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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                NICHOLAS KRAKANA, Petitioner/Appellant,

                                         v.

                 SUSANNE R. HAASS, Respondent/Appellee.

                            No. 1 CA-CV 17-0747 FC
                              FILED 10-11-2018


            Appeal from the Superior Court in Maricopa County
                           Nos. FC2016-050246
                                 FC2017-003246
                              (Consolidated)

                 The Honorable Jennifer Ryan-Touhill, Judge

                                   AFFIRMED


                                    COUNSEL

Horne Slaton, PLLC, Scottsdale
By Thomas C. Horne
and
Law Offices of Michael Welch, San Francisco, California
By Michael Welch
Counsel for Petitioner/Appellant

Brown, Naegle, Crider & Jensen, Mesa
By Kay A. Jones, Brad J. Crider
Counsel for Respondent/Appellee
                            KRAKANA v. HAAS
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop
joined.


T H O M P S O N, Judge:

¶1             Nicholas Krakana (father) appeals from the family court’s
denial of his motion for new trial following the court’s decision to grant
parents joint legal decision-making authority and equal parenting time.
Father further complains of the admission of certain documents. The
appeal in this matter covers father’s two petitions for legal decision-making
authority (consolidated FC2016-050246 and FC2017-003246). Finding no
error, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Father and Susanne R. Haass (mother) are the unmarried
parents of two minor children born, respectively, in 2007 and 2009. Since
early 2016, parents have resided separately, and their domestic relations
situation has been contentious. For at least nine years father has been a full-
time stay at home dad, living in one of his mother’s (grandmother’s) second
homes, and being fully supported by her. Mother at the time of trial was
attending real estate school.

¶3            Father, in 2017, unsuccessfully attempted to sever mother’s
parental rights [JS518301]. The court in the severance matter said it had
serious concerns about their “extreme animosity towards each other” and
that “the parents continue to fixate on vindicating themselves regardless of
the suffering their children will experience in the process.”

¶4             In the instant matter on appeal both parents requested, and
were denied, sole legal custody of the children. Both sought supervised
visitation as to the other. At the hearing, there was testimony as to mutual
domestic violence, alcohol abuse, and inappropriate behavior in front of the
children.

¶5           In a twenty-seven-page minute entry, the family court went
through the Arizona Revised Statutes (A.R.S.) § 25-403 (2018) factors, and



                                      2
                            KRAKANA v. HAAS
                            Decision of the Court

eventually awarded parents joint legal decision-making authority.1 It made
ancillary orders, including directing the parties to engage in intensive
counseling. It set a parenting and vacation schedule. It set child support,
ordering father to pay $434.21 a month, based on the recurring $6,500 a
month income attributable to him as a gift from grandmother. It ordered no
past due child support. It ordered the parties to each read a book about co-
parenting and write a book report.

¶6           Father filed an Arizona Rules of Family Law and Procedure
(RFLP), Rule 83, motion for new trial or amendment of judgment as to
court-ordered intensive counseling and the re-consideration of his
misdemeanor domestic violence conviction. Father’s motion was denied.
Mother filed a motion for reconsideration seeking changes to the family
court’s orders as to vacation time, past child support, and intensive
counseling. Mother’s motion was denied. Father then filed a timely notice
of appeal.

                                   ISSUES

             On appeal father argues the family court erred in:

    1. Denying his motion for new trial for sole decision making;

    2. Denying his motion to amend the judgment to vacate the
       requirement he take intensive counseling due to the cost; and

    3. Admitting exhibits from mother in violation of the pre-trial order.

                                DISCUSSION

¶7             On appeal, father asserts the family court erred in denying
him sole decision-making “after finding that the mother caused the five-
year-old daughter to take pornographic photos” of mother. Father asserts
that the court could not have reached the decision it did, including making
a best interests finding, given “this appalling parental misconduct.”

¶8            We review child custody determinations under an abuse of
discretion standard. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003).
The court has broad discretion in making this determination, and we will


1 Under A.R.S. § 25–401(2) (2018), “‘[j]oint legal decision-making means
both parents share decision-making and neither parent’s rights or
responsibilities are superior except with respect to specified decisions as set
forth by the court or the parents in the final judgment or order.”


