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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HERIBERTO PERALTA, Petitioner/Appellant,

v.

BERTHA ALICIA PERALTA, Respondent/Appellee.

No. 1 CA-CV 19-0065 FC

Appeal from the Superior Court in Yuma County

No. S1400DO201601068

The Honorable Levi Gunderson, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Bishop Law Office, P.C., Phoenix

By Daniel P. Beeks

Counsel for Petitioner/Appellant

S. Alan Cook, P.C., Phoenix

By S. Alan Cook

Counsel for Respondent/Appellee

FILED 12-24-2019
PERALTA v. PERALTA

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.

W I N T H R O P, Judge:

¶1 Heriberto Peralta (“Father”) appeals various aspects of the 

dissolution decree ending his marriage to Bertha Alicia Peralta (“Mother”). 

For the following reasons, we affirm the legal decision-making and 

parenting time orders, but vacate the child support orders and remand for 

reconsideration in light of Father’s correct 2017 income. We also vacate the 

court’s award of attorneys’ fees to Mother, and remand for reconsideration

as to the unreasonableness of Father’s conduct during the litigation.

FACTS AND PROCEDURAL HISTORY

¶2 The parties married in 2010 and have one child, who was born 

in 2013. Both parties worked for the United States Border Patrol. In 

September 2017, Father was terminated for lack of candor after he admitted 

making a false statement to the Yuma Police in connection with a domestic 

violence incident.

¶3 In August 2016, Father filed a petition for dissolution and a 

motion for temporary orders without notice seeking sole legal decisionmaking authority. Father alleged that Mother committed three separate 

acts of domestic violence. The superior court granted Father temporary sole 

legal decision-making authority. At the first temporary orders hearing on

September 1, 2016, the court affirmed the award of sole legal decisionmaking authority to Father and granted Mother unsupervised parenting 

time.

¶4 Father’s attorney withdrew shortly before the two-day trial. 

On what was scheduled to be the first day of trial, Father successfully 

moved for a continuance. In light of the continuance, Mother requested 

additional temporary orders, and the court held a third temporary orders 
PERALTA v. PERALTA

Decision of the Court

3

hearing on December 11, 2017.

1 After taking evidence, the court denied 

Mother’s request to modify the temporary orders hearing, and the matter 

proceeded to trial on March 9, 2018.

¶5 Following the trial, the superior court allocated the parties’ 

community property and debts, awarded sole legal decision-making 

authority to Mother, granted Father equal parenting time, entered past and 

current child support orders, and awarded Mother a portion of her 

attorneys’ fees. Father filed a motion for new trial from the final decree.

¶6 The superior court granted Father’s motion for new trial, in 

part, on issues related to Father’s income and child support. Following the 

new trial on November 16, 2018, the court affirmed its prior findings 

regarding Father’s income and child support. Father filed a timely notice 

of appeal. We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 12-2101(A)(1), (2), and (5)(a).

ANALYSIS

I. Alleged Violation of Father’s Due Process Rights

¶7 Father contends he was denied due process because the 

superior court initially set the matter for a two-day trial, then reduced it to 

one day after his counsel withdrew. Due process claims are issues of law, 

which we review de novo. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 

1999).

¶8 Due process requires that the court “afford the parties ‘an 

opportunity to be heard at a meaningful time and in a meaningful 

manner.’” Volk v. Brame, 235 Ariz. 462, 468, ¶ 20 (App. 2014) (citation 

omitted). Although the original trial was scheduled for two days, the 

superior court explained that a one-day trial was sufficient in light of the 

multiple pretrial hearings and, in particular, its familiarity with the 

domestic violence issues. At two prior evidentiary hearings, the court 

heard testimony about the domestic violence allegations, Father’s income, 

and the parties’ ability to co-parent. As he did in his motion for new trial, 

Father argues that, given the limited trial time, he only had seven minutes 

to testify.

