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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMOTHY JOHN BENNIE, II, Petitioner/Appellant,

v.

ASHLYN BRIANNE JOHNSON, Respondent/Appellee.

No. 1 CA-CV 22-0026 FC

Appeal from the Superior Court in Maricopa County

No. FC 2015-053306

The Honorable Melissa Iyer Julian, Judge

AFFIRMED

APPEARANCES

Timothy John Bennie, II, Phoenix

Petitioner/Appellant

Law Offices of Vescio & Seifert PC, Glendale

By Theresa L. Seifert

Counsel for Respondent/Appellee

FILED 8-2-2022
BENNIE v. JOHNSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Timothy Bennie II (Father) appeals from orders modifying 

legal decision-making, parenting time, and child support. He contends that 

the modification was contrary to his son’s best interests, that he did not 

receive a fair hearing, and that the family court made evidentiary errors. 

Finding these arguments without merit, we affirm.

BACKGROUND1

¶2 Father and Ashlyn Johnson (Mother) are the unwed parents 

of Christopher, born in 2014.

2 In 2016, Mother and Father stipulated to an 

order giving them joint legal decision-making authority and equal 

parenting time. The following year, Father was arrested after shooting a 

handgun at another vehicle during a car chase. After pleading guilty to 

unlawfully discharging a firearm (a class 6 felony), Father was placed on 

probation for three years’. In late 2018, Father was incarcerated for two 

months after being arrested for violating his probation and possessing 

fentanyl. 

¶3 Citing Father’s drug use and incarceration, Mother petitioned 

the court for modification. Father admitted having a substance abuse 

problem,3 but he claimed to have addressed the problem by completing

anger management courses and participating in drug treatment, including 

random drug testing, for several months. Although the family court 

expressed concerns about Father’s potential for relapse, it found those 

concerns would be “minimized” by his continued commitment to drug 

1 We view the facts in the light most favorable to affirming the family 

court’s rulings. Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015)

2 We use a pseudonym to protect the minor’s identity. 

3 Father had also tested positive for marijuana in 2015.
BENNIE v. JOHNSON

Decision of the Court

3

treatment and testing. The court ordered Father to submit to drug testing 

and conditioned his parenting time on his compliance with the testing 

regime, but otherwise declined to modify the 2016 orders. Between August

2019 and January 2021, Father failed to appear for drug testing.

¶4 In February 2021, the police arrested Father after another 

violent incident that was the catalyst of the current proceedings. The 

incident occurred around 2 a.m., during Father’s parenting time, outside a 

house owned by Father’s mother (Grandmother). Grandmother discovered

Father and his fiancée (Fiancée) using Percocet and fentanyl in a car parked 

on the property. At the time, Christopher was sleeping alone inside a oneroom cottage behind the main house. When Grandmother confronted 

Father, he “got mad,” and despite being a prohibited possessor, “grabbed 

[Fiancée’s] loaded firearm, racked the slide[,] chambering a round[,] and 

pointed it at [Grandmother’s] head,” threatening to “blow her head off” if 

she called the police.

¶5 Undeterred, Grandmother called the police. The arresting 

officers found the gun in the cottage, under a night-stand, beside the bed 

where six-year-old Christopher lay sleeping. Before being driven away, 

Father asked the arresting officers if he could say goodbye to Christopher 

so, in the wee hours of the morning, Christopher was brought outside to

see Father leaving in a police car. 

¶6 Later that morning, a second skirmish occurred outside 

Grandmother’s house—this time involving Mother and Grandmother.

Mother arrived to collect Christopher—finding Grandmother taking out

trash bags Grandmother described as full of “nothing but drugs” from the 

cottage. An argument ensued, culminating in a clash between Mother’s foot 

and Grandmother’s groin. Grandmother claimed Mother kicked her; 

Mother claimed Grandmother “charged” her. Police returned to the scene, 

and Mother was later charged with misdemeanor assault.

¶7 After Father’s arrest, Mother again petitioned to modify legal 

decision-making, parenting time, and child support. The court appointed

an advisor to investigate the circumstances. The advisor interviewed 

Mother, Father, and Christopher, as well as Grandmother, Fiancée, and 

Mother’s partner. She reviewed reports from the Phoenix Police 

Department and the Department of Child Services.

