Manola v. Espinoza

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

MICHAEL J. MANOLA, Petitioner/Appellant,

v.

NANCY E. ESPINOZA, Respondent/Appellee.

No. 1 CA-CV 13-0432
FILED 10-07-2014

Appeal from the Superior Court in Maricopa County
No. FC2012-051478
The Honorable Douglas Gerlach, Judge

REMANDED

COUNSEL

Michael J. Manola, Tonopah
Petitioner/Appellant

Enholm & Salekin Law PLLC, Phoenix
By Lyle Salekin, Emi Koyama
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.

J O N E S, Judge:

¶1 Appellant Michael J. Manola (Father) appeals the trial
court’s order regarding legal decision-making authority, parenting time,
and child support relative to the parties’ minor child, M.M. He challenges
the adequacy of the court's findings of fact and conclusions of law, the
sufficiency of the evidence supporting its decision, and its calculation of
child support. Because the trial court failed to make statutorily mandated
findings pursuant to Arizona Revised Statutes (A.R.S.) sections 25-320(D)1
and -403(B), or adequately set forth its findings of fact and conclusions of
law as required by Arizona Rule of Family Law Procedure 82(A), or
provide specific findings regarding domestic violence required by A.R.S. §
25-403.03, we remand for further findings on the record.

BACKGROUND

¶2 Father and Nancy E. Espinoza (Mother) are the parents of
M.M., born December 21, 2011. In April 2012, Father petitioned the trial
court for orders regarding custody, parenting time, and child support.
Father alleged Mother had committed “significant acts of domestic
violence” against him, and therefore requested sole custody of M.M. with
reasonable parenting time to Mother, in addition to an award of child
support consistent with the Arizona Child Support Guidelines, A.R.S. §
25-320 app. § 3 (2011) (Guidelines). Father simultaneously petitioned the
court for an order of protection against Mother and temporary orders
awarding him sole legal custody. Both requests were granted.

¶3 Following a contested hearing on the order of protection, the
trial court affirmed its order, finding “by a preponderance of the evidence
that there is reasonable cause to believe that [Mother] has committed an
act of domestic violence within the last year . . . or may commit an act of

1Absent material revisions after the relevant dates, we cite the current
version of the statutes and rules unless otherwise indicated.

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domestic violence in the future.” The trial court then held a separate
hearing on the temporary orders, vacating its prior order awarding Father
sole legal custody, and ordering shared physical custody of M.M. on a
“week-on, week-off” basis. The trial court also ordered Mother undergo a
psychological examination, and later confirmed a grant of joint legal
custody. Mother responded to Father’s petition, positing that joint legal
and physical custody was in M.M.’s best interest and mirroring Father’s
request for child support orders consistent with the Guidelines.

¶4 Following a year-long period of discovery, an evidentiary
hearing was held on the issues of custody, parenting time and child
support, prior to which Father filed a timely request for findings of facts
and conclusions of law pursuant to Arizona Rule of Family Law
Procedure 82(A). Thereafter, the trial court issued its ruling, granting the
parties joint legal decision-making authority, with Father having
presumptive and final say in matters regarding healthcare, awarding
essentially equal parenting time in a continuation of the “week-on, week-
off” schedule, and denying the request for child support.

¶5 In entering legal decision-making orders, the trial court
stated it “considered all factors that bear on the child’s physical and
emotional well-being, including those that appear in [A.R.S. §§ 25-403(A)
and 25-403.01]” and “concluded that none of those factors weigh in favor
of one parent over the other.” The court identified two exceptions, finding
first, that Mother had “some history of domestic violence,” but it was
“insufficient to establish that she should be denied decision-making
authority.” Second, the court acknowledged the parties shared joint
decision-making authority for the last seven months, and “the child’s best
interest[s] have not been adversely affected.” The court stated, however,
the parties’ inability to cooperate affected the child’s health, making it
necessary to award presumptive and final healthcare decision-making
power to Father, because “at times, Mother has been inattentive to the
child’s needs.” It offered no further explanation of the evidence or
reasoning for these conclusions.

¶6 The trial court also stated, again without elaboration, that it
“considered those matters to which reference is made in A.R.S. §§ 25-
403(A)(11), 25-403.03, 25-403.04, and 25-403.05 that pertain, if at all, to
either party . . .” and concluded that “no persuasive relevant evidence was
presented sufficient to preclude the . . . award of [joint] legal decision-
making authority.” The court did not provide any detail as to the specific
factors considered, the nature of the evidence presented by either party

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regarding those factors, or its reasoning in finding that evidence
unpersuasive.

