NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COUR T 111(c)

, THIS DECISION DOES NOT CREATE LEGAL
PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

In re the Matter of:

JENELL STRAW

, Plaintiff/Appellant

,

v.

JOHN ROBERT WITTS

, Defendant/Appellee

.

No. 1 CA

- CV 13

- 0173

Appeal from the Superior Court in Maricopa County

No. FC2006

- 090100
The Honorable Rodrick J. Coffey

, Judge

AFFIRMED

COUNSEL

Wylde Summers PLLC

, Gilbert By Jennifer Summers

Counsel for Plaintiff/Appellant

Atchley and Delg a do LLP

, Mesa By Michael G. Del gado

C ounsel for Defendant/AppelleeSTRAW v. WITTS

Decision of the Court

2 MEMORANDUM DECISION

Judge Patricia K. Norris deliver ed the decision of the Court, in which Presiding Judge Donn Kessler and Judge Maurice Portley joined.

N O R R I S

, Judge:

¶1 Jenell Straw appeals from the superior court’s order dismissing an order of protection she obtained agai nst her ex

- husband, John Robert Witts , on behalf of the ir minor daughter. On appeal, Straw

argues the superior court abused its discretion in dismissing the order of protection because the evidence presented at an evidentiary hearing
demonstrated Witt s had committed an act of domestic violence against the daughter. See Cardoso v. Soldo , 230 Ariz. 614, 619, ¶ 16, 277 P.3d 811, 816 (App. 2012) (order of protection ruling reviewed for abuse of discreti on). For the following reasons, we disagree with her argument and affirm the
order.

¶2 Witts ’s current wife, who observed parts of the incident between Witts and the daughter, testified that after Witts took the daughter’s cell phone away

, the daughter “ t ried to lunge in and grab the phone from him

. ” She testified Witts then tried to usher the daughter into her room, and “she just went nuts” and started hitting, kicking, and scratching him. Witts ’s wife further testified Witts restrained the daughter by “lower[ing] her to the ground,” but that he did not hurt her in any way. Witts’s wife called the police, and they asked Witts if he wished to press charges against the daughter ; he declined to do so

.

¶3 Straw also testified at the hearing based on h er conversations with the daughter

. Straw’s testimony supported Witt s ’s wife’s testimony that the daughter initiated physical contact with Witts
and he was trying to restrain her. Straw stated the daughter told her that
Witts had the daughter’s cell phone in his hand

, and “ she went over the top of him to go grab it.” The daughter also told Straw that Witts had
then grabbed the daughter’s arm and sat her back down . W hen he would not let go of her arm, the daughter “took a swing at him.” 1

1 At the hearing, Straw testified that Witts grabbed the daughter by the throat. Witt s ’s wife, however, testified Witts neverSTRAW v. WITTS

Decision of the Court

3 ¶4 Based on t his testimony and the other evidence presented at the hearing

, reasonable evidence supported the superior court’s dismissal of the order of protection. See State v. Morris , 215 Ariz. 324, 341, ¶ 77, 160 P.3d 203, 220 (2007) ( U nder an abuse of discretion s tandard, “we uphold a decision if there is any reasonable evidence in the record to sustain it.” (citation omitted) (internal quotation marks omitted) )

.

¶5 Witts has request ed fees on appeal pursuant to Arizona

Re vised Statutes section 25

- 324 (Supp. 2013)

. Section 25

- 324 authorizes attorneys’ fees in dissolution of marriage and legal decision

- making and parenting time actions and is, consequently, inapplicable here. As the prevailing party on appeal, however, Witts is entitled to costs on appeal contingen t upon his compliance with Arizona Rule of Civil Appellate
Procedure 21.

¶6 For the foregoing reasons, we affirm the superior court’s
order dismissing the order of protection.

grabbed the daughter’s throat and his hands were on her shoulders.
Which witness to believ e was a decision for the superior court

. State v.
Cid , 181 Ar iz. 496, 500, 892 P.2d 216, 220 (App. 1995) (“finder

- of

- fact, not the appellate court . . . determines the credibility of witnesses”).