¶8 In November 2021, the court held a hearing on Mother’s 

petition, taking testimony from Mother, Father, and the advisor, and 

admitting the advisor’s report into evidence. By the date of the hearing, 
BENNIE v. JOHNSON

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4

Father had been incarcerated for about four months and had pled guilty to 

two domestic violence offenses—disorderly conduct (a class 6 

undesignated felony) and illegally possessing a firearm by a prohibited 

possessor (a class 4 felony)—but had not yet been sentenced.4

¶9 After the hearing, the family court found that Father’s 

continued drug abuse and violent behavior was a significant change in 

circumstances justifying modification, that Father’s conduct had negatively 

affected Christopher, and that an award of substantial parenting time to 

Father would endanger the child. The court also found father had engaged 

in domestic violence against Grandmother. Based on these findings, the

court awarded Mother sole legal decision-making authority, designated 

Mother the primary residential parent, and ordered Father to pay Mother 

child support. The court awarded Father two hours of weekly, 

therapeutically-supervised parenting time. Father timely appealed. 

DISCUSSION

¶10 Father challenges the family court’s modification of legal 

decision-making, parenting time, and child support, raising several

procedural and evidentiary issues. We review orders modifying legal 

decision-making, parenting time, and child support for an abuse of 

discretion. DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019) (legal 

decision-making and parenting time); Candia v. Soza, 251 Ariz. 321, 324, ¶ 7 

(App. 2021) (child support). Under this standard, we will not reweigh the 

evidence or second-guess the court’s credibility determinations. Mary Lou 

C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We must 

accept the family court’s findings of fact unless they are clearly erroneous, 

considering only whether the evidence reasonably supports them. Id. We 

review the court’s legal conclusions, matters of statutory interpretation, and 

alleged constitutional violations de novo. DeLuna, 247 Ariz. at 423, ¶ 9; Lisa 

K. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 173, 177, ¶ 9 (App. 2012).

4 We take judicial notice of the records of the Superior Court. Vera v. 

Rogers, 246 Ariz. 30, 32, ¶ 6 n.1 (App. 2018). After the family court’s final 

decision, but before Father filed his notice of appeal, Father was placed on

three years of probation.
BENNIE v. JOHNSON

Decision of the Court

5

I. Modification of Legal Decision-Making and Parenting Time5

A. Best Interests Findings

¶11 Father first challenges the family court’s findings regarding 

what was in Christopher’s best interests, including those related to Father’s 

domestic violence and substance abuse. Orders modifying legal decisionmaking and parenting time must be “in accordance with the best interests 

of the child[,] . . . consider[ing] all factors that are relevant to the child’s 

physical and emotional well-being.” A.R.S. § 25-403(A); see Backstrand, 250 

Ariz. at 343, ¶ 14. The court must consider at least the 11 factors listed in 

A.R.S. § 25-403(A) and, if decision-making is at issue, the four factors listed 

in A.R.S. § 25-403.01. As relevant here, the court must also consider whether 

the parents have engaged in domestic violence or substance abuse. See

A.R.S. §§ 25-403.03, -403.04. In contested cases, the court must make record 

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). Here, the court made 

record findings on all factors listed in A.R.S. §§ 25-403(A) and -403.01, and 

it made findings about Father committing domestic violence against 

Grandmother and his “admitted history of substance abuse.”

¶12 Father argues the family court erred by concluding he had 

engaged in domestic violence against Grandmother without finding that 

each factor listed in A.R.S. § 25-403.03(C) had been proven. See A.R.S. § 25-

403.03(C) (listing types of evidence the court may consider “[t]o determine 

if a person has committed an act of domestic violence”). But the factors

provided in A.R.S. § 25-403.03(C) are not elements required for a finding of 

domestic violence. They are merely “relevant factors” the court “[must] 

consider” in making the determination. See A.R.S. § 25-403.03(C)(2), (7) 

(requiring the court to consider “[p]olice reports” and “[w]itness 

5 Father also argues that Mother’s petition did not set forth detailed 

facts supporting modification as required by A.R.S. § 25-411(L) and that the 

court’s findings did not justify a finding of a substantial and continuing 

change in circumstances. See Backstrand v. Backstrand, 250 Ariz. 339, 343, 

¶ 14 (App. 2020) (explaining that, before considering whether modification 

is in child’s best interests, court must first determine whether “there has 

been a change of circumstances materially affecting the welfare of the child” 

(quotation omitted)). Father is judicially estopped from raising these 

arguments because he took a contrary position in the family court by also

requesting modification. See In re Marriage of Thorn, 235 Ariz. 216, 222, ¶ 27

(App. 2014).
BENNIE v. JOHNSON

Decision of the Court

6

testimony”). The court considered the factors relevant in this case, namely 

Father’s testimony and the court-appointed advisor’s report, which 

described witness statements and the police report documenting the 

domestic violence. Thus, the court complied with A.R.S. § 25-403.03(C).

