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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                KENNETH A. BRUMLEY, Petitioner/Appellee,

                                         v.

               RACHAEL A. BRUMLEY, Respondent/Appellant.

                            No. 1 CA-CV 17-0498 FC
                                 FILED 5-15-2018


            Appeal from the Superior Court in Maricopa County
                            No. FC2015-054412
                 The Honorable Adam D. Driggs, Judge

                                   AFFIRMED


                                    COUNSEL

The Harrian Law Firm, P.L.C., Glendale
By Daniel Seth Riley
Counsel for Petitioner/Appellee

Blumberg & Associates, Phoenix
By Bruce E. Blumberg
Counsel for Respondent/Appellant
                         BRUMLEY v. BRUMLEY
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.


C R U Z, Presiding Judge:

¶1           Rachael A. Brumley (“Mother”) appeals the portions of the
superior court’s decree of dissolution of marriage (“Decree”) awarding
Kenneth A. Brumley (“Father”) joint legal decision-making authority
regarding their minor child, J.B., born July 2015, parenting time, and a
corresponding adjustment of child support orders. Mother also appeals the
court’s award of attorneys’ fees and costs to Father. For the following
reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Mother and Father married in 2010.1 In October 2015, Mother
obtained an order of protection against Father. Later that month, Father
filed for divorce seeking joint legal decision-making authority and
parenting time of J.B. Mother responded, requesting sole legal decision-
making authority with Father having supervised parenting time due to
Father’s “history of domestic violence.”

¶3              At the contested order of protection hearing, Mother alleged
three incidents of domestic violence, all verbal altercations occurring prior
to J.B.’s birth. In one altercation, Father “shoved” a laptop computer off a
counter onto the ground. In the second, while Mother was pregnant with
J.B., Father threw a coffee mug at the parties’ bedroom door and, according
to Mother, “pressed onto her stomach” during the argument. And in the
third incident, two of the children were bickering and Father yelled at
Mother’s oldest daughter, imploring her to stop engaging.2 Without


1     When the parties married, Mother had two daughters from a
previous marriage and Father had one son from a previous relationship.

2     The court, after hearing Father’s testimony and listening to Mother’s
recording of this altercation, noted that Mother’s teenage daughter was “on
the borderline of being incorrigible [and] delinquent[.]” At trial, Mother



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                           Decision of the Court

making any findings specifically regarding the need for protection of J.B.,
the superior court affirmed the order in all respects, including the listing of
J.B. as a protected person.

¶4             In March 2016, the superior court ordered a court appointed
advisor (“CAA”) to interview and investigate Mother, Father, and the older
children, visit the parents’ homes, and submit a report of her findings. After
conducting her evaluation, the CAA concluded that when Father feels
“disrespected, demeaned or insignificant[,]” he responds by “yelling,
verbally attacking, and throwing and breaking things.” At Mother’s
request, the court appointed Dr. Daniel Christiano after the CAA
recommended Father undergo a psychiatric evaluation. The court
additionally ordered Father to submit to random alcohol testing,
addressing Mother’s allegation that Father had a history of alcohol abuse.

¶5            Dr. Christiano submitted his psychological evaluation in
October 2016. In the evaluation he recommended Father complete
“developmentally appropriate parenting classes” and continue therapy.
He also noted the results from Father’s random alcohol testing, which were
all negative and separately filed with the superior court. Dr. Christiano
concluded that Father’s “relationship with each of his sons should be
encouraged since he is highly motivated to be an excellent father, who
follows through with improving his own skills.” After reviewing Dr.
Christiano’s evaluation, the CAA recommended that Father be
reintroduced to J.B. through supervised visits, then transition to
unsupervised parenting time.

¶6            Mother’s order of protection expired, and the superior court
held a temporary orders hearing in November 2016. The court found a
history of domestic violence and granted Father temporary weekly
supervised visits, to be professionally supervised at least once every other
week. The court additionally ordered Father to participate in twelve hours
of parenting classes, along with individual counseling.

¶7            During the six months prior to trial, Father began supervised
parenting time with J.B. Father also completed eighteen hours of parenting
classes, continued his counseling with Mr. Post, a master’s level licensed
counselor, and attended therapy with Dr. Tyler Davis. Neither Mr. Post or
Dr. Davis recommended Father continue supervised parenting time. Mr.


admitted her daughter’s behavior during the incident was disrespectful
and inappropriate.



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                           Decision of the Court

Post noted there was “no evidence that [Father] is a danger to himself or
others” and is “responsive to therapeutic anger management strategies and
psychoeducation regarding coping mechanisms.” Dr. Davis concluded in
April 2017,

       [Father] has been successful in working toward his identified
       treatment goals and he has shown consistent emotion-
       regulation skills and has implemented effective coping
       strategies. At this time, there appears to be no current
       evidence of anger management issues present in [Father]. He
       has appeared to show successful completion of . . . treatment
       goals. [Father] does not appear to require mandated
       counseling for these issues at this time.

