Deluna v. Petitto

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

SYLVIA ROSE DELUNA, Petitioner/Appellant,

v.

GIOVANNI ALEXANDER PETITTO, Respondent/Appellee.

No. 1 CA-CV 18-0631 FC
FILED 9-5-2019

Appeal from the Superior Court in Maricopa County
No. FC2017-051406
The Honorable Jennifer C. Ryan-Touhill, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

The Law Office of Kristen Kaffer, PLLC, Phoenix
By Kristen E. Kaffer
Counsel for Petitioner/Appellant

Law Offices of James B. Rolle, Phoenix
By James B. Rolle, III
Counsel for Respondent/Appellee
 DELUNA v. PETITTO
Opinion of the Court

OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie joined. Judge Jennifer M. Perkins
specially concurred.

W I N T H R O P, Judge:

¶1 In this opinion, we address the superior court’s statutory
obligation to state its analysis on the record when making legal decision-
making and parenting-time decisions after the court finds that a parent has
engaged in domestic violence. We hold Arizona Revised Statutes (“A.R.S.”)
section 25-403.03(A) and (D) (2019)1 require different analyses regarding
legal decision making and those specific findings must be stated on the
record. We further hold that A.R.S. § 25-403.03(F) requires the superior
court to make specific findings on the record when determining parenting
time.

¶2 As a preliminary matter, we start with some statistical
information for context. In recent years, superior court filings involving
divorce, legal decision making and/or parenting time have substantially
increased. In 2018, per statistics published by the Maricopa County
Superior Court Clerk’s Office,2 there were 35,757 family court cases

1 We cite to the current version of the statute when no revisions
material to this decision have occurred.

2 We take judicial notice of these court statistics. See Ariz. R. Evid. 201;
Ariz. R. Sup. Ct. 94(a)(3) (defining the duty of the superior court clerk to
prepare statistical reports); A.R.S. § 12-283(A)(3), (F) (requiring the clerk of
the superior court to keep and maintain court records as required by law or
rule of court); Ariz. Code Jud. Admin. § 1-701(C)(1) (requiring that
appellate, superior, justice, and municipal courts in Arizona provide
statistical data regarding case filings and terminations), adopted by Ariz.
Sup. Ct. Admin. Order No. 2004-38 (July 1, 2004); see also Cano v. Maricopa
Cty. ex rel. Maricopa Cty. Sheriff’s Office, 1 CA-CV 06-0550, 2007 WL 5446669,
at *1, ¶ 3 n.3 (Ariz. App. Nov. 13, 2007) (mem. decision) (noting an appellate
court can take judicial notice of facts published on the website of the
Maricopa County Superior Court Clerk.

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Opinion of the Court

involving children filed in Maricopa County.3 Many of those filings include
requests for the court to initially determine or modify legal decision-
making and parenting-time orders.

¶3 In general, the statutes governing decisions concerning
parenting time, legal decision making, and relocation impose on a superior
court the obligation to make specific findings supporting those decisions.
See A.R.S. §§ 25-403, -408(G), (I); Owen v. Blackhawk, 206 Ariz. 418, 421-22,
¶¶ 9-12 (App. 2003) (holding that although A.R.S. § 25-408 makes no
reference to findings of fact, specific findings were required by A.R.S. § 25-
403 because a proposed relocation involved a substantial and disputed
change in physical custody); see also Murray v. Murray, 239 Ariz. 174, 177,
¶ 9 (App. 2016) (“Under Owen, when the superior court holds a hearing on
a request for relocation that necessarily implicates a change in parenting
time or legal decision making, the court must make the specific findings of
fact required in cases of parenting time and legal decision making under
§ 25-403.”).4

¶4 Similarly, over that same time period, allegations of domestic
violence by a parent—directed at a spouse or a child, or both—have also
dramatically increased. The legislature has, in turn, enacted and amended
statutes that require the superior court make additional detailed, specific
findings related to legal decision making and parenting time where there
are allegations of domestic violence. See A.R.S. § 25-403.03. At times, those
statutes and amendments have been imprecise or lack definitions of critical
terms, leading to confusion and unintended errors by the superior court in

3 By comparison, in 2010, there were 19,461 family court cases
involving children filed in Maricopa County. See
http://www.clerkofcourt.maricopa.gov/news/CaseHistoryIndex.pdf, pp.
38-39 (last visited 08/20/19).

4 These statutory mandates, of necessity, often result in orders or
rulings of inordinate length. The decree at issue here was twenty-two
pages; in cases involving complicated financial issues, the orders can easily
exceed forty pages. All this work is done by the superior court judge
because there is no funding provided for law clerks or paralegals to assist
the bench. And, because of the volume of cases, the family court judges
have little time for research and writing as they are on the bench for
extended periods most days.

