In re Nold v. Nold

Decision Date30 May 2013
Docket NumberNo. 1 CA–CV 12–0214.,1 CA–CV 12–0214.
PartiesIn re the Matter of Dana K. NOLD, Petitioner/Appellee, v. Andrew P. NOLD, Respondent/Appellant.
CourtArizona Court of Appeals

OPINION TEXT STARTS HERE

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.

[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.

[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 court stated in Hays v. Gama, 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695, 698 (2003), in child custody cases, when a child is affected by sanctions, A.R.S. § 25–403.A “mandates that the [family] court make its determination ‘in accordance with the best interests of the child.’ Therefore, if the best interests of the child trump the consequences ordinarily imposed for violations of the rules, then they should not be ignored under the discretionary doctrine of waiver. Accordingly, Father's failure to raise the issues with the family court does not prevent us from considering his argument that the family court erred by failing to make the required statutory findings.

Custody Order

¶ 11 On appeal, we will not disturb the family court's custody or parenting time orders absent an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1191 (App.2002). When physical custody is contested, the family court must comply with the requirement in A.R.S. § 25–403 to make specific findings regarding the reasons why its decision is in the children's best interests. Owen v. Blackhawk, 206 Ariz. 418, 421, ¶ 11, 79 P.3d 667, 670 (App.2003). Owen is directly on point and specifically states that “a change in joint physical custody is a change in custody, whereas visitation is one aspect of custody.” Id. As in Owen, [b]ecause this case involved a substantial change in physical custody that [was] disputed, ... the trial court was obligated to make specific findings required by A.R.S. § 25–403[.B].” Id.See also Diezsi, 201 Ariz. at 525–26, ¶¶ 1, 4–5, 38 P.3d at 1190–91 (holding that in case contesting only physical custody, court was required to make findings required by § 25–403). Failure to make these findings in an order or on the record constitutes an abuse of discretion. See Reid, 222 Ariz. at 207, ¶ 12, 213 P.3d at 356;see also Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 19, 80 P.3d 775, 780 (App.2003).

¶ 12 The family court stated that it considered the parties' stipulation to joint legal custody, as well as the factors listed in § 25–403 in awarding joint legal custody. However, the court did not include any discussion of the statutory factors in resolving the dispute over joint physical custody, other than to state that “no persuasive evidence established a sound reason for deviating from the parenting time schedule [the custody evaluator] suggested.” 3

¶ 13 Mother argues that the family court's order was sufficient because it adopted the custody evaluator's assessment of the § 25–403 factors as consistent with the evidence at trial. Although the family court stated that the evidence was consistent with and supported the custody evaluator's opinions, there are no findings in the record detailing the evaluator's opinions or the supporting evidence upon which the family court relied. The evaluator's report was a trial exhibit, but the record does not indicate the family court's specific findings about the relevant statutory factors and the reasons why its decision is in the children's best interests as required by A.R.S. § 25–403.B.

¶ 14 Furthermore, it appears that the family court thought the custody report was the baseline for custody when it stated that “no persuasive evidence established a sound reason for deviating from the parenting time schedule [the custody evaluator] suggested.” This statement indicates that the family court delegated its obligation to independently weigh the evidence in determining the children's best interests to the evaluator. SeeDePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 336, 890 P.2d 628, 631 (App.1995). The family court “can neither delegate a judicial decision to an expert witness nor abdicate its responsibility to exercise independent judgment. The best interests of the child ... are for the [family] court alone to decide.” Id. By using...

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