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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELIAS CHAPA, Petitioner/Appellant,

v.

HEATHER MARIE HOUSMAN, Respondent/Appellee.

No. 1 CA-CV 14-0560 FC

Appeal from the Superior Court in Maricopa County

No. FC2013-007735

The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Dean W. O’Connor PLLC, Phoenix

By Dean W. O’Connor

Counsel for Petitioner/Appellant

Modern Law, Mesa

By Billie Tarascio

Counsel for Respondent/Appellee
CHAPA v. HOUSMAN

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in 

which Judge Patricia A. Orozco and Judge Andrew W. Gould joined.

N O R R I S, Judge:

¶1 Elias Chapa (“Father”) appeals from the family court’s 

judgment awarding Heather Marie Housman (“Mother”) sole legal 

decision-making, child support, and primary custody of their child 

(“Child”).

1 On appeal, Father argues the family court abused its 

discretion by, essentially, failing to properly weigh the evidence and in 

admitting certain evidence at the evidentiary hearing. We reject each 

argument and, therefore, affirm the family court’s judgment. 

DISCUSSION

I. Legal Decision-Making

¶2 In awarding Mother sole legal decision-making authority for 

Child, the family court found Father had failed to rebut the presumption it 

was not in Child’s best interests to award him sole or joint legal decisionmaking authority based on his acts of domestic violence against Mother. 

See Ariz. Rev. Stat. (“A.R.S.”) § 25-403(A) (Supp. 2014)2 (“The court shall 

 

1Father also argues the family court’s temporary order 

awarding Mother sole legal decision-making and Father only Skype 

parenting time was improper. A temporary order, however, is reviewable 

only by special action and not by appeal after it has been superseded by a 

final order. See DePasquale v. Maricopa Cnty. Superior Court, 181 Ariz. 333, 

337, 890 P.2d 628, 632 (App. 1995).

In his notice of appeal, Father also stated he was appealing 

from the family court’s order denying his motion for a new trial and/or to 

amend the judgment. Father has not, however, raised any argument 

concerning this order in his appellate briefing.

2Although the Arizona Legislature has amended certain 

statutes cited in this decision after the date of the events giving rise to this 
CHAPA v. HOUSMAN

Decision of the Court

3

determine legal decision-making . . . in accordance with the best interests 

of the child.”); A.R.S. § 25-403.03(D) (Supp. 2014) (the “domestic violence 

presumption”). 

¶3 On appeal, Father argues “[t]here is no statutory authority” 

to support “that Mother’s witnessing domestic violence against others is 

grounds to say that Father should not have custody of the child and that 

violence against someone other . . . than her . . . somehow gives her certain 

rights to custody in this proceeding[].” Such authority exists, however. 

The domestic violence presumption 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.

A.R.S. § 25-403.03(D). The statute defines “domestic violence” to include 

an act which “[p]laces a person in reasonable apprehension of imminent 

serious physical injury to any person.” Id. at (D)(2). Here, the family 

court found that “[a]lthough Father never hit Mother, Mother credibly 

testified that she observed Father strike others” who lived in Father’s 

household. The family court further found that, through these and other

acts, “Father established an atmosphere inside his home where Mother 

was placed in reasonable apprehension of imminent physical injury.”

¶4 Father further argues Mother’s testimony was not credible, 

and the family court should have believed Father and his witnesses 

instead. “We review the family court’s decision regarding child custody 

for an abuse of discretion,” however, and we will not re-weigh evidence 

or redetermine the preponderance of the evidence on appeal. Hurd v. 

Hurd, 223 Ariz. 48, 51–52, ¶¶ 11, 16, 219 P.3d 258, 261–62 (App. 2009). In 

addition, “[w]e must give due regard to the trial court’s opportunity to 

judge the credibility of the witnesses,” and “[e]ven though conflicting 

 

appeal, these revisions are immaterial to our resolution of this matter. 

Therefore, we cite to the current version of these statutes. 
CHAPA v. HOUSMAN

Decision of the Court

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evidence may exist, we affirm the trial court’s ruling if substantial 

evidence supports it.” Id. at 52, ¶ 16, 219 P.3d at 262.