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Opinion of the Court

applying the law to the facts of the particular case, sometimes resulting in
inconsistent rulings that do not fulfill the statutory mandate.5

¶5 In this matter, Sylvia Rose DeLuna (“Mother”) appeals from
a decree of dissolution awarding joint legal decision-making authority and
unsupervised parenting time to Giovanni Alexander Petitto (“Father”) and
denying her request that Father be ordered to reimburse the community for
paying Father’s separate debt. Because the superior court failed to properly
apply the domestic violence statutes about legal decision-making and
parenting-time determinations, we vacate the legal decision-making and
parenting-time orders and remand for reconsideration. We affirm the
denial of the reimbursement request.

FACTS AND PROCEDURAL HISTORY

¶6 The parties were married in 2016 and have three children.
Before their marriage, in 2013, Father was arrested after he assaulted
Mother and her daughter from a prior relationship. Mother ultimately did
not cooperate in the prosecution of the resulting charges, and the charges
were dismissed.

¶7 After the parties separated in July 2017, Mother obtained an
order of protection based on Father’s stalking and harassing behaviors.
Father was ordered to not have any contact with Mother except through
text messages about the children’s welfare. In August 2017, Father violated
the protective order when he entered Mother’s residence and took her cell
phone after an argument. Later that same day, Father waited outside
Mother’s residence but left before the police arrived.

5 Complicating the timely and effective resolution of family court
cases—including compliance with statutory mandates—has been the
parallel dramatic increase in the number of self-represented litigants in this
area. Today, in over eighty percent of family court matters in every county,
one or both of the litigants are self-represented. See Arizona Comm’n on
Access to Justice Report to the Ariz. Judicial Council 4 (Mar. 26, 2015),
http://www.azcourts.gov/Portals/74/ACAJ/ReportACAJ.pdf. This
setting creates additional challenges for the judge in trying to understand
the position of each party, deal with evidentiary shortcomings and create a
record—often without the assistance of any counsel—so that the merits of
the case can be meaningfully reviewed on appeal.

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Opinion of the Court

¶8 Mother petitioned for dissolution in September 2017, and the
superior court held a trial on the petition in September 2018. After the trial,
the court issued a lengthy decree of dissolution finding that, although
Father had committed domestic violence, it was not “significant domestic
violence” under the provisions of § 25-403.03(A). The court ruled that
Father was not precluded from joint legal decision-making authority, and
also awarded Father parenting time three weekends per month, alternating
holidays, and every other week during the summer months. The court
denied Mother’s request to reimburse the community for paying Father’s
separate child support obligation for his child from a prior relationship.
Mother filed a timely notice of appeal from the decree, and we have
jurisdiction under A.R.S. § 12-2101(A)(1).

ANALYSIS

I. Standard of Review

¶9 We review the superior court’s legal decision-making and
parenting-time orders for an abuse of discretion. See Engstrom v. McCarthy,
243 Ariz. 469, 471, ¶ 4 (App. 2018). An abuse of discretion occurs when the
court commits an error of law in reaching a discretionary decision or when
the record does not support the court’s decision. Id. (citation omitted). We
accept the court’s findings of fact unless they are clearly erroneous but
review conclusions of law and the interpretation of statutes de novo. Id.
(citation omitted).

II. Legal Decision Making Under § 25-403.03(A) and (D)

¶10 Mother challenges the order of joint legal decision making,
arguing the superior court failed to apply multiple subsections of § 25-
403.03 correctly. Father argues the court implicitly found that the evidence
of domestic violence was not significant and that he overcame the
rebuttable presumption in § 25-403.03(D).

¶11 In a contested legal decision-making and parenting-time case,
the superior court must determine the children’s best interests in
accordance with § 25-403. Section 25-403(A)(8) requires the court to
consider whether there has been domestic violence or child abuse pursuant
to § 25-403.03. If the court determines domestic violence has occurred, it
must then determine whether there is “significant domestic violence
pursuant to § 13-3601” or if “there has been a significant history of domestic
violence.” A.R.S. § 25-403.03(A) (emphases added). If the court finds either
the existence of significant domestic violence or a significant history of
domestic violence, the statute precludes an award of joint legal decision-

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making authority. Id.; see also Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 12 (App.
2009).

