NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Marriage of:

DEBRA R. SHANO, Petitioner/Appellant,

v.

DAVID L. SHANO, Respondent/Appellee.

No. 1 CA-CV 14-0055

Appeal from the Superior Court in Maricopa County

No. DR 1998-091849

The Honorable Bethany G. Hicks, Judge

AFFIRMED

COUNSEL

The Murray Law Offices, P.C., Scottsdale

By Stanley D. Murray

Counsel for Petitioner/Appellant

S. Alan Cook, P.C., Phoenix

By S. Alan Cook

Counsel for Respondent/Appellee
SHANO v. SHANO

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.

D O W N I E, Judge:

¶1 Debra Shano (“Mother”) appeals from orders of the superior 

court modifying the child support obligation of David Shano (“Father”) 

and requiring her to pay a portion of Father’s attorneys’ fees. For the 

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The parties divorced in 2000. At the time, they had three

minor children, and Father was ordered to pay child support of $1529 per 

month. In May 2012, Father filed a petition to modify child support 

because one of the children had turned eighteen and graduated from high 

school. Mother asked the court to appoint a federally authorized tax 

practitioner to determine Father’s income. Father responded that the 

court should appoint a tax practitioner to assist in determining both 

parties’ incomes. 

¶3 The court appointed certified public accountant Steve 

Adelson to evaluate the parties’ income and business profits, as well as 

“Mother’s interest in any sole proprietorship or corporation.” On July 29, 

2013, Adelson provided his report. On the morning of the August 2, 2013 

modification hearing, Mother filed a motion in limine, seeking to preclude 

Adelson’s report and testimony. The parties argued the motion, and the 

court denied it. 

¶4 Father, Mother, and Adelman testified about the parties’ 

incomes. Father testified he has an ownership interest in several 

businesses, though most do not generate income for him. Mother testified

she established and worked at the business known as “First Kiss,” but

stated her current husband “took it over,” and the business has not 

generated a profit.

¶5 Adelson attributed $11,667 in monthly income to Father and 

$5500 to Mother. The superior court adopted Adelson’s income figures 

and modified Father’s child support obligation to $245.33 per month, 
SHANO v. SHANO

Decision of the Court

3

retroactive to July 1, 2012. The court also awarded Father $23,000 in 

attorneys’ fees and denied Mother’s post-hearing motions. Mother timely 

appealed. We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) sections 12-120.21, -2101(A)(1) and (5)(a).

DISCUSSION

¶6 Mother contends the superior court erred by admitting 

Adelson’s testimony and report and by relying on his opinions in 

determining the parties’ incomes. She also challenges the award of 

attorneys’ fees to Father and the denial of her post-hearing motions. 

I. Income Calculations

¶7 We generally review the admission of expert testimony for 

an abuse of discretion; however, to the extent admissibility is a question of 

law, we review it de novo. State v. Wright, 214 Ariz. 540, 542, ¶ 5, 155 P.3d 

1064, 1066 (App. 2007). The superior court has “broad discretion in 

determining whether to admit expert testimony.” Escamilla v. Cuello, 230 

Ariz. 202, 206, ¶ 20, 282 P.3d 403, 407 (2012).

¶8 Mother argues Adelson did not meet statutory requirements 

for a “federally authorized tax practitioner” within the meaning of A.R.S. 

§§ 25-320.02(D) and 42-2069(D). She did not, however, raise this argument 

in a timely fashion in the superior court and has thus waived it for 

purposes of appeal.1 See Cullum v. Cullum, 215 Ariz. 352, 355, ¶ 14 n.5, 160 

P.3d 231, 234 n.5 (App. 2007) (party cannot argue on appeal legal issues 

not raised in trial court). 

¶9 Mother next contends the court erroneously permitted 

Adelson to testify as an expert under Arizona Rule of Evidence 702. 

Notwithstanding Father’s contrary argument, we assume for purposes of 

 

1 In her motion in limine and at the evidentiary hearing, Mother 

argued Adelson’s testimony and report were inadmissible under Arizona 

Rule of Evidence 702. She did not challenge Adelson’s statutory 

qualifications. To the extent Mother’s motion for new trial may be read as 

raising such a challenge, that filing does not preserve the issue for 

appellate review. See Deer Valley Indus. Park Dev. & Lease Co. v. State ex rel. 

Herman, 5 Ariz. App. 150, 153, 424 P.2d 192, 195 (1967) (objection may not 

be raised for first time in motion for new trial). Adelson’s credentials 

were ascertainable well before the motion for new trial was filed. 
SHANO v. SHANO

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our analysis that Rule 702 applies to tax practitioners appointed by the 

superior court. Rule 702 states: 

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of 

an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and 

methods; and 

(d) the expert has reliably applied the principles and 

methods to the facts of the case.

¶10 The superior court’s “gatekeeper” function under Rule 702 is 

intended to ensure “that proposed expert testimony is reliable and thus 

helpful to the jury’s determination of facts at issue.” Ariz. State Hosp. v. 

