In re Nold v. Nold, No. 1 CA–CV 12–0214.

CourtCourt of Appeals of Arizona
Writing for the CourtOROZCO
Citation304 P.3d 1093,232 Ariz. 270,665 Ariz. Adv. Rep. 22
PartiesIn re the Matter of Dana K. NOLD, Petitioner/Appellee, v. Andrew P. NOLD, Respondent/Appellant.
Docket NumberNo. 1 CA–CV 12–0214.
Decision Date30 May 2013

232 Ariz. 270
304 P.3d 1093
665 Ariz.
Adv. Rep. 22

In re the Matter of Dana K. NOLD, Petitioner/Appellee,
v.
Andrew P. NOLD, Respondent/Appellant.

No. 1 CA–CV 12–0214.

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

May 30, 2013.


[304 P.3d 1094]


Scott L. Patterson, PLLC By Scott L. Patterson, Tempe, Attorneys for Petitioner/Appellee.

Gene R. Stratford, Phoenix, and The Murray Law Offices, P.C. By Stanley D. Murray, Scottsdale, Attorneys for Respondent/Appellant.


AMENDED OPINION

OROZCO, Judge.

[232 Ariz. 271]¶ 1 Andrew P. Nold (Father) appeals the family court's custody order and the allocation of certain property to Dana K. Nold (Mother). We conclude that the family court failed to comply with the requirement for specific findings on the record regarding the physical custody decision. We also vacate the family court's award of the life insurance policy, the John C. Lincoln 401k, and the Pioneer individual retirement account (Pioneer IRA) to Mother and remand for division of those assets.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Mother filed a petition for legal separation and obtained an order of protection in July 2010. After a hearing, the family court quashed the order. In Father's response to the petition for legal separation, he requested that the petition for legal separation be converted to a petition for dissolution of marriage.1

¶ 3 After Father moved out of the family home, the parties equally shared physical custody of their three children on an alternating week schedule. At trial, Mother requested that Father have the children every other weekend during the school year and alternating weeks only during the summer months. Father sought to continue joint physical custody year-round.

[304 P.3d 1095]

[232 Ariz. 272]¶ 4 As directed by the family court, the parties filed separate pretrial statements in July 2011, two weeks before trial. Mother listed the Pioneer IRA and employer-provided retirement accounts among the contested issues. Father did not mention any retirement accounts or insurance policies in his description of contested issues. At trial, Father questioned Mother about her John C. Lincoln 401k, the Pioneer IRA, and the Ozark life insurance policy. Mother objected, arguing Father's pretrial statement did not set forth any claim to the John C. Lincoln 401k or the cash value of the life insurance policy, and therefore, Father could not claim any community property interest in these assets. The family court agreed that Father failed to preserve his claim that there was a community property interest in Mother's John C. Lincoln 401k, the life insurance policy, or any other retirement account by not asserting these claims in his pretrial statement.

¶ 5 The family court adopted the parenting time schedule recommended by the custody evaluator, allowing the children to reside with Mother during the week and every other weekend during the school year, with the parents sharing joint physical custody only during the summer. In support of this ruling, the court stated that “no persuasive evidence established a sound reason for deviating from the parenting time schedule [the custody evaluator] suggested.” The family court also stated that it considered the factors listed in A.R.S. § 25–403 (Supp.2012),2 but it did not make any findings as to those factors. The family court also found no evidence of domestic violence sufficient to preclude the award of joint legal custody pursuant to A.R.S. §§ 25–403.A.11 and 403.03.

¶ 6 Father filed a motion for new trial but did not object to the sufficiency of the statutory findings regarding custody. The family court denied the motion and Father filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12–2101.A.1, 5(a) (Supp.2012).

DISCUSSION
Waiver

¶ 7 Mother contends Father waived any objection to the lack of statutory findings by failing to make this objection in his motion for new trial. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (holding that “absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal”). In support of her waiver argument, Mother cites Banales v. Smith,, which held that the father's failure to object to the family court's omission of one of the § 25–403 factors in a motion for new trial precluded him from raising the argument on appeal. 200 Ariz. 419, 420, ¶ 8, 26 P.3d 1190, 1191 (App.2001).

¶ 8 However, in Reid v. Reid, a factually similar case, this court declined to apply the waiver doctrine to a parent's failure to object to the lack of findings required by § 25–403.B, to the family court. 222 Ariz. 204, 209–10, ¶¶ 19–20, 213 P.3d 353, 358–59 (App.2009). Reid distinguished the holding in Banales in which the court made findings on all but one statutory factor. Id. at 207–08, ¶¶ 14–16, 213 P.3d at 356–57. In Reid, the court provided no explanation why its custody decision was in the children's best interests. Id. at 207, ¶ 13, 213 P.3d at 356.