1 The court held a second temporary orders hearing on May 31, 2017, 

to address Mother’s motion for temporary orders regarding summer 

vacation and travel to Mexico.
PERALTA v. PERALTA

Decision of the Court

4

¶9 The parties received equal trial time. Father, however, chose 

to call Mother and three other witnesses before testifying himself. As noted 

in its subsequent detailed ruling, the superior court frequently reminded 

Father that his testimony was important and to reserve sufficient time to 

present his own testimony. Instead, Father spent significant time 

questioning Mother about the same domestic violence allegations raised in 

the prior hearings. Father’s inefficient use of time does not constitute a due 

process violation.2 See id., at 469, ¶ 22.

¶10 Father also suggests he was prejudiced because the superior 

court deducted the time it took to renumber Father’s trial exhibits from his 

allotted time. According to the transcript, the court took a ten-minute recess 

to address the issues with the exhibits. This delay was a result of Father 

failing to list the exhibits from an earlier hearing as trial exhibits. Thus, it 

was not unfair for the court to attribute to Father the time needed to 

renumber his earlier exhibits.

¶11 Finally, when notified that the trial would be one day instead 

of two, neither party objected or expressed concern that one day was 

insufficient. Likewise, at trial, Father did not object to his allotted time, and 

at the end of his case, he did not request additional time or make an offer of 

proof regarding the additional evidence he would have presented. Under 

these circumstances, we find no denial of due process. See Nicaise v. 

Sundaram, 244 Ariz. 272, 277, ¶ 15 (App. 2018) (finding no due process 

violation where a party made a strategic decision regarding use of trial time 

and then failed to request additional time or make a proffer of evidence), 

vacated in part on other grounds, 245 Ariz. 566, 569, ¶ 17 (2019).

II. Awarding Sole Legal Decision-Making Authority to Mother

¶12 The superior court awarded sole legal decision-making 

authority to Mother. In denying Father’s motion for new trial on this issue, 

the court provided a thorough discussion of the evidence of the mutual acts 

of domestic violence that constituted a large portion of the pretrial hearings 

and the trial.

¶13 We review the superior court’s legal decision-making and 

parenting time orders for an abuse of discretion. Engstrom v. McCarthy, 243 

Ariz. 469, 471, ¶ 4 (App. 2018). We accept the court’s findings of fact absent 

clear error. Id. Courts must consider the child’s best interest in deciding 

2 Father was able to present additional evidence regarding his income 

during the new trial as it related to child support issues.
PERALTA v. PERALTA

Decision of the Court

5

legal decision-making and parenting time. A.R.S. § 25-403. One of the 

factors relevant to determining the child’s best interest is whether there has 

been domestic violence. A.R.S. § 25-403(A)(8) (citing § 25-403.03). “If the 

court finds either the existence of significant domestic violence or a 

significant history of domestic violence, [§ 25-403.03(A)] precludes an 

award of joint legal decision-making authority.” DeLuna v. Petitto, 247 Ariz. 

420, 423, ¶ 11 (App. 2019). Here, the court found a significant history of

mutual acts of domestic violence.

¶14 Father argues the court improperly considered domestic 

violence in which he was the perpetrator because Mother did not raise this 

issue in her pretrial statement. The pretrial statement controls the course of 

the litigation and is “intended to avoid unfair surprise at trial.” Bobrow v. 

Bobrow, 241 Ariz. 592, 598, ¶ 28 (App. 2017) (citations omitted).

¶15 Here, Mother’s allegations of Father perpetrating acts of 

domestic violence predate the pretrial statements and were addressed at 

two of the temporary orders hearings. Father also failed to object when 

Mother testified at trial regarding his acts of domestic violence. Further,

the court stated that evidence of Father’s domestic violence was relevant 

because “both sides” were claiming to be victims of domestic violence.

Father even called his first wife to testify that he was not abusive during 

their marriage. Father was not unfairly surprised by evidence of mutual 

domestic violence at trial.