¶13 Father also appears to fault the family court for failing to 

specify what evidence supported particular findings. Our cases, however,

find error when courts fail to make findings altogether, not when they fail 

to support them with citations to the record. See Nold v. Nold, 232 Ariz. 270, 

274, ¶ 15 (App. 2013) (collecting cases). Father cites no legal authority, and 

we can find none, supporting a requirement that the court must identify 

what evidence supports each finding in its decision. 

¶14 Finally, Father argues the family court erred by failing to find 

clear and convincing evidence that his drug abuse criminal activity, and 

domestic violence was ongoing by under- or overestimating the 

significance of various facts and by overlooking contrary evidence. There is 

no heightened standard of proof for best-interests findings, however, and 

the weight to assign evidence is the sole province of the family court. Hurd 

v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009) (“Our duty on review does not 

include re-weighing conflicting evidence or redetermining the 

preponderance of the evidence.”). The evidence might reasonably support 

other findings, but we must consider only whether the evidence reasonably 

supports the family court’s findings. See Gutierrez v. Gutierrez, 193 Ariz. 343, 

346, ¶ 5 (App. 1998). The evidence supports the court’s findings here, so the 

court did not abuse its discretion.

B. Legal Decision-Making

¶15 Father next argues the family court erred by failing to find 

that joint legal decision-making would endanger Christopher. But the court 

is not required to make an endangerment finding to award sole decisionmaking. “[T]he court may order sole legal decision-making or joint legal 

decision-making,” after “determining the level of decision-making that is 

in the child’s best interests.” See A.R.S. § 25-403.01(A), (B). Furthermore, 

because of Father’s recent drug abuse, there was a presumption that joint 

decision-making would be contrary to Christopher’s best interests. See

A.R.S. § 25-403.04(A) (establishing a rebuttable presumption that joint legal 

decision-making by the parent who has abused drugs within 12 months of 

filing the petition for modification is not in the child’s best interests). Father 

had the burden of rebutting this presumption, see A.R.S. 

§ 25-403.04(B), but he offered no documentary evidence of his sobriety, and

he told the court-appointed advisor that he was concerned about relapsing 
BENNIE v. JOHNSON

Decision of the Court

7

if he went to prison. Thus, the court did not abuse its discretion by awarding 

Mother sole legal decision-making authority.

C. Parenting Time

¶16 Father next contends the family court erred by limiting and 

restricting his parenting time. First, citing A.R.S. §§ 25-403.01(D) and

-411(J),

6 Father argues the court failed to make factual findings showing

that maintaining his parenting time would seriously endanger Christopher.

See A.R.S. §§ 25-403.01(D) (requiring award of “reasonable parenting time” 

to a parent who is not awarded sole or joint legal decision-making, unless 

the court finds parenting time “would endanger the child’s [well-being]”),

-411(J) (prohibiting a court from “restrict[ing] a parent’s parenting time 

rights unless it finds that the parenting time would endanger seriously the 

child’s [well-being]”). The court, however, made an express endangerment 

finding:

