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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

       RAUL EDUARDO PAREDES-GABRIEL, Petitioner/Appellant,

                                         v.

               LESLIE ACEVADO RIVA, Respondent/Appellee.

                            No. 1 CA-CV 18-0328 FC
                                FILED 5-2-2019

            Appeal from the Superior Court in Maricopa County
                           No. FC2017‑007209
                  The Honorable Scott S. Minder, Judge

                       VACATED AND REMANDED


                                    COUNSEL

The Ber Law Firm, Phoenix
By Hershel Ber
Counsel for Petitioner/Appellant

Leslie Acevado Riva, Ocoee, Florida
Respondent/Appellee Pro Se
                       PAREDES‑GABRIEL v. RIVA
                          Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Chief Judge Samuel A. Thumma and Judge Jennifer B. Campbell
joined.


M c M U R D I E, Judge:

¶1            Raul Eduardo Paredes-Gabriel (“Father”) appeals from the
superior court’s order awarding Leslie Acevado Riva (“Mother”) sole legal
decision-making authority and limiting Father to supervised parenting
time of their child, Raul. Given the superior court’s failure to support the
necessary findings regarding domestic violence, we vacate its legal
decision-making and parenting time order and remand for further
proceedings. 1

            FACTS AND PROCEDURAL BACKGROUND 2

¶2           Mother and Father began a relationship in 2014. Roughly a
year later, Mother and Father moved into Father’s family’s household in
Arizona. On April 22, 2017, Mother gave birth to Raul. Sometime in June
2017, Mother left Arizona for Florida with Raul to visit her mother. Later
that month, Father received a letter from Mother informing him that she
and Raul were staying in Florida and would not return to Arizona.

¶3           Father petitioned to establish legal decision-making,
parenting time, and child support in Arizona. Father requested the court to
award him sole legal decision-making authority over Raul and limit Mother
to supervised parenting time. In response, Mother alleged she had left
Father’s household to escape domestic violence by Father and his family.




1     While this appeal was pending, Mother filed two motions to
supplement the record on appeal with materials not presented to the
superior court. The motions are denied.

2      We view the facts in the light most favorable to sustaining the
superior court’s order. Alvarado v. Thomson, 240 Ariz. 12, 13, ¶ 2, n.1 (App.
2016); see also Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14 (App. 1998).



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Mother also questioned paternity,3 and requested the court award her sole
legal decision-making authority and limit Father to supervised parenting
time. The court set the matter for an evidentiary hearing.

¶4            The parties filed separate pretrial statements. In her
statement, Mother asserted that she should be awarded sole legal
decision-making authority and that Father should only be permitted to
exercise supervised parenting time “due to the significant history of
domestic violence committed by Father against Mother in this
relationship.” Mother alleged that: (1) Father and his male family members
raped her shortly before she became pregnant, and the police were
currently investigating the incident; 4 (2) Father withheld necessities,
including Mother’s phone, to control her; (3) Father and his family belittled
her, called her names, and treated her inappropriately; (4) Father hid or
broke Mother’s personal property; and (5) Father and his family’s behavior
caused her to become isolated from her family.

¶5            At the hearing, the court heard testimony from a
court-appointed advisor, Mother, Father, and members of their families.
The court-appointed advisor testified that she found Mother’s allegations
of domestic violence credible and that it appeared Mother “had
experienced something.” The advisor also testified that the police
investigation and a separate Department of Child Safety investigation of
Mother’s allegations against Father and his family’s household had been
closed without any action being taken.

¶6            Mother, Father, and their respective families presented
conflicting accounts of Mother’s relationship with Father, Father’s family,
and what occurred while Mother was living with them. Mother testified
about the allegations listed in her pretrial statement, including her claim
that Father and some of his family members raped her before she became
pregnant. When questioned about why she did not initially report the
incident or assist police in the now-closed investigation, Mother explained
that she was too overwhelmed to act after the event and during the
investigation. Mother also testified that Father and his family refused to let
her leave the home and that Father even took the baby from her to prevent

3    Paternity testing later confirmed Father is Raul’s natural father, and
Mother did not contest the issue of paternity further.

4    The investigation began when Mother filed a police report after she
moved to Florida.



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                          Decision of the Court

her from leaving. Mother’s family members testified Mother was treated
poorly by Father and his family, and she became depressed, anxious, and
withdrawn over time due to their mistreatment of her.

¶7            Father categorically denied Mother’s domestic violence
allegations and that she had been mistreated while living with him and his
family. Father testified he believed Mother was dealing with mental health
issues “from the very beginning.” To support his account, Father elicited
testimony from her mother that Mother had witnessed and experienced
abuse as a child. For their part, Father’s family members testified that
Mother was never mistreated in their home.