¶16 More importantly, this evidence was highly relevant to 

determining the child’s best interest. See Nold v. Nold, 232 Ariz. 270, 273, 

¶ 10 (App. 2013) (rejecting a waiver argument and holding that “the best 

interests of the child trump the consequences ordinarily imposed for 

violations of the rules”); see also A.R.S. §§ 25-403(A)(8), -403.03. Therefore, 

the court properly considered the evidence of mutual acts of domestic 

violence.

¶17 Father next argues the superior court did not give sufficient 

weight to Mother’s acts of domestic violence and improperly considered 

that she was not prosecuted for the March 2014 domestic violence incident.

The court did not minimize the seriousness of Mother drawing a weapon

but considered the parties’ overall history of mutual acts of domestic 

violence and, when balanced against the other factors relevant to the child’s 

best interest, decided it was in the child’s best interest to award sole legal 

decision-making authority to Mother. Father asks this court to balance 

these factors differently, but “[w]e must give due regard to the [superior] 

court’s opportunity to judge the credibility of the witnesses” and do not 
PERALTA v. PERALTA

Decision of the Court

6

reweigh conflicting evidence on appeal. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16

(App. 2009). Regarding the lack of prosecution, the court also considered 

that the prosecutor similarly declined to charge Father for his actions in the 

same incident.

¶18 Finally, § 25-403.03(D) creates a presumption that it is not in 

the child’s best interest to award sole legal decision-making authority to a 

parent who has committed an act of domestic violence, but specifically 

states that the presumption “does not apply if both parents have committed 

an act of domestic violence.” Father argues the superior court did not 

consider the relevant factors listed in § 25-403.03(E) when considering

whether Mother rebutted this presumption. Because both parties 

committed domestic violence, the presumption did not apply. We find no 

error.

III. Child Support Issues

A. The Superior Court Did Not Abuse Its Discretion by 

Attributing More Than Minimum Wage Earnings to 

Father.

¶19 In calculating child support, the superior court issued three 

separate child support worksheets for these time periods: (1) September 1, 

2016, through September 30, 2017, when Father had primary custody of the 

child and worked at Border Patrol; (2) October 1, 2017, through March 31, 

2018, after Father was terminated from Border Patrol and had primary 

custody; and (3) from April 1, 2018, when the parties had equal parenting 

time. For the second and third worksheets, when Father was unemployed, 

the court attributed $4,654 per month income to Father, which the court 

found to be half of his previous earnings at Border Patrol. According to the 

court’s calculations, Father earned $6,707 per month base salary, plus $2,600 

per month in supplemental pay at Border Patrol.

3 The court granted 

Father’s motion for new trial to reconsider the amount of income attributed 

to him but affirmed its finding that Father earned $2,600 per month in 

supplemental pay before being terminated from Border Patrol. After the 

new trial, the court explained, in great detail, why it concluded that Father

has remained voluntarily unemployed since his termination and why 

attributing half his prior income was appropriate.

3 Father’s total income also includes military retirement pay and 

military disability income, but those amounts are not in dispute.
PERALTA v. PERALTA

Decision of the Court

7

¶20 Father raises several arguments regarding the superior 

court’s decision to attribute half his Border Patrol income in determining 

the child support obligation. Whether the court can attribute a higher 

income than the party earns is a question of law reviewed de novo, Pullen v. 

Pullen, 223 Ariz. 293, 295, ¶ 9 (App. 2009), but we review factual findings 

for clear error, Strait v. Strait, 223 Ariz. 500, 502, ¶ 6 (App. 2010).

