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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ABBY P. PRESSLY, Petitioner/Appellee,

                                         v.

                   AARON C. LOVE, Respondent/Appellant.

                            No. 1 CA-CV 15-0632 FC
                                 FILED 12-8-2016


            Appeal from the Superior Court in Yavapai County
                         No. P1300DO20090502
               The Honorable Patricia A. Trebesch, Judge

                                   AFFIRMED


                                    COUNSEL

Carman Law Firm, Prescott
By Krista M. Carman
Counsel for Petitioner/Appellee

Jeffrey M. Zurbriggen PC, Phoenix
By Jeffrey M. Zurbriggen
Counsel for Respondent/Appellant
                            PRESSLY v. LOVE
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Peter B. Swann joined.


G O U L D, Judge:

¶1           Aaron C. Love (“Father”) appeals from the superior court’s
order regarding parenting time and child support. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Father and Abby P. Pressly (“Mother”) were married for six
years and have three minor children together. Their marriage was
dissolved in 2010. According to the amended consent decree, Father and
Mother had “joint legal and joint physical custody” of the children and
nearly equal parenting time. Father agreed to pay child support of $2500
per month and spousal maintenance for a period of four years.

¶3             More than one year after entry of the amended decree, Father
filed a petition for modification of child support citing a decline in his
income. Thereafter, Mother filed an emergency petition to modify child
custody, parenting time and legal decision-making, as well as a request for
random drug and alcohol testing, alleging that Father was displaying
“irrational, erratic and unpredictable behaviors.” Mother also filed a
motion for contempt against Father alleging his failure to pay child support,
spousal maintenance, and miscellaneous expenses.              Following an
evidentiary hearing, the superior court entered temporary orders requiring
Father to submit to weekly drug testing and directing supervision of his
parenting time.

¶4             After a failed attempt at settlement, the superior court held a
two-day trial and, thereafter, entered a detailed order (1) awarding joint
legal decision-making, (2) granting Father limited supervised parenting
time, (3) finding Father in contempt of court for failure to pay child support
and spousal maintenance, and (4) granting Mother an award of attorneys’
fees. Father appealed.




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                            Decision of the Court

                               DISCUSSION

I.     Parenting Time

¶5            Father first challenges the superior court’s ruling regarding
parenting time. He argues the court “incorrectly made the § 25-403
findings.” We review the court’s decision regarding parenting time for an
abuse of discretion. See Hart v. Hart, 220 Ariz. 183, 185, ¶ 8 (App. 2009).

¶6            The superior court awarded Father and Mother joint legal
decision-making and granted Father supervised parenting time twice a
month contingent upon his submission to full panel drug testing.1 The
court’s order further provided that Father’s parenting time would increase
over time and supervision would end as long as there were “no concerns
during parenting time.”

¶7            In a contested parenting time case, the court must comply
with the requirement set forth in Arizona Revised Statutes (“A.R.S.”)
section 25-403 to “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).2 A court’s failure to make these findings
constitutes an abuse of discretion. See In re Marriage of Diezsi, 201 Ariz. 524,
526, ¶ 5 (App. 2002).

¶8            Here, the superior court’s order thoroughly addressed each of
the relevant factors set forth in § 25-403. Accordingly, the court’s decision
complied with A.R.S. § 25-403.

¶9            Father also argues the superior court “erred when it ordered
[Father’s] parenting time to be very restricted, contrary to Arizona law.”
In making this argument, Father relies on A.R.S. § 25-411(J), which
provides:

       The court may modify an order granting or denying
       parenting time rights whenever modification would serve the
       best interest of the child, but the court shall not restrict a
       parent’s parenting time rights unless it finds that the

1      The record reflects that Father failed to comply with prior court
orders for drug testing.

2      Absent material revision after the relevant date, we cite the current
version of a statute unless otherwise stated.



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                           Decision of the Court

       parenting time would endanger seriously the child’s
       physical, mental, moral or emotional health.

A.R.S. § 25-411(J) (emphasis added).

¶10           Pursuant to § 25-411(J), the superior court was required to
determine that Father’s parenting time would endanger the children before
restricting his parenting time.3 We review whether the evidence in the
record supports the court’s determination. See Hart, 220 Ariz. at 188, ¶ 19
(analyzing § 25-411(D), now recodified as § 25-411(J)). Additionally, in
reviewing a decision after a bench trial, “we view the evidence in the light
most favorable to upholding the trial court’s decision.” Double AA Builders,
Ltd. v. Grand State Constr. L.L.C., 210 Ariz. 503, 506, ¶ 9 (App. 2005).

¶11           In explaining its decision to restrict Father’s parenting time,
the court referenced Father’s 2013 car accident and his resulting arrest.
Following the accident, Father pled guilty to two counts of vehicular
endangerment and one count of reckless driving. Although the charges of
driving under the influence were later dropped, the police reports describe
behaviors and symptoms indicative of drug use. The reports also reflect
that multiple prescription medications were found in Father’s car.

¶12           In support of its decision, the superior court also referenced
an assessment of Father performed by a medical doctor, who is a fellow of
the American Society of Addiction Medicine. The assessment was
completed at the request of the Arizona Board of Osteopathic Examiners in
Medicine and Surgery. The doctor noted that Father, who himself is an
emergency room physician, (1) admitted to misusing Adderall and (2)
acknowledged using “curbside” prescriptions obtained from his physician
colleagues. The doctor concluded that Father “requires a comprehensive
evaluation at a recognized and board approved evaluation center to
determine if there is an underlying substance use disorder, psychiatric
disorder and/or medical condition that may be impairing his ability to
function effectively.”




