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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEAL S

D IVISION O NE

In re the Matter of:

NICHOLAS KRAKANA , Petitioner /Appellant
,

v.

SUSANNA HADDEN , Respondent /Appellee

.
N o . 1 CA

- CV 23

- 0 222 FC

Appeal from the Superior Court in Maricopa County

No. FC2016

- 0 50246 No. FC2017

- 003246 The Honorable James Knapp , Judge

AFFIRMED

COUNSE L

Nicholas Krakana
, Scottsdale P etitioner /Appellant

Susanna Hadden
, Scottsdale Respondent

/Appellee FILED 12-26-2023KRAKANA v. HADDEN Decision of the Court

2 MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision , in which Presiding Judge D. Steven Williams and Judge Samuel A. Thumma joined.

M c M U R D I E , Judge:

¶1 Nicholas Krakana (“Father”) appeals the superior court’s January 2023 legal deci sion

- making and parenting

- time orders and the February 2023 child support order

. He also appea ls the attorney ’s fees granted in the January 2023 order and requests that this decision be sealed

. W e affir m the superior court’s orders and decline to file this decision under seal

.
FACTS AND PROCEDURAL BACKGROUND

¶2 Susanna Hadden (“Mother”) and Father are the parents of two minor children, born in 2007 (“Son”) and 2009 (“Daughter”)

. The parties were never married. In April 2016, Father petitioned to establish legal decision

- making and parenting time. The court granted Mother sole legal decision

- making authority

. A nd it granted Father no parenting time because of a protecti ve order against him naming the children as protected parties. Later , the court placed the case on the inactive calendar so a dependency petition could be filed. When the parties failed to move to set a trial , the court dismissed the case.

¶3 In J anuary 2017, Father re

- petitioned to establish paternity, legal decision

- making, parenting time, and child support

. The court held a trial on the petition in August 2017

. In its judgment (“2017 order”)
, the court

o rdered joint legal decision

- making authority and parenting time and that Father pay Mother $434 monthly in child support. The court also directed the parties to engage in intensive counseling

. It agreed with a court’s previous ruling that “ t he parents continue to fixate on vindicating themselves regardless of the suffering their children will experience in the process .” (Emphasis omitted

. )

¶4 Father moved for a new trial or an amended judgment

. The court denied the motion
, and Father appealed. This court affirmed the 2017KRAKANA v. HADDEN Decision of the Court

3 order in Krakana v. Haass
, 1 CA

- CV 17

- 0747 , 2018 WL 5019473 (Ariz. App. Oct. 11, 2018 ) (mem . decision).

¶5 Within three years of the August 2017 order, Father petitioned to modify the or der four times. The superior court denied all four petitions

. ¶6 In October 2021 , the superior court granted a protective order against Father because of an incident involving Father and the minor children

. In the petition , Mother alleged that Father believed Daughter reported to the police that Father had shoplifted. When Father learned of D aughter’s remarks, he went to the children’s school and withdrew the children from their class es

. He brought them to a room and accused D aughter of “try[ing] to get [him] in trouble with the police” and of being “sick,” “evil,” “malicious,” and “ sociopath[ic].” The petition alleged that Father scolded Daughter,

I f you do thi s to anybody else in your life that you

– that you get their trust and you gain their trust and you turn on them like that

– don’t be surprised if they lash out at you. ‘Kay? Especially if it’s a guy and they get physical

– I wouldn’t be surprised because if you were in a relationship with somebody and you turned on somebody like this

– they would knock your head off your shoulders.
Father requested a hearing on the petition , which the superior court held

. After hearing testimony from both parties
, the court affirmed the protective order

. And the court noted that Father’s behavior was “repre hensible, abusive, threatening, and intimidating.”

¶7 Soon after, Mother petitioned to modify legal decision

- making authority
, parenting time, and child support

. In the petition, Mother alleg ed that Father was refusing to participate in the legal decision

- making process, engaging in child abuse and parental alienation
, and not fully exercising his parenting time

. She requested sole legal decision

- making authority, designation as the primary residential parent with Father to have limited, supervised parenting time, and a modified child support award.