¶21 Father reasons that because his employment was terminated, 

his unemployment is not voluntary, and the court erred in attributing more 

than minimum wage. Child Support Guidelines § 5(E), A.R.S. § 25-320

Appendix (“Guidelines”), allows the court to attribute income up to 

earning capacity when a parent is unemployed or working below his or her 

full earning capacity “if the parent’s earnings are reduced voluntarily and 

not for reasonable cause.” Little v. Little, 193 Ariz. 518, 521, ¶ 6 (1999). The 

Guidelines give the court discretion to consider the reasons for the parent’s 

unemployment. Guidelines § 5(E) (“If a parent is unemployed or working 

below full earning capacity, the court may consider the reasons.”). 

According to Guidelines § 5(E), the court shall attribute at least minimum 

wage

after considering the specific circumstances of the parents to 

the extent known. This includes such factors as the parents’ 

assets, residence, employment and earnings history, job skills, 

educational attainment, literacy, age, health, criminal record 

and other employment barriers, and record of seeking work, 

as well as the local job market, the availability of employers 

willing to hire the parents, prevailing earnings level in the 

local community, and other relevant background factors in 

the case.

¶22 Thus, the Guidelines authorize the court to attribute more 

than minimum wage if the circumstances warrant. For example, in Sherman 

v. Sherman, 241 Ariz. 110, 112-13, ¶¶ 5, 12 (App. 2016), the father was unable 

to work because of a medical condition and not voluntarily unemployed. 

This court held, however, that it was within the court’s discretion to 

attribute more than minimum wage but less than previous earning capacity 

to the father “despite his involuntary unemployment.” Id. at 113, ¶ 12. The 

court may also consider a parent’s effort or lack thereof in finding new 

employment. See Patterson v. Patterson, 102 Ariz. 410, 415 (1967) (refusing 

to reduce child support because the father was capable of working and his 

obligation to his children could not be diminished because he preferred to 

be idle rather than industrious or his own improprieties caused a 

diminution in his income).
PERALTA v. PERALTA

Decision of the Court

8

¶23 Here, Father’s termination may not have been “voluntary,” 

but that was only one of the factors the superior court considered. The 

evidence supports the findings that Father had preferred status as an 

honorably discharged military veteran, a long work history including 

leadership responsibilities, and a wide range of employable skills, 

including being bilingual. The court properly considered Father’s 

voluntary decision, after being turned down from three jobs, to not seek 

other work while awaiting the appeal of his termination. See id. After 

considering all these factors, the court was within its discretion to conclude 

that Father could earn more than minimum wage.

¶24 Father also argues the superior court abused its discretion 

because it attributed more than minimum wage to punish him for having 

lied to law enforcement. Father contends that this is contrary to the 

directive that “[t]he court may not attribute income to a person who is 

incarcerated, but may [consider] actual ability to pay.” Guidelines § 5(E). 

We disagree. Father was not incarcerated, and the Guidelines also allow 

the court to consider all the reasons for the parent’s unemployment. Id. We 

find no abuse of discretion.

¶25 The superior court attributed only half of Father’s most recent 

earning capacity to account for the difficulty he may have in finding a 

comparable position as a result of his termination. Father contends this 

reduction was speculative and, therefore, an abuse of discretion. The case 

law does not support Father’s contention that Mother must provide expert 

testimony from a vocational expert for the court to attribute income over 

minimum wage. The court has discretion to determine a parent’s earning 

capacity based on that parent’s education, work experience, and previous 

earning capacity. See Taliaferro v. Taliaferro, 188 Ariz. 333, 336-37 (App. 

1996); Williams v. Williams, 166 Ariz. 260, 266 (App. 1990). We find no abuse 

of discretion.

B. The Evidence Does Not Support the Amount of 

Supplemental Pay Attributed.

