Nolte v. Brady

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KEVIN NOLTE, Petitioner/Appellee,

v.

LORIE BRADY, Respondent/Appellant.

No. 1 CA-CV 26-0075 FC
FILED 10-15-2026

Appeal from the Superior Court in Maricopa County
No. FC2023-051789
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore

AFFIRMED IN PART; REMANDED IN PART

APPEARANCES

Lorie Brady, Peoria
Respondent/Appellant

Kevin Nolte, Peoria
Petitioner/Appellee

NOLTE v. BRADY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the Court’s decision, in
which Judge Anni Hill Foster and Vice Chief Judge David D. Weinzweig
joined.

W I L L I A M S, Judge:

¶1 Lorie Brady (“Mother”) appeals the superior court’s legal
decision-making, parenting time, and child support order. For the
following reasons, we remand for the court to make findings under A.R.S.
§ 25-403(A)(4) and (7), as well as A.R.S. § 25-403.03(F),1 in determining
whether to alter or amend its legal decision-making and parenting time
orders. We otherwise affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Kevin Nolte (“Father”) never married but have a
child in common (“Child”), born in 2012. For years the parties co-parented
without a court order. But in 2023, Father petitioned the superior court to
establish legal decision-making, parenting time, and child support.

¶3 After an evidentiary hearing, the superior court found Father
had committed a single act of domestic violence against Mother (when he
spread nails behind Mother’s parked vehicle in her driveway) but that his
act did not constitute significant domestic violence or a significant history
of domestic violence for purposes of A.R.S. § 25-403.03(A). The court
awarded both parents joint legal decision-making authority, ordered week
on/week off parenting time, and awarded Father child support after
finding Father credibly reported his self-employment income despite
Mother producing evidence of Father’s business income receipts being
significantly higher. The court also denied both parties’ requests for
attorneys’ fees and costs.

¶4 Mother moved the superior court to alter or amend the order
under Arizona Rule of Family Law Procedure (“Family Rule”) 83. The court

1 Section 25-403.03(F) was amended on June 22, 2026. 2026 Ariz. Sess. Laws,

ch. 263, § 1 (2nd Reg. Sess.) (H.B. 2995). We refer to the version of the statute
that was in effect when the superior court issued its order.

2

NOLTE v. BRADY
Decision of the Court

declined. This timely appeal followed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1).

DISCUSSION

¶5 Father failed to file an answering brief. That failure may be
treated as a concession of error. See Bugh v. Bugh, 125 Ariz. 190, 191 (App.
1980). But because this case involves Child’s best interests, we instead opt
to address the merits of Mother’s appeal. See Hays v. Gama, 205 Ariz. 99, 102,
¶ 18 (2003).

I. Father’s Late Disclosed Exhibits

¶6 Mother first argues the superior court erred in admitting into
evidence “multiple” exhibits Father either failed to disclose or disclosed
late. “We will not disturb a trial court’s ruling on the admissibility of
evidence absent a clear abuse of discretion and resulting prejudice.” Fuentes
v. Fuentes, 209 Ariz. 51, 56, ¶ 24 (App. 2004) (citation omitted).

¶7 Family Rule 49 provides general disclosure guidelines and
timelines leading up to trial. But the superior court retains “broad
discretion” over disclosure issues, Johnson v. Provoyeur, 245 Ariz. 239, 241–
42, ¶ 8 (App. 2018), in carrying out its “paramount” obligation to determine
what serves “the best interests of the child” in a custody dispute, Hays, 205
Ariz. at 102, ¶ 18 (quoting A.R.S. § 25-403(A)).

¶8 Mother objected to the admission of several exhibits Father
presented at trial. The superior court questioned Father’s attorney about the
late disclosure but ultimately overruled each of Mother’s objections. In
doing so, the court referenced Hays, supra ¶ 7, more than once (implying the
court’s duty to consider all relevant evidence in determining the Child’s
best interests).

¶9 In her opening brief, Mother identifies two exhibits
specifically: (1) “a partial screenshot of a text message” between Mother and
Child, and (2) “a photograph of the minor child” with Father. But Mother
did not object at trial to the admission of the photograph. And as for the
text message exchange, Mother’s attorney was able to cross-examine Father
about it, and Mother has not shown how she was prejudiced by the court
considering it. On this record, we see no error.

