Olesen v. Daniel

• Citation: 484 P.3d 139,251 Ariz. 25
• Decision Date: 11 March 2021
• Docket Number: No. 1 CA-CV 20-0293 FC,1 CA-CV 20-0293 FC
• Parties: Crystal A. OLESEN, Petitioner/Appellee, v. Matthew C. DANIEL, Respondent/Appellant. Krystal K. Burge, et al., Intervenors/Appellees.
• Court: Court of Appeals of Arizona

251 Ariz. 25

484 P.3d 139

Crystal A. OLESEN, Petitioner/Appellee,

v.Matthew C. DANIEL, Respondent/Appellant.

Krystal K. Burge, et al., Intervenors/Appellees.

No. 1 CA-CV 20-0293 FC

Court of Appeals of Arizona, Division 1.

FILED March 11, 2021

AS AMENDED March 12, 2021

Catherine Fine Law Office, Flagstaff, By Catherine Fine, Counsel for Respondent/Appellant

Law Offices of Robert L. Frugé, P.C., Prescott, By Robert L. Frugé, Counsel for Petitioner/Intervenors/Appellees

Presiding Judge Paul J. McMurdie delivered the Court's opinion, in which Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.

McMURDIE, Judge:

¶1 Matthew Daniel ("Father") appeals the superior court's order awarding sole legal decision-making authority and parenting time of his child, Andrew,¹ to the child's maternal grandparents, Krystal and Everett Burge ("Grandparents"). Father argues (1) the superior court lacked subject-matter jurisdiction over the proceeding, and (2) the court failed to specifically address whether he rebutted the presumption that it was contrary to Andrew's best interests to award decision-making to him because he had committed domestic violence. We hold that A.R.S. § 25-402(B)(2) is a venue statute, and Father waived the right to challenge the venue by failing to raise the issue in the superior court. We further hold that A.R.S. § 25-403.03(E) requires the superior court to make findings whether a parent who has committed an act of domestic violence failed to rebut the presumption against granting that parent legal decision-making authority. Because the court did not make those findings here, we grant relief and vacate the superior court's order concerning Andrew. We otherwise affirm the order.

FACTS² AND PROCEDURAL BACKGROUND

¶2 Father and Andrew's mother ("Mother") were divorced by consent decree in April 2014. The decree incorporated their stipulated parenting plan, which provided joint legal decision-making concerning Andrew and his twin brother, Brandon.³ In the parenting plan, Mother had most of the parenting time.

¶3 In June 2014, Mother petitioned for a protective order for herself and the children. Mother alleged that Father drove to her house at 2:30 a.m. with the children in his car, entered her home unlawfully, attempted to arm himself with her shotgun, and took $100. The court granted the petition, which effectively suspended Father's parenting time. In October 2014, Mother requested that the protective order terminate because, as she explained in her motion, Father had proven to be reasonable and non-threatening, they had resolved all points of contention through mediation, and she wanted him to be part of the children's lives.

¶4 In June 2016, Mother petitioned for another protective order, alleging that at a meeting to exchange the children, Father assaulted her in front of them after learning she had vaccinated the children against his wishes. The court granted Mother's petition. Shortly thereafter, Mother petitioned to modify parenting time and legal decision-making. In November 2016, after a combined trial on the protective order and modification petitions, the court awarded Mother sole legal decision-making authority and limited Father's parenting time to supervised visits three times a month ("2016 Order"). In making its ruling, the court found "significant and ongoing domestic violence by Father against Mother." (Emphasis in original.)

¶5 By early 2018, Andrew had developed substantial behavioral issues and had, on occasion, acted violently toward Mother and Brandon. In May 2018, the children went to Maine to stay with their paternal grandparents. In August 2018, Andrew began living with his Grandparents in Kingman, while Brandon returned to live with Mother. While in Grandparents’ care, Andrew started to meet weekly with a counselor, and over time, his behavior improved significantly.

¶6 In October 2018, the court suspended Father's parenting time because he violated its existing order by spending time with the children without supervision in Maine. In July 2019, Father petitioned to modify the parenting plan. Grandparents intervened to petition for third-party parenting rights of Andrew. See A.R.S. § 25-409. The court conducted a trial on the competing petitions. The court received testimony from Mother, Father, Grandmother, Andrew's counselor, and the psychologist who conducted Father's psychological evaluation, among others.

¶7 In April 2020, the court awarded Grandparents third-party parenting rights for Andrew, granting them sole legal decision-making and most parenting time ("2020 Order"). The court awarded Father only four hours of supervised parenting time each month at Andrew's counselor's discretion.⁴ Father appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(2).