¶26 The superior court found Father earned $2,600 per month in 

supplemental income at Border Patrol from September 1, 2016, through 

September 30, 2017. Father argued in his motion for new trial that this was 

incorrect. The court relied on Father’s 2016 financial affidavit, which stated 

that he earned $2,600 per month in supplemental pay and denied a new 

trial on this basis.
PERALTA v. PERALTA

Decision of the Court

9

¶27 Father does not dispute his 2016 financial affidavit stated he 

earned $2,600 per month in supplemental pay, in addition to his regular 

Border Patrol income of $6,706. Father contends, however, the paystubs 

admitted at the new trial show he did not earn $2,600 per month in 

supplemental pay after July 24, 2016. Father testified that his opportunity 

to earn supplemental pay decreased significantly when he started working 

as a union representative rather than a field agent in August 2016, which 

was approximately the same time his supplemental pay hours were 

restricted for disciplinary reasons.

¶28 According to his paystubs, between July and October 2016, 

Father’s “supplemental pay” was approximately $1,542 per month. But

Father focuses only on the “supplemental pay” line of his paystub. 

Throughout 2016, Father received income in addition to his base pay, such 

as overtime, holiday leave, and “other leave.” Some of this additional 

compensation continued in 2017. The court properly considered this

additional compensation in determining Father’s average monthly income.

¶29 We conclude, however, that the superior court should have 

corrected the child support worksheets when more detailed information 

was presented at the new trial. The monthly average of the year-to-date 

gross income stated on Father’s October 15, 2016 paystub was $9,140 per 

month, which includes all forms of additional compensation.

4 Father did 

not include any 2016 paystubs for November or December. The monthly 

average of the yearly gross income stated on Father’s last paystub from 

September 16, 2017, is approximately $7,600.5 Mother did not dispute that 

Father earned an average monthly income of approximately $7,600 for 2017. 

Thus, the record does not support the court’s finding that Father earned

$9,307 in 2017.

¶30 As stated above, the superior court was within its discretion 

to attribute one-half of Father’s previous income given the findings 

regarding the reasons for his unemployment. But the court must base the 

one-half reduction on the correct income amount. We vacate the child 

4 The gross year-to-date income was $86,834.06 as of October 15, 2016.

Dividing this amount by 9.5 months results in an average gross monthly 

income of $9,140.43.

5 The gross year-to-date income was $65,086.96, as of September 16, 

2017. Dividing this amount by 8.5 months results in an average gross 

monthly income of $7,657.29.
PERALTA v. PERALTA

Decision of the Court

10

support orders and remand for reconsideration based on Father’s correct 

income.

C. Attributing Child Care Costs Is Discretionary.

¶31 The superior court did not include child care costs when 

calculating Father’s child support obligation after October 1, 2017, because 

Father withdrew the child from preschool in September 2017. Father argues 

this was an abuse of discretion because the court attributed a full-time 

income and should, therefore, attribute the corresponding cost of child care

under Guidelines § 5(E). We review child support awards for an abuse of 

discretion, but the court’s interpretation of the Guidelines is a question of 

law we review de novo. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21 (App. 

2009).

¶32 Guidelines § 5(E) states, “If income is attributed to the parent 

receiving child support, appropriate child care expenses may also be 

attributed.” This is discretionary. Engel, 221 Ariz. at 511-12, ¶¶ 22, 25-28. 

The court in Engel noted that the Guidelines reflect a policy to allow

attribution of hypothetical income and expenses, and that such attribution 

can affect the monthly child support obligation. The purpose of attributing 

hypothetical income and expenses is “to protect a working parent from 

paying a disproportionate amount of the total support obligation when the 

other parent has chosen not to earn income to the extent he or she is able.”

Id. at 511, ¶ 22. Attributing child care expenses increases the total child 

support obligation by a corresponding amount. Id. at 512, ¶ 28. When this

attribution significantly increases what the employed spouse must pay, the 

result is contrary to what the Guidelines intended. Id.

¶33 In this case, Father did not actually incur child care expenses 

after he withdrew the child from preschool when he lost his job. Thus, 

attributing hypothetical child care expenses while Father was unreasonably 

not looking for work, is contrary to the intent of the Guidelines. Id. 

Accordingly, the court did not abuse its discretion when it declined to 

attribute hypothetical full-time child care costs, particularly because the 

child was starting school in August 2018.