¶8            At trial, both parties testified about the three events alleged in
Mother’s request for order of protection. Father further testified to a
separate incident wherein Mother became “enraged” and threw a bottle
through a glass window, which Mother admitted. The court allowed
testimony and evidence that Father committed misdemeanor harassment
against his ex-wife twelve years earlier. Father described his visits with J.B.
as “phenomenal” and testified the two had bonded and J.B. is comfortable
around him.

¶9            The superior court listened to Mother’s recordings which
captured two of the three verbal altercations previously disclosed. She
additionally alleged three undisclosed incidents involving physical abuse,
and admitted to her own arguing, yelling, and fighting with Father and the
children. It was Mother’s testimony that it was not appropriate for Father
to share in legal decision-making authority of J.B., and that Father should
have indefinite supervised parenting time.

¶10          The superior court also heard testimony from the CAA and
admitted her evaluations, which contained interviews with Father, Mother,
and her two daughters. Finally, the court admitted the reports from Dr.
Christiano, Dr. Davis, Mr. Post, and the parenting supervisors.

¶11          The superior court took the matter under advisement and
entered the Decree in June 2017. After considering the factors in Arizona
Revised Statutes (“A.R.S.”) §§ 25-403, -403.01(B), and -403.03, concerning
the best interests of the child, legal decision-making authority, and
domestic violence, respectively, the court awarded Father joint legal
decision-making authority and equal unsupervised parenting time. The




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                          Decision of the Court

court also ordered Mother to pay a portion of Father’s attorneys’ fees and
costs of prior parenting time supervision and Dr. Christiano’s evaluation.

¶12           We have jurisdiction over Mother’s timely appeal pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶13            This court “view[s] the evidence in the light most favorable to
supporting the decision below[.]” Cooper v. Cooper, 167 Ariz. 482, 487 (App.
1990) (citation omitted). We will not set aside findings of fact unless they
are clearly erroneous. Ariz. R. Fam. Law P. 82(A). “A finding of fact cannot
be ‘clearly erroneous’ if there is substantial evidence to support it, even
though there might be substantial conflicting evidence.” Moore v. Title Ins.
Co. of Minn., 148 Ariz. 408, 413 (App. 1985) (citation omitted). We also defer
to the superior court’s credibility determinations and the weight to give
conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App.
1998); Ariz. R. Fam. Law P. 82(A). We will not reweigh conflicting evidence,
and although conflicting evidence may exist, we will affirm if substantial
evidence supports the court’s decision. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16
(App. 2009).

I.     Domestic Violence

¶14           Mother contends that there is a “plethora” of evidence related
to Father’s domestic violence which the superior court failed to consider in
granting Father joint legal decision-making authority and equal
unsupervised parenting time of J.B.

¶15           “On appeal, we will not disturb the family court’s custody or
parenting time orders absent an abuse of discretion.” Nold v. Nold, 232 Ariz.
270, 273, ¶ 11 (App. 2013). A court abuses its discretion when it commits
an error of law in reaching a discretionary decision, reaches a conclusion
without considering the evidence, commits another substantial error of law,
or makes a finding lacking substantial evidentiary support. Flying Diamond
Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007).

¶16          When assessing a child’s best interests for the purposes of a
custody determination, A.R.S. § 25-403(A)(8) requires the superior court to
consider whether there has been domestic violence as defined by A.R.S.
§ 25-403.03(C). If a court determines domestic violence has occurred under
section 25-403.03(C), the court must then separately determine whether
there exists “significant domestic violence” or a “significant history of
domestic violence.” A.R.S. § 25-403.03(A) (emphasis added). If so, the court


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                           Decision of the Court

shall not award joint legal decision-making authority to the offending
parent. Id.; see also Hurd, 223 Ariz. at 51, ¶ 12.

¶17            When the superior court does not find the existence of
significant domestic violence, Arizona law creates a rebuttable
presumption that sole or joint legal decision-making authority by a parent
who has committed an act of domestic violence is contrary to the child’s
best interests. A.R.S. § 25-403.03(D). In determining whether a parent has
rebutted this presumption, and thus may be granted legal decision-making
authority, the court considers the factors set forth in A.R.S. § 25-403.03(E).
Finally, “[i]n a contested legal decision-making or parenting time case, the
court shall make specific findings on the record about all relevant factors
and the reasons for which the decision is in the best interests of the child.”
A.R.S. § 25-403(B).

¶18             Here, the superior court entered detailed findings as to each
applicable factor listed in A.R.S. §§ 25-403, -403.01(B), and -403.03, after
considering “the evidence, including the demeanor of the witnesses, . . . the
exhibits as well as the case history, and . . . the parties’ arguments” before
it. After determining that Father committed acts of domestic violence
against Mother, it found the domestic violence was not significant, that
Father rebutted the presumption in A.R.S. § 25-403.03(D), and that it was in
J.B.’s best interests that the parents share parenting time and legal decision-
making authority.