Klein, 231 Ariz. 467, 473, ¶ 29, 296 P.3d 1003, 1009 (2013). Even in the 

context of a jury trial, the trial court has “broad discretion to determine the 

reliability of evidence,” and a Daubert hearing is not always required. 

State v. Favela, 234 Ariz. 433, 436, ¶ 11, 323 P.3d 716, 719 (App. 2014). 

Moreover, in a bench trial, we presume that trial judges disregard 

improper evidence. See In re Estate of Newman, 219 Ariz. 260, 275-76, ¶ 66, 

196 P.3d 863, 878-79 (App. 2008). “In civil cases, it is the rule in Arizona 

that improper admissions into evidence will not be considered as error on 

appeal, where a case is tried to the judge without a jury, because of the 

presumption that the trial judge disregarded all inadmissible evidence in 

reaching his decision.” State v. Garcia, 97 Ariz. 102, 104, 397 P.2d 214, 216 

(1964).

¶11 We find no error in admitting Adelson’s testimony and

report. Adelson qualified as an expert by “knowledge, skill, experience, 

training, or education,” and the court apparently and reasonably 

concluded his “specialized knowledge” would assist it in determining 

contested facts. See Ariz. R. Evid. 702. “Whether a witness is qualified as 

an expert is to be construed liberally.” Glazer v. State, 234 Ariz. 305, 316, ¶ 

31, 321 P.3d 470, 481 (2014). “If an expert meets the liberal minimum 

qualifications, her level of expertise goes to credibility and weight, not 

admissibility.” Id.
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¶12 Adelson has been a CPA for approximately 30 years. See 

McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 250–52, ¶¶ 15–18, 293

P.3d 520, 526–28 (App. 2013) (expert may be qualified based on 

experience). His testimony assisted the court in assessing his 

qualifications and experience and disclosed his familiarity with IRS 

policies for income attribution and accounting principles for sub-S

corporations such as Father’s. The superior court had the opportunity to 

observe Adelson during his testimony and to evaluate the bases for his 

opinions. It obviously found him competent and reliable. 

¶13 The record supports the court’s reliance on Adelson. 

Adelson reviewed financial documentation and tax returns for all of 

Father’s businesses. He also attended depositions of the parties and 

Mother’s current husband, visited Father’s business twice, interviewed 

individuals at that business, and reviewed financial records on the 

premises. Adelson spoke on several occasions with the individual who

prepares Father’s business tax returns. In terms of methodology, Adelson 

testified he “followed the accounting principles, and the IRS audit 

procedures, which are pretty standard in my industry.” 

¶14 In determining Father’s income, Adelson took W-2 income, 

divided it by twelve, then added $2500 per month for Father’s personal 

expenses that the business pays. As for Mother, Adelson testified “there 

was very, very little substantiation” and no “source documents.” Adelson 

utilized First Kiss’ gross annual business income, attributed 20% of that 

amount to Mother as personal income, and added $500 per month for 

rental income Mother receives.

2 Adelson testified attributing 20% of the 

business profits to Mother is consistent with IRS guidelines.

3 In

discussing Mother’s finances, Adelson stated:

Each year of [Mother’s] tax returns reviewed showed 

material omissions & improper entries. The income is 

impossible to calculate because most of the source 

 

2 Although Mother initially claimed zero income, she later agreed 

$469.50 in monthly rental income should be attributed to her. Adelson 

testified the actual rent amount is $2000 and stated Mother offered no 

substantiation for a net receipt of only $500 per month, though he 

nevertheless used the lower $500 amount. 

3 Because Mother did not timely assert in the superior court that 

Adelson made mathematical errors in calculating her income, we do not 

address that argument on appeal. 
SHANO v. SHANO

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documents either were never created or purposely shredded. 

Personal & Business expenses were paid from both business 

& personal accounts with the detail purposely shredded. 

Income from outside activities, Schedule K-1, were not 

reported accurately, & in some years, not reported at all. 

Some of the most accounting records needed [sic] in the 

preparation of a tax return were never created. Some of the 

accounting records that were created were purposely 

shredded. 

Adelson also opined that Mother’s use of cash from the business was not 

properly recorded and that income from financial records was 

understated. 

¶15 Father testified his business has decreased in recent years 

and that some of his companies are financially stressed or not yet 

profitable. Based on the evidence presented, the superior court could 

have reasonably concluded that Father’s income from past years, which 

Mother heavily relied on, was not representative of his current income. 

¶16 Mother’s 2012 tax return states she is a 50% shareholder of 

First Kiss. Mother and her husband do not save sales records for First 

Kiss. The business’ 2012 tax return lists gross sales of $280,049 and 

ordinary business income of $12,365. Mother provided some business 

bank records, but others were missing. The superior court found that 

“Mother is an owner of First Kiss . . . (although she may have transferred a 

50 percent interest to her current husband)” and that she “made it 

extremely difficult to determine her business income and apparently 

intentionally destroyed (or if not, withheld) records which would 

customarily be prepared and maintained for tax purposes.” 

