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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARLA ALEJANDRA SAVOCA, Petitioner/Appellee,

v.

MARIO JOSEPH SAVOCA, Respondent/Appellant.

No. 1 CA-CV 18-0366 FC

Appeal from the Superior Court in Maricopa County

No. FC2017-053336

The Honorable Richard F. Albrecht, Judge Pro Tempore

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Schill Law Group, Scottsdale

By Melanie G. Gable

Counsel for Petitioner/Appellee

Modern Law, PLLC, Mesa

By Kylie Bigelow

Counsel for Respondent/Appellant

FILED 2-19-2019
SAVOCA v. SAVOCA

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in 

which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.

M O R S E, Judge:

¶1 Mario Joseph Savoca ("Father") appeals the superior court's 

May 21, 2018 amended order of protection. For the following reasons, we 

affirm, in part, and vacate, in part, the superior court's decision affirming 

the order of protection and remand for proceedings consistent with this 

decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 In June 2017, Carla Savoca ("Mother") sought an order of 

protection against Father based on disputes that occurred on November 7, 

2016, and June 12, 2017, involving Father, Mother, and the couple's minor 

child ("Child"). The court issued an order of protection on June 13, 2017, for 

Mother, Child, and Mother's parents. The Department of Child Safety 

("DCS") and the Phoenix Police Department questioned Father about 

Mother's allegations, and Father admitted to DCS that the allegations 

regarding the June 2017 incident were true. In August 2017, Mother filed 

another petition for an order of protection based on a dispute on July 9, 

2017, and the court amended the order of protection in August 2017. The 

order of protection provided that Father "shall have no contact with [Child], 

except through attorneys, legal process, court hearings."

¶3 At Father's request, the court held a hearing in May 2018. At 

the end of the hearing, Father asked the court to address the factors 

contained in Arizona Rule of Protective Order Procedure ("Rule") 35(b). 

The court acknowledged that Rule 35(b) provides for consideration of two 

factors, which it summarized as whether Father was "likely to cause 

physical injury" or whether "there was domestic violence committed 

towards the child." The court then concluded that there was domestic 

violence committed toward Child on June 12, 2017, and it sustained the 

order of protection with respect to Mother and Child but modified the order 

to remove Mother's parents.
SAVOCA v. SAVOCA

Decision of the Court

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¶4 Father timely appealed. We have jurisdiction pursuant to 

Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(5)(b).

DISCUSSION

¶5 Father argues the superior court erred because it failed to 

consider the Rule 35(b) factors at the initial hearing and the evidentiary 

hearing. We agree the court erred in applying the Rule 35(b) factors.

I. Standard of Review

¶6 We review an order of protection for an abuse of discretion. 

Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014). "A trial court abuses 

its discretion when it makes an error of law in reaching a discretionary 

conclusion or when the record, viewed in the light most favorable to 

upholding the trial court's decision, is devoid of competent evidence to 

support the decision." Id. (quotation marks omitted). We review the 

interpretation of rules de novo. Gonzalez v. Nguyen, 243 Ariz. 531, 533, ¶ 8 

(2018).

II. The Superior Court Erred by Misstating the Rule 35(b) Factors.

¶7 "Parents possess a fundamental liberty interest in the care, 

custody, and management of their children," Kent K. v. Bobby M., 210 Ariz. 

279, 284, ¶ 24 (2005). Orders of protection that interfere with the parental 

relationship must comport with due process of law. Savord, 235 Ariz. at

259-60, ¶ 16. Rule 35(b) provides that, "[b]efore granting a protective order 

prohibiting contact with a child with whom the defendant has a legal 

relationship," the court must consider: (1) "whether the child may be 

harmed if the defendant is permitted to maintain contact with the child," 

and (2) "whether the child may be endangered if there is contact outside 

the presence of the plaintiff."

¶8 Mother asserts that Rule 35(b) is inapplicable in this case 

because no family law case was pending. We disagree. Rule 35(b) does not 

provide that it is inapplicable outside of the context of a separate action 

under A.R.S. Title 25. Instead, Rule 35(a) states that certain Title 25 issues 

(e.g., maternity, paternity, child support, and parenting time) cannot be 

addressed in a protective order, and Rule 35(b) then provides that the court 

must consider the two factors "[b]efore granting a protective order 

prohibiting contact with a child with whom the defendant has a legal 

relationship." Mother refers to Rule 34 to argue that a family law case must 

be pending, but Rule 34 only addresses the superior court's jurisdiction in 

protective order proceedings. See Ariz. R. Prot. Order P. 34 (providing the 
SAVOCA v. SAVOCA

Decision of the Court

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superior court has exclusive jurisdiction when a family law action is 

pending). Because Father had a "legal relationship" with the child, the 

superior court was required to consider the Rule 35(b) factors in this case.

