DeLuna v. Petitto

• Decision Date: 05 September 2019
• Docket Number: No. 1 CA-CV 18-0631 FC,1 CA-CV 18-0631 FC
• Citation: 450 P.3d 1273,247 Ariz. 420
• Parties: In re the Matter of: Sylvia Rose DELUNA, Petitioner/Appellant, v. Giovanni Alexander PETITTO, Respondent/Appellee.
• Court: Arizona Court of Appeals

247 Ariz. 420

450 P.3d 1273

In re the Matter of: Sylvia Rose DELUNA, Petitioner/Appellant,

v.Giovanni Alexander PETITTO, Respondent/Appellee.

No. 1 CA-CV 18-0631 FC

Court of Appeals of Arizona, Division 1.

FILED September 5, 2019

WINTHROP, Judge:

¶1 In this opinion, we address the superior court’s statutory obligation to state its analysis on the record when making legal decision-making and parenting-time decisions after the court finds that a parent has engaged in domestic violence. We hold Arizona Revised Statutes ("A.R.S.") section 25-403.03(A) and (D) (2019)¹ require different analyses regarding legal decision making and those specific findings must be stated on the record. We further hold that A.R.S. § 25-403.03(F) requires the superior court to make specific findings on the record when determining parenting time.

¶2 As a preliminary matter, we start with some statistical information for context. In recent years, superior court filings involving divorce, legal decision making and/or parenting time have substantially increased. In 2018, per statistics published by the Maricopa County Superior Court Clerk’s Office,² there were 35,757 family court cases involving children filed in Maricopa County.³ Many of those filings include requests for the court to initially determine or modify legal decision-making and parenting-time orders.

¶3 In general, the statutes governing decisions concerning parenting time, legal decision making, and relocation impose on a superior court the obligation to make specific findings supporting those decisions. See A.R.S. §§ 25-403, -408(G), (I); Owen v. Blackhawk , 206 Ariz. 418, 421-22, ¶¶ 9-12, 79 P.3d 667, 670–71 (App. 2003) (holding that although A.R.S. § 25-408 makes no reference to findings of fact, specific findings were required by A.R.S. § 25-403 because a proposed relocation involved a substantial and disputed change in physical custody); see also Murray v. Murray , 239 Ariz. 174, 177, ¶ 9, 367 P.3d 78, 81 (App. 2016) ("Under Owen , when the superior court holds a hearing on a request for relocation that necessarily implicates a change in parenting time or legal decision making, the court must make the specific findings of fact required in cases of parenting time and legal decision making under § 25-403.").⁴

¶4 Similarly, over that same time period, allegations of domestic violence by a parent—directed at a spouse or a child, or both—have also dramatically increased. The legislature has, in turn, enacted and amended statutes that require the superior court make additional detailed, specific findings related to legal decision making and parenting time where there are allegations of domestic violence. See A.R.S. § 25-403.03. At times, those statutes and amendments have been imprecise or lack definitions of critical terms, leading to confusion and unintended errors by the superior court in applying the law to the facts of the particular case, sometimes resulting in inconsistent rulings that do not fulfill the statutory mandate.⁵

¶5 In this matter, Sylvia Rose DeLuna ("Mother") appeals from a decree of dissolution awarding joint legal decision-making authority and unsupervised parenting time to Giovanni Alexander Petitto ("Father") and denying her request that Father be ordered to reimburse the community for paying Father’s separate debt. Because the superior court failed to properly apply the domestic violence statutes about legal decision-making and parenting-time determinations, we vacate the legal decision-making and parenting-time orders and remand for reconsideration. We affirm the denial of the reimbursement request.

FACTS AND PROCEDURAL HISTORY

¶6 The parties were married in 2016 and have three children. Before their marriage, in 2013, Father was arrested after he assaulted Mother and her daughter from a prior relationship. Mother ultimately did not cooperate in the prosecution of the resulting charges, and the charges were dismissed.

¶7 After the parties separated in July 2017, Mother obtained an order of protection based on Father’s stalking and harassing behaviors. Father was ordered to not have any contact with Mother except through text messages about the children’s welfare. In August 2017, Father violated the protective order when he entered Mother’s residence and took her cell phone after an argument. Later that same day, Father waited outside Mother’s residence but left before the police arrived.

