Warner v. Gurule

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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: CONNELL JOEL WARNER, Petitioner/Appellee, v. SANDRA GAILE GURULE, Respondent/Appellant. No. 1 CA-CV 26-0004 FC FILED 11-04-2026 Appeal from the Superior Court in Maricopa County No. FC2022-007495 The Honorable Lauren R. Guyton, Judge AFFIRMED PARTIES Connell Joel Warner, Phoenix Petitioner/Appellee Sandra Gaile Gurule, Phoenix Respondent/Appellant MEMORANDUM DECISION Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Veronika Fabian and Judge Michael S. Catlett joined.  WARNER v. GURULE Decision of the Court C A T T A N I, Judge: ¶1 Sandra Gurule (“Mother”) and Connell Warner (“Father”) have one child together (“Child”), born in June 2016. Mother appeals the superior court’s post-judgment ruling modifying legal decision-making and parenting time previously specified in a March 2024 order. We affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 When Child was six years old, Father petitioned to establish legal decision-making, parenting time, and child support. Mother obtained an order of protection against Father due to a domestic violence incident that led to competing petitions for temporary orders throughout 2023. The court assigned a court-appointed advisor to investigate the allegations and make recommendations. ¶3 The parties subsequently agreed to entry of an order in March 2024 that awarded joint legal decision-making regarding educational decisions, with Mother having presumptive decision-making authority. That same month, after an evidentiary hearing, the court entered a final order for legal decision-making and parenting time. The court found that Father had committed an act of domestic violence against Mother, but that it did not rise to the level of “significant” domestic violence. The court thus applied the presumption against awarding him legal decision-making but ultimately found that Father had rebutted the presumption. See A.R.S. § 25- 403.03(D)–(E). Accordingly, the court awarded Mother and Father joint legal decision-making and equal parenting time, with Mother having presumptive decision-making authority. The court ordered a $0 child support obligation. ¶4 A year later, Father petitioned to modify the legal decision- making and parenting time order, alleging Mother did not take Child to school during her parenting time and did not ensure that Child went to counseling. At an October 2025 evidentiary hearing on the petition, Father urged the court to modify the most recent temporary orders by specifying joint legal decision-making authority and designating him as the primary residential parent, with Mother having parenting time every weekend during the school year except one weekend a month, and equal parenting time during the summer. Mother requested sole legal decision-making and that Father have parenting time every other weekend due to the previously alleged domestic violence. The court declined to revisit its previous domestic violence findings, having already considered the same evidence when deciding the March 2024 order. The court awarded joint legal 2  WARNER v. GURULE Decision of the Court decision-making, with Father having presumptive authority. In November 2025, the court designated Father as the primary residential parent, with Mother having parenting time every weekend during the school year except the first weekend of every month, and equal parenting time during the summer. ¶5 Mother timely appealed the November 2025 modification judgment. We have jurisdiction under A.R.S. § 12-2101(A)(2). DISCUSSION ¶6 Mother asserts that the superior court erroneously (1) found a material change of circumstance to warrant modification, and (2) disregarded evidence of domestic violence when deciding to modify the legal decision-making and parenting time orders.1 ¶7 We review the superior court’s rulings on legal decision- making and parenting time for an abuse of discretion, deferring to the court’s factual findings but considering de novo any issues of law. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). I. Changed Circumstances. ¶8 The superior court is authorized to modify existing decision- making and parenting time orders when there has been a material change of circumstances affecting the child’s welfare. Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020). Here, the court found that Child’s multiple absences from school and Mother’s failure to take Child to counseling were changes in circumstances affecting Child’s welfare. Mother asserts that the evidence of Child’s absences on which the court relied does not support modification because there was conflicting evidence about whether the absences were excused via doctor’s notes. Although the doctor’s notes were not placed in evidence at the October 2025 hearing that led to this appeal, both parties testified to the existence of the doctor’s notes. Our review of this evidence is thus limited to a deferential assessment of the superior court’s determinations of witness credibility and the weight given to 1 Father did not file an answering brief. Although we could treat his failure to do so as a confession of error, we exercise our discretion to address the merits of Mother’s claim because a child’s best interests are at issue. See Savord v. Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014); see also In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002) (declining to find confession of error because a child’s best interests were at issue). 3  WARNER v. GURULE Decision of the Court conflicting evidence. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019). ¶9 Further, Child’s absences were not the sole basis for the decision. The court also noted Mother’s failure to take Child to counseling, and sufficient evidence in the record supports this finding. Father testified and medical records showed that although Child suffered from Autism, Mother stopped taking Child to counseling and eventually terminated counseling services for Child. We find no error. II. Legal Decision-Making and Parenting Time. ¶10 Arizona courts determine legal decision-making and parenting time “in accordance with the best interests of the child.” A.R.S. § 25-403(A). In doing so, a court must consider all relevant factors, see, e.g., A.R.S. §§ 25-403(A)(1)–(11), -403.01(B)(1)–(4),2 and, in contested cases, the court must make express findings “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). ¶11 Among other factors, the court must consider “[w]hether there has been domestic violence or child abuse pursuant to § 25-403.03.” A.R.S. § 25-403(A)(8). Section 25-403.03, in turn, creates an array of prohibitions and presumptions applicable to legal decision-making and parenting time when the court finds various types or degrees of domestic violence by one or both parents. See, e.g., A.R.S. § 25-403.03(A)–(B), (D)–(E), (F). ¶12 Section 25-403.03(A) flatly prohibits an award of joint legal decision-making if the court finds “significant” domestic violence as defined in § 13-3601 or a “significant history” of domestic violence. If the court finds that a parent committed “an act” of domestic violence against the other, without reaching the “significant” level, the statute imposes a rebuttable presumption that awarding legal decision-making to the perpetrator is contrary to the child’s best interests; no presumption applies if each parent has committed domestic violence against the other. A.R.S. § 25-403.03(D) (qualifying acts and presumption), (E) (rebutting the presumption). A parent found to have committed an act of domestic 2 The order on appeal was decided in 2025, before the June 2026 version of the domestic violence statute took effect, so the prior version of the statute is effective here. Compare A.R.S. § 25-403.03 (2025) (amended 2026), with A.R.S. § 25-403.03. 4  WARNER v. GURULE Decision of the Court violence must prove that granting parenting time will not endanger the child, and the court may impose conditions on any parenting time awarded as necessary to protect the child and the other parent. A.R.S. § 25-403.03(F). ¶13 In all cases, the court must consider domestic violence to be against a child’s best interests, and the safety of the victim and the child is “of primary importance.” A.R.S. § 25-403.03(B). And as with any best- interests factor relevant to a contested case, the court must make findings regarding the existence of domestic violence and whether any statutory presumption has been rebutted. Olesen v. Daniel, 251 Ariz. 25, 29, ¶ 17 (App. 2021); see also Diezsi, 201 Ariz. at 526, ¶ 5 (findings required whether granting or denying petition). ¶14 Here, in the March 2024 parenting order, the superior court found that Father had committed domestic violence against Mother, but that his actions did not fall into the category of “significant” or “significant history” for purposes of the § 25-403.03(A) prohibition of joint legal decision-making. The court further found that although the § 25-403.03(D) presumption against awarding Father decision-making authority applied, he had rebutted the presumption by showing his subsequent recognition of the impact of his actions and by his efforts (domestic-violence treatment and parenting education) to address his conduct. ¶15 The superior court refused to reconsider that determination when it entered its November 2025 modification order. Mother argues that the superior court erred by declining to do so, which she asserts deprived her of due process. But the court did not refuse to consider any evidence of domestic violence, just evidence that occurred prior to the previous (March 2024) parenting order. See Backstrand, 250 Ariz. at 341, ¶ 1 (“[A] court may modify a parenting plan only if it first finds a material change of the circumstances affecting the child’s welfare since the last court order.”). And Mother admits that she did not present any new evidence of domestic violence. Although Mother argues the court should again have applied the rebuttable presumption in the November 2025 order because Father had committed an act of domestic violence, see A.R.S. § 25-403.03(D), the court had already (in March 2024) found that Father had rebutted that presumption. We find no error because there was no need to revisit an issue that had previously been decided. III. Attorney’s Fees on Appeal. ¶16 Mother requests an award of attorney’s fees and costs on appeal under A.R.S. § 25-324. Mother is not eligible for a fee award because 5  WARNER v. GURULE Decision of the Court she represented herself on appeal. See Munger Chadwick, P.L.C. v. Farwest Dev. & Constr. of the Sw., LLC, 235 Ariz. 125, 128, ¶ 11 (App. 2014) (finding a pro se attorney is not entitled to fees). CONCLUSION ¶17 We affirm. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 6