¶5 Here, substantial evidence supports the family court’s 

finding Father had placed Mother in reasonable apprehension of 

imminent physical injury. Mother testified she witnessed Father regularly 

beat another woman they lived with, and on one occasion Mother saw 

Father beat the woman so severely she hyperventilated and urinated on 

herself. Mother also testified she saw Father beat his teenage sons with a 

leather belt for not doing chores the way he wanted and spank one of his 

infant daughters in her crib because she would not go to sleep. Mother’s 

testimony regarding Father’s domineering behavior, his threats to kill her,

as well as the court appointed advisor’s report detailing numerous 

allegations that Father regularly behaved in a violent and threatening 

manner all supported the family court’s finding.

¶6 Father also argues the family court did not take into account 

Child’s relationship with the other children in the household in awarding 

Mother sole legal decision-making authority. See A.R.S. § 25-403(A)(2). In 

its judgment, however, the family court specifically considered Child’s 

relationship with her siblings, and it awarded Mother sole legal decisionmaking after taking into account all relevant factors.

¶7 Moreover, as discussed, because the family court also rested 

its decision on the domestic violence presumption, it was not necessary 

for it to consider other factors, such as Child’s relationship with her 

siblings. See Hurd, 223 Ariz. at 51, ¶ 13, 219 P.3d at 261 (“[W]hen the party 

that committed the act of violence has not rebutted the presumption that 

awarding custody to that person is contrary to the best interest of the 

child, the court need not consider all the other best-interest factors . . . .”). 

II. Parenting Time

¶8 Father argues the family court abused its discretion in 

awarding him “no parenting time whatsoever.” For clarity, we note the 

family court awarded Father “Skype parenting time” with Child two 

times per week. The family court found that awarding Father more 

parenting time “would endanger the Child’s physical, mental, moral or 

emotional health.” See A.R.S. § 25-403.01(D) (Supp. 2014).

¶9 Given the evidence of Father’s violence toward family 

members and the court appointed advisor’s recommendation that Father 

undergo psychological evaluation before being awarded any parenting 

time, the family court did not abuse its discretion in granting Father only 
CHAPA v. HOUSMAN

Decision of the Court

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Skype parenting time. See Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d 818, 

823 (1970) (appellate court reviews family court’s decision regarding 

parenting time for abuse of discretion and will affirm “[u]nless it clearly 

appears that the trial judge has mistaken or ignored the evidence”); Nold 

v. Nold, 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013). 

III. Admission of Father’s Manslaughter Conviction

¶10 Citing Arizona Rule of Evidence 609, Father argues the 

family court abused its discretion by denying his motion in limine to 

exclude evidence of his conviction for manslaughter because he was 

released from prison more than ten years before the evidentiary hearing. 

See Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6, 995 P.2d 281, 283 (App. 2000)

(“We review the trial court’s evidentiary rulings for a clear abuse of 

discretion; we will not reverse unless unfair prejudice resulted, or the 

court incorrectly applied the law.” (citations omitted)). We disagree. 

¶11 Rule 609 “appl[ies] to attacking a witness’s character for 

truthfulness by evidence of a criminal conviction.” Mother did not offer 

Father’s manslaughter conviction to impeach his character for truthfulness

nor did the family court consider it as such. Instead, the family court 

properly found the evidence relevant to the merits of the case under 

A.R.S. §§ 25-403.03(B) (requiring family court to “consider a perpetrator’s 

history of causing or threatening to cause physical harm to another 

person” as evidence of domestic violence), -403(A)(6) (whether parent is 

likely to allow child contact with other parent “does not apply if the court 

determines that a parent is acting in good faith to protect the child from 

witnessing an act of domestic violence”), and -403.01 (factors to consider

in awarding legal decision-making and parenting time).

¶12 Father also argues his manslaughter conviction was 

inadmissible under Arizona Rule of Family Law Procedure 49(B)(3). That

Rule, however, governs what a party must disclose, not what a court may

admit into evidence. 

