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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARINA TARASKA, Petitioner/Appellee,

v.

MICHAEL TARASKA, Respondent/Appellant.

No. 1 CA-CV 18-0611 FC

Appeal from the Superior Court in Maricopa County

No. FC2016-008369

The Honorable Jacki Ireland, Judge Pro Tempore

AFFIRMED

COUNSEL

Arina Taraska, Surprise

Petitioner/Appellee

Michael Taraska, Phoenix

Respondent/Appellant

FILED: 10-8-2019
TARAKSA v. TARASKA

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge Jennifer B. Campbell joined.

C R U Z, Judge:

¶1 This case involves a post-divorce dispute between Michael 

Taraska (“Father”) and Arina Taraska (“Mother”) over legal decisionmaking authority and parenting time for their child, R.T., born in July 2013. 

For the following reasons, we affirm the superior court’s orders awarding 

Mother sole decision making and modifying Father’s parenting time.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother divorced in March 2017. The superior 

court awarded Father and Mother joint legal decision-making authority 

and ordered an equal parenting time schedule, commonly referred to as a 

5-2-2-5 plan, where both parents had parenting time for the same number 

of weekdays and weekends on an alternating basis.

¶3 The parties continued to dispute legal decision-making

authority and parenting time, and in June 2017, the superior court 

appointed a parenting coordinator (“PC”) pursuant to Arizona Rules of 

Family Law Procedure (“ARFLP”) 74. In August 2017, the PC submitted a 

report to the superior court containing recommendations that the court

adopted. The superior court ultimately dismissed the PC in September 2017 

after finding that the PC process was unlikely to resolve future disputes.

¶4 In October 2017, the superior court denied petitions to modify 

from both Father and Mother, but the court ordered that Father and Mother

could communicate with R.T. by telephone, Facetime, or Skype on the days 

R.T. was with the other parent.

¶5 In June 2018, Mother filed an emergency petition to modify 

legal decision-making authority and parenting time. Mother claimed that

emergency circumstances justified a change in custody because Father 

failed to facilitate R.T.’s calls to Mother while R.T. was with Father and 

because Father communicated with R.T. inappropriately during calls. In 

her emergency petition Mother requested the court “[c]onsider changes . . .

since joint legal decision is not possible in this situation.” In a cross petition, 
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Decision of the Court

3

Father asked the court to allow him to purchase a cell phone for R.T., to 

alter the location for pick up and drop off, and to enforce the mediation 

term of the consent decree. The court determined that no emergency 

existed, but ordered an evidentiary hearing on Mother’s petition.

¶6 At the August 21, 2018 evidentiary hearing, Mother and 

Father each testified and offered evidence. Mother called one witness, but

the court struck the witness’ testimony after the witness invoked her Fifth 

Amendment right not to testify during Father’s cross-examination. Father 

and Mother stipulated to the admission of each other’s evidence.

¶7 Following the evidentiary hearing, Father moved to strike all 

evidence presented by Mother. The court denied the motion.

¶8 In September 2018, the court issued its findings regarding

Arizona Revised Statutes (“A.R.S.”) section 25-403(A) factors, awarded sole

legal decision-making authority to Mother, and vacated the prior order 

allowing daily calls with R.T. The court found that “Father is emotionally 

abusing this child and [showed] no insight into his behavior or intention of 

changing his behavior” and ordered supervised parenting time for Father 

“to protect the child’s physical, mental, moral, or emotional health.”

Regarding Father’s cross petition, the court declined to decide the issue of 

a cell phone for R.T., leaving it to Mother as the sole legal decision maker 

over the child. Finally, the court denied Father’s request for mediation.

¶9 Father timely appealed. We have jurisdiction pursuant to 

A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Notice of Scope of Evidentiary Hearing

¶10 Father argues the superior court denied him due process 

when it modified court orders on legal decision-making authority and 

parenting time without notice and when it revoked the order requiring 

daily calls with R.T. He argues that Mother’s petition did not contain 

adequate notice that modification of legal decision-making authority and 

parenting time would be at issue and that he was “blind-sided” by the 

court’s order.

¶11 “Due process requires notice and an opportunity to be heard 

at a meaningful time and in a meaningful manner.” Huck v. Haralambie, 122

Ariz. 63, 65 (1979). Due process claims are issues of law, which we review 

de novo. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999).
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¶12 A petition must include a statement showing the petitioner is 

entitled to relief and a demand for the relief sought. Ariz. R. Fam. Law P.

24(a).

1 Here, neither party was represented by counsel, but self-represented 

litigants are held to the same standard as a lawyer regarding notice of 

statute, rules, and legal principles. Higgins v. Higgins, 194 Ariz. 266, 270, ¶ 

12 (App. 1999).