¶7 Regarding parenting time orders, the trial court again stated
it “considered all factors relevant to a parenting time plan that is
appropriate in the circumstances here, including the factors identified
above that pertain to legal decision-making authority and those factors
that appear in A.R.S. § 25-403.02.” Without further discussion, the court
“concluded that the . . . parenting time plan is consistent with all relevant
statutory factors given what is required to maximize what is in the child’s
best interests.”

¶8 Finally, as to child support, the trial court explained its
reasoning in attributing certain income to Father, as well as its decision
not to include daycare expenses in the calculation. It did not address
consideration of any other relevant factors, and made no express findings
regarding the allowance or disregard of other statutory factors.

¶9 Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶10 We will not disturb the trial court’s custody or parenting
time orders on appeal absent an abuse of discretion.” Nold v. Nold, 232
Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013). We also review the
child support award for an abuse of discretion. Cummings v. Cummings,
182 Ariz. 383, 385, 897 P.2d 685, 687 (App. 1994). A court abuses its
discretion if the record lacks competent evidence supporting the trial
court's decision, Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110
(1999), or the court made “an error of law in the process of exercising its
discretion.” Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2, 118 P.3d 621, 622
(App. 2005).

I. Sufficiency of Findings to Support Custody Determination

¶11 Father first challenges the sufficiency of the findings of facts
and conclusions of law supporting the trial court’s decision.

¶12 Arizona's public policy recognizes the best interests of the
child as the primary consideration in awarding child custody. Hays v.
Gama, 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695, 698 (2003) (“We have repeatedly
stressed that the child's best interest is paramount in custody
determinations.”). In making a custody determination, the court must

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consider the factors enumerated in A.R.S. § 25–403(A) regarding the
child's best interests. Among the factors the court must consider is
“[w]hether there has been domestic violence or child abuse pursuant to §
25-403.03.” A.R.S. § 25-403(A)(8). While not dispositive, a history of
domestic violence carries substantial weight in custody determinations.
A.R.S. § 25-403.03(B) (“The court shall consider evidence of domestic
violence as being contrary to the best interests of the child. The court shall
consider the safety and well-being of the child and of the victim of the act
of domestic violence to be of primary importance.”) (emphasis added).

¶13 Further, A.R.S. § 25–403(B) requires the trial court to
consider certain factors, stating: “[i]n a contested legal decision-making or
parenting time 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.” See also A.R.S. § 25-403.03(E) (setting forth
additional factors to be considered in cases where domestic violence has
occurred to determine whether a parent has rebutted the presumption
provided in A.R.S. § 25-403.03(D) that sole or joint legal decision-making
in favor of that parent who has committed the domestic violence is
contrary to the child’s best interests). The trial court is thus charged, even
absent a party’s request,2 with providing both findings of fact and the
reasons for its decision. A.R.S. § 25-403(B). The requirement for specific
findings prompts judges, in these most delicate cases involving the well-
being of children, to consider issues more carefully because “they are

2 This obligation for specific findings in custody determinations exists
notwithstanding a timely request for findings of facts and conclusions of
law pursuant to Arizona Rule of Family Law Procedure 82. These
findings are mandatory, and not subject to waiver by the parties. Nold,
232 Ariz. at 272, ¶ 9, 304 P.3d at 1095 (declining 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’”) (quoting Reid v. Reid, 222 Ariz. 204, 209, ¶ 19,
213 P.3d 353, 358 (App. 2009)). However, this Court emphasizes that it is
the preferred practice to object to alleged deficiencies in findings of fact
and conclusions of law with the trial court, and allow it the opportunity to
augment its record and correct defects, prior to initiating an appeal. Reid,
222 Ariz. at 209, ¶ 19, 213 P.3d at 358 (“[W]e agree that Father should have
raised this issue before the lower court, and doing so would have
provided that court with a simpler, more expedient opportunity to
remedy its lack of findings and perhaps reconsider its decision . . . .”).

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required to state not only the end results of their inquiry, but the process
by which they reached it.” Miller v. Bd. of Supervisors of Pinal Cnty., 175
Ariz. 296, 299, 855 P.2d 1357, 1360 (1993) (citing United States v. Merz, 376
U.S. 192, 199 (1964)) (internal quotations omitted).

