NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

MEMORANDUM DECISION

NORRIS, Judge:

¶1 Appellant Keith G. Williams ("Father") appeals orders entered by the family court requiring him to pay child support, modifying his right to exercise final decision-making authority over where his child would go to school, and denying his request for an award of attorneys' fees. For the following reasons, we affirm the family court's child support order and denial of fees, but vacate the court's order modifying Father's legal decision-making authority, and remand to the court to make findings pursuant to Arizona Revised Statutes ("A.R.S.") section 25-403 (Supp. 2014).1

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and appellee Laura Patron Yepiz ("Mother") are the parents of a child, born January 18, 2010 ("the Child"). They entered into a Full Agreement for Custody and Parenting Time (the "Agreement"), which the family court adopted on May 13, 2011. The Agreement granted equal parenting time to the parties and gave Father sole legal custody and final decision-making authority concerning medical, religious, and educational issues. The Agreement did not, however, address child support.

¶3 In January 2013, Mother petitioned to modify legal decision making authority, parenting time, and child support. Mother asserted Father had engaged in violent and threatening behavior and asked that she be given sole legal decision-making authority, that Father have parenting time on alternate weekends, and that the court enter an order for child support.

¶4 Father cross-petitioned to modify the parenting plan. Father accused Mother of hostility and child neglect and asked the court to limit Mother's parenting time to alternate weekends.

¶5 The court held an evidentiary hearing at which the parties exchanged accusations of verbal abuse and hostility. Near the end of the hearing, Father testified he had recently moved to be closer to his sister-in-law who could care for the Child if necessary and because he liked the schools in the area.

¶6 The court denied Mother's petition and Father's cross-petition, finding no change in circumstances other than Father's having moved, leaving the parents "on opposite ends of the county." The court affirmed the existing order granting Father final decision-making authority on any major decision involving the Child with one exception: the court ordered that if the parties could not agree where the Child would go to school when the Child became eligible for kindergarten, they would have to submit that issue to mediation. After noting a child support order had never been entered, the court ordered Father to pay Mother $242.00 per month in child support. The court also denied both parties' requests for attorneys' fees.

DISCUSSION

I. The Child Support Order

¶7 Father first argues that because the Agreement was valid and binding and did not provide for child support, the family court had no authority to modify it by ordering child support. The Agreement did not, however, bar the family court from ordering child support.

¶8 A parenting plan is akin to a type of contract, which we review de novo. Jordan v. Rea, 221 Ariz. 581, 588, ¶ 15, 212 P.3d 919, 926 (App. 2009). To determine the intention of the parties to a contract, we consider its plain language. Mining Inv. Grp., LLC v. Roberts, 217 Ariz. 635, 639, ¶ 16, 177 P.3d 1207, 1211 (App. 2008).

¶9 The Agreement by its own terms concerns custody and parenting time. It does not refer to child support or discuss the financial support of the Child in any other terms, or include language to suggest the parties agreed to forgo a formal child support order. Nothing in the Agreement suggests that child support was ever considered or addressed. Rather than modify any existing agreement between the parties concerning child support, the family court noted the absence of any child support order, and made an initial determination of child support, which it clearly had the authority to do.2 See A.R.S. § 25-320(A) (Supp. 2014) (in proceeding for child support, court may order either parent owing duty of support to pay amount reasonable and necessary for support of the child); A.R.S. § 25-502(A) (Supp. 2014) (superior court has original jurisdiction to establish, enforce or modify a parent's support obligation).

¶10 Father next argues the family court used outdated financial data to determine the support amount, alleging that the court's decision was based on August 2011 child support work papers. The record does not support Father's argument. Mother filed an affidavit of financial information ("AFI") dated July 17, 2013, and Father filed an AFI on July 23, 2013. The court explained that it relied on these then-current affidavits in determining the support order.

¶11 Father also argues the court incorrectly attributed Mother's income because it did not consider Mother's live-in fiancé's income. Under the child support guidelines, however, only the income of persons having a legal duty of support is treated as income. A.R.S. § 25-320 app. § 5(F) (Supp. 2014) ("Guidelines"). Accordingly, the court did not abuse its discretion when calculating Mother's income. See Jordan, 221 Ariz. at 591, ¶ 27, 212 P.3d at 929 (appellate court reviews family court's decision awarding child support for abuse of discretion).

¶12 Finally, Father argues the family court failed to make the specific findings required by Guidelines § 20(A), and failed to consider the relevant factors specified in A.R.S. § 25-320. We disagree with both arguments. First, Guidelines § 20(A) pertains to support orders that deviate from the Guidelines. Because Father has not claimed and the court did not indicate that it deviated from the Guidelines, § 20(A) is inapplicable here. Second, when entering a child support order, the court must make findings with respect to gross income, adjusted gross income, basic child support obligation, total child support obligation, each parent's proportionate share of the child support obligation, and the child support order. Guidelines § 22. The court may satisfy this obligation by including in the record the worksheet containing the information. Id. Here, the family court filed a child support worksheet and referred to that worksheet in ordering child support. Thus, the family court made the requisite findings.