¶13 At the July 2018 hearing, the court stated that if Mother 

“proves the allegations in the petition,” she could file a motion to “modify 

joint legal decision making to sole.” From this statement Father concludes 

that it was clear to the parties that the issue of legal decision-making 

authority was not to be litigated at the upcoming evidentiary hearing, and 

a new petition was required before the court could entertain Mother’s 

request for change of legal decision-making authority. Father’s argument 

fails, however, because Mother’s petition clearly requested modification of 

legal decision-making authority.

¶14 Mother’s petition cited the superior court’s order of October 

5, 2017, which stated that “[i]f the parties continue to communicate in 

inappropriate manners [to R.T. regarding the other parent], the [c]ourt will 

not hesitate to change legal decision making or to suspend one parent’s 

parenting time.” Mother also explained the negative effects of Father’s 

conduct on the child, including his “fears of losing physical contact with 

Mother,” and “not letting [go of] Mother’s hand during the separation,” or 

that the child should “not be aware of details of litigation Father exposes 

him to.” Under “Prayer [f]or Relief” Mother requested, among other things, 

the court “[c]onsider changes in [l]egal decision [sic] since joint [l]egal 

decision [sic] is not possible in this situation” and “[c]onsider custodial reevaluation.” When read together, Mother’s petition provided adequate 

notice to Father that her plea to the court was to address legal decision

making and parenting time in addition to ending the daily calls with R.T.

¶15 Father’s response to the petition and his separate pre-hearing 

statement bely his claim of lack of notice as to the legal decision-making 

and parenting-time issues. In his response to Mother’s petition, Father

acknowledged that Mother sought modifications to legal decision-making 

authority and parenting time, opposing the requests as “not available as a 

 

1 Mother filed her petition under ARFLP 29(A). The ARFLP were 

revised effective January 1, 2019, and 29(A) was renumbered as 24(a) with 

no substantive differences. See ARFLP, Correlation Table. For ease of 

reference, we refer to 24(a) throughout this decision.
TARAKSA v. TARASKA

Decision of the Court

5

remedy.” Also, in his separate pre-hearing statement, Father attempted to 

narrow the issues to be heard by the court at the upcoming hearing and 

requested a separate hearing to address modification of parenting time and 

legal decision-making authority.

2 More importantly, during the 

evidentiary hearing itself the court referred to Mother’s petition and asked 

whether Mother was “asking for sole, legal decision-making” and “[w]hat 

parenting plan would [Mother] want the court to put in place.” Father was 

present, but did not object to the court’s questions or to Mother’s request 

for sole legal decision-making authority. Accordingly, we reject Father’s 

argument that he lacked notice of Mother’s requests.

¶16 Father cites Cruz v. Garcia, 240 Ariz. 233, 237, ¶ 16 (App. 2016), 

to argue he had no opportunity “to be heard at a meaningful time in a 

meaningful manner” before the court modified legal decision-making

authority and parenting time. Cruz is distinguishable from this case. In 

Cruz, the court had previously set a separate hearing to address legal 

decision-making authority. Id. at ¶ 15. “The court reiterated twice at the 

hearing that the motion before it was [father’s] petition to suspend 

[mother’s] parenting time” rather than the other then-pending motions. Id.

The court then heard evidence and adjudicated the issues of legal decision

making and parenting time. Id. at ¶ 17.

¶17 Unlike Cruz, here the court had one pending motion

regarding R.T.: Mother’s emergency petition to change the court’s orders.

At the evidentiary hearing, the court addressed Mother’s requests for

modification to legal decision making and parenting time. Father then 

testified, responded to Mother’s evidence, and presented evidence. In 

contrast to Cruz, the court made factual findings based on the evidence 

admitted at the evidentiary hearing, including testimony from both parties

and all of the exhibits admitted per stipulation of the parties.

¶18 In his reply brief, Father argues, for the first time, that 

Mother’s petition “was jurisdictionally defective” under A.R.S. § 25-411. 

However, Father’s challenge is untimely. “The time for achieving [§ 25-

411]’s intended [procedural] protections . . . has passed if noncompliance is 

first brought to our attention on appeal from the final judgment.” In re the

Marriage of Dorman, 198 Ariz. 298, 302, ¶ 11 (App. 2000). The superior court 

conducted an evidentiary hearing, reviewed the merits of Mother’s petition, 

and determined there was sufficient cause to modify the legal decisionmaking and parenting-time orders. Therefore, Father’s objection under 

 

2 The court implicitly denied that request in considering Mother’s 

petition at the evidentiary hearing as scheduled.
TARAKSA v. TARASKA

Decision of the Court

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A.R.S. § 25-411 is now waived and the court’s orders will not be disturbed 

on this basis.

¶19 Father had notice that the superior court would consider 

modifications to legal decision-making authority and parenting time at the 

evidentiary hearing, and he had the opportunity to be heard and to present 

evidence at the evidentiary hearing. As such, the superior court did not 

deny Father due process in modifying court orders for legal decisionmaking authority or parenting time.