3

NOLTE v. BRADY
Decision of the Court

II. Best-Interests Findings Under A.R.S. § 25-403(A)

¶10 Mother next contends the superior court failed to make
required findings on multiple best-interests factors under A.R.S.
§ 25-403(A).

¶11 When determining legal decision-making and parenting time
in accordance with a child’s best interests, the court must “consider” and
“make specific findings” about “all relevant factors” including eleven
factors enumerated in A.R.S. § 25-403. See A.R.S. § 25-403(A), (B). Mother
contends the superior court failed to make findings under six of the eleven
factors, including factors 1, 3, 4, 5, 6, and 7. Our review of the order makes
clear the court made findings under factors 1, 3, 5, and 6, but failed to make
findings under factors 4 and 7.

¶12 As for factor 4 (“the wishes of the child as to legal decision-
making and parenting time” when “the child is of suitable age and
maturity”), A.R.S. § 25-403(A)(4), the court acknowledged the parents
disagreed whether the court should consider Child’s wishes and also noted
Mother’s testimony that Child wished to spend “most” or “all of the time”
with her. But the court never stated whether it considered Child’s wishes
and, if so, why, and what the court found those wishes to be. We note,
however, that while Mother takes issue with the court’s failure to
specifically reference Child’s letter to the court, or Child’s counselor’s
written suggestion on that matter, the court stated it had considered all “the
evidence” including “the exhibits.” The only thing lacking in the court’s
order was an express finding.

¶13 As for factor 7, (“[w]hether one parent intentionally misled
the court”), A.R.S. § 25-403(A)(7), the court only wrote that “[t]here was
testimony that Petitioner/Father misled the Court in his Petition For
Temporary Orders.” That statement summarized the evidence without
making a finding. Later in the court’s order, when addressing attorney’s
fees and costs, the court touched on the issue again. However, we remand
for the court to make express findings under factors 4 and 7.

III. Legal Decision-Making and Parenting Time Where Domestic
Violence Has Occurred

¶14 Mother also argues the superior court abused its discretion by
finding that Father overcame the presumption against awarding him joint
legal decision-making given his act of domestic violence against her.

4

NOLTE v. BRADY
Decision of the Court

¶15 We review the court’s legal decision-making and parenting
time orders for an abuse of discretion. Engstrom v. McCarthy, 243 Ariz. 469,
471, ¶ 4 (App. 2018). An abuse of discretion occurs either “when the record
does not support the court’s decision” or “when the court commits an error
of law in reaching a discretionary decision.” DeLuna v. Petitto, 247 Ariz. 420,
423, ¶ 9 (App. 2019).

¶16 Where the superior court finds one parent has committed an
act of domestic violence, there exists “a rebuttable presumption that an
award of sole or joint legal decision-making to the parent who committed
the act of domestic violence is contrary to the child’s best interests.” A.R.S.
§ 25-403.03(D). Because the court found that Father had committed an act
of domestic violence, it was required to then decide whether the domestic
violence was “significant” under A.R.S. § 13-3601, or whether there had
been a “significant history” of domestic violence. A.R.S. § 25-403.03(A). The
court fulfilled its obligation when it applied the following three-factor test
before concluding Father’s act was neither significant, nor part of a
significant history of domestic violence: “(1) the seriousness of the
particular incident of domestic violence, (2) the frequency or pervasiveness
of the domestic violence, (3) and the passage of time and its impact.”
DeLuna, 247 Ariz. at 424, ¶ 15 n.6 (citation modified).

¶17 Having found that Father’s act of domestic violence against
Mother was not significant, or part of a significant history of the same, the
superior court then appropriately considered each of the six additional
statutory factors under A.R.S. § 25-403.03(E) in concluding Father had
successfully rebutted the presumption against him having a say in legal
decision-making for Child. Record evidence supports the court’s findings
and its award of joint legal decision-making for both parents.