IV. Admission of M.P.’s Testimony

¶13 Father next argues the family court abused its discretion by 

overruling his objection to the testimony of M.P.—a woman who had been 

in a romantic, albeit abusive, relationship with Father and lived with him 

for nine years—because Mother failed to timely disclose it pursuant to

Arizona Rule of Family Law Procedure 49(G). 
CHAPA v. HOUSMAN

Decision of the Court

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¶14 Under the circumstances here, the family court did not abuse 

its discretion in allowing M.P. to testify. See Reid v. Reid, 222 Ariz. 204, 

206, ¶ 8, 213 P.3d 353, 355 (App. 2009) (“The trial court has broad 

discretion in ruling on discovery and disclosure matters, and we will not 

disturb its ruling absent an abuse of discretion.” (internal quotation marks

omitted)). Rule 49(G) provides: 

Each party shall disclose the names, addresses, 

and telephone numbers of any witness whom 

the disclosing party expects to call at trial, 

along with a statement fairly describing the 

substance of each witness’s expected 

testimony. A party shall not be allowed to call 

witnesses who have not been disclosed at least 

sixty (60) days before trial, or such different 

period as may be ordered by the court.

While the record shows Mother did not timely disclose the substance of 

M.P.’s testimony and never disclosed M.P.’s telephone number or address, 

the family court had a “duty to hear all competent evidence offered in 

determining a child’s best interests when making a custody decision,”

notwithstanding these disclosure violations. See Reid, 222 Ariz. at 206, ¶ 9, 

213 P.3d at 355; accord Hays v. Gama, 205 Ariz. 99, 103, ¶¶ 21–22, 67 P.3d 

695, 699 (2003). The family court’s decision to admit M.P.’s testimony was 

congruent with this duty. M.P. testified on matters relevant to Child’s 

best interests including Father’s parenting methods, his history of causing 

harm and threatening to cause harm to others, see A.R.S. § 25-403.03(B), 

and the general atmosphere of fear in his household. 

¶15 In addition, the record shows Father was aware Mother 

was going to call M.P. as a witness before the evidentiary hearing but did 

not make any attempt to request disclosure pertaining to M.P.’s testimony 

or otherwise resolve the discovery dispute short of calling for the 

exclusion of her testimony; “[l]ying in wait is not an acceptable strategy.” 

See Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 288, 896 P.2d 254, 258 (1995)

(party who was aware of opposing party’s failure to disclose evidence, but 

“did nothing to remind [opposing litigants] of their [disclosure] obligation 

and made no additional requests for [non-disclosed] information” was not 

entitled to preclusion of evidence). Father had notice Mother intended to 

call M.P. at least 81 days before the evidentiary hearing when Mother filed 

a motion requesting M.P. be allowed to testify via video conference.

Mother also provided Father with a detailed description of M.P.’s 

anticipated testimony in the parties’ joint pre-trial statement, filed 11 days 
CHAPA v. HOUSMAN

Decision of the Court

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before the evidentiary hearing. Despite this, Father did not move for a 

continuance or other accommodation to temper any potential prejudice 

Mother’s late disclosure might have caused. See Reid, 222 Ariz. at 207, ¶ 

10, 213 P.3d at 356 (party complaining of late disclosure of expert 

testimony did not seek a continuance to depose expert). 

¶16 Furthermore, Mother’s non-compliance with Rule 49(G)

caused Father minimal, if any, prejudice. See Allstate, 182 Ariz. at 288, 896 

P.2d at 258 (prejudice among factors to be considered in determining 

whether to allow untimely disclosed evidence at trial). Although Father 

asserts that because of the late disclosure “none of [M.P.’s] [medical] 

records could be obtained, nothing could be obtained to discredit her,” he 

cross-examined M.P. concerning her mental illness, and M.P. testified she 

was an alcoholic. Moreover, another witness who lived with Father and 

M.P. corroborated much of M.P.’s testimony. 

CONCLUSION

¶17 For the foregoing reasons, we affirm the family court’s

judgment. Pursuant to A.R.S. § 25-324 (Supp. 2014), we award Mother her 

reasonable attorneys’ fees and taxable costs on appeal, subject to her 

compliance with Arizona Rule of Civil Appellate Procedure 21.