¶14 We have previously held that a custody decision without the
specific findings required by § 25–403 is deficient per se, and constitutes an
abuse of the trial court's discretion as a matter of law. In re Marriage of
Diezsi, 201 Ariz. 524, 526, ¶ 5, 38 P.3d 1189, 1191 (App. 2002); see also Reid,
222 Ariz. at 207, ¶ 13, 213 P.3d at 356 (remanding for factual findings
where trial court provided no facts to support its determination of the best
interest of the child, which was contrary to the recommendation of the
court-appointed custody evaluator, and where order's language indicated
the court may have considered other, unidentified factors, in addition to
those listed in § 25-403(A), in making its decision); Owen v. Blackhawk, 206
Ariz. 418, 421-22, ¶ 12, 79 P.3d 667, 670-71 (App. 2003) (finding abuse of
discretion where trial court provided factual findings as to only one
statutory factor, which did not favor either parent, and did not provide
sufficient explanation to allow the appellate court to evaluate whether the
trial court focused too much on one factor to the exclusion of others); cf.
Banales v. Smith, 200 Ariz. 419, 420, ¶¶ 7-8, 26 P.3d 1190, 1191 (App. 2001)
(upholding decision of trial court supported by detailed minute entry
order containing “numerous findings of fact and conclusions of law that
show[ed] the court made every attempt to comply with § 25-403 in
considering the best interests” of the child, where discussion of one single
factor was omitted and alleged deficiency never raised at trial court level).

¶15 Conclusory statements unsupported by factual reference or
reasoning are insufficient to support a custody determination. See Nold,
232 Ariz. at 273, ¶ 14, 304 P.3d at 1096 (finding abuse of discretion where
trial court adopted recommendation of custody evaluator but did not
present any factual findings to support its conclusion that “no persuasive
evidence established sound reasoning for deviating from [the
recommendation]”); Downs v. Scheffler, 206 Ariz. 496, 500-01, ¶¶ 15, 19, 80
P.3d 775, 779-80 (App. 2003) (determining findings of fact were
insufficient as a matter of law where trial court provided no factual
support for its conclusions that grandmother failed to establish that
continued custody with legal parent was detrimental to child, that it was
in the child’s best interests to remain with the legal parent, and that
grandmother failed to rebut the presumption in favor of the legal parent).

¶16 While the trial court cited to the appropriate statutes, and
was presumably aware of both the existence of the best interest factors

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and the need to provide detailed factual findings, it did not articulate any
specific fact it considered to support its conclusion that joint legal
decision-making was appropriate. The absence of written findings
pursuant to A.R.S. § 25-403(B) is an abuse of discretion. See, e.g., Dieszi,
201 Ariz. at 526, ¶ 5, 38 P.3d at 1191.

¶17 Additionally, “the absence of findings concerning domestic
violence constitutes an abuse of discretion.” Christopher K. v. Markaa S.,
233 Ariz. 297, 301, ¶ 19, 311 P.3d 1110, 1114 (App. 2013). Here, the trial
court acknowledged that Mother had a history of domestic violence, but
made no specific findings regarding the nature of what had occurred, the
information considered in determining Mother had overcome the
presumption that, given a history of domestic violence, joint legal
decision-making was not in the child’s best interest, or its reasoning in
entering the order for joint legal decision-making and unrestricted
parenting time.

¶18 Although the mere presence of domestic violence might not
be dispositive on the issue of custody, action on a petition for modification
of custody “in the wake of a finding of domestic violence must be justified
by specific findings on the record demonstrating the reasons for the
court's decision.” Id. If joint legal decision-making is ordered, especially
where a history of domestic violence has been found, the court has
necessarily engaged in some amount of analysis to conclude the
arrangement is appropriate. And the law requires more than just the trial
court’s conclusion be delineated within its order. In the absence of any
information to support its determinations, this Court is deprived of a
meaningful opportunity to assess the trial court’s best interest finding. See
Owen, 206 Ariz. at 421, ¶ 12, 79 P.3d at 670. Further, the trial court and the
parties are ultimately deprived of the baseline information required for
future petitions involving a child's best interests, which are necessarily
based upon an assessment of a purported material change in
circumstance. Reid, 222 Ariz. at 209, ¶ 18, 213 P.3d at 358.

