Olesen v. daniel/burge

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

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
FILED 3-11-2021

Appeal from the Superior Court in Yavapai County
No. P1300DO201300587
The Honorable Cele Hancock, Judge
The Honorable Patricia A. Trebesch, Judge (retired)

VACATED AND REMANDED IN PART

COUNSEL

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

Law Offices of Robert L. Frugé, P.C., Prescott
By Robert L. Frugé
Counsel for Defendant/Intervenors/Appellees
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

OPINION

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

M c M U R D I E, 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

1 To protect the identity of the children, we refer to them by
pseudonyms.

2 We view the evidence in the light most favorable to sustaining the
superior court’s order. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999).

2
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

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,

3 We note that Father does not raise issues concerning the court’s
order relating to Brandon.

3
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

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 (App. 2017); State v. Maldonado, 223 Ariz. 309, 311,
¶¶ 14–15 (2010); State v. Espinoza, 229 Ariz. 421, 426, ¶ 21 (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 (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 (App. 2017)
(quoting Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102 (1995)). All superior

4 But cf. Nold v. Nold, 232 Ariz. 270, 274, ¶ 14 (App. 2013) (The superior
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 [superior] court alone to decide.”)
(quoting DePasquale v. Superior Court, 181 Ariz. 333, 336 (App. 1995)).

4
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

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 (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 (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 (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 (App. 2019) (alteration in original) (quoting Sil-Flo Corp. v. Bowen, 98
Ariz. 77, 83 (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

5
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

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
(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 (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
domestic violence is contrary to the child’s best interests.

In determining whether a parent has committed domestic violence, the
court must consider all relevant factors, including findings from another
court of competent jurisdiction. A.R.S. § 25-403.03(C). If a court finds that a
parent has committed an act of domestic violence against the other parent,
the court must then determine whether the offending parent has rebutted
the statutory presumption under A.R.S. § 25-403.03(D). A.R.S.
§ 25-403.03(E).

¶16 In DeLuna, we held that a court may not award legal
decision-making to a parent who has committed domestic violence without
first making specific findings regarding that parent’s rebuttal of the
presumption. 247 Ariz. at 423, ¶ 12. In this case, we resolve the other side
of the coin: Must the court make specific findings regarding the offending
parent’s attempt to rebut the statutory presumption if it denies that parent’s
request for legal decision-making? We hold it must.

¶17 “In 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.” A.R.S. § 25-403(B). This statutory requirement cannot be satisfied by
inference from a court’s order or waived by a party. DeLuna, 247 Ariz. at
423, ¶ 12 (findings will not be inferred); Reid v. Reid, 222 Ariz. 204, 209–10,
¶¶ 19–20 (App. 2009) (superior court must make A.R.S. § 25-403 findings
even if not requested by a parent); Francine C. v. DCS, 249 Ariz. 289, 297,
¶ 18 (App. 2020) (statutory findings requirement cannot be waived).
Because A.R.S. § 25-403.03 requires the superior court to consider domestic

6
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

violence evidence and any evidence that may rebut the statutory
presumption when determining the child’s best interests, a superior court
must make findings regarding both of those issues.

¶18 Here, on three prior occasions (memorialized in two
protective orders and the 2016 Order), courts found Father committed acts
of domestic violence against Mother. The superior court correctly found the
three prior orders established a statutory presumption against Father
having legal decision-making authority for the children. See A.R.S.
25-403.03(D) (listing acts by which one commits “domestic violence”).

¶19 Father argues his due process rights were violated when the
superior court refused to allow him to present evidence concerning the
previous domestic violence findings. He points to no specific ruling by the
court to support his argument but cites several pages of the trial transcript
in which the court warned Father that eliciting testimony regarding the
previously decided matters would not be a good use of his time:

This is your case. I’m not saying anything else. If you want to
put on this testimony, that’s certainly your prerogative. But I
want to make it very clear for the record that these issues have
been litigated, there have been Orders in this case. I am not
going to vacate those Orders.

¶20 As the superior court suggested, issue preclusion applies to
bar litigation over the prior court findings of domestic violence.

Issue preclusion, also known as collateral estoppel, precludes
relitigating an issue of fact in a later case when, in a previous
case, the same issue “was actually litigated, a final judgment
was entered, and the party against whom the doctrine is to be
invoked had a full and fair opportunity to litigate.”

