Olesen v. daniel/burge

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CRYSTAL A. OLESEN, Petitioner/Appellee,
v.
MATTHEW CHARLES DANIEL, Respondent/Appellant.
_______________________________
KRYSTAL K. BURGE and EVERETT L. BURGE,
Intervenors/Appellees
No. 1 CA-CV 22-0392 FC
FILED 1-31-2023
Appeal from the Superior Court in Yavapai County
No. P1300DO201300587
The Honorable Cele Hancock, Judge
AFFIRMED
COUNSEL
Law Offices of Robert L. Frugé, P.C., Prescott
By Robert L. Frugé
Counsel for Petitioner/Appellee and Intervenors/Appellees
Catherine Fine Attorney at Law, Flagstaff
By Catherine Fine
Counsel for Respondent/Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Respondent/Appellee Arizona Department of Economic Security
OLESEN v. DANIEL/BURGE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Chief Judge Kent E. Cattani joined.
C R U Z, Judge:
¶1 Matthew Charles Daniel (“Father”) appeals the superior
court’s order awarding sole legal decision-making regarding L.D. and
almost all parenting time to L.D.’s maternal grandparents, Krystal K. and
Everett L. Burge (“Grandparents”). This is the second appeal involving
these issues. In the first appeal, we vacated the superior court’s order
because the court failed to make required findings regarding Father’s
attempt to rebut the statutory presumption that an award of sole or joint
legal decision-making to him would be contrary to the child’s best interests.
This appeal addresses the court’s findings on remand. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The superior court, in 2014, granted Father and Crystal A.
Olesen (“Mother”) a divorce by consent decree. The decree incorporated
their stipulated parenting plan, which provided joint legal decision-making
concerning L.D. and his twin brother, I.D., with Mother having most of the
parenting time. This appeal only concerns L.D. Father’s rights as to I.D.
are not at issue.
¶3 In June 2014, Mother petitioned for a protective order for
herself and the children, alleging Father drove to Mother’s house at
2:30 a.m. with the children in his car, unlawfully entered her home,
attempted to arm himself with her shotgun, and took $100. The court
granted the petition, thus effectively suspending Father’s parenting time.
Mother later requested 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 Mother wanted him to be part of the children’s lives.
¶4 Mother petitioned for another protective order in June 2016,
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
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OLESEN v. DANIEL/BURGE
Decision of the Court
petitioned to modify parenting time and legal decision-making. 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 per month. In making its
ruling, the court found “significant and ongoing domestic violence by Father
against Mother.”
¶5 By early 2018, L.D. developed substantial behavioral issues
and had, on occasion, acted violently toward Mother and I.D. L.D. began
living with Grandparents, and I.D. returned to live with Mother. While in
Grandparents’ care, L.D. met weekly with a counselor, and over time, his
behavior improved significantly.
¶6 The court later suspended Father’s parenting time after he
violated its order by spending unsupervised time with the children. Father
petitioned to modify the parenting plan, and Grandparents intervened to
petition for third-party parenting rights of L.D. See Ariz. Rev. Stat.
(“A.R.S.”) § 25-409(A). The court conducted a trial on the competing
petitions, and in its 2020 order awarded Grandparents sole legal decision-
making of L.D. and almost all parenting time. The court awarded Father
four hours of supervised parenting time each month at L.D.’s counselor’s
discretion.
¶7 Father appealed, and this court remanded for the superior
court to, if requested, “conduct a hearing to determine legal decision-
making and parenting time under A.R.S. §§ 25-403 and -409,” and to correct
the court’s failure “to make the required findings regarding whether Father
rebutted the statutory presumption.” Olesen v. Daniel, 251 Ariz. 25, 31,
¶¶ 24-25 (App. 2021). The superior court held a trial and issued its 2022
order, making a specific finding that Father had not rebutted the § 25-
403.03(D) presumption that “an award of sole or joint legal decision-making
to the parent who committed the act of domestic violence [against the other
parent] is contrary to the child’s best interests.” See A.R.S. § 25-403.03(D).
The court also adopted by reference its previous findings from the 2020
order.1
1 By an apparent typographical error, the superior court incorrectly
cited the date of this appellate court’s decision when attempting to
incorporate by reference its own prior findings. However, both parties
agree on appeal that the superior court intended to incorporate by reference
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¶8 Father timely appealed, and we have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).
DISCUSSION2
¶9 As a preliminary matter, we note Father’s brief fails to comply
with ARCAP 13. Father fails to adequately cite to the record in his
statement of facts and arguments and generally fails to cite to legal
authority to support his arguments. See ARCAP 13(a)(5), (7). This court
may dismiss an appeal when the appellant fails to comply with the Rules
of Civil Appellate Procedure. Adams v. Valley Nat’l Bank of Ariz., 139 Ariz.
340, 342-43 (App. 1984). In our discretion, however, and because the best
interests of a child are at issue, we consider Father’s appeal. See Clemens v.
Clark, 101 Ariz. 413, 414 (1966).3
I. A.R.S. § 25-403.03
¶10 Father argues a rebuttal of § 25-403.03(D) “as between parents
requires a different analysis than that for third-party custody.” Father
claims the court erred in making its findings under § 25-403.03(E) because
this subsection “regulates legal decision-making as between parents,” not
between one parent and third-party intervenors.