¶8 T he superior court held an e videntiary hearing on Mother’s petition. In January 2023, the court entered its judgment (“January 2023 order”)

. After analyzing the best interest factors under A.R.S. § § 2 5

- 403(A)
, 25

- 403.01 (B), and 25

- 403.03, the court awarded Mother sole legal decision

- making and designated her as the children’s primary residential parent. It awarded Father parenting time with S on every other weekendKRAKANA v. HADDEN Decision of the Court

4 and with D aughter every other Saturday between 10:00 a.m. and 6:00 p.m. The court designated the parenting plan for Daughter as an interim plan that the court could amend after Father and Daughter completed the Court Ordered Behavioral Interventionist ( “ i nterventionist” ) process. Because Father declined to participate in the i nterventionist process, the court later ordered the interim parenting plan to remain in place. Father moved for reconsideration of this order
, but the court denied it

. ¶9 T he court found that Father had “failed to respond to inquiries from Mother on issues that are important to the children’s health, well

- being, and happiness” and exercised very little parenting time in 2019, 2020, and 2021

. It emphasized that the protecti ve order against Father was affirmed after a contested hearing and that Father expressed no regret about the events leading to it

. It also found that Father did not exercise supervised parenting time after the protecti ve order expired in November 2022. For these reasons and others, the court found t hat Father failed to rebut the presumption that an award of sole or joint decision

- making authority to the parent who committed the act of domestic violence conflicted with the child’s best interests. See A.R.S. § 25

- 403 .03 (D)
, (E)

. Finally, the co urt granted Mother’s request for attorney’s fees after finding that Father ha d “considerably more resources available” and “acted unreasonably in the litigation.”

¶10 In February 2023, the superior court ordered Father to pay Mother $1,165 monthly in child support (“February 2023 order”)

. It acknowledged it s January 2023 finding that the parties presented

“ in sufficient evidence to make proper findings about Mother’s and Father’s income .” Still, i t stated it must determine child support when modifying parenting time

. ¶11 Father moved to reconsider the court’s January 2023 order and for a new trial or an amended judgment on the February 2023 order

. T he court denied both motions. Father appealed both orders
, and we have jurisdiction under A.R.S. §§ 12

- 120.21 ( A )(1)
, 12

- 2101(A)(1) , and 12

- 2101(A)(2)

.
DISCUSSION

A. The Superior Court Did Not Abuse I ts Discretion by Granting Mother Sole Legal Decision

- Making Authority.

¶12 We review an award of legal decision

- making and parenting time for an abuse of discretion. Olesen v. Daniel
, 251 Ariz. 25, 29, ¶ 14 (App.KRAKANA v. HADDEN Decision of the Court

5 2021); DeLuna v. Petitto
, 247 Ariz. 420, 423, ¶ 9 (App. 2019). A.R.S. § 25

- 403 .03 (D) provides:

If the court determines that a parent who is seeking sole or joint legal decision

- making has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision

- making to the parent who committed the act of domestic violence is contrary to the child ’ s best interests. This presumption does not apply if both parents have committed an act of domestic violence

. (Emphasis added.) Father argues that Mother also engage d in domestic violence
, and so the superior court erred by applying A.R.S. § 25

- 403.03(D) ’s presumption

. To support his argument, Father points to the 2016 protecti ve order entered against Mother and th e superior court’s finding in the 2017 parenting order that both parties engaged in domestic violence

. ¶13 But the 2017 finding is not pertinent to Mother’s 2021 modification petition. When considering a modification petition, the court considers whether there has been “a material change of the circumstances affecting the child’s welfare since the last court order.” Backstrand v. Backstrand , 250 Ariz. 339 , 341, ¶ 1 (App. 2020). Thus, the January 2023 order at issue contemplates the material changes after the 2017 order and the
current status of the children and parties

. See id. At the 2022 evidentiary hearing, Father did not present testimony o n new domestic violence allegations against Mother

. Rather, the relevant material change after the 2017 order is the 2021 protecti ve order against Father and the corresponding contested hearing when the court found Father committed domestic violence. Based on this incident and finding , Mother alleged in her modification petition that Father committed domestic violence. T he January 202 3 o rder thus correctly found that “ the presumption applies because [Father] committed at least one act of domestic violence against [Mother], and [Mother] has not committed domestic violence

. ” See A.R.S. § 25

- 403.03(D)

. ¶14 F ather also argues that the court erred by precluding Dr. Phipps

- Yonas ’s affidavit and curriculum vitae , which he asserts would have undermine d the protecti ve order against him