IV. Property Allocation Issues

¶34 The superior court awarded each party the debts associated 

with credit cards in his or her name, their own savings and retirement

accounts, and various personal property. Mother was awarded the marital 

home, which had $45,000 in equity. The court denied Father’s request to be 

reimbursed for the mortgage and maintenance expenses he paid for the 
PERALTA v. PERALTA

Decision of the Court

11

marital residence during the litigation. Because the allocation resulted in 

Father receiving $38,344 in debts and Mother having $43,664 in assets, 

Mother owed Father $41,004. After deducting Mother’s $15,000 attorneys’ 

fee award, the court entered a $26,004 equalization judgment in favor of 

Father. The court ordered that no interest shall accrue on the judgment as 

long as Mother made monthly payments of at least $400. The court denied 

Father’s motion for new trial on the property allocation. We review the

court’s allocation of property for an abuse of discretion. Hrudka v. Hrudka, 

186 Ariz. 84, 93 (App. 1995), superseded by statute on other grounds as noted in 

Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8 (App. 2014).

A. The Superior Court Properly Denied Father’s 

Reimbursement Claim.

¶35 First, we find no abuse of discretion in denying Father’s 

request for reimbursement for the mortgage and maintenance expenses he 

paid after filing the petition for dissolution. Father testified that he used 

the rental income from the marital residence to pay those expenses. Father 

did not provide a detailed accounting of the expenses he paid, so we cannot 

presume these expenses exceeded the rental income he received and did 

not share with Mother. Although Father had no obligation to pay these 

expenses with his separate, post-petition funds, see Bobrow, 241 Ariz. at 596, 

¶ 19, on this record, denying his claim for reimbursement allocation was 

equitable because the court did not attribute rent as income to Father.

B. The Superior Court Abused Its Discretion by Not Awarding 

Interest on the Equalization Judgment.

¶36 Next, Father concedes that although the overall property and 

debt allocation was mathematically equal, the practical result was not fair 

and equitable because the court failed to award any interest on the 

equalization judgment unless Mother failed to pay on time, whereas Father 

has to pay interest on the community debts assigned to him. We agree. The 

court has no discretion to refuse to award interest under A.R.S. § 44-1201(B).

In re Estate of Miles, 172 Ariz. 442, 445 (App. 1992). If Mother is not required 

to pay interest on the equalization judgment, Father is “forced to make an 

interest-free loan to [Mother].” McCune v. McCune, 120 Ariz. 402, 404 (App. 

1978). Here, this is inequitable because the court assigned a significant 

portion of the community credit card debt to Father6 and all of the equity 

6 Mother contends that Father incurred all the credit card debt 

assigned to him. But the credit card statements show that there was 
PERALTA v. PERALTA

Decision of the Court

12

in the marital residence to Mother. Mother essentially concedes this point 

on appeal and notes that a more equitable result might have been to pay the 

equalization judgment in a lump sum.

¶37 Father’s motion for new trial did not specifically raise the 

failure to award interest on the equalization judgment, but he objected to 

the overall allocation being unfair because, in part, he had to pay substantial 

interest on the credit card debt assigned to him. Generally, we do not 

consider arguments raised for the first time on appeal, but the doctrine of 

waiver is discretionary. Noriega v. Town of Miami, 243 Ariz. 320, 326, ¶ 27 

(App. 2017). We decline to find waiver here because Mother agrees the 

court abused its discretion in failing to order interest and because Father’s 

motion for new trial argued the property allocation was unfair because he 

could not pay off the debts assigned to him with Mother paying only $400 

per month.

¶38 Because the superior court erred by failing to award interest 

on the equalization judgment unless Mother missed a payment, we vacate 

the property and debt allocation and remand for reconsideration. On 

remand, the court may exercise its discretion to reconsider the overall 

allocation and, as Mother suggests, order a lump sum equalization 

payment, if possible.

