Hurd v. Hurd

• Citation: 219 P.3d 258
• Decision Date: 27 October 2009
• Docket Number: No. 1 CA-CV 07-0342.,1 CA-CV 07-0342.
• Parties: In re the Marriage of Heber J. HURD, Petitioner-Appellant, v. Elizabeth HURD, Respondent-Appellee.
• Court: Arizona Court of Appeals

219 P.3d 258

In re the Marriage of Heber J. HURD, Petitioner-Appellant, v. Elizabeth HURD, Respondent-Appellee.

No. 1 CA-CV 07-0342.

Court of Appeals of Arizona, Division 1, Department D.

October 27, 2009.

Collins & Collins LLP By C. Robert Collins, Phoenix, Attorneys for Petitioner-Appellant.

Community Legal Services By Thomas P. Alongi, Phoenix, Attorneys for Respondent-Appellee.

AMENDED OPINION

OROZCO, Judge.

¶ 1 Heber J. Hurd (Father) appeals from an order awarding sole custody of the parties' three minor children to Elizabeth Hurd (Mother) and allowing her to relocate with the children to Wisconsin. We affirm the award of sole custody to Mother, vacate the decision regarding relocation and remand for further findings on the record.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The parties were married in 1995. Together, they have three minor children.

¶ 3 On October 26, 2004, an incident occurred at the marital residence that led Mother to take her two oldest children to the hospital for treatment. The children told an emergency room nurse that their father hurt them, and the hospital contacted police. There were no marks on the children, but one daughter complained of soreness in her upper back. Mother reported to police that her daughter told her that Father kicked her in the back. Another daughter said Father struck her in the face. Mother told police there was a "strong history of abuse in the family," but that she had been afraid to report it in the past. Mother then abruptly moved with the children to Idaho. In December 2004, Father also moved to Idaho. From December 2004 through July 2005, the parties' two oldest children attended counseling in Idaho to address their "distress associated with traumatic childhood experiences involving witnessing abuse and violence," in the words of their social worker. In June 2005, Father moved back to Arizona. In August 2005, Mother and the children also moved back to Arizona. In November 2005, the parties became involved in disputes regarding the care of the children, and Mother obtained an Order of Protection (OOP), prohibiting Father from seeing them. In December 2005, Father filed a petition for dissolution, seeking joint legal custody of the parties' three minor children. Mother sought supervised parenting time for Father, alleging a history of domestic violence and noting that an OOP was in effect. The court temporarily ordered that Father have supervised parenting time three times a week.

¶ 4 The parties and children were interviewed by Conciliation Services.¹ The Conciliation Services' report noted that the parties could only agree that Father would have the children on Sundays. Mother wanted Father to have the children every other weekend during the school year and every other week in the summer. Father wanted the children four days one week and three days the next. The report recommended nearly equal parenting time, with counseling to assist the children with the transition.

¶ 5 Shortly after meeting with Conciliation Services, Mother lost her job. She and the children moved to a family shelter in October 2006. She also filed a petition to relocate with the children to Wisconsin, where she could be near her own family.

¶ 6 At the end of November 2006, Mother obtained a new job as a phlebotomist, earning $13.50 per hour. However, she and the children continued to reside in the shelter until February 2007.

¶ 7 The court held a trial on January 16, 2007, and took the issues of custody and relocation under advisement. Father continued to have supervised parenting time.

¶ 8 On February 16, 2007, Father filed a petition for contempt, alleging Mother was not bringing the children to the supervised parenting time as often as the court ordered and was not taking the children to Father's church. At a hearing on this petition on March 14, 2007, the court found that Mother was in contempt for failing to take the children to Father's church. It did not find her in contempt of any other orders and denied Father's request for sanctions.

¶ 9 The court awarded sole legal custody to Mother and allowed her to relocate to Wisconsin at the end of the 2006-07 school year. The court specifically found "that there was a significant history of domestic violence" where Mother was the victim of abuse by Father and during which the children were present. The court further found that the children also were victims of domestic violence, based on the October 26, 2004 incident. The court ordered that the children receive counseling and awarded Father unsupervised parenting time to begin immediately. The court also set forth long-distance parenting plan orders to take effect upon the relocation. Father filed a timely notice of appeal from that ruling.² We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-2101.B (2003) and 12-120.21.A.1 (2003).