¶8 Mother petitioned for dissolution in September 2017, and the superior court held a trial on the petition in September 2018. After the trial, the court issued a lengthy decree of dissolution finding that, although Father had committed domestic violence, it was not "significant domestic violence" under the provisions of § 25-403.03(A). The court ruled that Father was not precluded from joint legal decision-making authority, and also awarded Father parenting time three weekends per month, alternating holidays, and every other week during the summer months. The court denied Mother’s request to reimburse the community for paying Father’s separate child support obligation for his child from a prior relationship. Mother filed a timely notice of appeal from the decree, and we have jurisdiction under A.R.S. § 12-2101(A)(1).

ANALYSIS

I. Standard of Review

¶9 We review the superior court’s legal decision-making and parenting-time orders for an abuse of discretion. See Engstrom v. McCarthy , 243 Ariz. 469, 471, ¶ 4, 411 P.3d 653, 655 (App. 2018). An abuse of discretion occurs when the court commits an error of law in reaching a discretionary decision or when the record does not support the court’s decision. Id. (citation omitted). We accept the court’s findings of fact unless they are clearly erroneous but review conclusions of law and the interpretation of statutes de novo . Id. (citation omitted).

II. Legal Decision Making Under § 25-403.03(A) and (D)

¶10 Mother challenges the order of joint legal decision making, arguing the superior court failed to apply multiple subsections of § 25-403.03 correctly. Father argues the court implicitly found that the evidence of domestic violence was not significant and that he overcame the rebuttable presumption in § 25-403.03(D).

¶11 In a contested legal decision-making and parenting-time case, the superior court must determine the children’s best interests in accordance with § 25-403. Section 25-403(A)(8) requires the court to consider whether there has been domestic violence or child abuse pursuant to § 25-403.03. If the court determines domestic violence has occurred, it must then determine whether there is "significant domestic violence pursuant to § 13-3601" or if "there has been a significant history of domestic violence." A.R.S. § 25-403.03(A) (emphases added). If the court finds either the existence of significant domestic violence or a significant history of domestic violence, the statute precludes an award of joint legal decision-making authority. Id. ; see also Hurd v. Hurd , 223 Ariz. 48, 51, ¶ 12, 219 P.3d 258, 261 (App. 2009).

¶12 A finding of no significant domestic violence or significant history of domestic violence under A.R.S. § 25-403.03(A) does not end the inquiry. If the superior court finds domestic violence that was not "significant," § 25-403.03(D) creates a rebuttable presumption that it is contrary to the children’s best interests to award sole or joint legal decision-making authority to the offending parent. Before awarding sole or joint legal decision-making authority to the offending parent, the court must make specific findings on the record that there is sufficient evidence to rebut the presumption. A.R.S. §§ 25-403(B), -403.03(D); see also Christopher K. v. Markaa S. , 233 Ariz. 297, 301, ¶¶ 18-19, 311 P.3d 1110, 1114 (App. 2013). In making its specific findings in this regard, the court must consider the factors listed in § 25-403.03(E).

¶13 Mother argues she proved significant domestic violence by Father because (1) the 2013 aggravated assault constituted domestic violence as defined in § 13-3601; (2) Mother obtained an order of protection in 2017 after Father stalked and harassed her; and (3) Father repeatedly violated the protective order by coming to Mother’s house and sending what the court described as "troubling[,]" "offensive and disrespectful" text messages. Mother also argues that, even if the domestic violence was not "significant," the superior court failed to apply the rebuttable presumption under § 25-403.03(D) that awarding joint or sole legal decision-making authority to a parent who has committed any act of domestic violence against the other parent is contrary to the children’s best interests.

¶14 In its decree, the court found Father engaged in acts of domestic violence against Mother. The court then stated:

[A] finding of significant domestic violence or a history of significant domestic violence generally precludes an award of joint legal decision making or an award of sole legal decision making to the parent who committed the significant act of domestic violence. Further, when the party that committed the act of violence has not rebutted the presumption that awarding [legal decision making] to that person is contrary to the best interest of the child, the court need not consider all the other best-interest factors in A.R.S. § 25-403.A.

Any domestic violence is serious and cause for concern, particularly when directed at another parent. That point explains the presumption in A.R.S. § 25-403.03(D). However, the admonition in subsection A applies only to "significant domestic violence." ... Here, the evidence establishes by a preponderance of the evidence, there has been domestic violence by Father.

THE COURT FURTHER FINDS that though the Court by no means condones the actions found in this case, those acts in the spectrum of domestic violence do not constitute significant [domestic violence] as contemplated by statute.

THE COURT THEREFORE FINDS by a preponderance of the evidence that Father has

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