V. Support for the Findings Regarding Father’s Unreasonableness

¶39 The superior court awarded Mother $15,000 in attorneys’ fees 

under A.R.S. § 25-324(A). The court found Father acted unreasonably

because he (1) unilaterally renewed the lease on the marital residence to a 

third party just days before trial and after Mother requested possession of 

the house, (2) was inflexible in co-parenting, and (3) requested sole legal 

decision-making and greater parenting time. We review an award of 

attorneys’ fees for an abuse of discretion. In re Marriage of Williams, 219 Ariz. 

546, 548, ¶ 8 (App. 2008).

¶40 Section 25-324(A) authorizes an award of fees after 

considering the parties’ financial resources and “the reasonableness of the 

positions each party has taken throughout the proceedings.” Father argues 

that the conduct cited by the superior court does not constitute a “legal 

minimal change in the balances from the time the petition was filed in 

August 2016 to the time of trial. Thus, the credit card debt owed at the time 

the petition was filed is presumed to be a community obligation because it 

was incurred during marriage. See Hrudka, 186 Ariz. at 91-92.
PERALTA v. PERALTA

Decision of the Court

13

position” and was thus not a proper basis for awarding fees under § 25-324. 

Father also contends he was not unreasonable.

¶41 During the litigation, just days before trial, Father unilaterally 

renewed the third-party lease on the marital residence after Mother 

specifically requested possession of the house. Father was aware that 

possession of this marital asset was in dispute; therefore, renewing the lease 

during litigation and without Mother’s knowledge constitutes taking a 

legal position, i.e., Mother was not entitled to possession of the marital 

asset. Similarly, denying Mother’s request to attend the child’s first day of 

preschool constituted a legal position that the temporary parenting time 

orders must be strictly followed. Although Father was strictly following 

the temporary parenting time order, under these circumstances, the court 

could view his refusal as unreasonably inflexible, especially given the other 

examples of Father’s inflexibility regarding co-parenting issues. See Barron 

v. Barron, 246 Ariz. 580, 587, ¶ 22 (App. 2018), vacated in part on other grounds, 

246 Ariz. 449 (2019).

¶42 We agree with Father, however, that his request for sole legal 

decision-making authority and greater parenting time was not objectively 

unreasonable given the mutual domestic violence and the prior temporary 

orders in this case. See Williams, 219 Ariz. at 548-49, ¶¶ 10-11 (holding that 

a party’s positions are evaluated by an objective standard of 

reasonableness). Therefore, this finding is not supported by the evidence. 

Although the record supports the other findings regarding Father’s

unreasonableness, we cannot determine how much weight the court placed 

on any one finding.7 Accordingly, we vacate the award of attorneys’ fees 

and remand for reconsideration.

VI. Attorneys’ Fees and Costs on Appeal

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

under § 25-324. After considering the parties’ financial resources and the 

reasonableness of their positions, we hold each party shall bear his or her 

7 The court also found Father was unreasonable because he “was 

motivated by an issue not related to the child’s best interests, such as the 

desire to control Mother and to prove to Mother that Father is in charge.” 

Although Father did not address this finding on appeal, it was improper to 

base an award of fees on Father’s subjective intent. See Williams, 219 Ariz. 

at 549, ¶ 12 (holding that nothing in § 25-324(A) suggests the reasonableness 

factor be assessed with reference to a party’s intentions in taking that 

position).
PERALTA v. PERALTA

Decision of the Court

14

own fees on appeal. Because we have vacated and remanded the child 

support orders, property allocation, and attorneys’ fee award, Father is 

entitled to his costs on appeal under A.R.S. § 12-342(A), upon compliance 

with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶44 Father was not deprived of due process, and we affirm the 

legal decision-making and parenting time orders. We reverse the child 

support orders and remand for reconsideration of the income attributed to 

Father. We vacate the property allocation and award of attorneys’ fees and 

remand for reconsideration.