II. The Court-Appointed Advisor's Recommendation

¶13 Father argues the family court arbitrarily ignored the recommendation of the court-appointed advisor, who conducted separate in-home visits with Father and Mother, issued a report with recommendations, and testified. Again, the record does not support Father's argument. The court expressly relied on the advisor's report in ordering an assessment of the parents to determine whether counseling would be appropriate.

¶14 Further, on appeal Father has not identified any particular recommendation the court allegedly disregarded. And, if Father is referring to the court's decision to divest him of final decision-making authority regarding school choice when the advisor recommended Father retain such authority on all issues, we note a family court must independently weigh the evidence and exercise its own discretion to determine the best interests of a child and may not merely adopt and follow the recommendations of an advisor. Nold v. Nold, 232 Ariz. 270, 273-74, ¶ 14, 304 P.3d 1093, 1096-97 (App. 2013). Nothing here suggests the family court ignored the advisor's recommendation rather than considering the report and properly exercising its own discretion.

III. Gender Bias

¶15 Father argues that the court's order divesting him of final decision-making authority regarding school choice demonstrates gender bias. We reject this argument.

¶16 A trial judge is presumed to be free of bias, and to overcome the presumption, a party must demonstrate bias by a preponderance of the evidence. Cardoso v. Soldo, 230 Ariz. 614, 619-20, ¶ 19, 277 P.3d 811, 816-17 (App. 2012). The court concluded that Father's move so far from Mother would make joint decision-making and equal parenting time more difficult and that the difficulty would become more problematic when Child started school. The court's decision to require the parties to negotiate and agree on a school or to mediate the issue was based on the distance between the parties and the foreseeable practical problems should Father have the final decision and place the child in a school a great distance from Mother. The court's ruling was grounded on gender-neutral reasons, and Father has provided no basis for his claims to the contrary.

¶17 Father also contends the family court substituted its personal opinion for the parents' decision as set forth in the Agreement that he would have final decision-making authority on educational issues. A court is not bound by an agreement between the parents. Moran v. Moran, 188 Ariz. 139, 146, 933 P.2d 1207, 1214 (App. 1996). Further, the court may modify an order for legal decision-making or parenting time upon motion, A.R.S. § 25-411 (Supp. 2014), and has broad discretion to determine what will be in the best interests of the child. Orezza v. Ramirez, 19 Ariz.App. 405, 409, 507 P.2d 1017, 1021 (1973).

¶18 Mother and Father both petitioned the court to modify the Agreement. The court therefore had the authority to consider what would be in the Child's best interests and Father has offered nothing to support his claim that the court acted based on some improper personal opinion or motive rather than within its judicial discretion.

IV. Findings Pursuant to A.R.S. § 25-403

¶19 Father argues the family court failed to make the findings required by A.R.S. § 25-403 when it divested him of final legal decision-making authority regarding school choice. Here, we agree with Father.

¶20 When considering a petition for change of legal decision-making, the court must first determine whether a change in circumstances has occurred materially affecting the welfare of the child. Christopher K. v. Markaa S., 233 Ariz. 297, 298 n.2, ¶ 1, 300, ¶ 15, 311 P.3d 1110, 1111 n.2, 1113 (App. 2013) (when considering petition for change in custody, now known as legal decision-making, court must first determine whether there has been change in circumstances materially affecting child's welfare).3 If the court finds a change in circumstances, it must then determine whether a change in legal decision-making would be in the child's best interests. Id. at ¶ 15. To determine the child's best interests, the court must consider all relevant factors, including those enumerated in A.R.S. § 25-403(A). When legal decision-making is contested, "the court shall make specific findings on the record about all relevant factors" and the reasons why its decision serves the child's best interests. A.R.S. § 25-403(B). Further, when determining the level of legal decision-making that is in the child's best interests, the court must also consider factors specified in A.R.S. § 25-403.01(B) (Supp. 2014). "We will not disturb a [family] court's decision on [legal decisionmaking] absent a clear abuse of discretion." In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1191 (App. 2002). And failure to make specific findings when required constitutes such an abuse. Christopher K., 233 Ariz. at 301, ¶ 18, 311 P.3d at 1114.

¶21 At the conclusion of the hearing, the court stated that it had found no change in circumstances. In its initial minute entry ruling, however, the court modified the existing legal decision-making order by holding that, because of Father's move, he would not have final decision-making authority on school choice. This modification suggested the court had found Father's move to be a change in circumstances and had determined that modifying Father's decision-making authority on this issue was in the Child's best interests. The court made no specific findings, however, as required by A.R.S. § 25-403.

