Reid v. Reid

• Decision Date: 28 July 2009
• Docket Number: No. 1 CA-CV 07-0800.,1 CA-CV 07-0800.
• Citation: 213 P.3d 353,222 Ariz. 204
• Parties: In re the Marriage of Daniela REID, Petitioner/Appellee, v. Randall REID, Respondent/Appellant.
• Court: Arizona Court of Appeals

213 P.3d 353

222 Ariz. 204

In re the Marriage of Daniela REID, Petitioner/Appellee, v. Randall REID, Respondent/Appellant.

No. 1 CA-CV 07-0800.

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

July 28, 2009.

John Friedeman, P.C. By John Friedeman, Phoenix, Attorney for Petitioner/Appellee.

Warner Angle Hallam Jackson & Formanek P.L.C. By Erik C. Bergstrom, Phoenix, Attorneys for Respondent/Appellant.

OPINION

WINTHROP, Presiding Judge.

¶ 1 Randall Reid ("Father") appeals the family court's order denying his post-decree petition to modify custody of the parties' two minor children. He challenges the court's ruling allowing the admission of expert testimony, the court's failure to adequately set forth its findings and conclusions, and the sufficiency of the evidence supporting the court's decision. We affirm the evidentiary ruling, but, because the court failed to make statutorily mandated findings pursuant to Arizona Revised Statutes ("A.R.S.") section 25-403(B) (2007), we vacate the custody order and remand for further findings on the record.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Father and Daniela Reid ("Mother"), both physicians, were divorced in 2003. Mother lived in Illinois at that time and was awarded sole legal and primary physical custody of the parties' children. Father was living in New Mexico and was awarded parenting time with the children. Mother and the children later moved to Arizona.

¶ 3 In February 2007, Father filed a petition, seeking in part to modify the decree to obtain sole legal custody of the children. He made numerous allegations regarding Mother, including that she had repeatedly interfered with his parenting time, failed to address the children's counseling needs, neglected the children's dental care, and inappropriately prescribed medication to the oldest child.

¶ 4 The family court ordered a custody evaluation, and, as part of the evaluation, a neuropsychiatric examination was conducted of the oldest child, who has since been diagnosed with Asperger's Syndrome. After the parties received the custody evaluation, Mother disclosed that she would be calling Philip Stahl, Ph.D., to critique the evaluation. Father objected to the untimely and incomplete disclosure of Dr. Stahl, but the court overruled the objection and allowed Dr. Stahl to testify via telephone at the evidentiary hearing.

¶ 5 After a one-day evidentiary hearing, the court ruled that Mother would retain sole legal and primary physical custody of the children. The court did enter various other orders to address Father's concerns, including ordering that Father's parenting time be increased, Mother immediately enter the older child in therapy, and Mother not medicate the older child without another doctor's approval. Father timely appealed, and we have jurisdiction over his appeal pursuant to A.R.S. § 12-2101(C) (2003).

ANALYSIS

¶ 6 Father argues that the family court abused its discretion in allowing Dr. Stahl to testify, the court failed to adequately set forth its findings and conclusions pursuant to A.R.S. § 25-403(B),¹ and the evidence does not support the court's decision. We review the court's child custody decision for an abuse of discretion. See In re Marriage of Diezsi, 201 Ariz. 524, 526, ¶ 3, 38 P.3d 1189, 1191 (App.2002).

I. Dr. Stahl's Testimony

¶ 7 Father asserts that the family court abused its discretion in allowing Dr. Stahl to testify because Mother did not timely disclose this witness. On August 21, 2007, eight days after the parties received the custody evaluation, and eight days before the evidentiary hearing, Mother disclosed she would be calling Dr. Stahl to testify about the evaluation. In the subsequently filed joint pretrial statement and at the hearing, Father objected to Dr. Stahl's late disclosure and the failure to disclose the substance of his testimony. Mother conceded she had not disclosed Dr. Stahl until after she received the custody evaluation and that she had not disclosed the substance of his opinions, but argued she had notified Father's attorney that Dr. Stahl was available for deposition on two different dates before the hearing. The trial court allowed Dr. Stahl to testify, concluding the additional evidence would allow the court to make a more informed decision.

¶ 8 "`The trial court has broad discretion in ruling on discovery and disclosure matters,' and we will not disturb its ruling absent an abuse of discretion." Link v. Pima County, 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App.1998) (quoting Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 434, 937 P.2d 353, 356 (App.1996)).