¶ 9 The order in this case is more analogous to Reid. The family court made no findings regarding any of the statutory factors. We cannot ascertain how the family court weighed the statutory factors to reach its determination that Father's joint physical custody during the school year should be significantly reduced to parenting time every other weekend. See id. We decline to apply the doctrine of waiver when the family court makes no findings on the record because to do so “would inappropriately deprive the family court and all parties of the baseline information required for future petitions involving a child's or children's best interests.” Id. at 209, ¶ 19, 213 P.3d at 358.

[304 P.3d 1096]

[232 Ariz. 273][2] ¶ 10 Although we agree with the general proposition that, when a party fails to raise an issue before the trial court, the issue is waived on appeal, see, e.g., Trantor, 179 Ariz. at 300–01, 878 P.2d at 658–59, “we observe that neither Trantor nor its progeny has created an unalterable rule of waiver,” especially as it relates to the statutory findings in a contested custody matter. See Reid, 222 Ariz. at 208, ¶ 16, 213 P.3d 353 at 357. As our supreme...

To continue reading

Request your trial
172 practice notes
  • Noriega v. Town of Miami, No. 2 CA-CV 2017-0007
    • United States
    • Court of Appeals of Arizona
    • October 26, 2017
    ...Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994). However, the doctrine of waiver is discretionary, see Nold v. Nold, 232 Ariz. 270, ¶ 10, 304 P.3d 1093, 1096 (App. 2013), and for the reasons that follow we decline to apply it here.¶ 28 Although Noriega did not explicitly......
  • Logan B. v. Dep't of Child Safety, No. 1 CA-JV 17-0327
    • United States
    • Court of Appeals of Arizona
    • May 24, 2018
    ...without any factual findings. In similar circumstances, we have exercised our discretion, choosing not to find waiver. See Nold v. Nold , 232 Ariz. 270, 272–73, ¶¶ 7–10, 304 P.3d 1093, 1095–96 (App. 2013) (declining to find waiver when family court’s custody order made no written factual fi......
  • In re $15,379 In U.S. Currency, No. 2 CA–CV 2015–0166
    • United States
    • Court of Appeals of Arizona
    • December 22, 2016
    ...was preserved below,2 we address its merits because doing so is necessary to avoid an erroneous decision on appeal. See Nold v. Nold , 232 Ariz. 270, ¶ 10, 304 P.3d 1093, 1096 (App. 2013) (noting waiver a discretionary doctrine). "[W]hen interpretation and application of statutes are involv......
  • In re In re, No. 2 CA–CV 2015–0166
    • United States
    • Court of Appeals of Arizona
    • October 18, 2016
    ...was preserved below,2 we address its merits because doing so is necessary to avoid an erroneous decision on appeal. See Nold v. Nold, 232 Ariz. 270, ¶ 10, 304 P.3d 1093, 1096 (App. 2013) (noting waiver a discretionary doctrine). "[W]hen interpretation and application of statutes are involve......
  • Request a trial to view additional results
173 cases
  • Noriega v. Town of Miami, No. 2 CA-CV 2017-0007
    • United States
    • Court of Appeals of Arizona
    • October 26, 2017
    ...Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994). However, the doctrine of waiver is discretionary, see Nold v. Nold, 232 Ariz. 270, ¶ 10, 304 P.3d 1093, 1096 (App. 2013), and for the reasons that follow we decline to apply it here.¶ 28 Although Noriega did not explicitly......
  • Logan B. v. Dep't of Child Safety, No. 1 CA-JV 17-0327
    • United States
    • Court of Appeals of Arizona
    • May 24, 2018
    ...without any factual findings. In similar circumstances, we have exercised our discretion, choosing not to find waiver. See Nold v. Nold , 232 Ariz. 270, 272–73, ¶¶ 7–10, 304 P.3d 1093, 1095–96 (App. 2013) (declining to find waiver when family court’s custody order made no written factual fi......
  • In re $15,379 In U.S. Currency, No. 2 CA–CV 2015–0166
    • United States
    • Court of Appeals of Arizona
    • December 22, 2016
    ...was preserved below,2 we address its merits because doing so is necessary to avoid an erroneous decision on appeal. See Nold v. Nold , 232 Ariz. 270, ¶ 10, 304 P.3d 1093, 1096 (App. 2013) (noting waiver a discretionary doctrine). "[W]hen interpretation and application of statutes are involv......
  • In re In re, No. 2 CA–CV 2015–0166
    • United States
    • Court of Appeals of Arizona
    • October 18, 2016
    ...was preserved below,2 we address its merits because doing so is necessary to avoid an erroneous decision on appeal. See Nold v. Nold, 232 Ariz. 270, ¶ 10, 304 P.3d 1093, 1096 (App. 2013) (noting waiver a discretionary doctrine). "[W]hen interpretation and application of statutes are involve......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT