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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAYNA S. MUNOZ, Petitioner/Appellee,

v.

ROBERTO A. MUNOZ, Respondent/Appellant.

No. 1 CA-CV 16-0020 FC

Appeal from the Superior Court in Maricopa County

No. FC2015-003239

The Honorable Michael J. Herrod, Judge

AFFIRMED

COUNSEL

Holly L. Marshall Attorney at Law, Phoenix

By Holly Marshall 

Counsel for Petitioner/Appellee

Roberto A. Munoz, Glendale

Respondent/Appellant
MUNOZ v. MUNOZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which 

Acting Presiding Judge Samuel A. Thumma and Judge Mark R. Moran1

joined.

D O W N I E, Judge:

¶1 Roberto A. Munoz (“Father”) appeals from a decree 

dissolving his marriage to Dayna S. Munoz (“Mother”). For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother filed a dissolution petition in March 2015. Based on 

allegations Father was suicidal and in possession of weapons, Mother 

obtained an emergency order without notice, awarding her temporary sole 

legal decision-making authority and physical custody of the parties’ two 

minor children. The family court later affirmed the temporary award of 

sole legal decision-making, but granted Father parenting time and ordered

him to submit to drug testing. At a later hearing, the court ordered Father 

to comply with the previous drug-testing order by the end of the day and

also ordered additional testing. The court stated it would suspend Father’s 

parenting time if he tested positive for drugs. Father subsequently tested 

positive for amphetamines and methamphetamine. 

¶3 On October 13, 2015, Father filed a motion to compel

responses to a request for production of documents and uniform 

interrogatories propounded to Mother. Father argued that the 

interrogatory answers were incomplete and that Mother had not provided 

all of her bank statements; Father also asked the court to continue the 

November 10, 2015 trial. Mother did not respond to the motion to compel, 

and the trial proceeded without a ruling on the motion to compel or Father’s 

continuance request. 

 

1 Pursuant to Article VI, Section 3 of the Arizona Constitution, the 

Arizona Supreme Court designated the Honorable Mark R. Moran, Judge 

of the Arizona Superior Court, to sit in this matter.
MUNOZ v. MUNOZ

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¶4 At the conclusion of trial, Father was ordered to undergo drug 

testing by the end of the day. He was also ordered to test weekly until he 

provided 12 consecutive negative tests. The court ordered Mother to drug 

test that same day as well and took the matter under advisement pending 

the drug test results. The record includes two drug test reports for Mother

from the date of trial: one is positive for amphetamine, and the second is 

negative. There are no post-trial drug test results for Father. 

¶5 The decree awarded Mother sole legal decision-making 

authority and suspended Father’s parenting time pending completion of 

the Family Assessment Counseling and Testing Court program. The court 

found that Father failed to share proceeds from the sale of a community

vehicle with Mother and entered judgment against him for one-half of the 

sales proceeds. The decree awarded a trailer to Mother and concluded

Father had failed to prove the existence of additional community accounts. 

Pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-324, the court 

awarded Mother attorneys’ fees based on Father’s unreasonable conduct. 

The court also denied Father’s motion to compel, erroneously concluding it 

was not timely filed. 

¶6 Father filed a timely notice of appeal. We have jurisdiction 

pursuant to A.R.S. § 12-2101(A)(1). 

DISCUSSION

¶7 Father’s appellate briefing lacks citations to the record and 

includes numerous factual assertions without support. See ARCAP 13(d). 

We therefore rely on our own independent review of the record. See Sholes 

v. Fernando, 228 Ariz. 455, 457 n.2, ¶ 2 (App. 2011). We deny Mother’s 

request to treat the deficiencies in Father’s briefing and service of the 

opening brief as a waiver of his appellate claims. 

I. Temporary Orders 

¶8 Two of Father’s identified issues relate to the emergency 

temporary order issued in March 2015. Temporary orders are preparatory 

in nature, anticipating final resolution of the issues at trial. As such, they 

are not appealable. Arvizu v. Fernandez, 183 Ariz. 224, 227 (App. 1995). The 

proper procedure for challenging a temporary order is by special action.

See DePasquale v. Superior Court, 181 Ariz. 333, 336–37 (App. 1995). Because 

Father did not seek special action relief, we lack jurisdiction to consider his 

arguments regarding the temporary orders. 
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II. Discovery and Disclosure

¶9 This Court reviews rulings on discovery and disclosure 

disputes for an abuse of discretion. Solimeno v. Yonan, 224 Ariz. 74, 77, ¶ 9

(App. 2010). “Trial judges are better able than appellate courts to decide if 

a disclosure violation has occurred in the context of a given case and the 

practical effect of any non-disclosure.” Id.

¶10 Father contends Mother failed to fully respond to his request 

for production of documents. Mother responds that Father did not 

properly serve the request. 

¶11 The record includes no signed receipt for the certified mail 

Father contends included the request for production of documents. 

According to Father, Mother’s counsel refused his attempts to hand-deliver 

the request for production. Mother’s attorney, though, explained that her 

office door is locked for security reasons and that if Father had called ahead, 

someone would have accepted delivery. This dispute turns on the 

credibility of these sources of information. This Court defers to the family 

court’s assessment of credibility and views the record in the light most 

favorable to sustaining its determination. Gutierrez v. Gutierrez, 193 Ariz. 

343, 346–47, ¶¶ 5, 13 (App. 1998). Applying these standards, Father has 

demonstrated no error. For these same reasons, even assuming Father 

properly filed and served a motion to compel responses to the request for 

production, because there is no proof of proper service of the underlying 

request itself, he can establish no error in the court’s failure to grant the 

motion to compel. 

¶12 Father also contends Mother’s answers to interrogatories 

were deficient, though the only issue he addresses with specificity relates 

to missing information about bank accounts. Mother’s answers to 

interrogatories provided the name of her bank, the date the identified

account was opened, and listed herself as the sole account holder. The fact 

that Father does not believe Mother is the sole account holder and that other 

accounts exist does not mean Mother’s answers are deficient. Father had 

the opportunity to question Mother about financial matters at trial. And 

even assuming Mother failed to supply all bank statements since opening 

the account, Father had sufficient information to subpoena the bank records 

if he doubted Mother’s credibility.

III. Trial Exhibits 

¶13 Father contends the court excluded his trial exhibits based on 

Mother’s claim he had failed to timely disclose them. The court, however, 
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considered the admissibility of Father’s exhibits as he offered them, 

correctly noting its obligation to consider evidence relevant to the children’s 

best interests, regardless of disclosure deficiencies. See Hays v. Gama, 205 

Ariz. 99, 103–04, ¶¶ 22–23 (2003) (error to exclude evidence relevant to 

child’s best interest as a sanction). 

¶14 As to the exhibits that were excluded, the parties disputed 

whether they had been properly and timely disclosed. Father has not 

argued the excluded exhibits were relevant to the children’s best interests. 

Under these circumstances, the record reveals no abuse of the family court’s 

discretion. 

A. Award of Attorneys’ Fees to Mother

¶15 In July 2015, Mother moved to compel Father to provide 

complete responses to interrogatories and requested attorneys’ fees as a 

result of having to file the motion. At a hearing in August, Father provided 

his answers after having previously mailed a verification without the 

answers. Father claimed he provided the answers before the deadline, but 

Mother contended he only sent the verification. The court awarded Mother 

$750 in attorneys’ fees for having to file the motion to compel. 

¶16 The record reveals conflicting information about what Father 

timely provided. We therefore defer to the family court’s resolution of this 

disputed issue. See Gutierrez, 193 Ariz. at 347, ¶ 13. Pursuant to Arizona 

Rule of Family Law Procedure (“Rule”) 65(A)(4), an award of attorneys’ 

fees shall be awarded when a motion to compel is granted absent a finding 

that the failure to disclose was substantially justified or an award of fees is

unjust. The family court made no such finding. Accordingly, we find no 

abuse of discretion. 

IV. Legal Decision-Making and Parenting Time

¶17 Although Father does not expressly challenge the legal 

decision-making and parenting time orders, he raises several issues 

regarding evidence the court cited in ruling on these matters. 

A. Exclusion of Evidence

¶18 Father challenges the exclusion of an exhibit purporting to 

show he had no weapons at his residence when the police searched it before 

the emergency temporary order was issued. Father, however, did not ask 

to admit this exhibit at trial. And if Father wished to challenge the 

temporary orders, he was required to file a special action petition. See ¶ 8, 
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supra. The court did not refer to Father owning a gun in evaluating the 

children’s best interests. Accordingly, we find no abuse of discretion. 

B. Evidence of Domestic Violence

¶19 Father contends there was no evidence supporting the finding 

of domestic violence. The court found the parties’ son “was diagnosed as a 

child who [had] witnessed verbal abuse and abusive behavior” and was the 

victim of verbal abuse. Specifically, the court noted Mother’s testimony 

about “an atmosphere of verbal abuse with occasional physical abuse.” 

This testimony supports the finding that the child was subjected to verbal 

abuse by Father and witnessed Father verbally abusing Mother. 

Additionally, Mother testified Father pinned her against the refrigerator in 

the presence of their daughter. Given this evidence, the finding of domestic 

violence is supported by the record. 

¶20 Father also disputes the finding that the older child “was 

diagnosed as a child who [had] witnessed verbal abuse and abusive 

behavior.” Mother, however, testified that this was the child’s counselor’s 

diagnosis. The assessment and weight given to his testimony was for the 

family court to determine. Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 

334, ¶ 4 (App. 2004). We do not reweigh the evidence on appeal. See 

Gutierrez, 193 Ariz. at 347–48, ¶ 13. 

V. Property Allocation Issues

¶21 Father alleges the court failed to address his claim that Mother

did not disclose $14,000 in stocks. Mother, though, asserted the existence 

of only one bank account and one retirement account. Although Father 

claimed at trial that there were additional accounts, he offered no evidence 

of other accounts. 

¶22 Father contends an exhibit dated September 2015 reveals 

undisclosed stocks. But he does not identify any specific exhibit, and this 

Court’s review of the record reveals none. 

¶23 Father also contends he acquired a trailer that was treated as 

community property, though he owned it before marriage. The parties 

disputed whether the trailer was community property. There was no 

testimony or documentary evidence as to title. In resolving the competing 

claims, the court did not err by concluding the trailer was community 

property. 
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¶24 Father also argues the court erroneously ordered him to pay 

Mother $2,000 for her share of a community vehicle he sold after service of 

the dissolution petition. But the date of the vehicle’s sale is not controlling. 

If the vehicle belonged to the marital community, the court could properly 

conclude Mother was entitled to share in the sales proceeds. Mother 

testified she received none of the proceeds. The burden then shifted to 

Father to show he did not conceal or dispose of community funds. See 

Gutierrez, 193 Ariz. at 346–47, ¶ 7. He failed to do so. The court thus 

properly entered judgment in favor of Mother for her share of the sales 

proceeds. See A.R.S. § 25-318(C); Hrudka v. Hrudka, 186 Ariz. 84, 93 (App. 

1995) (court may award money to one spouse to compensate for other 

spouse’s dissipation of community assets), superseded in part by statute on 

other grounds as recognized in Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8 (App. 

2014). 

VI. Additional Issues Raised on Appeal 

¶25 Father argues the court did not address his two motions 

alleging contempt of the preliminary injunction. At an August 17, 2015 

hearing, the first of Father’s two contempt motions was pending, and 

Mother’s attorney avowed she had not been served pursuant to Rule 92. 

The court stated it would give Father an opportunity to properly serve his 

motion, but the record does not establish that Father properly served that 

motion thereafter. As to the second motion for contempt, the court denied 

that motion in its December 1, 2015 minute entry order. That ruling cannot 

be challenged on appeal. Hurd v. Hurd, 223 Ariz. 48, 50 n.2, ¶ 9 (App. 2009). 

¶26 Father contends the court failed to rule on his request that 

Mother submit to a hair follicle drug test. But the court ordered both parties 

to submit to urinalysis testing, implicitly denying the request for a different 

form of testing. Based on the appellate record, we cannot say the court 

abused its discretion in ordering one form of testing over another. Father 

also argues the court failed to take action based on the one positive drug 

test report attributable to Mother. As noted supra, though, the testing 

agency submitted conflicting results for Mother for the same day. It was 

within the family court’s discretion as finder of fact to weigh the conflicting 

results and consider Mother’s credibility regarding this issue. See Gutierrez, 

193 Ariz. at 347–48, ¶ 13. Finally, the record does not support Father’s 

allegation that the court and Mother’s attorney laughed at him, denied him 

the right to present evidence, and treated him unfairly as a pro se litigant. 
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CONCLUSION

¶27 For the foregoing reasons, we affirm the judgment of the 

superior court. In the exercise of our discretion, we deny Mother’s request 

for an award of attorneys’ fees incurred on appeal pursuant to A.R.S. 

§ 25-324. As the successful party, though, Mother is entitled to an award of 

costs on appeal upon compliance with Arizona Rule of Civil Appellate 

Procedure 21. See A.R.S. § 12-342.