Deluna v. Petitto
247 Ariz. 420
| Ariz. Ct. App. | 2019Background:
- Parties married in 2016 and have three children; Father had a 2013 assault arrest (charges dismissed) and repeated post-separation protective-order violations in 2017.
- Mother obtained an order of protection after stalking/harassment; Father violated it by entering Mother’s home and taking her phone and by later waiting outside her residence.
- Mother petitioned for dissolution (2017); trial occurred in Sept. 2018. The superior court found Father committed domestic violence but concluded it was not "significant" under A.R.S. § 25-403.03(A).
- The court awarded joint legal decision-making authority and unsupervised parenting time to Father, and denied Mother’s request for reimbursement for community funds allegedly used to pay Father’s separate child-support debt.
- On appeal, the court held the superior court failed to make the statutory, on-record findings required by § 25-403.03(A),(D),(E) and (F) and therefore vacated the legal decision-making and parenting-time orders and remanded for reconsideration.
- The court affirmed the superior court’s denial of reimbursement because Mother presented no corroborating evidence and the trial court’s credibility determination was not an abuse of discretion.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of § 25-403.03(A) & (D) to legal decision-making | DeLuna: Evidence showed significant domestic violence (2013 assault, protection order/violations); or, if not significant, court failed to apply rebuttable-presumption analysis and § 25-403.03(E) factors | Petitto: Court implicitly found domestic violence not "significant" and effectively rebutted the presumption allowing joint legal decision-making | Court: Superior court conflated (A) and (D). Even if not "significant" under (A), court must make on-record findings under (D) and analyze § 25-403.03(E) factors before awarding joint/sole legal decision-making. Vacated and remanded. |
| Parenting time under § 25-403.03(F) | DeLuna: Court awarded parenting time without explicit findings that parenting time would not endanger or impair the children, as (F) requires | Petitto: Findings can be inferred from the decree | Court: Findings required to be explicit and on the record; cannot be presumed. Parenting-time order vacated and remanded for § 25-403.03(F) analysis and protective conditions if appropriate. |
| Reimbursement for community payment of Father’s separate debt | DeLuna: Community paid $4,664 of Father’s separate child-support debt and should be reimbursed | Petitto: Denied and disputed payment; no corroborating proof | Court: Affirmed trial court. Mother failed to provide independent corroboration; court’s credibility determination not an abuse of discretion. |
Key Cases Cited
- Owen v. Blackhawk, 206 Ariz. 418 (Ariz. Ct. App. 2003) (relocation implicating custody requires § 25-403 findings)
- Christopher K. v. Markaa S., 233 Ariz. 297 (Ariz. Ct. App. 2013) (court must justify decisions with specific on-record findings after domestic violence is found)
- Engstrom v. McCarthy, 243 Ariz. 469 (Ariz. Ct. App. 2018) (standard of review and requirement to state parenting-time conditions when domestic violence found)
- Hurd v. Hurd, 223 Ariz. 48 (Ariz. Ct. App. 2009) (finding significant domestic violence precludes joint legal decision-making)
- Hart v. Hart, 220 Ariz. 183 (Ariz. Ct. App. 2009) (on-record findings required; cannot infer required findings)
- Murray v. Murray, 239 Ariz. 174 (Ariz. Ct. App. 2016) (relocation implicating changes in parenting time/legal decision-making triggers § 25-403 findings)
- Gutierrez v. Gutierrez, 193 Ariz. 343 (Ariz. Ct. App. 1998) (appellate deference to trial court credibility determinations)
- Potthoff v. Potthoff, 128 Ariz. 557 (Ariz. Ct. App. 1981) (community entitled to reimbursement for community funds used to pay spouse’s separate debt)