Magill v. Lann

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRETT S. MAGILL, Petitioner/Appellant,

v.

ASHLEY LANN, Respondent/Appellee.

No. 1 CA-CV 25-0332 FC
FILED 02-03-2026

Appeal from the Superior Court in Navajo County
No. S0900DO202400292
The Honorable Michala M. Ruechel, Judge

AFFIRMED

COUNSEL

David J. Martin, Attorney at Law, PLLC, Lakeside
Counsel for Petitioner/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Angela K. Paton joined.

P E R K I N S, Judge:

¶1 Brett Magill (“Father”) appeals a superior court order
granting sole legal decision-making authority to Ashley Lann (“Mother”).
For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Mother have one child together, Brandon (a
pseudonym), who was born in 2021. In 2024, both parties petitioned for sole
legal decision-making authority over Brandon. The superior court set a
hearing on the petitions and ordered the parties to disclose their witness
lists and exhibits two weeks before the hearing. Mother did not do so.

¶3 At the hearing, Mother represented herself and called two
undisclosed witnesses, her sister and a family friend. The court allowed
Mother’s witnesses to testify over Father’s objections, but offered to
continue the hearing to provide Father time to prepare. Father declined the
continuance, stating he “did not waive, otherwise, [his] objection.” The
court then granted Father additional time to cross-examine the witnesses.

¶4 Mother’s sister testified to Father’s temperament and several
instances of domestic violence between Father and Mother. Both witnesses
testified to Mother’s parenting skills, her relationship with Brandon, and
what effect removing Brandon from Mother’s care would have.

¶5 The superior court awarded sole legal decision-making
authority to Mother, and Father appeals this award. We have jurisdiction.
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 Mother did not file an answering brief. When an appellant
raises a debatable issue and the appellee does not file an answering brief,
we treat the failure to respond as a confession of reversible error unless a
child’s best interests are at issue. Hoffman v. Hoffman, 4 Ariz. App. 83, 85

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(1966); see also Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003) (“We have
repeatedly stressed that the child’s best interest is paramount in custody
determinations.”). Because a child’s best interests are at issue here, we
consider the merits of Father’s appeal. See Hoffman, 4 Ariz. App. at 85.

¶7 Father argues the superior court abused its discretion by
allowing Mother’s undisclosed witnesses to testify, which prejudiced him.
He argues the court should have sanctioned Mother by precluding her
witnesses because she did not comply with Arizona Rule of Family Law
Procedure (“Rule”) 49(i) (parties must disclose the names and expected
testimony of witnesses) and Rule 76.1 (parties must file pre-trial
statements).

¶8 The superior court has broad discretion in ruling on
evidentiary matters, including whether to allow undisclosed witnesses to
testify or to sanction parties for their nondisclosure. See Ariz. R. Fam. Law
P. 49(i) (“The court may not allow a party to call witnesses whom the party
did not disclose.”), 76.2(a)(4), (b)(2) (absent good cause for failing to file a
pre-trial statement, the court may issue sanctions, including the prohibition
of certain matters as evidence). We will not disturb those rulings without a
clear abuse of that discretion and resulting prejudice. Johnson v. Provoyeur, 245 Ariz. 239, 241–42, ¶ 8 (App. 2018).

¶9 The court has a “duty to hear all competent evidence offered
in determining a child’s best interests when making a custody decision.”
Reid v. Reid, 222 Ariz. 204, 206, ¶ 9 (App. 2009). Allowing Mother’s
witnesses to testify was consistent with that duty. Father argues the court
failed to make an express finding that the sister’s testimony was relevant to
Brandon’s best interests. But he does not dispute that the witnesses testified
on matters relevant to Brandon’s best interests, including a history of
domestic violence between the parents, Father’s temperament, and
Mother’s competency as a parent.

¶10 Father contends he was denied due process because he was
not given notice of the witnesses’ testimony. But the court offered Father a
continuance to correct the lack of notice, and he rejected that remedy. Father
thereby waived his objection. See id. at 207, ¶ 10 (no abuse of discretion
when the court admitted untimely-disclosed evidence relevant to a child’s
best interests in part because the objecting party did not seek a
continuance); cf. State v. Chitwood, 73 Ariz. 161, 168–69 (1951) (a defendant
who rejects a continuance when faced with an undisclosed witness loses the
right to challenge the propriety of that witness’s testimony).

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¶11 Father’s attorney mischaracterizes Hays v. Gama as support
for a court’s authority to bar evidence deemed relevant to a child’s best
interests. Hays stands for the opposite proposition. In Hays, our supreme
court vacated a superior court sanction that barred evidence because the
sanction significantly impeded the court’s independent duty to evaluate a
child’s best interests. Id. at 103–04, ¶¶ 21–23.

¶12 Father cites no case in which a superior court abused its
discretion by admitting untimely-disclosed evidence relevant to a child’s
best interests in a custody proceeding, especially when the aggrieved party
rejected a continuance to prepare for that evidence. We have found no such
authority. Under these circumstances, the court did not abuse its discretion
and we need not consider any resulting prejudice to Father.

¶13 Father requests his attorney fees and costs on appeal under
Arizona Revised Statutes Section 25-324 and ARCAP 21. After assessing the
reasonableness of Father’s position on appeal and the parties’ financial
resources, we decline to award fees. Because Father is not the successful
party on appeal, we also decline to award costs.

CONCLUSION

¶14 We affirm.

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

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