from the Superior Court in Maricopa County No. FC2009-090062
The Honorable Kristin Culbertson, Judge.
Ellsworth Family Law, P.C., Mesa By Glenn D. Halterman,
Steven M. Ellsworth Counsel for Respondent/Appellant
Presiding Judge Jennifer M. Perkins delivered the opinion of
the Court, in which Judge Lawrence F. Winthrop and Chief
Judge Samuel A. Thumma joined.
Nathan Davis ("Father") appeals the superior
court's order modifying legal decision-making, parenting
time, and child support. Father contends that the court
should not have admitted into evidence a report from the
appointed advisor because she did not record her interviews
with the children. Because Arizona Rule of Family Law
Procedure ("ARLFP") 10 does not require such
recordings and, in any event, Father failed to demonstrate
prejudice resulting from the evidentiary ruling, we affirm.
AND PROCEDURAL BACKGROUND
Father and Kerry Davis ("Mother") have two children
(the "Children") for whom they exercised joint
legal decision-making pursuant to a Decree of Dissolution of
Marriage entered in 2010. In 2016, Mother petitioned for a
modification of parenting time alleging on-going
disagreements between Father and the Children. Mother later
requested that a therapist evaluate the Children; Father
disagreed about which therapist the Children should see.
The superior court appointed a Court Appointed Advisor
("CAA"), pursuant to Rule 10, to "submit a
report setting forth the advisor's recommendations"
after completing an independent investigation which could
include interviews of the parties and the Children and a
review of relevant records. The CAA interviewed Mother,
Father, and the Children before issuing a 17-page written
report, detailing those interviews and including a
recommendation. At Father's request, the court issued a
minute entry ordering the CAA to release her recordings of
the Children's interviews. When the CAA responded that no
such recordings existed, Father moved in limine to
preclude the CAA's report and testimony, arguing that
Rule 12 required the CAA to record the interviews with the
Children and release the recordings to the parties. Because
that did not happen, Father argued, the CAA's report and
testimony were inadmissible. The court denied Father's
motion, holding that Rule 10 governed and Rule 12 did not
After an evidentiary hearing on Mother's petition, the
superior court modified the existing orders regarding legal
decisionmaking, parenting time, and child support. The court
ordered that Mother have final decision-making authority for
medical decisions but that the parties share joint legal
decision-making authority in all other decisions. The court
modified the parties' parenting time schedule to give
Mother more time with the Children and accordingly modified
the existing Child Support order. Father now appeals.
Father argues that Rule 12 required the CAA to record any
interview she conducted with either child and, because she
did not, the superior court should have excluded the
CAA's report and testimony. Moreover, Father argues that
absent such recordings the superior court's orders should
We review evidentiary rulings, including the denial of a
motion in limine, for abuse of discretion,
Warner v. Southwest Desert Images, LLC, 218 Ariz.
121, 133, ¶ 33 (App. 2008), and generally affirm
"absent a clear abuse or legal error and resulting
prejudice," John C. Lincoln Hosp. & Health Corp.
v. Maricopa Cty., 208 Ariz. 532, 543, ¶ 33 (App.
2004). However, we review the application and interpretation
of court rules de novo. Duckstein v. Wolf, 230 Ariz.
227, 231, ¶ 8 (App. 2012). We interpret court rules
according to their plain language where that language is
clear and unambiguous. Stout v. Taylor, 233 Ariz.
275, 278, ¶ 11 (App. 2013).
Rule 10 provides, in relevant part, that the superior court
"may appoint" a CAA and requires that the court
"ensure that any" CAA appointed "has an
opportunity to testify or submit a report setting forth[ the
advisor]'s recommendations regarding the best interests
of the child[ren]" and "the basis for the . . .
recommendations." ARFLP 10(A)(1)(c); 10(E)(4). Although
directing that the CAA shall "have immediate access to
the child," id. at 10(D)(1), Rule 10 does not
require a CAA to record such contact electronically or in any
other fashion. In contrast, Rule 12 allows the court to
"conduct an in camera interview with a minor
child who is the subject of a legal decision-making or
parenting time dispute to ascertain the child's wishes as
to both." ARFLP 12(A). Rule 12 directs that "[t]he
interview must be recorded by a court reporter or" by
electronic means and that "[t]he record of the interview
must be made available to the parties." Id.
¶8 Rule 10's plain language applies
to CAAs, while Rule 12's plain language applies to court
interviews of a child. Father identifies no authority that
imports Rule 12's requirements into Rule 10. Instead,
Father argues that, as with a court interview under Rule 12,
any child interview conducted by a CAA must be recorded in
order to allow rebuttal of the CAA's report. Father also
argues CAA's are included within the definition of
"court" under Rule ...