. The court precluded Dr. Phipps

- Yonas’s expert testimony before the evidentiary hearing

. Then
, Father tried to introduce Dr. Phipps

- Yonas’s affidavit and CV at the hearing
, but the court declined to admit the exhibits.KRAKANA v. HADDEN Decision of the Court

6 ¶15 Without an abuse of discretion, we will not second

- guess the superior court’s ruling on the admissibility or relevance of evidence. State

v. S preitz , 190 Ariz. 129, 146 (1997). As the superior court detailed in its order denying Father’s motion to reconsider the evidentiary exclusion
, the

“ testimony by that proposed expert infringes on the finder of fact . . . [i]t is for the Court to determine whether or not there has been abuse or neglect

. ” Father does not provide legal authority to support his contention that the evidence must be admitted. See ARCAP 1 3(a)( 7) (An argument must contain “supporting reasons for each contention . . . with citations of legal authorities .” )

. And more importantly, issue preclusion applies to bar

re litigation over a prior court finding of domestic violence

. See Olesen
, 251 Ariz. at 30, ¶ 20

. ¶16 Lastly, Father argues that the superior court erred by granting Mother sole legal decision

- making when the parties’ children are doing poorly in school. Father specifically objects to the superio r court “ skip[ p ing] over that issue in i ts ruling [

. ]” But in conducting the best interest analysis under A.R.S. § 25

- 403, t he superior court document ed Father’s “concern that [t he children] aren’t doing well in school currently [

. ] ” At the same time, the superior court also found , among other things, that Father has exercised very little parenting time in the last few year s , withheld permission for Daughter’s counseling , and engaged in domestic violence. Because the
court made “specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child[ren
, ] ” and th e record supports those findings
, it did not abuse its discretion by granting Mother sole legal decision

- making authority. See A.R.S. § 25

- 403(B) ; cf. Hart v. Hart , 220 Ariz. 183, 186, ¶ 9 (App. 2009).

B. The Superior Court Did Not Abuse Its Discretion by Granting Mother and Father Unequal Parenting Time

. ¶17 Fath er argues that the January 2023 order improperly restrict ed his parenting time because he cannot pay for the i nterventionist process that the court ordered before his parenting time with Daughter could increase

. Father contends he “was crystal clear that the reason he could not proceed [with the i nterventionist ] was purely financial.”

¶18 The superior court “may order parties to engage in behavioral or mental health services, including counseling and therapeutic interventions,” but it “must determine on the record whether the parties have the ability to pay for services.” Ariz. R. Fam. Law P. 95(a), (b). O n appeal
, “ [w] e will accept the court’s factual findings as true unless they are clearly erroneous.” Gish v. Greyson , 253 Ariz. 437, 444, ¶ 31 (App. 2022).KRAKANA v. HADDEN Decision of the Court

7 ¶19 Here, t he superior court determined that “Father did not provide accurate information about his income and expenses, ” but stated
,
“ the [c]ourt never theless finds based on the testimony on 12/12/2022 regarding Father’s available resources that Father can afford to pay for a [n] [ i nterventionist] .” On appeal, Father does not cite to record evidence that the cour t’s finding of his ability to pay was “clearly erroneous

. ” See Gish
, 253 Ariz. at 444 , ¶ 31. Thus, he fails to show that the court abused its discretio n when it order ed his parenting time to be limited until the i nterventionist process wa s complete d

. ¶20 Father also argues that the order hurts the parent

- child relationship and thus improperly infringes on his parental rights. He misreads the January 2023 Order to guarantee “ substantial, frequent, meaningful and continuing contact” with both children and argues that the parenting time order contradicts this guarantee. But the court only ensured this contact with Son. As for Daughter, the court specifically found :
[P] arenting time that ensures [Father ] will have substantial, frequent, meaningful, and continuing contact with [Daughter] would endanger the child’s physical
, mental, moral or emotional health because Father and [Daughter] have been estranged since the 10/18/2021 incident, and [Daughter ] currently states that she wants no parenting time with Father. The Court finds, however, that it would not be in the best interest of [Daughter] to cut Father out of her life. It is in the best interest of [Daughter] and Father to work on their relationship t hrough therapy.