¶ 9 Mother argues that Hays v. Gama, 205 Ariz. 99, 67 P.3d 695 (2003), supports the family court's decision, and we agree. Hays was a custody dispute in which a mother disobeyed a court order directing which therapist her daughter would see. Id. at 100, ¶¶ 5-6, 67 P.3d at 696. As a sanction, the family court excluded the child's unauthorized therapist from testifying and ordered that the therapist's clinical records not be used or relied on to form the basis for any other expert's opinion. Id. at 101, ¶¶ 9-10, 67 P.3d at 697. Our supreme court held that the family court had erred by imposing contempt sanctions that excluded direct and indirect evidence derived from the child's therapist. Id. at 104, ¶ 23, 67 P.3d at 700. Such a sanction, the court reasoned, is inconsistent with the trial court's duty to hear all competent evidence offered in determining a child's best interests when making a custody decision. Id. at 103, ¶¶ 21-22, 67 P.3d at 699 (citing Johnson v. Johnson, 64 Ariz. 368, 370, 172 P.2d 848, 849 (1946); In re P.M.B., 2 S.W.3d 618, 625 (Tex.App.1999)).

¶ 10 The testimony of Dr. Stahl in this case was much less compelling than the evidence excluded in Hays. Nonetheless, Dr. Stahl's testimony had some relevance. We cannot ascertain the weight the court placed on Dr. Stahl's testimony due to the court's limited findings. Therefore, we cannot gauge the degree, if any, to which Father was disadvantaged by this testimony. We note, however, that Father chose not to seek a continuance to depose Dr. Stahl. Moreover, the timing of the disclosure was not entirely Mother's fault, but was due, in part, to the late date on which the parties received the custody evaluation. Under these circumstances, we cannot say the family court abused its discretion in allowing Dr. Stahl to testify.

II. Adequacy of Findings of Fact

¶ 11 Father next argues the family court's findings are inadequate to satisfy the requirements of A.R.S. § 25-403(B). In making a custody determination, the court must consider the factors enumerated in A.R.S. § 25-403(A) regarding the children's best interests. Further, A.R.S. § 25-403(B) requires that, "[i]n a contested custody case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child[ren]." (Emphasis added.)

¶ 12 In Diezsi, this court held that it was an abuse of discretion for the lower court to fail to make the requisite findings pursuant to § 25-403. 201 Ariz. at 526, ¶ 5, 38 P.3d at 1191. See also Owen v. Blackhawk, 206 Ariz. 418, 421-22, ¶ 12, 79 P.3d 667, 670-71 (App. 2003) (holding that the family court abused its discretion in changing the primary residential parent and altering the parenting time schedule without making the required findings on the record in a contested custody case brought under the relocation statute, A.R.S. § 25-408); Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 19, 80 P.3d 775, 780 (App. 2003) (holding that the lower court's findings were insufficient as a matter of law and remanding for the court to make the findings required under A.R.S. § 25-403).

¶ 13 As in the aforementioned cases, the findings in this case are inadequate. The family court stated that it was in the children's best interests that Mother retain sole legal custody and primary residential custody. However, as even Mother acknowledges, the court provided no explanation why this arrangement was in the children's best interests. Additionally, although the court's order states that the court considered all of the relevant factors listed in § 25-403(A), the order's language indicates that the court may have considered other evidence as well because the court's findings included, but were "not limited to," those listed factors. Further, Mother concedes that the court "did not state which factors had influenced [its] decision," and we cannot ascertain from the court's orders and ruling how the court weighed the statutory factors to arrive at its conclusion that Mother should retain sole legal and primary physical custody. The court-ordered custody evaluation had ultimately recommended that Father become the primary residential parent, and substantial evidence was presented at the hearing regarding Mother's and Father's mental health, and the mental health of the oldest child. Nonetheless, the court's cursory findings do not indicate how it weighed this and other relevant evidence to reach the conclusion that Mother should retain custody. Compare Owen, 206 Ariz, at 420-21, ¶¶ 8-12, 79 P.3d at 669-70 (noting that the trial court is required to consider the factors set forth in A.R.S. § 25-408 when determining whether relocation is in the child's best interests). "Without further explanation from the trial court regarding its consideration of the applicable factors, we cannot say that the trial court did not focus too much attention on [one factor] to the exclusion of other relevant considerations." Id. at 421, ¶ 12, 79 P.3d at 670.

¶ 14 Citing Banales v. Smith, 200 Ariz. 419, 26 P.3d 1190 (App.2001) (review denied Jan. 8, 2002), Mother contends that Father waived this issue on appeal by failing to raise it in the superior court proceedings. In Banales, the lower court awarded sole legal and physical custody to the mother after considering and making numerous...