Nagle v. Nagle ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
THOMAS J. NAGLE, Petitioner/Appellant,
v.
KRYSTAL D. NAGLE, Respondent/Appellee.
No. 1 CA-CV 15-0010 FC
FILED 10-29-2015
Appeal from the Superior Court in Mohave County
No. B8015DO201204387
The Honorable Richard Weiss, Judge
VACATED AND REMANDED
COUNSEL
Davis Miles McGuire Gardner, Tempe
By Douglas C. Gardner
Counsel for Petitioner/Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.
NAGLE v. NAGLE
Decision of the Court
T H U M M A, Judge:
¶1 Thomas J. Nagle (Father) appeals the superior court’s order
granting Krystal D. Nagle (Mother) sole legal decision making for their
three children, and making her home the children’s primary residence.
Father argues the court erred by failing to make specific statutory findings
on the record. Mother, who was self-represented at trial, has not appeared
on appeal or filed an answering brief. Because the record provided does not
show that required findings were made, the order is vacated and this matter
is remanded for further consideration consistent with this decision.
FACTS1 AND PROCEDURAL HISTORY
¶2 The marriage had a history of domestic violence, which
culminated in 2012, when Mother stabbed Father with a pocket knife.
Mother was convicted of felony aggravated assault for the stabbing, was
and placed on probation for five years and served 10 months in jail.
¶3 Father filed a petition for divorce shortly after the stabbing.
Both parents testified at trial, each accusing the other of domestic violence.
Both parents also testified regarding their respective relationships with the
children, the children’s social and family situation, and other factors
bearing on the best interests of the children. Mother called one other family
member as a fact witness, but no expert testimony was provided. At the
time of trial, Mother remained on probation and was receiving domestic
violence counseling.
¶4 After trial, the superior court issued an order finding: (1)
Mother’s “aggravated assault had some basis in circumstances similar to a
victim within the battered woman spectrum;” (2) Mother had been the
primary caregiver of the children in the past, and “more significant
relationships for the children are on the maternal side [of the family];” (3)
Father said he is more able to provide the children frequent visits with
Mother because he has more reliable transportation; (4) the children “may
be more adjusted to the community and schools” where Mother lives; and
(5) Mother takes a more global, deeper consideration of the best interests of
the children. The court then ordered that Mother have sole legal decision
1This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2 (App. 2008).
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NAGLE v. NAGLE
Decision of the Court
making for the children, that the children would live with Mother, and that
Father pay Mother $556.94 in monthly child support. This court has
jurisdiction over Father’s timely appeal pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(1) and -2101(A)(1) (2015).2
DISCUSSION
¶5 Father argues the order fails to properly include specific
required findings. By statute, the court must expressly consider 11 factors
in determining the best interests of the children to resolve legal decision
making and parenting time in contested custody cases. A.R.S. § 25-403(A).
The order is required to contain specific findings for each factor, and a
failure to do so is error. Nold v. Nold, 232 Ariz. 270, 273 ¶ 11 (App. 2013). In
addition, if a parent seeking custody has committed an act of domestic
violence, there is a rebuttable presumption against awarding that parent
legal decision-making. A.R.S. § 25-403.03(D). For that presumption to be
properly rebutted, the order must consider six additional factors listed in
A.R.S. § 25-403.03(E) and set forth specific findings for the reasons.
Christopher K. v. Markaa S., 233 Ariz. 297, 301 ¶ 19 (App. 2013).
¶6 In this case, although required by statute, the order does not
address or make any findings regarding: (1) the children’s relationship with
siblings and other family members; (2) the wishes of the children regarding
parenting time and decision-making; (3) the mental health of the parents;
(4) whether either parent misled the court; (5) duress by either parent in
obtaining a custody agreement; (6) compliance with A.R.S. §§ 25-351 to -355
(domestic relations education); and (7) whether either parent had made
false reports of child abuse or neglect. See A.R.S. § 25-403(A), (B). Although
the order includes some discussion of other statutory factors, the court was
required to analyze all factors specified by statute. See A.R.S. §§ 25-403(A),
-403.03(E); Nold, 232 Ariz. at 273 ¶ 11. Similarly, and given the record on
appeal, it is unclear whether the record before the superior court could
properly support the required statutory findings consistent with the
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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NAGLE v. NAGLE
Decision of the Court
conclusions in the order. Accordingly, the order is vacated, and remand is
required for further consideration.3
CONCLUSION
¶7 The order challenged on appeal is vacated and this matter is
remanded for further consideration to address the factors specified by
A.R.S. §§ 25-403(A) and -403.03(E) and to expressly set forth the findings
required in addressing those factors.
:ama
3Because the child support award is premised on the parenting time order,
should the court alter parenting time on remand, it will be necessary to alter
the child support award accordingly. See A.R.S. §§ 25-501(C), -320(D).
4