                                      3
                           KRAKANA v. HAAS
                           Decision of the Court

not disturb its decision absent a clear abuse of discretion. In re Marriage of
Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 2002). "The trial court is in the best
position to judge the credibility of the witnesses, the weight of evidence,
and also the reasonable inferences to be drawn therefrom." Goats v. A.J.
Bayless Mkts., Inc., 14 Ariz. App. 166, 171 (App. 1971). Viewing the evidence
in the light most favorable to sustaining the family court's findings, we
determine whether the record reasonably supports the findings. Gutierrez
v. Gutierrez, 193 Ariz. 343, 346, ¶ 5 (App. 1998).

¶9             The family court did find that mother, in January 2015, had
engaged her then five-year old daughter in taking two posed pictures that
included her genitals. On appeal father wishes to draw our attention to
this distasteful situation and to have us consider it dispositive.2 That we
will not do. By statute, the family court must – and did - consider many
factors before determining legal decision-making authority. See A.R.S. § 25-
403.

¶10            A review of the record and the family court’s minute entry
provides a view of father that is, likewise, not flattering. The court found
father engaged in “rude, bullying, disrespectful, argumentative, and
inappropriate” behavior not only towards his immediate family and his
mother, but also towards law enforcement. For example, an officer testified
that during the course of an attempted service of an order of protection as
to mother in 2016, father became unreasonably loud and profane in front of
his daughter’s gymnastics class, then sped off in his car and barricaded
himself, grandmother, and the children in the house mentioned in the order
of protection. Prior to speeding off, father mocked the officer and threw the
order of protection out the car window. At the house, an officer arriving on
the scene found mother laying in the driveway, crying hysterically, with
red finger marks around her throat. A SWAT team was called and the
situation was treated as a hostage situation. Police eventually entered and
took father into custody. This situation resulted in a misdemeanor
conviction for father. Mother, however, was not without blame as the
family court in the severance matter found mother deliberately escalated
the situation.




2 On this issue, the family court said given the passage of time and no
further evidence of similar behavior, it hoped the act was a “gross error in
judgment that will not be repeated again.” The court also noted that as
alarming as the two photos were, father knew about the photos for over
nine months before bringing them to the court’s attention.


                                      4
                           KRAKANA v. HAAS
                           Decision of the Court

¶11          The family court further stated it:

      is concerned about Father’s inability to control his anger and
      his apparent need to share his displeasure with anyone who
      will listen. Father posted various statements to Facebook,
      including threats to sue Scottsdale Police …besmirched a
      judicial officer [in the severance matter], and eagerly
      anticipated severing Mother’s parental rights.

During the hearing on this matter, the court had to admonish father as to
his inappropriate verbal actions, and otherwise demonstrating showing his
disapproval as to the officer’s testimony.

¶12           Indeed, the family court found both parents had engaged in
domestic violence against the other.3 The record amply supports this
finding. For example, there was a 2017 Department of Child Safety
document that stated the agency had “serious concerns that both parents
place the children at risk of domestic violence.”

¶13           Along similar lines, there are emails in the record indicating
father may have assaulted grandmother on at least two occasions and that
he threatened to withhold the children unless she continued to fully
support his family financially, including providing a house, as she had been
doing for many years. On one occasion, after grandmother moved to end
the support because it was draining her own finances, father stated “I want
to clarify something. You want to evict you[r] grandchildren out of the
house they grew up in, sleep in, play in, eat, and where they have peace?
And still want to be in their lives? It’s a yes or no answer.”

¶14           Father argues that the court improperly disregarded evidence
of mother’s alcohol abuse, including his testimony as to her “long-standing
and serious alcohol dependency and abuse.” The record below did contain
evidence as to mother’s drinking. On that issue, the court stated:

      The Court is concerned about Mother’s denial of any alcohol
      issues. While the Court gives little weight to Father’s
      exaggeration of Mother’s difficulties and claims of unfitness,



3 The court considered a 2011 police report detailing police response to a
domestic situation where mother was apparently intoxicated and had
allegedly battered husband. No conviction resulted.



                                     5
                           KRAKANA v. HAAS
                           Decision of the Court

      the Court does see that Mother previously obtained a
      sponsor.