THE COURT FINDS that parenting time that ensures that 

Father will have substantial, frequent, meaningful and 

continuing contact with the child would endanger the child’s

physical, mental, moral or emotional health because Father 

6 Father also cites A.R.S. § 25-411(A) in his endangerment argument.

See A.R.S. § 25-411(A) (requiring leave of court and affidavit showing 

child’s well-being “may [be] seriously endanger[ed]” to petition for 

modification earlier than one year after prior orders). Section 25-411 is a 

preliminary procedural statute, and, typically, any alleged noncompliance 

must be challenged by special action, prior to resolution on the merits. In re 

Marriage of Dorman, 198 Ariz. 298, 302–03, ¶¶ 11–12 (App. 2000) (explaining 

that appellant “will have great difficulty showing prejudice . . . after a 

hearing has occurred”). Moreover, the family court’s April 2019 orders 

permitted Mother to seek modification “notwithstanding the provisions of 

A.R.S. § 25-411(A)” should Father fail to comply with the court’s drug 

testing orders. Father has not argued that the court’s April 2019 orders did 

not effectively nullify A.R.S. § 25-411(A)’s serious endangerment 

requirement here, and he did not object to modification on this basis in the 

family court. Therefore, Father has waived any argument that the 

modification did not comport with A.R.S. § 25-411. See Englert v. Carondelet 

Health Network, 199 Ariz. 21, 26–27, ¶ 13 (App. 2000) (explaining issues 

raised for first time on appeal are generally waived); see also Ritchie v. 

Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (explaining failure to develop 

argument with citation to record and legal authority can lead to waiver).
BENNIE v. JOHNSON

Decision of the Court

8

has continued to abuse drugs during his parenting time with 

the child and has failed to submit to random testing as 

previously ordered. Father has continued to engage in a 

pattern of violent behavior culminating in yet another 

criminal conviction when he threatened his own Mother with 

a firearm and was arrested earlier this year. Father’s 

testimony shows a lack of remorse or any accountability for 

his behavior or how it has negatively affected his son. The 

child was with Father and witnessed his arrest, no doubt

traumatic for the child. The child also described the ways in 

which Father and his girlfriend mistreated the child during 

his interview with the court appointed advisor. 

The court also found Christopher would be endangered because Father 

“continu[ed] to reside with [Fiancée] who also abuses drugs.” Father does 

not appear to dispute that these were findings of serious endangerment.

Rather, he argues Christopher was not “in any ‘present’ danger” because 

his alleged assault on Grandmother occurred nine months before the 

hearing, because the charges he pled guilty to were classified as nondangerous and non-violent, and because the evidence that he pointed the 

handgun at Grandmother was unreliable hearsay. In essence, Father 

suggests the evidence of his assault on Grandmother was not persuasive or 

credible. We will not reweigh the evidence or second-guess the court’s 

credibility determinations. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 

(App. 2019). The court’s endangerment finding is reasonably supported by 

its factual findings, and the record reasonably supports its factual findings.

¶17 Second, Father argues the family court’s parenting-time 

orders violated A.R.S. § 1-601, which provides as follows:7

A. The liberty of parents to direct the upbringing, education, 

health care and mental health of their children is a 

fundamental right.

7 In a related argument, Father contends the family court erred by 

failing to balance “[t]he state’s interest in investigating any reports of 

alleged harm to [Christopher] and [his] interest in his familial right of 

association.” We find this argument waived because Father did not raise it 

in the family court, see Englert, 199 Ariz. at 26–27, ¶ 13, and has not 

developed it with citation to legal authority. See Ritchie, 221 Ariz. at 305, 

¶ 62.
BENNIE v. JOHNSON

Decision of the Court

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B. This state, any political subdivision of this state or any 

other governmental entity shall not infringe on these rights 

without demonstrating that the compelling governmental 

interest as applied to the child involved is of the highest order, 

is narrowly tailored and is not otherwise served by a less 

restrictive means.

Section 1-601, however, is part of the Parents Bill of Rights, which concerns 

parents’ rights to make choices about education, religion, health care, 

criminal proceedings, and child welfare investigations. See A.R.S. § 1-602. 

The rights protected by A.R.S. § 1-602 fall within legal decision-making, not 

parenting time. Regardless, Father has not shown how an alternative 

arrangement, such as regular supervised parenting time, would have been 

better for Christopher. The record shows Father has not taken full 

responsibility for his violent behavior, drug problem, or the trauma 

Christopher suffered as a result. Christopher told the advisor Father 

“cusses” at him and “is sometimes mean,” and the advisor recommended,

“supervised parenting time, possibly in a treatment setting.” See A.R.S. 

§ 25-403.03(F)(2) (requiring court, in case where parent commits domestic 

violence but proves parenting time will not harm child, to “place conditions 

on parenting time that best protect the child,” which may include an 

“[o]rder that an agency specified by the court must supervise parenting 

time”). Given these facts, the court did not abuse its discretion in ordering 

therapeutic supervision.