3      This statute does not require written findings on the record. See Hart,
220 Ariz. at 187, ¶¶ 15-16 (holding there is no requirement that the court’s
findings be “reduced to writing or stated on the record”).




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                           Decision of the Court

¶13         The superior court summarized this assessment and other
evidence supporting its decision to restrict Father’s parenting time as
follows:

      There are many red flags raised by the contents of Father’s
      evaluations. Father’s recent and progressively declining
      behavior including the DUI, criminal charges, domestic
      violence incident, Medical Board investigation, license
      suspension/unemployment and consequential financial
      issues are concerning given they constitute stressors that
      challenge and, at times, impair Father’s judgment and may
      place the children at risk without monitoring.

¶14           Based on this evidence, the court restricted Father’s parenting
time, devising a parenting plan that was “designed to ensure the safety of
the children by encouraging Father’ sobriety.” Based on the record, we find
no abuse of discretion, and affirm the court’s parenting plan.

II.   Settlement Conference

¶15          Father next argues the superior court “erred when it was
supposed to hold an evidentiary hearing in December 2014” but instead
held a settlement conference. The order entered the day of the hearing
states:

      Pursuant to stipulation of the parties[,] the Court converted
      the Trial scheduled for December 16, 2014 into a Settlement
      Conference. The Court has been advised the parties[] reached
      [an] agreement on all issues.

The order further directs the parties to submit a stipulated agreement
within ten days. The parties failed to do so.

¶16           Arizona Rule of Family Law Procedure (“Rule”) 67 permits a
judge or commissioner presiding over an action to conduct a settlement
conference “[u]pon agreement of the parties.” Ariz. R. Fam. L.P. 67(D).
Here, the record indicates the parties stipulated to a settlement conference
before the judge assigned to their case.4 There is no evidence in the record

4     Relying on this court’s decision in In re Jesse M., 217 Ariz. 74 (App.
2007), Father argues that “a judge does not have the discretion to disregard
the statutory requirement for a verbatim record.” That case, however,
involved the application of A.R.S. § 36–539(E), which requires a verbatim



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                           Decision of the Court

that Father objected to the settlement conference; indeed, the record reflects
his acquiescence. Accordingly, we find no error.5

III.   Dr. Cady’s Testimony

¶17            Father also argues the superior court erred in permitting Dr.
Daniel Cady to testify. Father asserts that Dr. Cady was not qualified to
testify as an expert pursuant to Arizona Rule of Evidence 702.

¶18          A court has broad discretion in determining whether a
witness is qualified to testify as an expert. State v. Romero, 239 Ariz. 6, 9,
¶ 11 (2016). We review the superior court’s decision to admit Dr. Cady’s
expert testimony for an abuse of discretion. Id. at ¶ 15.

¶19          Mother disclosed Dr. Cady as an expert witness pursuant to
Rule 49(H). Her disclosure indicated that Dr. Cady would provide “his
professional opinions regarding adult onset and/or diagnosis, symptoms
and treatment of adult Attention Deficit Disorder and Adult Attention
Deficit Hyperactivity Disorder.”

¶20           Dr. Cady is a licensed psychologist with experience
performing psychological evaluations and knowledge regarding attention
deficit disorder (“ADD”) and attention deficit hyperactivity disorder
(“ADHD”). Our review of Dr. Cady’s credentials and testimony confirms
that he had the experience, training, and education to offer an opinion on
the subject of adult onset ADD and ADHD.6 The superior court did not
abuse its discretion in permitting him to testify.


record for involuntary commitment proceedings. See id. at 81, ¶ 37. There
is no such statutory requirement applicable here.
5      Father also argues that Rule 67 “requires that a report be produced
with the resolved and unresolved issues, and then provided to the court.”
The rule, however, requires a report only if the parties do not reach an
agreement or reach only a partial agreement. See Ariz. R. Fam. L.P. 67(D)(7).
Here, the record reflects the parties reached an agreement “on all issues”;
therefore, no report was required.

6      Father’s reliance on Rodriguez v. Jackson, 118 Ariz. 13 (App. 1977) for
the proposition that “medical testimony means testimony by physicians” is
misplaced. Id. at 17. Rodriguez stands for the proposition that in a medical
malpractice case, the standard of care for a physician must be established
by an expert physician.


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                            PRESSLY v. LOVE
                           Decision of the Court

IV.   Abbie Roses’ Testimony

¶21          Father last argues the superior court erred by allowing Abbie
Roses to testify because “the Court stated on the record that it had a
relationship with the witness, [b]ut nowhere on the record did any
advisement or waiver of such conflict occur.”

¶22           At trial, Mother called Abbie Roses, a realtor who attempted
a short sale of Father’s home. Prior to her testimony, the superior court
stated: “I will note for the record that I have already disclosed [to] the
parties my familiarity” with Ms. Roses. Father did not object to Ms. Roses’
testimony.

¶23            “It is well established that failure to object to evidence,
testimony or arguments waives these matters on appeal.” State v. Thomas,
130 Ariz. 432, 435 (1981). Father failed to object to Ms. Roses’ testimony at
the time of trial. Therefore, he has waived this issue on appeal.

                               CONCLUSION

¶24           For the foregoing reasons, we affirm the superior court’s
order. Mother requests attorneys’ fees on appeal pursuant to A.R.S. § 25-
324. In the exercise of our discretion, we award Mother reasonable
attorneys’ fees and costs on appeal subject to her compliance with Arizona
Rule of Civil Appellate Procedure 21.




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




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