It went on to state that mother would have been more credible if, rather
than flatly denying any alcohol issue, she had admitted “the need to work
on herself.” The court pointed out that during the dependency action in
2016, mother tested negative for the presence of alcohol on numerous
occasions. Grandmother testified as to mother’s drinking issues, however,
the court found grandmother not credible as to mother’s ability to parent.
The family court heard and considered evidence on both sides of this
matter. For this reason, the court did not abuse its discretion in finding
insufficient evidence of an alcohol problem.

¶15         The record supports the family court’s best interest finding.
The court did not abuse its discretion in determining that joint legal
decision-making here was preferable to giving either parent sole legal
decision-making authority over the children.

¶16           Father next argues the family court abused its discretion in
denying his motion for new trial regarding the intensive counseling
requirement. Specifically, father asserts the counselors required by the
court are too expensive – at least $8,000. He argues he has no income and
his mother “was unwilling to provide the money for the program.”

¶17           We review the denial of a motion for new trial for an abuse of
discretion. Pullen v. Pullen, 223 Ariz. 293, 295, ¶ 10 (App. 2009). Under
Arizona RFLP 83(A), a “judgment may be vacated and a new trial granted”
for certain enumerated causes “materially affecting [a] party's rights.”
These causes include:

      1. irregularity in the proceedings of the court or a party, or
      abuse of discretion, whereby the moving party was deprived
      of a fair trial;

      …

      5. error in the admission or rejection of evidence or other
      errors of law occurring at the trial or during the progress of
      the action;

      6. that the ruling, decision, findings of fact, or judgment is not
      justified by the evidence or is contrary to law.

Id.


                                      6
                           KRAKANA v. HAAS
                           Decision of the Court

¶18           Grandmother testified she just “loan[ed]” son money “as
needed” and doesn’t really keep track of these amounts or what he needed
as far as income. Given that the family court established father had a gifted
income of $6,500 a month, we cannot find that the denial of a motion for
new trial was an abuse of discretion.

¶19           Finally, father complains that the family court allowed in
certain evidence from mother that was not disclosed under the timelines
outlined in the pretrial order. Father raised this issue before the family
court and it was denied. As father notes in his brief, citing Brown v. U.S.
Fidelity & Guar. Co., 194 Ariz. 85, 88, ¶ 7 (App. 1998), we review the
exclusion or admission of evidence under an abuse of discretion standard.

¶20          The three exhibits from mother that were admitted were the
lengthy consolidated Scottsdale police report for the April 2016 SWAT team
incident, and the packet of emails between father and grandmother
mentioned above. Mother asserts that father already had possession of the
cumulative police report from previous proceedings. She asserts, and we
agree, that under Hays v. Gama, 205 Ariz. 99, 103, ¶ 18 (2003) the court
should admit any relevant evidence which goes to the children’s best
interests.

¶21          As to the emails between father and grandmother, whether
father has a history of abusing not only mother but also grandmother is
relevant evidence which goes to the children’s best interests. Additionally,
as grandmother denied remembering such incidents, it would have been
admissible not only as impeachment evidence, but relevant concerning
grandmother’s credibility. See Ariz. R. Evid. 801(d)(1)(A).

¶22          Mother seeks her attorneys’ fees pursuant to A.R.S. §§ 25-324
and 12-349 (2018). Section 25–324(A) provides that:

      The court from time to time, after considering the financial
      resources of both parties and the reasonableness of the
      positions each party has taken throughout the proceedings,
      may order a party to pay a reasonable amount to the other
      party for the costs and expenses of maintaining or defending
      any proceeding under ... chapter 4, article 1 of this title
      [regarding legal decision-making and parenting time].

Here, mother asserts that father acted unreasonably in contesting the family
court’s ruling. Mother argues that father has an extensive source of income
from grandmother. We note that in the family court, each party bore its



                                     7
                          KRAKANA v. HAAS
                          Decision of the Court

own attorneys’ fees. In our discretion, we award mother attorneys’ fees in
an amount to be determined after compliance with ARCAP 21.

                              CONCLUSION

¶23          For the above stated reasons, the family court is affirmed.




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




                                       8
