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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              OLALEKAN A. OKUBENA, Petitioner/Appellant,

                                         v.

                BETHANY A. MONTAG, Respondent/Appellee.

                            No. 1 CA-CV 15-0157 FC
                                FILED 3-10-2016


            Appeal from the Superior Court in Maricopa County
                           No. FC2010-004281
                The Honorable Roger E. Brodman, Judge

                                   AFFIRMED


                                    COUNSEL

Jones, Skelton & Hochuli, PLC, Phoenix
By Eileen Dennis GilBride, Jonathan Paul Barnes, Jr.,

DeSoto Law Firm, Phoenix
By Rita E. DeSoto
Co-Counsel for Petitioner/Appellant

Dickinson Wright, PLLC, Phoenix
By Marki Stewart, Marlene A. Pontrelli, Anne L. Tiffen
Counsel for Respondent/Appellee
                            OKUBENA v. MONTAG
                             Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1            Olalekan Okubena (“Father”) appeals from an order granting
Bethany A. Montag (“Mother”) sole legal decision-making authority over
their two minor children and awarding her attorneys’ fees. For the reasons
stated below, we affirm the legal decision-making order and the award of
attorneys’ fees.

                                BACKGROUND

¶2            The parties are the unmarried parents of two minor children.
Pursuant to a stipulated judgment, they shared joint legal decision-making
authority and equal parenting time with their older child. They, however,
did not have any orders relating to the youngest child until Mother filed a
petition to establish paternity, legal decision-making, parenting time, and
child support, and to modify the existing orders as to the older child. She
wanted to be the sole legal decision-maker for both children and allow
Father supervised parenting time. She simultaneously filed a motion for
temporary orders seeking sole legal decision-making, with supervised
parenting time for Father, alleging he was verbally and physically abusive
to her and abused alcohol. And she also secured an order of protection
against Father, which included the children.

¶3            After a hearing on temporary orders, the family court
removed the children from the order of protection. The court found there
had been recent domestic violence by Father, as well as a significant history
of domestic violence. Accordingly, the court concluded it could not grant
joint legal decision-making under Arizona Revised Statutes (“A.R.S.”)
section 25-403.03 (2015).1 As a result, and on a temporary basis, the court
awarded Mother sole legal decision-making and granted Father
unsupervised, but no overnight, parenting time.




1   We cite to the current version of the statute, unless otherwise noted.

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                          Decision of the Court

¶4            Two months later, Mother filed an emergency motion for
supervised parenting time alleging that an unknown third party reported
Father to the Department of Child Safety (“DCS”) for an incident involving
the older child. The family court issued an emergency order limiting
Father’s parenting time to supervised time, which the court affirmed on a
temporary basis after a hearing.

¶5            After an evidentiary hearing on Mother’s petition, the court
found “both parties engaged in acts of domestic violence, but that Father
was by far the primary perpetrator.” Additionally, the court found by a
preponderance of the evidence that Father had engaged in recent acts of
domestic violence, and had a significant history of domestic violence
against Mother. Pursuant to A.R.S. §§ 25-403.03 and 25-403.03(D), the court
awarded sole legal decision-making to Mother, and found the best interests
factors in A.R.S. § 25-403(A) supported the decision. And because the court
found that Mother’s allegation that Father abused alcohol was credible, the
court ordered supervised parenting time for Father until he completed
several requirements, including negative test results for alcohol. Father
subsequently satisfied all requirements, and his unsupervised parenting
time was restored. The court also awarded Mother a portion of her
requested attorneys’ fees in a signed order, and Father filed a notice of
appeal.

