VARGAS v. SMITH

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: ) ) HERIBERTO VARGAS, JR., ) ) Petitioner/Appellant, ) ) v. ) ) ) AMANDA BROOKE SMITH, ) Respondent/Appellee. ) ) DIVISION ONE FILED: 12/13/2012 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0133 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause Nos. FC2008-093852 FC2008-005678 (Consolidated) The Honorable Benjamin R. Norris, Judge ORDER VACATED; REMANDED Allen & Foutz, P.L.L.C. By Shannon R. Allen Brian A. Foutz Attorneys for Petitioner/Appellant Gilbert Community Legal Services By Sarah Youngblood Attorneys for Respondent/Appellee Mesa W I N T H R O P, Chief Judge ¶1 Heriberto court order that Vargas, he and Jr. Amanda ( Father ) Smith appeals ( Mother ) a share family joint legal custody of the parties minor child, with receive the majority of the parenting time. Mother to For the reasons that follow, we vacate the custody order and remand to allow the court to clarify its findings under Arizona Revised Statutes ( A.R.S. ) section 25 403 (West 2012). 1 FACTUAL AND PROCEDURAL BACKGROUND ¶2 Father Since have the been birth involved of the in a child in 2008, Mother series of custody and disputes. Mother has a history of DUI convictions, including at least two involving hit and run incidents, and Father has a history of domestic violence. ¶3 The family court initially awarded the parties joint custody of parent. While on probation for a prior aggravated DUI, however, Mother was additional the child, arrested counts of with in Mother June 2009 as aggravated the and DUI. primary charged Mother custodial with entered a four plea agreement, pursuant to which she pled guilty to one count of aggravated DUI, and she was incarcerated for approximately five months beginning in November 2010. While Mother was incarcerated, the family court awarded Father temporary physical custody of the child. A few months after her release, in July 2011, Mother obtained an order of protection against Father, 1 We cite the current version of the statutes unless changesmaterial to our decision have occurred after the relevant date. 2 based on an protection order. alleged order, incident however, did of not domestic modify violence. the prior The custody Mother subsequently filed a petition to modify custody, parenting time, and child support, and she requested sole custody of the child. ¶4 On December 8, 2011, the family court held evidentiary hearing and took the matter under advisement. an In a signed minute entry filed December 21, 2011, the court ordered that the parties share joint legal custody of the child, but the court also reduced Father s parenting time and designated Mother as the primary residential custodian with final decision-making authority. Additionally, the court briefly noted in its order as follows: two years In the end, given that Mother s last DUI was some ago, while Father s most recent domestic violence charges are still pending . . . the Court has decided to give[] Mother final decision-making authority and the majority of the parenting time, at least at this point in time. ¶5 Father filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12 2101(A)(2). ANALYSIS ¶6 Father contends the family court failed to make the factual findings required in a change of custody matter pursuant to A.R.S. § 25-403(B). In general, we review child custody orders for an abuse of discretion. 3 Andro v. Andro, 97 Ariz. 302, 305, 400 P.2d 105, 107-08 (1965); Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). abuses its discretion if exercising its discretion. it commits a legal A court error while Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004). The overriding focus of any custody determination is the best interest of the child, and we afford the family court broad discretion in determining a child s best interest. Borg v. Borg, 3 Ariz. App. 274, 276, 413 P.2d 784, 786 (1966) (citing Andro, 97 Ariz. at 305, 400 P.2d at 107-08). ¶7 Subsection (A) of A.R.S. § 25-403 lists eleven factors a court shall consider in a child custody determination, in accordance with the best interests of the child. The presence of domestic violence in a parenting relationship is one of those factors. See contested, the findings on the A.R.S. family record § 25 403(A)(11). court is about required all When to relevant custody make factors is specific and the reasons for which the decision is in the best interests of the child. ¶8 A.R.S. § 25 403(B). As previously interpreted by this court, § 25 403.03(D) provides a potential exception to this balancing of best-interest factors. Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 13, 4 219 P.3d 258, 261 (App. 2009). 2 If the court finds an act of domestic violence between the parents, there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child s best interests. A.R.S. § 25 403.03(D). If such a parent is seeking custody and fails to rebut the presumption, the court need not consider all the other best-interest factors listed in § 25 403(A). Hurd, 223 Ariz. at 51, ¶ 13, 219 P.3d at 261 (emphasis added). ¶9 Father substantively contends discuss the the factors family court enumerated in failed § to 25-403(A), made no findings as required by § 25-403(B), and arguably did not identify a specific act of domestic violence sufficient to trigger the rebuttable presumption under § 25-403.03(D). 3 Mother 2 It is unclear from the record whether A.R.S. § 25 403.03(A) might also apply here. Under that subsection, a finding of significant domestic violence precludes joint custody for the parent who committed the violence. A.R.S. § 25-403.03(A) (emphasis added). On remand, if the family court finds either that Father s alleged recent acts constitute significant domestic violence or he has a significant history of domestic violence, the court should restrict Father from having legal custody of the child. See Hurd, 223 Ariz. at 51, ¶ 12, 219 P.3d at 261. 3 Father also argues that the court punished him for asserting his Fifth Amendment rights during the evidentiary hearing because he chose not to answer questions related to the pending domestic violence charge. See U.S. Const. amend. V. But in child custody cases, courts are allowed to draw a negative inference from a Fifth Amendment invocation, Montoya v. Superior Court, 173 Ariz. 129, 131, 840 P.2d 305, 307 (App. 5 counters that the order is valid under the domestic violence exception, because the family court noted Father s prior domestic violence and pending charges in its order. ¶10 Even if the prior acts of domestic violence triggered the § 25-403.03(D) rebuttable presumption, however, the court s subsequent award of joint legal custody to Father constituted an implicit finding - that allowing Father s custody was not contrary to the child s best interests under § 25 403.03(D), which if true presumption. would rebut any initial § 25-403.03(D) The court was consequently required to address and weigh on the record the factors enumerated in § 25-403(A). ¶11 weigh Because we cannot determine how the family court would or balance custody order. the statutory factors, we must vacate the See Reid v. Reid, 222 Ariz. 204, 207, ¶ 13, 213 P.3d 353, 356 (App. 2009) (vacating the family court s custody order because this court could not ascertain from the court s orders and ruling how the court weighed the statutory factors to arrive at its conclusion ). We remand for the family court to consider and document its findings, balance the factors, and enter a new custody order. 4 1992), and there was additional evidence to support the court s findings of Father s domestic violence history. 4 As we have previously noted, [w]e vacate the custody order, rather than simply remand for additional findings, because of the significant number of factors not addressed. 6 CONCLUSION ¶12 court s For the custody foregoing order and reasons, remand we this vacate matter the for family further consideration and findings pursuant to A.R.S. § 25 403(A) and (B). _______________/S/__________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: _______________/S/________________ JOHN C. GEMMILL, Presiding Judge ______________/S/_________________ MARGARET H. DOWNIE, Judge Hart v. Hart, 220 Ariz. 183, 187, ¶ 14, 204 P.3d 441, 445 (App. 2009) (citation omitted). Further, although Father suggests we reverse the custody order, we have consistently held the family court is in the best position to evaluate the evidence. See Andro, 97 Ariz. at 305, 400 P.2d at 107 08; Hurd, 223 Ariz. at 52, ¶ 16, 219 P.3d at 262 ( Our duty on review does not include re-weighing conflicting evidence or redetermining the preponderance of the evidence. (citation omitted)). 7

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