¶18 Finally, Father argues the family court erred by citing an 

irrelevant statute, A.R.S. § 25-403.02(E), following a finding that its 

parenting time orders were “practical and also maximize[d] each parent’s 

parenting time to the extent it [wa]s in [Christopher’s] best interests.” See

A.R.S. § 25-403.02(E) (“Shared legal decision-making does not necessarily 

mean equal parenting time.”). The court likely meant to cite Subsection B of 

A.R.S. § 25-403.02. See A.R.S. § 25-403.02(B) (“Consistent with the child’s 

best interests . . . , the court shall adopt a parenting plan . . . that maximizes 

their respective parenting time.). Father has not shown how this clerical 

error caused prejudice, so it is not grounds for reversal. See Creach v. Angulo, 

189 Ariz. 212, 214 (1997) (error reversible only if prejudicial).

D. Parenting Plan

¶19 Father next challenges the sufficiency of the family court’s 

parenting plan. Specifically, citing A.R.S. § 25-403.02(C)(6), he contends the 

court erred by omitting a time limit on his parenting time restrictions, a 

reunification plan, and a procedure for periodic review of the parenting 
BENNIE v. JOHNSON

Decision of the Court

10

plan. Section 25-403.02(C) requires a parenting plan to include at least eight

specified elements, including, as relevant to Father’s arguments, “[a] 

procedure for periodic review of the plan’s terms by the parents.” A.R.S. 

§ 25-403.02(C)(6). Section 25-403.02(C) does not expressly require a time 

limit for parenting-time restrictions or a reunification plan. The family court 

has the discretion to structure parenting time along a timeline or to create a 

reunification program if doing so would serve the child’s best interests. See, 

e.g., Berkel v. Berkel, 1 CA-CV 19-0829 FC, 2020 WL 7353763, at *2–3, ¶¶ 12, 

14–15 (Ariz. App. Dec. 15, 2020) (mem. decision). But Father cites no 

authority that requires time limits or reunification plans. Moreover, the 

parties’ 2016 stipulated parenting plan included a procedure for yearly 

review and none of the court’s subsequent orders altered that procedure. 

II. Procedural Challenges

A. Due Process8

¶20 Father first raises what appears to be a due process challenge, 

arguing that the court ignored his position and evidence, cut his testimony 

short, and prevented him from calling witnesses. Parents contesting 

modification have a due-process right “to be heard at a meaningful time 

and in a meaningful manner.” Volk v. Brame, 235 Ariz. 462, 468, ¶¶ 19–20 

(App. 2014) (quotation omitted). Nonetheless, “the family court enjoys 

broad discretion to ‘impose reasonable time limits on all proceedings,” id.

(quoting Ariz. R. Fam. Law P. 22(1)), and to “exercise reasonable control 

over the mode and order of examining witnesses and presenting evidence.” 

Ariz. R. Evid. 611(a). 

¶21 The hearing transcript reveals no violation of Father’s 

procedural rights. The family court asked Father to explain what he sought 

for modification. It allowed him to answer in the narrative and asked him 

about his version of events, particularly the incident with Grandmother. 

Father marked six exhibits for admission, but he did not ask the court to 

admit them or mention any of them during his testimony. After his

testimony, the following exchange occurred:

8 Father contends the family court misrepresented the procedures 

used, evidence presented, and witnesses appearing at the evidentiary 

hearing as well as what evidence the court reviewed. These arguments are 

waived as Father fails to develop them with specific citations to the record 

and legal authority. See Ritchie, 221 Ariz. at 305, ¶ 62.
BENNIE v. JOHNSON

Decision of the Court

11

THE COURT: Okay. Anything else that you want to

say in support of your position?

[FATHER]: I mean, not –- not really. There’s

not really much I can say. 

THE COURT: Okay. I’m going to take this under

advisement so I can type up my ruling. 

Father did not interject to inform the court that he wished to provide further 

testimony, introduce exhibits into evidence, or call witnesses. In sum, the 

court provided Father a meaningful opportunity to be heard.

¶22 Father also contends the court erred by failing to timely set 

the evidentiary hearing, failing to make accommodations for his lack of 

legal representation, and coercing him to admit to criminal acts in violation 

of his Fifth Amendment rights.

9 These arguments are waived because 

Father fails to develop them with citations to the record or legal authority. 