                              DISCUSSION

I.    Sole Legal Decision-Making Award

¶6            This court will not disturb a family court’s legal decision-
making orders absent an abuse of discretion. Nold v. Nold, 232 Ariz. 270,
273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013). When determining legal
decision-making, the court must consider best interest statutory factors. See
A.R.S. §§ 25-403; 25-403.01; 25-403.03 through 25-403.05. Section 25-403.03
specifically deals with domestic violence and provides, in relevant part,
that:

      (A) Notwithstanding subsection D of this section, 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 or if the court finds by a
          preponderance of the evidence that there has been a
          significant history of domestic violence.

      (B) The court shall consider evidence of domestic violence
          as being contrary to the best interests of the child. The


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            court shall consider the safety and well-being of the child
            and of the victim of the act of domestic violence to be of
            primary importance.        The court shall consider a
            perpetrator’s history of causing or threatening to cause
            physical harm to another person.

      ...

      (D) If the court determines that a parent who is seeking sole
          or joint legal decision-making has committed an act of
          domestic violence against the other parent, there is 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. This presumption does not apply if both
          parents have committed an act of domestic violence. For
          the purposes of this subsection, a person commits an act
          of domestic violence if that person does any of the
          following:

               1. Intentionally, knowingly or recklessly causes
                  or attempts to cause sexual assault or serious
                  physical injury.

               2. Places a person in reasonable apprehension of
                  imminent serious physical injury to any
                  person.

               3. Engages in a pattern of behavior for which a
                  court may issue an ex parte order to protect
                  the other parent who is seeking child custody
                  or to protect the child and the child’s siblings.
      ...

¶7            Father argues the court erred by applying the presumption in
subsection D against him because it found both parties committed an act of
domestic violence. The court found there was a history of domestic
violence and that Father was the primary abuser, but also noted undisputed
evidence that Mother stabbed Father with a knife in 2013 and vandalized
his shirts. Nonetheless, the court concluded Father had not rebutted the
presumption in § 25-403.03(D), which led to the legal decision-making
ruling.




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                          Decision of the Court

¶8             However, the presumption in § 25-403.03(D) was not the sole
reason for the ruling. Pursuant to A.R.S. § 25-403.03(A), a finding of
significant domestic violence or a history of significant domestic violence
precludes an award of joint legal decision-making. See Hurd v. Hurd, 223
Ariz. 48, 51, ¶ 12, 219 P.3d 258, 261 (App. 2009) (holding family court cannot
award joint legal decision-making by law if it finds significant domestic
violence or a history of significant domestic violence). And here, the court
found both—significant domestic violence, as well as a history of significant
domestic violence. Based on the findings, the court could not, as a matter
of law, award joint legal decision-making. See A.R.S. § 25-403.03(A); Hurd,
223 Ariz. at 51, ¶ 12, 219 P.3d at 261.

¶9             We, however, disagree with Mother’s interpretation that the
presumption in § 25-403.03(D) applies because Father was the primary
perpetrator. The statutory language clearly states that the presumption
does not apply where both parents have committed an act of domestic
violence.2 A.R.S. § 25-403.03(D). Under the statutory framework, it is clear
that mutual domestic violence does not entitle either party to benefit from
the legal presumption; rather, the court must determine which parent is
entitled, if either, to sole legal-decision making.        In making that
determination, the “safety and well-being of the child[ren] and of the victim
of the act of domestic violence” are of primary importance, see A.R.S. § 25-
403.03(B), along with the particular circumstances of the domestic violence.
See A.R.S. § 25-403(A)(8). Here, the family court carefully considered these
issues, the best interest factors in § 25-403(A), as well as § 25-403.04
substance abuse considerations.

¶10          The evidence supports the family court’s conclusions that
there was a history of significant domestic violence primarily, but not
exclusively, perpetrated by Father against Mother. Mother’s direct
testimony is supported by multiple police reports, medical reports, and
photographs. Based on the substantial evidence supporting the conclusion
that there was significant history of domestic violence with Father as the
perpetrator, the family court was precluded by § 25-403.03(A) from
awarding joint legal decision-making. Although the court erroneously
applied the presumption in § 25-403.03(D) because it also found Mother


2 Mother also argues the court properly applied the § 25-403.03(D)
presumption because Mother’s act of domestic violence was in self-defense.
The family court made no finding of self-defense; therefore, we need not
address the argument.