DISCUSSION

A. The Superior Court Had Subject Matter Jurisdiction to Hear Grandparents’ Petition.

¶8 Father asserts that Andrew was a permanent resident of Mohave County when Grandparents petitioned for third-party rights. As a result, Father claims the superior court did not have jurisdiction to resolve the third-party rights petition they filed in Yavapai County. We conclude that A.R.S. § 25-402(B)(2) prescribes the venue for a third-party rights petition. Because Father raises the venue issue for the first time on appeal, the argument is waived.

¶9 A court's subject matter jurisdiction refers to its "statutory or constitutional authority to hear a certain type of case." Chapman v. Hopkins , 243 Ariz. 236, 241, ¶ 19, 404 P.3d 638, 643 (App. 2017) ; State v. Maldonado , 223 Ariz. 309, 311, ¶¶ 14–15, 223 P.3d 653, 655 (2010) ; State v. Espinoza , 229 Ariz. 421, 426, ¶ 21, 276 P.3d 55, 60 (App. 2012) (discussing the difference between subject-matter jurisdiction and the court acting beyond constitutional or statutory authority). "Subject matter jurisdiction cannot be waived, and can be raised at any stage of the proceedings." Swichtenberg v. Brimer , 171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App. 1991).

¶10 A.R.S. § 25-311(A) grants the superior court jurisdiction to hear and decide all matters relating to legal decision-making and parenting time. The superior court is a "single unified trial court of general jurisdiction." DiPasquale v. DiPasquale , 243 Ariz. 156, 158, ¶ 11, 403 P.3d 156, 158 (App. 2017) (quoting Marvin Johnson, P.C. v. Myers , 184 Ariz. 98, 102, 907 P.2d 67, 71 (1995) ). All superior courts of the state constitute a single court, and the "judgments, decrees, orders and proceedings of any session of the superior court held by one or more judges shall have the same force and effect as if all the judges of the court had presided." Ariz. Const. art. VI, § 13. We will not interpret a statute as divesting the superior court of jurisdiction unless the legislature explicitly expresses that intent. Mohave County v. James R. Brathovde Fam. Tr. , 187 Ariz. 318, 321, 928 P.2d 1247, 1250 (App. 1996). Here, the Yavapai County Superior Court exercised jurisdiction to adjudicate all claims relating to Andrew's care.

¶11 Still, Father argues the superior court lacked jurisdiction to hear the Grandparents’ petition because A.R.S. § 25-402(B)(2) provides that a person other than a parent may request legal decision-making or parenting time "by filing a petition for third party rights under [A.R.S.] § 25-409 in the county in which the child permanently resides. " (Emphasis added.) We read this language as creating a venue requirement rather than a condition to the superior court's jurisdiction. Sheets v. Mead , 238 Ariz. 55, 57, ¶ 9, 356 P.3d 341, 343 (App. 2015) ("[T]he court's power to conduct visitation and parenting time proceedings is provided by A.R.S. § 25-402, and [A.R.S.] § 25-409 simply sets forth the substantive criteria that govern visitation petitions."); see also Brathovde Fam. Tr. , 187 Ariz. at 321, 928 P.2d at 1250 (A provision stating that suit must be brought "in superior court in the county in which the real property is located" specified the venue for such actions and did not restrict the superior court's jurisdiction.).

¶12 Venue "is a privilege which permits one in whose favor it runs to have a case tried at a convenient place[;] it is personal and unless asserted may be waived." Rohan Mgmt., Inc. v. Jantzen , 246 Ariz. 168, 172, ¶ 11, 436 P.3d 491, 495 (App. 2019) (alteration in original) (quoting Sil-Flo Corp. v. Bowen , 98 Ariz. 77, 83, 402 P.2d 22, 28 (1965) ). Because Father raises his objection to the venue for the first time on appeal, the issue is waived.

B. The Court Erred by Failing to Make Specific Findings Concerning Whether Father Rebutted the Presumption Against Awarding Decision-Making Authority to a Parent That Committed Domestic Violence.

¶13 Father argues the superior court erred by failing to make specific findings concerning whether he rebutted the presumption that it was not in Andrew's best interests to award decision-making authority to him because he had previously committed an act of domestic violence. Grandparents respond that we may infer the court found Father had not rebutted the presumption because the court rejected Father's request and awarded them sole legal decision-making. They further claim that Father waived the issue by not requesting factual findings under Arizona Rule of Family Law Procedure 82.

¶14 We review an award of legal decision-making and parenting time for an abuse of discretion. DeLuna v. Petitto , 247 Ariz. 420, 423, ¶ 9, 450 P.3d 1273, 1276 (App. 2019). An abuse of discretion occurs when the court commits an error of law that underlies its exercise of discretion. Birnstihl v. Birnstihl , 243 Ariz. 588, 591, ¶ 8, 416 P.3d 852, 855 (App. 2018).

¶15 A.R.S. § 25-403.03(D) provides:

If the court determines that a parent who is seeking sole or joint legal decision-making has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of

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