¶19 We therefore reiterate our prior holdings confirming the
mandatory nature of the specific statutory language of A.R.S. § 25-403(B):
in addressing any matter where custody or parenting time is at issue, the
trial court must present specific findings concerning the relevant factors
listed in the statutes, including those related to domestic violence, and any
others which the court considers, as well as the reasons why its decision
serves the child’s best interest. Christopher K., 233 Ariz. at 301, ¶ 18, 311
P.3d at 1114; Nold, 232 Ariz. at 273, ¶ 11, 304 P.3d at 1096; Hurd v. Hurd,
223 Ariz. 48, 51, ¶ 11, 219 P.3d 258, 261 (App. 2009). The rote recitations

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contained in the trial court’s order3 are deficient, and constitute “an error
of law committed in the process of reaching the discretionary conclusion.”
Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455–56, 652 P.2d 507, 528–29
(1982) (citing Brown v. Beck, 64 Ariz. 299, 302, 169 P.2d 855, 857 (1946), in
setting forth certain non-exclusive factors to be considered in determining
whether there has been an abuse of discretion in the trial court).

¶20 The trial court's failure to make the statutorily mandated
findings requires us to remand this matter to allow the trial court to set
forth its findings and analysis regarding legal decision-making authority,
physical custody and parenting time, in compliance with A.R.S. §§ 25-
403(B) and -403.03(E). Because we are remanding for further
consideration, we need not, and do not, address Father’s assertion that the
decision was not supported by the evidence.

II. Child Support Calculation

¶21 Father also alleges the trial court erred in calculating child
support because it failed to consider amounts allegedly paid to support
three children from other relationships. The Arizona Child Support
Guidelines govern the amount of support to be paid by a non-custodial
parent. Guidelines § 3. The Guidelines require, under some
circumstances, a deduction from a parent’s gross income for support
provided to children of other relationships. Id. § 6(B)-(D).

¶22 When child support is calculated, the result is a
mathematical figure representing the amount of the award; such a figure,
without more, does not inform an appellate court of the basis for the trial
court's decision. Elliot v. Elliot, 165 Ariz. 128, 132, 796 P.2d 930, 934 (App.
1990). The final calculation alone does not enable an appellate court to
conduct the type of review contemplated where findings of fact are
requested. See id. at 132-33, 796 P.2d at 934-35 (rejecting findings of fact
that “did not address all of the factors with respect to which the parties
presented evidence or set forth the mathematical basis of” an award of
spousal maintenance).

3 Mother argues that the combination of the trial court’s commentary
during trial and the written record satisfies the trial court’s obligation to
provide facts and reasons to support its ruling. However, oral findings of
fact are sufficient only when recorded in open court following the close of
evidence. Ariz. R. Fam. Law P. 82(A).

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¶23 Unlike orders regarding custody or parenting time, specific
findings related to child support are not mandated by statute. However,
when a timely request for findings of fact is filed, the trial court's factual
findings must be sufficient to allow the appellate court to examine the
basis for the decision. See id. at 135, 796 P.2d at 937 (“’It must be clear
[from the findings] how the court actually did arrive at its conclusions.’”)
(quoting Urban Dev. Co. v. Dekreon, 526 P.2d 325, 328 (Alaska 1974)). When
Arizona Rule of Family Law Procedure 82 is invoked, this Court will not
infer the trial court has made the additional findings necessary to sustain
its judgment. See id.

¶24 The trial court’s child support order does not reflect any
reduction for children from other relationships, although the record
reflects in numerous places that Father has three other biological children.
Nor does the court provide any findings of fact or reasoning to preclude
consideration of this factor. Accordingly, the trial court did not provide
any information or method by which this Court can review its decision.

¶25 We cannot conclude, based upon the trial court’s order, that
this factor was given any consideration. Therefore, on remand, we direct
the trial court to enter child support orders based upon application of the
Guidelines and/or making appropriate factual findings, consistent with
the Guidelines, to support its calculation.

CONCLUSION

¶26 For the foregoing reasons, we remand to the trial court for
entry of findings of fact and conclusions of law to support its orders of
legal decision-making, parenting time and child support. We leave it to
the discretion of the court whether additional evidence need be taken to
comply with this direction.

¶27 Mother requests her attorneys’ fees and costs incurred on
appeal. In our discretion, we decline this request.

:gsh

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