¶19           Mother correctly observes that the superior court’s findings
do not specifically reference each piece of evidence admitted below.
However, the absence of that evidence does not establish, as Mother argues,
that the court failed to consider it. Rather, it demonstrates that the court
did not find certain evidence and testimony credible, and weighed it
accordingly. As noted above, we defer to the superior court’s weight and
credibility determinations, looking only to ascertain if there is sufficient
evidence to sustain the court’s rulings. Gutierrez, 193 Ariz. at 347, ¶ 13;
Hurd, 223 Ariz. at 52, ¶ 16.

¶20            The superior court, in considering whether Father’s domestic
violence was “significant,” defined “significance” as “a product of three
factors: (1) the seriousness of the particular incident of domestic violence,
(2) the frequency or pervasiveness of the domestic violence, and (3) the
passage of time and its impact.” The incidents, although not condoned by
the court, were limited to verbal altercations with some personal property
damage. The incidents occurred prior to J.B.’s birth and several months




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                           Decision of the Court

prior to Mother seeking the order of protection; Father’s misdemeanor
harassment conviction occurred approximately twelve years prior.

¶21            Multiple professionals were involved throughout the
proceedings; however, none indicated J.B. was in danger around Father. In
fact, Father’s testimony and the supervised visitation reports demonstrated
that Father’s interactions with J.B. were positive and nurturing. Father
completed age-appropriate parenting classes and professional counseling
to address his anger issues. Father complied with the court’s order to
submit to random alcohol tests, each of which was negative. Finally, there
was no evidence indicating Father had engaged in further acts of domestic
violence.

¶22           This evidence is sufficient to uphold the superior court’s
rulings. Additionally, although the record contains contradictory evidence,
Mother has not demonstrated that the superior court reached its
conclusions without considering the evidence or made its findings without
substantial support.

II.    Attorneys’ Fees and Costs

¶23           Mother next argues that the superior court erred in awarding
Father attorneys’ fees because her position at trial was not unreasonable, as
she had a duty to protect J.B. from Father. Under A.R.S. § 25-324(A), a court
may award attorneys’ fees and costs for the expenses of maintaining or
defending a proceeding based on either disparity of the parties’ financial
resources or reasonableness of their positions during the litigation. A.R.S.
§ 25-324(A); Maggee v. Maggee, 206 Ariz. 589, 591 n.1, ¶ 8 (App. 2004). We
review an award under section 25-324(A) for an abuse of discretion. Myrick
v. Maloney, 235 Ariz. 491, 493, ¶ 6 (App. 2014).

¶24           Here, the superior court awarded Father a portion of his
attorneys’ fees based on Mother’s unreasonable position regarding
parenting time. Although Mother has a duty to protect her children from
domestic violence, see Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 79,
¶ 14 (App. 2005), she offered no evidence below that J.B. was a victim or in
danger. In fact, the order of protection Mother obtained against Father
included J.B. as a protected person, but Mother did not allege any facts in
her petition supporting the need to protect J.B. from Father; nor was there
any testimony introduced in that regard at the contested order of protection




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                           Decision of the Court

hearing. Still, over Father’s objection3, J.B. was listed as a protected person
on the order and deprived of all contact with Father for well over a year.
Further, “[d]espite direct evidence from licensed professionals, and despite
an established history of supervised parenting time without incident,” the
court found that “Mother has continued to not even consider allowing
Father unsupervised parenting time.” The record supports the court’s
findings, as discussed supra ¶¶ 7, 9, 21. Accordingly, the superior court did
not err in awarding Father a portion of his fees based on Mother’s
unreasonable positions during the litigation.

¶25           As to professional costs, the superior court ordered Mother to
reimburse Father for half of the professional parenting supervision costs
and be solely responsible for Dr. Christiano’s fees. Mother argues that these
orders are “an extension of the punishment the [superior] court sought to
impose in the fee award,” and should be reversed. We disagree. In this
regard, the court found that

       Mother has continually made allegations that have clearly
       increased the length and cost of [the] proceedings. For
       example, Father was ordered to submit to random and
       continued alcohol screening, which resulted in only negative
       tests. Father has had to undergo a psychological evaluation,
       which did not provide the [c]ourt with any significant
       information that would indicate that Father’s relationship
       with [J.B.] should be limited . . . [o]ther [c]ourt ordered
       counseling has provided the [c]ourt with expert assessments
       that indicated that Father does not need such services.

¶26           The record supports these findings, see supra ¶¶ 4, 5, 7, and
the superior court did not abuse its discretion in ordering Mother to share
in the professional fees incurred at her request and in furtherance of the
litigation.

¶27          Finally, Father requests attorneys’ fees and costs on appeal
pursuant to A.R.S. § 25-324(A) and Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 21. In the exercise of our discretion, we deny
Father’s request under section 25-324(A); however, as the prevailing party
on appeal, Father is entitled to an award of costs.




3      In his October 2015 request for hearing Father expressed his
objection over the inclusion of J.B. in the order of protection.


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                         Decision of the Court

                             CONCLUSION

¶28         For the foregoing reasons, we affirm the superior court’s
decree and award of attorneys’ fees and costs, and Father is awarded costs
on appeal upon compliance with ARCAP 21.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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