¶12 A finding of no significant domestic violence or significant
history of domestic violence under A.R.S. § 25-403.03(A) does not end the
inquiry. If the superior court finds domestic violence that was not
“significant,” § 25-403.03(D) creates a rebuttable presumption that it is
contrary to the children’s best interests to award sole or joint legal decision-
making authority to the offending parent. Before awarding sole or joint
legal decision-making authority to the offending parent, the court must
make specific findings on the record that there is sufficient evidence to
rebut the presumption. A.R.S. §§ 25-403(B), -403.03(D); see also Christopher
K. v. Markaa S., 233 Ariz. 297, 301, ¶¶ 18-19 (App. 2013). In making its
specific findings in this regard, the court must consider the factors listed in
§ 25-403.03(E).

¶13 Mother argues she proved significant domestic violence by
Father because (1) the 2013 aggravated assault constituted domestic
violence as defined in § 13-3601; (2) Mother obtained an order of protection
in 2017 after Father stalked and harassed her; and (3) Father repeatedly
violated the protective order by coming to Mother’s house and sending
what the court described as “troubling[,]” “offensive and disrespectful” text
messages. Mother also argues that, even if the domestic violence was not
“significant,” the superior court failed to apply the rebuttable presumption
under § 25-403.03(D) that awarding joint or sole legal decision-making
authority to a parent who has committed any act of domestic violence
against the other parent is contrary to the children’s best interests.

¶14 In its decree, the court found Father engaged in acts of
domestic violence against Mother. The court then stated:

[A] finding of significant domestic violence or a history of
significant domestic violence generally precludes an award of
joint legal decision making or an award of sole legal decision
making to the parent who committed the significant act of
domestic violence. Further, when the party that committed
the act of violence has not rebutted the presumption that
awarding [legal decision making] to that person is contrary to
the best interest of the child, the court need not consider all
the other best-interest factors in A.R.S.
§ 25-403.A.

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Opinion of the Court

Any domestic violence is serious and cause for concern,
particularly when directed at another parent. That point
explains the presumption in A.R.S. § 25-403.03(D). However,
the admonition in subsection A applies only to “significant
domestic violence.” . . . Here, the evidence establishes by a
preponderance of the evidence, there has been domestic
violence by Father.

THE COURT FURTHER FINDS that though the Court by no
means condones the actions found in this case, those acts in
the spectrum of domestic violence do not constitute
significant [domestic violence] as contemplated by statute.

THE COURT THEREFORE FINDS by a preponderance of
the evidence that Father has not engaged in “significant
domestic violence” such that the prohibition on awarding
joint legal decision-making authority applies.

(Citations and quotations omitted.). The court did not further address § 25-
403.03(D), nor did it mention—let alone analyze and apply—the factors
listed in § 25-403.03(E). Ultimately, the court granted joint legal decision-
making authority to Mother and Father.

¶15 Here, it appears the court conflated the findings required
under § 25-403.03(A) and (D), and assumed that, since it determined no
“significant” abuse had occurred, no further inquiry or analysis was
required and Father could be awarded joint legal decision-making
authority. Though the court has the discretion to weigh the evidence and
determine the degree of the domestic violence’s “significance” for the
purpose of § 25-403.03(A),6 that determination does not eliminate the next

6 The legislature did not define “significant” domestic violence or a
“significant history” of domestic violence. Here, in concluding the
domestic violence was not significant, the superior court stated that
“[s]ignificance is a product of three factors: (1) [t]he seriousness of the
particular incident of domestic violence, (2) the frequency or pervasiveness
of the domestic violence, (3) and the passage of time and its impact.” The
court then concluded that Father’s acts “in the spectrum of domestic
violence do not constitute significant [domestic violence] as contemplated
by statute.” Recent cases before this court show the superior court has used
this three-part test to determine whether the domestic violence and/or
history of domestic violence was “significant” under § 25-403.03(A). See

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Opinion of the Court

step: here, determining whether the evidence presented by Father, as
guided by the factors listed in § 25-403.03(E), is sufficient to rebut the
presumption that allowing Father to have legal decision-making authority
would be contrary to the children’s best interests. See Gutierrez v. Gutierrez,
193 Ariz. 343, 347, ¶ 13 (App. 1998) (explaining we defer to the superior
court’s credibility determinations and the weight to give conflicting
evidence).

¶16 To reiterate, under subsection (A), a finding of significant
domestic violence (or a significant history of domestic violence) as a matter
of law precludes an award of joint legal decision making. Beyond that,
under subsection (D), a finding of any act of domestic violence as defined
by the statute creates a rebuttable presumption that awarding sole or joint
legal decision making to the offending parent is against the best interests of
the children. As such, and before awarding joint or sole legal decision-
making authority to the offending parent, the court must find there is
sufficient evidence to rebut this presumption. The superior court must do
so by making specific findings on the record concerning the relevant factors
outlined in § 25-403.03(E). Contrary to Father’s argument, we cannot infer
that the superior court must have considered these factors when making its
decision. Christopher K., 233 Ariz. at 301, ¶ 19 (holding that a court’s denial
of a petition to modify after finding domestic violence existed “must be
justified by specific findings on the record demonstrating the reasons for
the court’s decision”); see also Reid v. Reid, 222 Ariz. 204, 209, ¶ 18 (App.
2009) (explaining the requirement for specific findings exists not only to aid
an appellant and the reviewing court but also to aid all parties and the
family court in determining the best interests of the children both currently
and in the future).