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                          Decision of the Court

committed domestic violence, it was not the sole basis for the court’s legal
decision-making order.

¶11            Father cites Mendoza v. Bogarin, 1 CA-CV 13-0576, 2015 WL
428375, at *2, ¶ 7 (Ariz. App. Jan. 29, 2015) (mem. decision),3 which we find
distinguishable. In Mendoza, this court found the family court did not
consider the mother’s domestic violence, but only considered the father’s.
Id. at *3, ¶ 17. Here, it is clear the family court considered Mother’s
domestic violence as well as Father’s, and relied on more than the
presumption in § 25-403.03(D) in reaching its decision.

¶12           The record, moreover, supports the conclusion that
application of the best interests factors in § 25-403(A) favored awarding sole
legal decision-making to Mother.4

¶13          The court’s decision is also supported by A.R.S. § 25-
403.04(A), which provides that if the court determines that a parent has
abused alcohol within twelve months before a petition is filed, “there is a

3 Pursuant to Rule 111(c)(1)(C), Arizona Rules of the Supreme Court,
memorandum decisions issued after January 1, 2015, may be cited “for
persuasive value” if no published opinion adequately addresses the issue
and the memorandum decision has not been depublished.
4 The record supports the family court’s analysis of the § 25-403(A) best

interests factors. Father previously cared for the children when they lived
together, but failed to exercise supervised parenting time immediately
before the hearing because he believed it was insulting to his dignity. The
court also noted Father’s refusal to exercise supervised parenting time
deprived the court of “valuable information concerning interaction
between Father and the [c]hildren[],” and could have disproved Mother’s
allegation that the children were afraid of Father. See A.R.S. § 25-403(A)(1).

       The children are close to Mother’s family and their half-brother, but
have not spent time with Father’s family either locally or in Nigeria. See
A.R.S. § 25-403(A)(2). There was evidence that Father has a drinking
problem that has led to violence in the past. See A.R.S. § 25-403(A)(5).

       Although Mother prevented the children from having contact with
Father when she obtained an order of protection, she did so to attempt to
protect them from witnessing domestic violence. See A.R.S. § 25-403(A)(6).
As a result, the court’s conclusion that the best interests factors weighed in
favor of awarding Mother sole legal decision-making to Mother was not an
abuse of discretion.


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                          OKUBENA v. MONTAG
                           Decision of the Court

rebuttable presumption that sole or joint legal decision-making by that
parent is not in the child’s best interests.” There was evidence in the record
that Father had abused alcohol. We note that Father has since satisfied the
court’s six-month alcohol testing requirement and is now exercising
unsupervised parenting time. However, at the time of the hearing, § 25-
403.04(A) supported the court’s determination that awarding sole legal
decision-making to Mother was in the children’s best interests. See Nestle
Ice Cream Co. v. Fuller, 186 Ariz. 521, 524 n.1, 924 P.2d 1040, 1043 n.1 (App.
1996) (holding appellate court may apply the proper rule of law even
though the parties did not argue it).

¶14            At the time of the evidentiary hearing, there was substantial
evidence supporting the court’s award of sole legal decision-making to
Mother. The erroneous application of the presumption in § 25-403.03(D)
does not require reversal because the family court’s ruling may be upheld
based on the prohibition on an award of joint legal decision-making in § 25-
403.03(A), the application of the best interests factors in § 25-403(A), and the
rebuttable presumption in § 25-403.04(A). Accordingly, we find no abuse
of discretion and affirm the award of sole legal decision-making to Mother.