See Ritchie, 221 Ariz. at 305, ¶ 62. Waiver aside, the hearing occurred slightly 

more than seven months after Mother petitioned for modification, cf. 

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 (1985) (“A 9-month 

adjudication is not, of course, unconstitutionally lengthy per se.”); “[w]e 

hold unrepresented litigants in Arizona to the same standards as 

attorneys,” Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017); and Father 

expressed no desire to remain silent about his criminal conduct. Cf. Berghuis 

v. Thompkins, 560 U.S. 370, 382 (2010) (holding a suspect in custodial 

interrogation must unambiguously invoke a right to remain silent). Thus, 

those three arguments are without merit.

B. Judicial Bias

¶23 Father next contends the assigned judge was biased.

10 “Bias is 

a hostile feeling or spirit of ill-will . . . towards one of the litigants.” Simon 

v. Maricopa Med. Ctr., 225 Ariz. 55, 63, ¶ 29 (App. 2010) (quotation omitted). 

We presume trial judges are free of bias. Id. To overcome this presumption, 

9 U.S. Const. amend. V (“No person . . . shall be compelled in any 

criminal case to be a witness against himself, . . . .”). 

10 Father alleges the judge violated the Rules of Judicial Conduct. We 

lack jurisdiction to consider these allegations. In Arizona, the Commission 

on Judicial Conduct and the Supreme Court are responsible for judicial 

discipline. See Matter of Peck, 177 Ariz. 283, 284–85 (1994).
BENNIE v. JOHNSON

Decision of the Court

12

the challenging party must set forth specific facts that prove bias by a 

preponderance of the evidence. Id. Generally, the basis for disqualification 

“must arise from an extra-judicial source and not from what the judge has 

done in [her] participation in the case.” Id. (quotation omitted); see also In re 

Aubuchon, 233 Ariz. 62, 66-67, ¶ 17 (1994) (“[E]xpressions of impatience, 

dissatisfaction, annoyance, and even anger, that are within the bounds of 

what imperfect men and women, even . . . judges, sometimes display do not 

establish bias or partiality.” (quotation omitted)). 

¶24 As evidence of bias here, Father argues the assigned judge

never sanctioned Mother, questioned him in a hostile manner, ignored 

contrary evidence, and used to be a member of a women’s rights 

organization. Father also faults the judge for offering to admit several 

exhibits, believing them to be Mother’s, but later failing to provide him 

similar guidance, after realizing the exhibits were his. And he speculates 

whether the judge “may have” prejudged the outcome of the case because 

she informed the parties after the hearing of what her ruling would be and 

issued a ruling the next morning. 

¶25 Except for the allegation about the assigned judge’s prior 

affiliation, all of these facts concern her participation in the case and are 

therefore not probative of judicial bias.11 The fact that the judge reached a 

conclusion immediately after receiving the evidence is not probative of 

whether she had reached a conclusion before hearing the evidence. Finally, 

the allegation about the judge’s former membership in an organization 

Father describes as having “a mission of achieving gender parity” is too 

speculative to prove bias. See Costa v. Mackey, 227 Ariz. 565, 571, ¶ 12 (App. 

2011). (“A change of judge for cause is not warranted if based merely on 

speculation, suspicion, apprehension, or imagination.” (quotation 

omitted)). Taken together, Father’s arguments fall well short of meeting his 

burden to overcome the presumption of neutrality.

11 Having offered to aid Mother in admitting her exhibits, the court 

could have extended the same courtesy to Father. Father has not argued 

how he was prejudiced by the omission of this evidence, however, and 

ultimately, it was his responsibility to introduce evidence, not the court’s. 

Flynn, 243 Ariz. at 84, ¶ 24 (“[C]ourts may not afford special leniency to pro 

se litigants.”).
BENNIE v. JOHNSON

Decision of the Court

13

C. Father’s Petition to Enforce Parenting Time

¶26 Finally, Father argues the court erred by failing to address his 

petition to enforce the family court’s 2016 parenting-time orders. In his 

petition, Father claimed that Mother had prevented him from exercising his 

parenting time. The court had meant to consider Father’s petition at the 

hearing on Mother’s petition for modification, but neither the court nor the 

parties mentioned Father’s petition during the hearing. “When a court fails 

to expressly rule on a motion, we deem it denied.” State v. Mendoza-Tapia, 

229 Ariz. 224, 231, ¶ 22 (App. 2012). And here, the court’s implicit denial 

was not an abuse of discretion. Father’s petition was clearly mooted by the 

court’s 2021 parenting-time orders. Once the court issued the modification, 

there was no basis to enforce the 2016 parenting-time orders, particularly

because the new orders significantly curtailed Father’s parenting time. 