¶8            The court issued an order awarding Mother sole legal
decision-making authority and Father supervised parenting time. In its
order, the court applied the best-interests factors listed in Arizona Revised
Statutes (“A.R.S.”) sections 25-403(A) and -403.01(B) to determine legal
decision-making and parenting time. Specifically, the court found that
Mother’s domestic violence allegations against Father and his family
required it to consider “the award of legal decision-making authority and
parenting time in light of the alleged presence of domestic violence under
A.R.S. § 25-403.03.” See A.R.S. § 25-403(A)(8) (court must consider
“[w]hether there has been domestic violence or child abuse pursuant
to § 25-403.03”).

¶9               After summarizing the evidence, including the testimony
described above, the court concluded “the truth [was] somewhat in
between” Mother’s and Father’s conflicting accounts. The court found
“Mother likely had some mental health issues . . . when she moved in with
Father” but that Father and his family had engaged in “some amount of the
behavior that [she] described in the home,” and “the fact that she remained
isolated shows that something was occurring.” Regarding the rape
allegation, the court found there was insufficient evidence presented to find
that it occurred. The court then found that Mother had experienced
“control . . . through fear and intimidation,” and that this finding supported
a determination that Father had engaged in acts of domestic violence
against Mother.

¶10            Based on these findings, the court ultimately concluded: (1) it
could not award joint legal decision-making to Father and Mother; (2) a
presumption against awarding Father sole legal decision-making authority
applied, and Father had not rebutted that presumption; (3) it was in Raul’s
best interests that Mother be awarded sole legal decision-making authority;




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                       PAREDES‑GABRIEL v. RIVA
                          Decision of the Court

and (4) that Father was entitled only to supervised parenting time. Father
timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶11           Father argues the superior court erred by awarding Mother
sole legal decision-making authority and limiting Father to supervised
parenting time based on its finding that Father committed domestic
violence under A.R.S. § 25-403.03. We review an award of legal
decision-making and parenting time for an abuse of discretion. Nold v. Nold,
232 Ariz. 270, 273, ¶ 11 (App. 2013). An abuse of discretion occurs “when
the record is ‘devoid of competent evidence to support the decision,’ or
when the court commits an error of law in the process of reaching a
discretionary conclusion.” Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4
(App. 2018) (quoting Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2009)). While
we defer to the court’s findings of fact unless they are clearly erroneous,
“[c]onclusions of law and the interpretation of statutes and rules are
reviewed de novo.” Alvarado v. Thomson, 240 Ariz. 12, 14, ¶ 11 (App. 2016).

A.     The Superior Court Abused Its Discretion by Finding Father
       Committed “Significant Domestic Violence” Under A.R.S.
       § 25-403.03(A).

¶12          The superior court found it could not award joint legal
decision-making authority to Father and Mother because Father had
engaged in “significant domestic violence” against Mother. See A.R.S.
§ 25-403.03(A) (“[J]oint legal decision-making shall not be awarded if the
court makes a finding of the existence of significant domestic violence
pursuant to § 13-3601 . . . .”). Father argues the court abused its discretion
by making that finding.

¶13           The court explained its ruling by stating the following:

       The Court reminds the parties that domestic violence is not
       limited to physical violence. Rather it is often highlighted by
       control over another person through fear and intimidation.
       Mother experienced that, even if the degree of that control,
       fear, or intimidation, is less clear.

                               *      *      *
       However, the admonition in [A.R.S. § 25-403.03(A)] applies
       only to “significant domestic violence.” Significance is a
       product of three factors: (1) The seriousness of the particular



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                       PAREDES‑GABRIEL v. RIVA
                          Decision of the Court

       incident of domestic violence, (2) the frequency or
       pervasiveness of the domestic violence, (3) and the passage of
       time and its impact. Here, the evidence establishes that by a
       preponderance of the evidence, there has been domestic
       violence by Father.

       THE COURT FURTHER FINDS that the domestic violence
       involved in this case is significant. It involves control over
       Mother for a period of years based on intimidation and fear
       tactics. In the spectrum of domestic violence, the acts in this
       case are significant.

These findings lack the specificity necessary to justify the conclusion that
Father committed significant domestic violence under A.R.S.
§ 25-403.03(A).

¶14           For A.R.S. § 25-403.03(A) to apply, the court must find the
existence of significant domestic violence “pursuant to § 13-3601.” A.R.S.
§ 13-3601, in turn, defines the crime of domestic violence by reference to
several separately defined criminal offenses. See A.R.S. § 13-3601(A) (listing
crimes that constitute domestic violence). The court here made findings
concerning the “intimidation and fear tactics” Mother experienced in
Father’s family’s household but did not determine whether Father’s
participation in those actions met A.R.S. § 13-3061’s definition of domestic
violence. While some of Father’s alleged conduct may constitute domestic
violence under A.R.S. § 13-3061, the court’s ruling does not distinguish
between those acts that do and those that do not qualify under the statue.
This issue is particularly significant in this case, where the superior court
found testimony both by and on behalf of Mother and by and on behalf of
Father lacked credibility at times.