¶22 Subsequently, in ruling on Father's motion for new trial— which argued the court had not made the requisite § 25-403 findings—the court explained that the only factor relevant to legal decision-making and parenting time proved by the evidence "was the lack of communication and inability to co-parent by the parties to the detriment of the best interests of the child." The court further explained its "intent was to find no substantial and continuing change of circumstances as to the Legal Decision-Making and Parenting Time issues raised" and "the only aspect of the case that was continuing was the high conflict between the parties." The court further stated:

¶23 From the court's written rulings we cannot determine what findings the court made. Despite first stating that it had found no change in circumstances, the court clearly did find such a change because it modified Father's legal decision-making authority regarding school choice. As the parties were contesting legal decision-making, the court was required to make specific findings regarding all relevant factors, including the A.R.S. § 25-403(A) factors, and to consider the A.R.S. § 25-403.01 factors as well. A.R.S. §§ 25-403(A), (B), -403.01(B). The court made no findings as required by A.R.S. § 25-403(B) and the meaning of its reference to those factors as "not made out by the evidence to justify modification" is unclear. The court did consider certain of the A.R.S. § 25-403.01 factors, but the findings regarding those factors appear inconsistent with its decision to maintain the existing parenting time agreement and Father's final decision-making authority over any major decision involving the Child with the exception of school choice.

¶24 Accordingly, by not making the required findings pursuant to A.R.S. § 25-403, the court abused its discretion when it modified Father's legal decision-making authority. Thus, without commenting on the merits, we vacate the family court's order modifying Father's legal decision-making authority regarding school choice, and remand to the family court to make findings on the record in compliance with A.R.S. § 25-403 and to enter an appropriate order based on the existing record or as supplemented by the parties pursuant to court order.

V. Presumption Regarding Domestic Violence

¶25 Father argues the family court did not properly consider Mother's conviction for domestic violence. His argument is based on A.R.S. § 25-403.03(D) (Supp. 2014), which provides a rebuttable presumption that an award of sole or joint legal decision-making to a parent who has committed domestic violence is contrary to the child's best interests. Under the circumstances presented here, we disagree with Father's argument.

¶26 Mother was arrested for domestic violence for slapping Father on February 14, 2011. She then attended a series of domestic violence classes, after which the case was dismissed. The family court acknowledged the information regarding the assault was necessary as background, but indicated the information would not be helpful in deciding whether to modify legal decision-making because the parties had entered into the Agreement after the incident.

¶27 As noted, the statutory presumption is rebuttable, not conclusive. In deciding whether to apply the presumption, the family court could consider, among other things, the staleness of the assault charge, evidence by Mother that Father was verbally abusive and threatening, and evidence that Mother had completed a diversion program and had not committed other acts of domestic violence. See A.R.S. § 25-403.03(E)(2), (E)(6). It was within the family court's purview to assess and weigh the evidence. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998) (family court in best position to weigh evidence and assess parties' credibility). Here, the family court recognized the parties were volatile and verbally violent towards each other. The court could have concluded that given the evidence presented, the presumption had been rebutted and did not apply to bar Mother from joint decision-making.

¶28 On remand, the court may reconsider the issue of domestic violence, if it is presented with evidence of more recent acts of domestic violence.

VI. Attorneys' Fees in Family Court

¶29 Asserting that he primarily prevailed in the family court, Father argues the court should have awarded him attorneys' fees instead of denying his fee request. Under A.R.S. § 25-324, "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings," the court "may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending [a legal decision-making and parenting time] proceeding." A.R.S. § 25-324 (Supp. 2014). The purpose of the statute is to provide a remedy for the party least able to pay. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524, ¶ 13, 169 P.3d 111, 114 (App. 2007). Whether to award fees pursuant to A.R.S. § 25-324, and the amount to be awarded, is within the court's discretion. Roden v. Roden, 190 Ariz. 407, 412, 949 P.2d 67, 72 (App. 1997). We will not disturb the court's decision regarding attorneys' fees absent an abuse of discretion. Gutierrez, 193 Ariz. at 351, ¶ 32, 972 P.2d at 684.

¶30 Whether a party prevails in the proceeding is irrelevant to the determination of an award of attorneys' fees. Breitbart-Napp v. Napp, 216 Ariz. 74, 84, ¶ 39, 163 P.3d 1024, 1034 (App. 2007). Father had greater financial resources than Mother, and we are not persuaded Mother's positions were unreasonable. Thus, on this record, the family court did not abuse its discretion in denying Father's fee request.

VII. Attorneys' Fees on Appeal

¶31 Father and Mother have requested an award of attorneys' fees and costs on appeal. Neither party cites a specific substantive basis for an award of attorneys' fees. Rule 21 of the Arizona Rules of Civil Appellate Procedure, which Mother does cite, is a procedural rule that does not provide a substantive basis to award fees. This rule does not, however, bar this court from awarding attorneys' fees. ARCAP 21(a)(2) provides:

(Emphasis added.). Nevertheless, exercising our discretion under this rule, see A.R.S. § 25-324, we deny the parties' competing requests for fees and costs.

CONCLUSION

¶32 We affirm the family court's orders requiring Father to pay child support and denying his request for attorneys' fees. We vacate however, the family court's order modifying Father's legal decision-making authority regarding school choice and remand for findings pursuant to A.R.S. § 25-403.