Nothing prevents Father from filing a new petition should Mother fail to 

comply with the court’s current orders.

III. Evidentiary Issues12

A. Hearsay Evidence

¶27 Father argues the family court violated the rules of evidence 

by considering hearsay statements in the court-appointed advisor’s 

report.

13 Certain Arizona Rules of Evidence, including those governing 

hearsay, are not applicable in family court unless a party timely requests 

strict compliance. See Ariz. R. Fam. Law P. 2. Father did not request strict 

compliance, so the court did not err in considering hearsay statements. See

Woyton v. Ward, 247 Ariz. 529, 533, ¶ 16 (App. 2019). Moreover, Father did 

12 To the extent Father contends the family court erred by failing to call 

witnesses or to admit evidence sua sponte, by considering unfairly 

prejudicial character evidence, and by calculating child support without 

documentary evidence of Mother’s income and Christopher’s expenses,

those arguments are waived because Father fails to develop them with 

citations to legal authority. See Ritchie, 221 Ariz. at 305, ¶ 62.

13 Father only cites the Federal Rules of Evidence in his opening brief. 

The Federal Rules of Evidence are not applicable in state courts. See Fed. R. 

Evid. 101 (“These rules apply to proceedings in United States courts.”), 

1101. The Arizona Rules of Evidence govern proceedings in Arizona courts. 

Ariz. R. Evid. 101(a). Because Arizona’s rules of evidence often mirror the 

federal rules, see, e.g., Phillips v. O’Neil, 243 Ariz. 299, 302, ¶ 13 (2017), we 

assume Father intended to reference the Arizona Rules of Evidence.
BENNIE v. JOHNSON

Decision of the Court

14

not object to the admission of the advisor’s report, so his argument is also 

waived on appeal. See id. at 534, ¶ 16.

B. Destruction of Unadmitted Exhibits

¶28 Lastly, Father contends the family court improperly 

destroyed his unadmitted exhibits on the day of the hearing. More than 

three months before the hearing, the court warned Father that it required 

electronic exhibits and “that any exhibits not offered/received into 

evidence will be disposed of by the clerk and not returned to counsel 

and/or the parties.” Father did not object to this policy in the family court, 

so his argument is waived on appeal. See Englert, 199 Ariz. at 26–27, ¶ 13.

Waiver aside, the family court’s policy does not violate Maricopa County’s 

court rules, as Father contends. See Ariz. Local R. Prac. Super. Ct. 

(Maricopa) 2.8(d) (Maricopa Local Rules) (permitting clerk to dispose of 

exhibits any time beginning 90 days after the conclusion of case). Based on 

its plain language, Maricopa Local Rule 2.8(d) applies only to exhibits “that 

[an] attorney or party introduce[es].” Ariz. Local R. Prac. Super. Ct. 

(Maricopa) 2.8(d)(1). Moreover, Father has not shown how the forewarned 

destruction of exhibits he did not offer for admission caused prejudice. See 

Creach, 189 Ariz. at 214.

CONCLUSION

¶29 For the reasons above, we affirm the family court’s November 

19, 2021 ruling. As the prevailing party, Mother is entitled to recover her 

taxable costs on appeal. See A.R.S. § 12-341. Mother also requests her

attorney’s fees on appeal pursuant to A.R.S. § 25-324(A), which authorizes 

an award of attorney’s fees after consideration of the parties’ financial 

resources and the reasonableness of their positions on appeal. The parties 

appear to have similar financial resources, but Father has taken 

unreasonable positions on appeal. In violation of ARCAP 13(a)(7), Father 

raises about a dozen arguments either for the first time on appeal, without 

adequate citation to the record, or without supporting legal authority. His

arguments about legal decision-making and hearsay are contrary to 

applicable statutes and court rules, and his arguments about due process
BENNIE v. JOHNSON

Decision of the Court

15

misconstrue the record. Therefore, pending her compliance with ARCAP 

21, we award Mother her taxable costs and reasonable attorney’s fees

incurred on appeal.