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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

In re the Matter of :

CARLA ALEJANDRA SAVOCA
, Petitioner/Appellee
,

v.

MARIO JOSEPH SAVOCA
, Respondent/Appellant

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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 C ounsel for Respondent/Appellant FILED 2-19-2019SAVOCA 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 procee dings 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 th e 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, an d 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 ph ysical 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 Chi ld but modified the order to remove Mother's parents.SAVOCA v. SAVOCA Decision of the Court

3 ¶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 th e Rule 35(b) factors at the initial hearing and the evidentiary hearing . We agree the court erre d 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 de fendant 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 p ending. 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 theSAVOCA v. SAVOCA Decision of the Court

4 superior court has exclusive jurisdiction when a family law action is pending). B ecause 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 facto rs as whether Father was "likely to cause physical injury" or whether "there was domestic violence towards the child

. " Because t he court sustained the order on the ground that there had been

" domestic violence towards the child
, " it never addressed whethe r 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 i nvolved 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 determ ine " 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
t he court affirmed the order based on wheth er there was domestic violence towards Child , a nd 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, ¶ 2 2 (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 t o 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 migh t well be enough to sustain the order o f protection. However, b ecause 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 co nsidered 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

- 41 0(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 Decision of the Court

5 ¶12 Thus, w e 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 Proced ure ("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 stat e the statute, rule, decisional law, contract, or other

au thority for an award of attorneys' fees"). Mother also requests her attorneys' fees and costs on appeal purs u ant 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 o f 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 Ru le 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 wi ll 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 br oad "inherent authority" to modify a protective order and adopt appropriate conditions to protect Child and Mother. Id. at ¶¶ 10

- 12.