¶15            Consequently, we are unable to determine whether the court
“would have reached the same conclusion had it considered only the acts
that legally constituted domestic violence.” Engstrom, 243 Ariz. at 474, ¶ 15.
We, therefore, conclude the court erred by finding the existence of
significant domestic violence under A.R.S. § 25-403.03(A) without
identifying the factual basis to support a finding under A.R.S. § 13-3601(A)
and without finding Father committed domestic violence as defined by that
statute.




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                       PAREDES‑GABRIEL v. RIVA
                          Decision of the Court

B.     The Court Abused Its Discretion by Finding Father Committed an
       Act of Domestic Violence Against Mother Under A.R.S. § 25-
       403.03(D).

¶16           The Court also found that because Father had committed at
least one act of domestic violence against Mother, A.R.S. § 25-403.03(D)’s
presumption against awarding sole or joint legal decision-making authority
to Father applied. Under A.R.S. § 25-403.03(D), if the court determines a
parent seeking sole or joint legal decision-making authority has committed
domestic violence against the other parent, a rebuttable presumption exists
that awarding either authority to that parent is against the child’s best
interests. The subsection provides the following definition 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.

A.R.S. § 25-403.03(D)(1)–(3); see also A.R.S. § 13-3602(E) (court may issue ex
parte order of protection if it determines there is reasonable cause to believe
a defendant has committed or may commit an act of domestic violence);
Savord v. Morton, 235 Ariz. 256, 259, ¶ 14 (App. 2014) (for purposes of the
statute governing orders of protection, “domestic violence” is defined
under A.R.S. § 13-3601).

¶17           Here, the court concluded the presumption against awarding
Father sole or joint legal decision-making authority applied because Mother
had experienced “control, fear, or intimidation” for years while living in
Father’s family’s household. But the court did not specify which actions
taken by Father caused Mother to experience that control, fear, or
intimidation, or explain how those actions met A.R.S. § 25-403.03(D)’s
definitions of domestic violence. Moreover, it is unclear whether the court
relied solely on Father’s conduct in finding the presumption applied. For
example, the court found that “some of the problem related to Father’s


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                        PAREDES‑GABRIEL v. RIVA
                           Decision of the Court

family” but concluded, “Father must also shoulder the responsibility for
protecting Mother from that situation.” However, A.R.S. § 25-403.03(D)
requires the court to consider only whether the “parent who is seeking sole
or joint legal decision-making” has engaged in domestic violence against
the other parent.

¶18             While we do not question the superior court’s statement that
domestic violence can take many forms, A.R.S. § 25-403.03(D), like A.R.S.
§ 25-403.03(A), does not “define domestic violence as a nebulous concept
subject to ad hoc facts.” Engstrom, 243 Ariz. at 473, ¶ 14. For the
presumption to apply, the court must make specific findings that Father
committed acts of domestic violence against Mother as defined by A.R.S.
§ 25-403.03(D)(1)–(3), and explain its reasoning. See A.R.S. § 25-403(B)
(“[T]he 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.”); see also Reid v. Reid, 222 Ariz. 204, 209, ¶ 18 (App. 2009) (specific
findings requirement exists “not only to aid an appellant and the reviewing
court, but also . . . [to] aid[] all parties and the family court in determining
the best interests of the child . . . both currently and in the future”). The
court did not do so here, and we cannot say it would have reached the same
conclusion had it correctly applied A.R.S. § 25-403.03(D)’s definitions of
domestic violence, particularly given the importance of the court’s
credibility determinations in this case. Accordingly, we conclude the court
abused its discretion by finding A.R.S. § 25-403.03(D)’s presumption
applied.

C.     The Court Abused Its Discretion by Limiting Father to Supervised
       Parenting Time.

¶19            The court limited Father to supervised parenting time based
on its domestic violence findings. Given our conclusion that the court erred
by making its findings of domestic violence, we must also conclude the
court erred by limiting Father to supervised parenting time due to “the
domestic violence committed by Father against Mother.” If on remand, the
court concludes that Father committed an act of domestic violence under
A.R.S. § 25-403.03(A) or (D) against Mother, it must then determine whether
Father has met his burden to show “that parenting time will not endanger
the child or significantly impair the child’s emotional development.” A.R.S.
§ 25-403.03(F). The court is then required to “make specific findings
explaining its reasoning and conclusions” as to whether Father has met his
burden and, if he has, what conditions are necessary to protect the child
and Mother. Engstrom, 243 Ariz. at 474, ¶ 18; see also A.R.S. § 25-403(B);
A.R.S. § 25-403.03(F)(1)–(9).


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                     PAREDES‑GABRIEL v. RIVA
                        Decision of the Court

                             CONCLUSION

¶20           For the foregoing reasons, we vacate the superior court’s
order concerning legal decision-making and parenting time. On remand,
the court is to conduct a new hearing, at which it shall determine legal
decision-making and parenting time under A.R.S. § 25-403.




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




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