¶17 Here, the court’s order is devoid of any analysis under § 25-
403.03(D) and (E). Even though the court did not find “significant”
domestic abuse, it was still required to identify the evidence produced by
Father that was sufficient to rebut the presumption created by § 25-
403.03(D). The lack of findings on the record in this regard is error.
Christopher K., 233 Ariz. at 301, ¶¶ 18-19. We therefore vacate the award of
joint legal decision-making authority and remand for reconsideration of the

Paredes-Gabriel v. Riva, 1 CA-CV 18-0328 FC, 2019 WL 1959588, at *4, ¶ 18
(Ariz. App. May 2, 2019) (mem. decision); Brumley v. Brumley, 1 CA-CV 17-
0498 FC, 2018 WL 2208037, at *3, ¶ 17 (Ariz. App. May 5, 2018) (mem.
decision). We agree these factors seem reasonable but note that these
factors do not appear in § 25-403.03(A), any family court rule, or published
Arizona opinions.

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presumption that such an award is contrary to the children’s best interests
and findings in accordance with § 25-403.03(D) and (E).

III. Parenting Time Under § 25-403.03(F)

¶18 Mother also asserts that the superior court awarded parenting
time to Father without conducting the analysis required by § 25-403.03(F).
Father argues because the court made the award, we may infer that it
implicitly made the findings required by subsection (F). We disagree.
Because the court concluded that Father committed an act of domestic
violence, it was required to explicitly determine whether Father had
affirmatively shown that “parenting time will not endanger the child or
significantly impair the child’s emotional development.” A.R.S. § 25-
403.03(F)(1)-(9). “The court must then make specific findings explaining its
reasoning and conclusions.” See Engstrom, 243 Ariz. at 474, ¶ 18. “If [the
offending parent] meets [his] burden to the court’s satisfaction, the court
shall place conditions on parenting time that best protect the child and the
other parent from further harm.” Id.

¶19 Here, the court made no such findings. Such findings are
required by statute to be stated on the record and cannot be presumed or
implied. See A.R.S. § 25-403(B); Hart v. Hart, 220 Ariz. 183, 186-87, ¶ 13
(App. 2009). Accordingly, we vacate the parenting-time order and remand
for reconsideration in accordance with § 25-403.03(F).

IV. Reimbursement for Father’s Separate Debt

¶20 At trial, Mother claimed that during the marriage the
community paid $4,664 to satisfy Father’s separate child support obligation
for his child from a prior marriage. Father denied this. The court ultimately
denied Mother’s request to be reimbursed for her share of those community
funds. Mother contends this was error.

¶21 The community is entitled to reimbursement for community
funds expended on a spouse’s separate debt. See A.R.S. § 25-215(B); see also
Potthoff v. Potthoff, 128 Ariz. 557, 562 (App. 1981). Mother, however,
provided no independent evidence to corroborate her claim that
community funds were used to pay Father’s separate debt, and Father
disputed her testimony. The superior court was not bound to accept
Mother’s testimony, and we do not reweigh the evidence on appeal. See
Hurd, 223 Ariz. at 52, ¶ 16. Thus, we find no abuse of discretion.

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Perkins, J., specially concurring

CONCLUSION

¶22 For the foregoing reasons, we vacate the legal decision-
making and parenting-time orders in the divorce decree and remand for
reconsideration consistent with this opinion. Keeping in mind that the
over-arching purpose of these statutes is the current and future best
interests of the children, the court on remand should require the parties to
present updated information for the court’s consideration. We affirm the
denial of Mother’s request for reimbursement. As the prevailing party, and
pursuant to A.R.S. § 12–341, Mother is awarded her costs on appeal upon
compliance with Rule 21(b), ARCAP.

Perkins, J., specially concurring:

¶23 I concur fully with the opinion, except for paragraphs 2
through 4 and the footnotes therein. While I have no dispute with any of
the facts contained in those paragraphs, the information is not necessary for
the decision we reach. I do not believe a published opinion is the
appropriate vehicle for commenting on the public policy choices made by
other branches of government. I am sympathetic to the difficult tasks
undertaken by our superior court judges, but respectfully decline to join
this opinion as to paragraphs 2 through 4.

AMY M. WOOD • Clerk of the Court
FILED: AA

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