DISCUSSION³

Child Custody Award

¶ 10 Father argues the court abused its discretion by awarding Mother sole legal custody without making detailed findings of fact as required by A.R.S. § 25-403.B (2007). Mother contends that the only statutory factors the court did not discuss were the ones that did not apply, were undisputed, or favored Mother. She maintains that the court's findings are adequate and support its discretionary decisions regarding custody and relocation. Mother also argues that the custody award is appropriate under A.R.S. § 25-403.03.A (Supp. 2008), given the court's findings "that there was a significant history of domestic violence."

¶ 11 "We review the [family] court's decision regarding child custody for an abuse of discretion." Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App.2003). In making a custody determination, the family court is required to consider the factors enumerated in A.R.S. § 25-403.A regarding the children's best interests. In a contested custody case, the court must make specific findings on the record regarding "all relevant factors and the reasons for which the decision is in the best interests of the child[ren]." A.R.S. § 25-403.B (emphasis added). It is an abuse of discretion for the family court to fail to make requisite findings pursuant to § 25-403. See Owen, 206 Ariz, at 421-22, ¶ 12, 79 P.3d at 670-71 (holding the family court abused its discretion by changing a custody arrangement without making findings on the record); Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 19, 80 P.3d 775, 780 (App. 2003) (same); In re Marriage of Diezsi, 201 Ariz. 524, 526, ¶ 5, 38 P.3d 1189, 1191 (App. 2002) (same). Here, the court in its ruling noted the statutory requirement that it consider all relevant factors.

¶ 12 Arizona Revised Statutes § 25-403.03.A states "joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence . . . or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence."⁴ The family court in this case found "there was a significant history of domestic violence." Therefore, the family court could not award joint custody. We hold that a finding of significant domestic violence or a history of significant domestic violence precludes an award of joint custody under A.R.S. § 25-403.03.A.⁵

¶ 13 However, when a "court determines that a parent who is seeking custody has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child's best interests."⁶ A.R.S. § 25-403.03.D (emphasis added). In this case, the family court specifically found that Father had not rebutted the presumption. We further hold that when 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 in A.R.S. § 25-403.A.

¶ 14 Father disputed the existence of domestic violence and, specifically, the incident on October 26, 2004, when Mother took the children to the emergency room alleging that Father injured the two older children. He stated that he only spanked the children. Father also argued that the court found only one incident of domestic violence, i.e., the October 2004 incident, and that one incident does not constitute a "significant history."

¶ 15 The evidence cited by the court supported its finding that there was a significant history of domestic violence and not just the October 2004 occurrence. Mother testified about repeated acts of domestic violence against her in addition to the October 2004 incident. The court noted that Mother revealed a "history of domestic violence" to healthcare professionals at the hospital, and that the children reported other instances of violence to Conciliation Services.⁷ In addition to the Conciliation Services report, the court had before it the Surprise Police Department report, a Child Protective Services (CPS) report⁸ and a letter from the children's social worker in Idaho.⁹ The court found "a significant history of domestic violence" and that the children witnessed "incidents" of domestic violence.

¶ 16 Our duty on review does not include re-weighing conflicting evidence or redetermining the preponderance of the evidence. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704, 709 (1999). We must give due regard to the trial court's opportunity to judge the credibility of the witnesses. Even though conflicting evidence may exist, we affirm the trial court's ruling if substantial evidence supports it. Id. at 580, ¶ 18, 975 P.2d at 710; Double AA Builders, Ltd. v. Grand State Constr. L.L.C., 210 Ariz. 503, 511, ¶ 41, 114 P.3d 835, 843 (App.2005); Whittemore v. Amator, 148 Ariz. 173, 175, 713 P.2d 1231, 1233 (1986).

¶ 17 There was evidence to support the court's findings that there was a significant history of...