¶18 But the superior court’s obligation regarding parenting time
did not end there. Where one parent has committed an act of domestic
violence, that parent also has the burden of proving “to the court’s
satisfaction that parenting time will not endanger the child or significantly
impair the child’s emotional development.” Engstrom, 243 Ariz. at 474, ¶ 18
(citation omitted). The court’s findings must be express on this point, not
implied or presumed. A.R.S. § 25-403(B); Engstrom, 243 Ariz. at 474, ¶ 18
(stating that the superior court “must then make specific findings
explaining its reasoning and conclusions” under A.R.S. § 25-403.03(F)). If
the court is satisfied the offending parent has met its burden, then the court
“place[s] conditions on parenting time that best protect the child and the
other parent from further harm.” A.R.S. § 25-403.03(F).

5

NOLTE v. BRADY
Decision of the Court

¶19 Here, the superior court simply stated, “No conditions placed
on Petitioner/Father’s Parenting Time.” Though the court may have been
satisfied that Father’s parenting time would not endanger Child or impair
Child’s emotional development, the court must say so with findings to that
end. Accordingly, we remand for the court to do so.

IV. Child Support

¶20 Mother also challenges the superior court’s calculation of
child support and contends the court improperly attributed an artificially
low income to Father.

¶21 We review a superior court’s attribution of income de novo,
Pullen v. Pullen, 223 Ariz. 293, 295, ¶ 9 (App. 2009), but review child support
awards for an abuse of discretion, Nickel v. Potter, 256 Ariz. 323, 326, ¶ 9
(App. 2023). A court abuses its discretion if its order lacks a competent
evidentiary basis. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999).

¶22 Father is self-employed. The Arizona Child Support
Guidelines (“the Guidelines”) define self-employment income as “gross
receipts minus ordinary and necessary expenses as determined by the court
to be required to produce the income.” A.R.S. § 25-320 app. § II.A.1.e. “The
Guidelines do not otherwise define ordinary and necessary business
expenses.” Baker v. Baker, 183 Ariz. 70, 71 (App. 1995).

¶23 Mother provided evidence that Father realized nearly
$470,000 from business invoices and receipts in 2024, and that he deposited
nearly $150,000 of that into his personal account. But Father maintained he
only made $4,368 monthly and provided his 2022, 2023, and 2024 tax
returns to support his claim. Each return contained Schedule C forms listing
his business expenses.

¶24 Mother asks us to reweigh competing evidence (or perhaps
incomplete evidence), which we will not do. Gutierrez v. Gutierrez, 193 Ariz.
343, 347, ¶ 13 (App. 1998).

V. Attorneys’ Fees and Costs

¶25 Lastly, Mother challenges the superior court’s refusal to
award her attorneys’ fees and costs.

¶26 In declining to award either party their attorneys’ fees or
costs, the superior court concluded there existed “no substantial disparity
of financial resources between the parties,” and that both parties “acted

6

NOLTE v. BRADY
Decision of the Court

unreasonably in the litigation.” Though Mother takes issue with the court’s
finding regarding financial disparity, record evidence supports the court’s
finding, supra ¶¶ 23–24. Regardless, the court could still deny Mother’s
request based solely upon her unreasonable actions. A.R.S. § 25-324. On this
record she has failed to show error. Myrick v. Maloney, 235 Ariz. 491, 494,
¶ 9 (App. 2014).

¶27 Because Mother is self-represented on appeal, she is not
entitled to attorneys’ fees. See Munger Chadwick, P.L.C. v. Farwest Dev. &
Constr. of the Sw., LLC, 235 Ariz. 125, 126, ¶ 5 (App. 2014) (“In Arizona, it is
the rule that parties who represent themselves in a legal action are not
entitled to recover attorney fees.”).” In our discretion, we decline to award
Mother her taxable costs.

CONCLUSION

¶28 For the foregoing reasons, we remand for the superior court
to make findings under A.R.S. § 25-403(A)(4) and (7), as well as
§ 25-403.03(F) based upon the record already before it. We express no
opinion whether the court’s findings should or will alter or amend its legal
decision-making and parenting time orders. We otherwise affirm the
court’s order.

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

7