II. Admission of Video Evidence

¶20 Father argues that the superior court erred in admitting video 

evidence presented by Mother because he did not have an opportunity to 

cross-examine Mother’s witness regarding the evidence. We will not 

disturb a superior court’s ruling on the admissibility of evidence absent a 

clear abuse of discretion and resulting prejudice. Fuentes v. Fuentes, 209 

Ariz. 51, 56, ¶ 24 (App. 2004) (citation omitted). To determine that there has 

been an abuse of discretion, “the record must be devoid of competent 

evidence to support the decision of the trial court.” Borg v. Borg, 3 Ariz. 

App. 274, 277 (1966) (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)).

¶21 Father invoked the Arizona Rules of Evidence under ARFLP 

2(a) for the evidentiary hearing. Mother presented video evidence and 

called family friend Ms. Robbins as a witness to lay a foundation for that

evidence. Father stipulated to the admission of all of Mother’s evidence in 

exchange for Mother’s stipulation to the admission of all of his evidence;

Mother agreed and the court admitted all exhibits from both parties.

¶22 The stipulation of evidence generally waives a party’s right to 

object to the evidence on appeal. See State v. Rockwell, 161 Ariz. 5, 10 (1989); 

cf. Gustafson v. Riggs, 10 Ariz. App. 74, 76 (1969) (“The stipulation of 

evidence into the record . . . waives any error arising from the introduction 

of the evidence itself.”). Father claims he stipulated to “some but not all” 

of Mother’s evidence “on the basis and understanding” that he would have 

an opportunity to cross-examine Mother’s witness. But the transcript does 

not support Father’s assertion: Father made no mention of cross-examining 

Mother’s witness when stipulating to admitting both parties’ evidence.

¶23 The evidence that Father challenges entered the record via 

stipulation. Therefore, the video evidence to which Father now objects was 

not admitted as a result of Ms. Robbins’ testimony, but rather through 

stipulation. Moreover, Father’s stipulation to the admission of Mother’s 

exhibits was made in exchange for the benefit of the admission of all of his 
TARAKSA v. TARASKA

Decision of the Court

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own exhibits. Once admitted, the court was not obligated to grant Father’s 

request that the exhibits be withdrawn from evidence. We find no abuse of 

discretion in the court’s admission of the video evidence or in its 

subsequent denial of the motion to strike the same.

¶24 In addition, we will not disturb the court’s admission of 

evidence absent “both a clear abuse of discretion and resulting prejudice.”

Fuentes, 209 Ariz. at 57, ¶ 27 (emphasis added). Prejudice will not be 

presumed but must “affirmatively appear from the record.” Rimondi v. 

Briggs, 124 Ariz. 561, 565 (1980); see Borg, 3 Ariz. App. at 277. A complete 

review of the record reveals sufficient competent evidence to sustain the 

court’s judgment even without the evidence challenged by Father as 

inadmissible. Therefore, the court’s admission of the video evidence did 

not result in prejudice to Father. See Groener v. Briehl, 135 Ariz. 395, 398 

(App. 1983).

III. Parenting Coordinator’s Recommendation

¶25 Father also argues, for the first time on appeal and without 

citing to any legal authority, that the superior court lacked jurisdiction to 

hold an evidentiary hearing to modify legal decision-making authority and 

parenting time because the court failed to comply with a prior court order 

that was the “law of the case.” He cites to the 2017 PC report recommending 

the court order “a psychological evaluation of each parent, prior to 

considering any petitions for modification.”

¶26 The “law of the case” is

a rule of general application that the decision of an appellate 

court in a case is the law of that case on the points presented 

throughout all the subsequent proceedings in the case in both 

the trial and the appellate courts, and no question necessarily 

involved and decided on that appeal will be considered on a 

second appeal or writ of error in the same case, provided the 

facts and issues are substantially the same as those on which 

the first decision rested, and, according to some authorities, 

provided the decision is on the merits.

State v. King, 180 Ariz. 268, 278 (1994) (quoting In re Monaghan’s Estate, 71 

Ariz. 334, 336 (1951)). The issue of the 2017 PC report recommendations 

was not previously litigated on appeal and no decision rendered such that 

the superior court and parties were bound to follow it in all subsequent 

proceedings. Furthermore, a family’s changing circumstances may in fact 

require that the superior court modify its prior orders. The prior order 
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Decision of the Court

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adopting the PC report and recommendations did not bar the superior 

court from considering Mother’s petition and conducting the evidentiary 

hearing. See King, 180 Ariz. at 278-79; Zimmerman v. Shakman, 204 Ariz. 231, 

236, ¶ 15 (App. 2003). Thus, the “law of the case” doctrine did not deprive 

the court of jurisdiction to consider Mother’s petition.

¶27 Finally, Father alleges the superior court was biased against 

him. In reviewing this type of claim against a judicial officer, we presume 

judges to be “free of bias and prejudice.” State v. Rossi, 154 Ariz. 245, 247

(1987). A review of the record shows no indication that the judge was 

partial or prejudiced against Father. Accordingly, Father has failed to prove

error on this basis.

CONCLUSION

¶28 For the foregoing reasons, we affirm the court’s orders.