Crosby-Garbotz v. Fell, 246 Ariz. 54, 55, ¶ 1 (2019) (quoting Chaney Bldg. Co.
v. City of Tucson, 148 Ariz. 571, 573 (1986); Vera v. Rogers, 246 Ariz. 30, 36,
¶ 22 (App. 2018) (A superior court judge cannot review or change a final
judgment regarding a protective order once the judgment has become
final.) (citing cases).

¶21 In each of the prior proceedings, Father had a full and fair
opportunity to litigate whether he committed the acts of domestic violence
alleged. The court affirmed the 2014 protective order after a hearing. The
court issued the 2016 Order after a trial in which it found Father had stalked
Mother and the children, assaulted Mother in the presence of the children,

7
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

and engaged in a physical altercation that involved a struggle for a firearm.
We find no error in the court’s purported preclusion of evidence
surrounding the previously litigated matters.

¶22 Once a court finds a parent has committed an act of domestic
violence, the offending parent may try to rebut the resulting presumption
against sole or joint legal decision-making. The issue at this stage is not
whether the parent committed the act of domestic violence that created the
presumption. Instead, the issue is whether that parent has offered sufficient
evidence to demonstrate that, notwithstanding the prior domestic violence,
sole or joint legal decision-making is no longer “contrary to the child’s best
interests,” A.R.S. § 25-403.03(D). In that regard, the statute provides that in
determining whether the parent has rebutted the presumption, the court
“shall consider” the following:

1. Whether the parent has demonstrated that being awarded
sole or joint legal decision-making or substantially equal
parenting time is in the child’s best interests.

2. Whether the parent has successfully completed a batterer’s
prevention program.

3. Whether the parent has successfully completed a program
of alcohol or drug abuse counseling, if the court determines
that counseling is appropriate.

4. Whether the parent has successfully completed a parenting
class, if the court determines that a parenting class is
appropriate.

5. If the parent is on probation, parole or community
supervision, whether the parent is restrained by a protective
order that was granted after a hearing.

6. Whether the parent has committed any further acts of
domestic violence.

A.R.S. § 25-403.03(E). Likewise, concerning parenting time, “[i]f the court
finds that a parent has committed an act of domestic violence, that parent
has the burden of proving to the court’s satisfaction that parenting time will
not endanger the child or significantly impair the child’s emotional
development.” A.R.S. § 25-403.03(F).

8
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

¶23 Thus, unlike the original domestic violence finding, the
statute explicitly invites the offending parent to present evidence of a
change in circumstances. In this respect, our supreme court has established
a “change of circumstances rule” to apply principles of res judicata for
parenting issues. See Ward v. Ward, 88 Ariz. 130, 134–35 (1960). As the court
explained in Ward:

The court, in issuing the original decree, found that the
arrangement, therein set out was for the best interests of the
child. No appeal having been taken, this decision became
final, upon the facts then before the court, and no alteration will
be made without a showing that the factual situation has
changed to such an extent that the original decree can no
longer reasonably be expected to serve the purpose.

Id. at 135 (emphasis added). Thus, a parent who has committed domestic
violence may petition to modify decision-making and show new facts that
rebut the statutory presumption in A.R.S. § 25-403.03(D) and (E). And a
court must make specific findings regarding whether the parent’s new
evidence rebuts the presumption.

¶24 Here, the court failed to make the required findings regarding
whether Father rebutted the statutory presumption. Therefore, we vacate
the court’s order relating to Andrew and remand the case for further
consideration consistent with this opinion. On remand, we direct the
superior court to hold an evidentiary hearing if any party requests it. If,
after considering the factors listed in A.R.S. § 25-403.03(E), the court
determines that Father rebutted the presumption against him, the burden
would shift to Grandparents to show by clear and convincing evidence that
it is not in Andrew’s best interests for Father to be awarded legal
decision-making authority. A.R.S. § 25-409(B). Because we remand for
additional proceedings, we decline to address Father’s argument that
Grandparents failed to present clear and convincing evidence that an award
of legal decision-making in his favor would not be in Andrew’s best
interests.

9
 OLESEN v. DANIEL/BURGE, et al.
Opinion of the Court

CONCLUSION

¶25 We vacate and remand the superior court’s order concerning
legal decision-making and parenting time for Andrew. We affirm the
court’s order regarding Brandon. Upon request by either party, the court
shall conduct a hearing to determine legal decision-making and parenting
time under A.R.S. §§ 25-403 and -409.

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

10