themselves and
Child, medical records of Child’s diagnoses, and their own testimony. Thus,
even without Dr. Ferrick’s testimony, the court’s orders are supported by
sufficient evidence, which we will not reweigh on appeal. See Engstrom, 243
Ariz. at 471 ¶ 4.

¶19 Given the context and foundation supporting Dr. Ferrick’s
testimony, we discern no clear error in the court’s admission of any of her
testimony. And even if clear error were assumed arguendo, Father fails to
show any prejudice because other evidence in the record supports the
court’s decision. We affirm the court’s modification granting Mother final
LDM.

II. The Court Did Not Err by Reapportioning the COBI Costs
Between Mother and Father.

¶20 Father further appeals the court’s order that he “pay one-half
of all the COBI expenses” in reallocation as previously agreed to by the
parties in the original order for a COBI appointment. Citing Rule 95(a)’s
injunctive that a “court must determine on the record whether the parties
have the ability to pay for services,” Father argues that it was error for the
court to reallocate these costs to him because the court made no
determination as to his ability to pay. See also A.R.S. § 25-324(A) (permitting
the court to award costs and expenses of proceedings “after considering the
financial resources of both parties”). He contends that any such finding as
to his ability to pay was impossible because he did not file an updated
AFI—as the court had ordered him to do before the evidentiary hearing.
This argument raises an absurdity.

¶21 We review an award of fees and costs under A.R.S. § 25-324,
including the reallocation of COBI expenses, for an abuse of discretion and
will only reverse when clearly erroneous. See Hefner v. Hefner, 248 Ariz. 54,
57 ¶ 6 (App. 2019) (reciting standard of review applicable to awards under
A.R.S. § 25-324). Here, the court specifically ordered both parties to provide
updated financial information to the court in advance of the evidentiary
hearing on Father’s petition. But though Mother complied with the court’s
order, Father did not do so. Now, Father seeks to leverage his failure to
follow the court’s order as a shield to thwart reallocation of the COBI costs.
Father cannot complain that the court erred by failing to consider his
updated financial condition when he was ordered to disclose it and failed
to do so.

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¶22 Here, the court’s original order for COBI services was
properly based on both parents’ financial information at the time of the
order. If there had been a change in Father’s financial circumstances since
the original COBI order, Father avoided every opportunity to disclose the
information to the court for its consideration—even after the court
requested updated information. Moreover, the original order expressly
reserved the court’s right to reallocate costs in the future, in its sole
discretion. The court’s reallocation of half the COBI costs to Father was
reasonable and within its discretion. Thus, we affirm.

CONCLUSION

¶23 We affirm.

¶24 In our discretion, we decline to award Father his attorney’s
fees under A.R.S. § 25-324. As the prevailing party, Mother is entitled to
award of her costs on appeal, contingent with her compliance with ARCAP
21.

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

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