Because the superior court made specific best

- interest findings about parenting time supported by the record, and Father does not contradict those findings, it did not err. See A.R.S. § 25

- 403(B); see also Hart , 220 Ariz.
at 186, ¶ 9

.
C. The Superior Court Did Not Abuse I ts Discretion b y Modifying the Child Support Order

. ¶21 “ The decision to modify an award of child support rests within the sound discretion of the trial court and, absent an abuse of th at discretion, will not be disturbed on appeal.” Nia v. Nia , 242 Ariz. 419, 42 2 , ¶ 7 (App. 2017) (citing Little v. Little , 193 Ariz. 518, 520, ¶ 5 (1999) )

. ¶22 Father argue s th at no change in circumstances warranted the February 2023 order’s new child support amount

. Mother responds that the changes in the children’s ages and parenting time support the new amount.KRAKANA v. HADDEN Decision of the Court

8 We agree with Mother. Because the superior court granted Mother’s petition to modify parenting time , “it was required to address child support .” Heidb reder v. Heid b reder , 230 Ariz. 377, 379

- 80, ¶ 7 (App. 2012). And when it did, there was an increase in the children’s ages and in M others’ parenting time from the 2017 child support order. Th ose changes

are reflected in the February 2023 order.

¶23 Father contends the court erred by not considering Mother’s h ome value when calculating her income

. H e states, “[s]ince the trial court is using Appellants home as a gage for child support obligations based on rental income, it would be prudent for the trial court to take into consideration Appellee’s housing situation.” But the child support guidelines provide that income may include various monetary sources , like recurring gifts

. See A.R.S. § 25

- 320 app. (“Guidelines”) § II. A.1.b. F ather’s argument fails to acknowledge that the superior court considered his theoretical rent as income because he lives in a rent

- free hous e , a recurring gift from his m other. But there was record evidence that Mother pays rent , so it would have been error to attribute her housing as income. The superior
court based Mother’s income on her reported commissions and bonuses and attribut ed her a minimum

- wage salary. Th e record supports these figures

. ¶24 The superior court did not abuse its discretio n when calculating the parties’ incomes and order ing Father to pay $1,165 monthly in child support.

D. The Superior Court Did Not Abuse I ts Discretion by Granting Mother Attorney’s Fees

. ¶25 After the superior court considers the parties’ financial resources and the reasonableness of their positions, it has the discretion to award attorney’s fees. See A.R.S. § 25

- 324(A) ; Ferrill v. Ferrill , 253 Ariz. 393, 39 9 , ¶ 25 (App. 2022)

. W e review an attorney’s fees award under A.R.S. § 25

- 324 for an abuse of discretion and reverse only when clearly erroneous

. Hefner v. Hefner , 248 Ariz. 54, 57, ¶ 6 (App. 2019) ( cleaned up )

. ¶26 Father argues the superior court abused its discretion when it awarded Mother attorney’s fees in the January 2023 order. The court granted this award in part because it found that Father “acted unreasonably in the litigation ” by seeking relocation of the children to California. But F ather asserts he act ed in good faith

. He argues on appeal that relocation would be nefit the children because “ [l]iving in Newport Beach, CA in a single

- family home attending Corona del Mar High School in itself is aKRAKANA v. HADDEN Decision of the Court

9 dream for any child or adult.” But Father “ provided no [trial ] evidence to explain, e.g., how a relocation would improve any of their lives , or how it would allow parenting time for Mother.”

¶27 T he superior court also based its award of attorney’s fees on Father’s greater financial resources, spiteful litigation , and untrustworthy testimon y. And Father does not dispute the se finding s. Thus, Father has failed to show the court abused its discretion by awarding Mother her attorney’s fees.

E. Father Has Shown No Grounds to Seal t his Decision

. ¶28 Father requests that this court seal its decision for his children’s well

- being. Mother “does not object to the sealing of the documents, but questions the motive .” “With very few exceptions, all decisions this Court issues are a matter of public record.” Court of Appeals, Division One, Policies, available at https://www.azcourts.gov/coa1/Filer

Information/Policies

. Because Father failed to articulate an applicable exception to the court’s policy, we decline to file this case under seal.

F. We Deny Mother’s Request for Attorney’s Fees on Appeal

. ¶29 Mother argues Father unreasonably contest s the superior court’s ruling s and requests attorney’s fees under A.R.S. §§ 12

- 349, 25

- 324 , and ARCAP 21

. Because counsel does not represent Mother , we deny her fee request

. As the prevailing party, she is entitled to cost s upon compliance with ARCAP 21.

CONCLUSION

¶30 We affirm.