II.    Due Process

¶15           Father argues the family court abused its discretion by
imposing rigid time constraints that prevented him from offering evidence
and testimony regarding the domestic violence. The court has broad
discretion to impose reasonable time limits, unless doing so precludes a
meaningful opportunity to present evidence. Volk v. Brame, 235 Ariz. 462,
468, ¶ 20, 333 P.3d 789, 795 (App. 2014).

¶16          The evidentiary hearing was set for three and a half hours,
and the parties could request additional time if needed up to thirty days
before the hearing. Father did not request additional time prior to the
hearing, nor did he request additional time at the conclusion of the
evidentiary hearing. The court repeatedly informed the parties how much
time they had remaining at the hearing.

¶17           Father heard Mother testify to several specific occurrences of
domestic violence, yet when he began to present his case, he first called two
character witnesses before testifying. Moreover, he did not address the
allegations of domestic violence until his time had almost run out. Even




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                          Decision of the Court

then, Father offered a written narrative statement and not his testimony.5
The court did not prevent, or refuse, to allow Father to present evidence to
rebut Mother’s allegation of domestic violence; rather, Father failed to
present admissible evidence within the time allotted and failed to request
additional time prior to the hearing. Because the time limits were not a
denial of due process, we find no error.

III.   Attorneys’ Fees

¶18           The family court awarded Mother seventy-five percent of her
requested attorneys’ fees and costs, for a judgment of $27,348.66. Father
contends the award should be reversed because no evidence supported the
court’s conclusion that he acted unreasonably in denying the domestic
violence allegations. We review the award of attorneys’ fees under A.R.S.
§ 25-324 for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, 494,
¶ 6, 333 P.3d 818, 821 (App. 2014) (citation omitted).

¶19           The court found Father acted unreasonably in “regularly and
consistently commit[ing] acts of domestic violence against Mother” as well
as by denying that such incidents took place. Father denied that he was
abusive and denied being abusive to Mother. He denied or contradicted
Mother’s allegations of abuse to the court-appointed advisor, as he does on
appeal. The court did not accept Father’s position and found it
unreasonable in light of the evidence supporting Mother’s allegations. We
do not reweigh the evidence on appeal. Hurd, 223 Ariz. at 52, ¶ 16, 219 P.3d
at 262.

¶20          Father also argues the award was an abuse of discretion
because he had a due process right to deny Mother’s allegations of abuse.
Father has the right to deny Mother’s allegations. However, in light of the
evidence establishing a significant history of domestic violence, the court


5 To the extent Father contends the exclusion of his written narrative
statement was an abuse of discretion, we disagree. Father knew that
domestic violence was a central issue. He received Mother’s lengthy
pretrial statement listing multiple claims of domestic violence more than a
week before the hearing. Father listed his written statement as an exhibit,
but it was never made part of the record on appeal. Additionally, Father
failed to make an offer of proof as to what was contained in the written
statement after the court excluded it as an exhibit. Therefore, we cannot
conclude the exclusion of the exhibit was prejudicial or a denial of due
process.


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                          Decision of the Court

did not abuse its discretion by concluding Father’s denial and minimization
of the domestic violence constituted an unreasonable position.
Accordingly, we affirm the award of attorneys’ fees and costs to Mother.

¶21            Mother also requests an award of fees and costs on appeal
pursuant to A.R.S. §§ 12-341.01 and 25-324. Mother is not entitled to fees
under § 12-341.01 because this matter did not arise out of a contract. In the
exercise of our discretion, after considering the reasonableness of Father’s
positions on appeal and the parties’ financial resources, we deny Mother’s
request for an award of attorneys’ fees on appeal under § 25-324. As the
prevailing party on appeal, she is entitled to her costs on appeal pursuant
to A.R.S. § 12-342(A) upon compliance with Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 21.

                              CONCLUSION

¶22          We affirm the family court order awarding sole legal
decision-making authority and attorneys’ fees to Mother. We award
Mother her reasonable costs on appeal upon compliance with ARCAP 21.




                                 :ama




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