¶17 The superior court obviously disbelieved Mother’s financial 

claims. Credibility is a matter for the trier of fact, not the appellate court. 

See State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991). We 

do not reweigh the evidence on appeal. See O’Hair v. O’Hair, 109 Ariz. 

236, 240, 508 P.2d 66, 70 (1973). 

¶18 Because Mother’s challenge to the child support 

modification order is based on her claim that the court used incorrect

income figures — a contention we have now rejected — we need not 

address this issue further. The record does not support Mother’s 

speculative assertion that the court “may have improperly delegated its 

authority to the expert witness instead of independently weighing the 
SHANO v. SHANO

Decision of the Court

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evidence to determine the parties’ incomes.” The record instead 

demonstrates that the court weighed the evidence, disbelieved Mother’s 

financial claims, and found Adelson’s calculations appropriate under the 

circumstances.

II. Attorneys’ Fees Award

¶19 We review an award of attorneys’ fees for an abuse of 

discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 351, ¶ 32, 972 P.2d 676, 684 

(App. 1998). We will find an abuse of discretion only if the record fails to 

provide substantial evidence to support the superior court’s ruling. See 

MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶¶ 36-38, 250 P.3d 1213, 1221 

(App. 2011). A.R.S. § 25-324 states:

The court from time to time, after considering the financial 

resources of both parties and the reasonableness of the 

positions each party has taken throughout the proceedings, 

may order a party to pay a reasonable amount to the other 

party for the costs and expenses of maintaining or defending 

any proceeding under this chapter . . . .

¶20 In awarding Father fees, the superior court found that 

Mother “consistently refused to cooperate” or took steps “to delay or 

prevent an analysis of her various sources of income.” The court further 

concluded the child support issue could and should have been settled. 

The record supports these findings. 

¶21 Mother offered contradictory information about her income 

and business interests. Father was required to file a motion to compel, 

which the court granted. Mother swore under penalty of perjury that she 

had no income whatsoever, including rental income, though she later 

admitted receiving rental income since 2009. Additionally, documentary 

evidence cast doubt on Mother’s assertion she has no ownership interest 

in First Kiss. Mother’s destruction of business records, even after 

commencement of the child support modification proceedings, expanded 

the scope of discovery and created a need for expert reconstruction of her 

income and business interests. In sum, the record supports the finding 

that Mother took unreasonable positions and delayed the proceedings. 

¶22 Courts may also consider settlement efforts when evaluating 

a fee request. See Gutierrez, 193 Ariz. at 351, ¶ 34, 972 P.2d at 684. None of 

Mother’s settlement offers proposed less than $1000 per month in child 

support, and Mother refused to accept retroactive modification, 

notwithstanding A.R.S. § 25-503(E) (child support modification orders 
SHANO v. SHANO

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effective on first day of the month following notice of petition unless, for 

good cause shown, court orders different date). Father made several 

settlement proposals, all of which exceeded the $245.33 amount awarded 

by the court. 

¶23 The superior court was well aware of the parties’ financial 

circumstances based on the evidentiary hearing. Although Father has 

superior financial resources, the court could nevertheless order Mother to 

contribute to his fees based on her conduct during the proceedings. See 

Mangan v. Mangan, 227 Ariz. 346, 351-53, ¶¶ 25-28, 258 P.3d 164, 169-71

(App. 2011) (affirming award of fees to father, notwithstanding his 

superior financial circumstances, given mother’s unreasonable positions). 

In reviewing for an abuse of discretion, “[t]he question is not whether the 

judges of this court would have made an original like ruling, but whether 

a judicial mind, in view of the law and circumstances, could have made 

the ruling without exceeding the bounds of reason. We cannot substitute 

our discretion for that of the trial judge.” Associated Indem. Corp. v. Warner, 

143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985). 

III. Post-Hearing Motions

¶24 We need not separately address Mother’s motion for new 

trial, which challenged the income figures used by the court. In large part, 

the same is true of Mother’s motion to alter or amend, which challenged 

the attorneys’ fee award. Those motions raised the same arguments we 

have now rejected. Mother also argues the court abused its discretion by

not reducing her monthly payment of attorneys’ fees to Father from $1000 

to $250. However, she cites no authority for this contention. Based on the 

income figures found by the superior court, we find no abuse of 

discretion. 
SHANO v. SHANO

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IV. Attorneys’ Fees on Appeal

¶25 Both parties request an award of attorneys’ fees on appeal

pursuant to A.R.S. § 25-324. In the exercise of our discretion, we deny 

both requests. Father, however, is the prevailing party and is entitled to 

recover his taxable costs on appeal upon compliance with ARCAP 21.

CONCLUSION

¶26 For the reasons stated, we affirm the orders of the superior 

court.