¶9 When asked to consider the Rule 35(b) factors, the court 

summarized the factors as whether Father was "likely to cause physical 

injury" or whether "there was domestic violence towards the child." 

Because the court sustained the order on the ground that there had been 

"domestic violence towards the child," it never addressed whether Father 

was "likely to cause physical injury" to the child.

¶10 Presumably, the superior court was referring to Rule 5(b)(1), 

which provides that a defendant's child cannot be included in a protective 

order unless "(A) physical harm may result or has resulted to the child, or 

(B) the alleged acts of domestic violence involved the child." Rule 35(b), 

however, provides additional requirements before a protective order may 

prohibit contact between a child and defendant with whom the child has a 

legal relationship. In those cases, Rule 35(b) requires that the court 

determine "whether the child may be harmed if the defendant is permitted 

to maintain contact with the child" and "whether the child may be 

endangered if there is contact outside the presence of the plaintiff." Because 

the court affirmed the order based on whether there was domestic violence 

towards Child, and did not consider the two factors included in Rule 35(b),

the court erred.

¶11 We must also consider whether the superior court's error is 

harmless. Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 94, ¶ 22 (App. 

2005). "Unless justice requires otherwise, an error . . . by the court . . . is not 

grounds for . . . vacating, modifying, or otherwise disturbing a judgment or 

order." Ariz. R. Civ. P. 61; see Ariz. R. Prot. Order P. 2 (stating that to the 

extent not inconsistent with the Rules, the Arizona Rules of Civil Procedure 

apply to all protective order matters that are not heard in conjunction with 

pending family law cases). Certainly, the domestic violence incident is 

extremely troubling, and might well be enough to sustain the order of

protection. However, because the superior court expressly declined to 

consider the factors under Rule 35(b), we cannot determine whether the 

error is harmless. See Hart v. Hart, 220 Ariz. 183, 188, ¶ 19 (App. 2009). In 

Hart, the superior court considered the child's best interests, but it failed to 

consider whether the child's physical health or emotional development 

would be harmed in the absence of supervised parenting time as required 

pursuant to A.R.S. § 25-410(B). Id. The court found that "[b]ecause the 

wrong standard was applied," it was necessary to "remand for application 

of the proper standard to the facts here." Id.
SAVOCA v. SAVOCA

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¶12 Thus, we conclude the superior court's failure to consider the 

correct Rule 35(b) factors was reversible error. See id.

III. Attorneys' Fees and Costs on Appeal

¶13 Father requests his attorneys' fees and costs on appeal 

pursuant to Arizona Rule of Civil Appellate Procedure ("ARCAP") 21(a). 

Father, however, does not state a substantive statutory basis for fees. See 

ARCAP 21(a)(2) (stating this Court may decline to award fees if a party fails 

to "specifically state the statute, rule, decisional law, contract, or other 

authority for an award of attorneys' fees"). Mother also requests her 

attorneys' fees and costs on appeal pursuant to ARCAP 21 and A.R.S. § 25-

324 (mandating an award of costs and attorneys' fees if the petition for 

dissolution of marriage was not filed in good faith, was not grounded in 

fact or based in law, or was filed for an improper purpose). In the exercise 

of our discretion, we decline to award fees to either party. We award costs 

on appeal to Father upon his compliance with ARCAP 21.

CONCLUSION

¶14 For the foregoing reasons, we affirm the superior court's May 

21, 2018, order sustaining the order of protection as to Mother, vacate the 

order sustaining the order of protection as to Child, and remand to allow 

the superior court to consider the proper Rule 35(b) factors.

1

 

1 We also note that a family court case involving the parties is now 

pending. Although not directly implicated in this appeal, the options and 

considerations under A.R.S. § 25-403.03 will have "primacy" on remand. 

Courtney v. Foster ex rel. Cty. of Maricopa, 235 Ariz. 613, 616, ¶ 11 (App. 2014). 

If superior court applies the factors under Rule 35(b) and determines that 

an absolute prohibition on contact is inappropriate, then it has broad 

"inherent authority" to modify a protective order and adopt appropriate 

conditions to protect Child and Mother. Id. at ¶¶ 10-12.