Background
Sandra Gurule (“Mother”) and Connell Warner (“Father”) have one child, born in June 2016. When the child was six, Father petitioned to establish legal decision-making, parenting time, and child support. Mother obtained an order of protection after a domestic violence incident, and competing petitions for temporary orders followed throughout 2023. A court-appointed advisor investigated the allegations and made recommendations.
In March 2024, following an evidentiary hearing, the superior court found that Father had committed an act of domestic violence against Mother, but not “significant” domestic violence. The court applied the statutory presumption against awarding him legal decision-making, found that he had rebutted it, and awarded joint legal decision-making and equal parenting time, with Mother having presumptive decision-making authority. It ordered a $0 child support obligation.
A year later, Father sought modification, alleging that Mother did not take the child to school during her parenting time or ensure that the child attended counseling. After an October 2025 evidentiary hearing, the court declined to revisit its previous domestic violence findings. The court awarded joint legal decision-making, with Father having presumptive authority. In November 2025, the court designated Father as the primary residential parent, with Mother having parenting time every weekend during the school year except the first weekend of every month, and equal parenting time during the summer. Mother timely appealed the November 2025 modification judgment.
The Court’s Holding
The Arizona Court of Appeals affirmed. It reviewed the superior court’s legal decision-making and parenting time rulings for abuse of discretion, deferred to factual findings, and considered legal issues de novo. Although Father filed no answering brief, the court exercised its discretion to reach the merits because the child’s best interests were at issue, rather than treating the omission as a confession of error.
On changed circumstances, the court held that the superior court could modify the existing orders upon a material change affecting the child’s welfare. Mother challenged reliance on school absences because of conflicting testimony about doctor’s notes excusing them. The notes themselves were not admitted at the October 2025 hearing, although both parties testified about them. The appellate court therefore limited its review to deferential assessment of credibility determinations and the weighing of conflicting evidence. It also emphasized that absences were not the sole basis for modification: Father’s testimony and medical records supported the finding that Mother stopped taking the child, who suffered from Autism, to counseling and eventually terminated counseling services.
The court also rejected Mother’s argument that refusing to reconsider domestic violence evidence deprived her of due process. The superior court had declined to revisit evidence predating the March 2024 order, not all domestic violence evidence, and Mother admitted presenting no new domestic violence evidence. Because the March 2024 court had already found that Father rebutted the presumption under A.R.S. § 25-403.03(D) through recognition of his conduct’s impact, domestic-violence treatment, and parenting education, there was no need to decide that issue again. The decision applied the statute in effect for the 2025 order, before the June 2026 amendment took effect. Finally, Mother was ineligible for appellate attorney’s fees and costs under A.R.S. § 25-324 because she represented herself on appeal.
Key Takeaways
- Conflicting testimony about school absences did not undermine modification where the superior court also had sufficient evidence that Mother discontinued the child’s counseling.
- The superior court did not have to relitigate pre-March 2024 domestic violence evidence or a statutory presumption it had already found rebutted.
- The refusal to revisit old evidence was circumstance-specific: Mother acknowledged that she offered no new domestic violence evidence.
- The appellate court addressed the merits despite Father’s missing answering brief and denied Mother’s fee request because she was self-represented.
Why It Matters
The decision illustrates the distinction between deferential review of credibility and conflicting evidence in family-court modification proceedings and de novo review of legal questions. It also explains how Arizona’s domestic violence presumptions operate when a prior order has already resolved whether the presumption was rebutted.
This is a memorandum decision marked not for official publication. Under Arizona Rule of the Supreme Court 111(c), it is not precedential and may be cited only as authorized by rule.