¶11 As Mother and Grandparents note in their brief, Father did
not raise this argument in the superior court and has arguably waived the
argument on appeal. See BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 593-
94, ¶ 25 (App. 2021). Waiver notwithstanding, Father’s argument fails
under § 25-403.03(D), which provides that when the superior court finds
the findings from its 2020 order, and we therefore address the parties’
arguments accordingly.
2 Father filed a motion requesting leave to petition the superior court
to vacate the portion of its parenting time order “that delegates the
determination of Father’s parenting time to” L.D.’s counselor. We decline
Father’s request to stay the appellate proceedings and revest jurisdiction in
the superior court to determine this issue. See ARCAP 3(b). The motion is
denied.
3 To the degree Father’s brief may reference evidence outside the
record on appeal, this court has not considered such evidence. See Schaefer
v. Murphey, 131 Ariz. 295, 299 (1982) (“As an appellate court, we are
confined to reviewing only those matters contained in the record.”).
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one parent has committed an act of domestic violence against the other,
there is a rebuttable presumption that sole or joint legal decision-making
authority by the offending parent is contrary to the child’s best interests.
Father offers no legal authority for the proposition that “a rebuttal of A.R.S.
§ 25-403.03(D) as between parents requires a different analysis than that for
third-party custody.” And a plain reading of A.R.S. § 25-403.03(D) reveals
the focus of inquiry is the offending parent, his conduct, and whether that
parent should be granted legal decision-making authority. Nothing in the
statute requires that legal decision-making authority be given to one of the
two parents only and never to a third party.
¶12 Father argues the court erred in finding he did not rebut the
§ 25-403.03(D) presumption. “On appeal, we will not disturb the family
court’s custody or parenting time orders absent an abuse of discretion.”
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). A court abuses its
discretion when it commits an error of law in reaching a discretionary
decision, reaches a conclusion without considering the evidence, commits
another substantial error of law, or makes a finding lacking substantial
evidentiary support. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44,
50, ¶ 27 (App. 2007).
¶13 In determining whether a parent has rebutted this
presumption, and thus may be granted legal decision-making authority, the
court considers the factors set forth in A.R.S. § 25-403.03(E). And “[i]n 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). The court did so in this case.
¶14 Father argues the superior court abused its discretion by
failing to consider changed domestic violence circumstances since 2016,
and he asserts the court’s § 25-403.03(E)(1) findings are not supported by
the evidence. But the superior court’s order notes that, in making its
findings, it considered “the entirety of the file” including the parties’
testimony and evidence presented at trial, as well as the case history. The
superior court evaluated the relevant evidence in a detailed analysis and
provided adequate findings in compliance with § 25-403.03(E). We will not
disturb the court’s findings when supported by substantial evidence. See
Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2019).
¶15 Father claims the court’s § 25-403.03(E)(2) discussion
regarding his completion of a domestic violence course misstates the facts.
We review the superior court’s factual findings for clear error and leave to
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Decision of the Court
the superior court the determination of witness credibility and the
resolution of conflicting evidence. Ahwatukee Custom Ests. Mgmt. Ass’n v.
Turner, 196 Ariz. 631, 634, ¶ 5 (App. 2000); Lee v. Lee, 133 Ariz. 118, 123 (App.
1982). When discussing this factor, the court found that Father completed
a domestic violence course, but also noted he was required to complete the
course as part of his plea agreement in the resulting criminal case. Father
argues he was not required to complete a domestic violence course under
the plea agreement and that he completed the course before he entered the
plea agreement. But the plea agreement shows Father agreed to pay a $250
fine, complete a domestic violence course, have no contact with Mother for six
months, and participate in unsupervised probation. And the record shows
Father completed the course on March 15, 2017, one day after entering the
plea agreement. In any event, the court ultimately concluded that Father
completed the domestic violence course, but that factor alone is not
dispositive of the legal decision-making and parenting time issues. See
Pollock v. Pollock, 181 Ariz. 275, 278 (App. 1995) (explaining best interests
factors are “weighed collectively,” and “no single factor is controlling”).
II. Judicial Bias
¶16 Father alleges the court’s order “illustrates a profound
twisting of Father’s testimony” and argues the court was biased in favor of
Grandparents. Father asks this court to reweigh evidence and redetermine
the credibility of witnesses on appeal, but we will not substitute our
judgment for that of the trial judge on matters of credibility. See Cook v.
Losnegard, 228 Ariz. 202, 205, ¶ 11 (App. 2011). A party challenging a
judge’s impartiality must overcome the presumption that judges are “free
of bias and prejudice,” State v. Rossi, 154 Ariz. 245, 247 (1987), and must “set
forth a specific basis for the claim of partiality and prove by a
preponderance of the evidence that the judge is biased or prejudiced,” State
v. Medina, 193 Ariz. 504, 510, ¶ 11 (1999). “Judicial rulings alone do not
support a finding of bias or partiality without a showing of an extrajudicial
source of bias or a deep-seated favoritism.” Stagecoach Trails MHC, L.L.C. v.
City of Benson, 232 Ariz. 562, 568, ¶ 21 (App. 2013). Father alleges the
superior court judge fabricated facts, “minimize[d]” Father’s testimony and
parental efforts, and was “heavily invested” in L.D. remaining with
Grandparents. Father’s allegations do not overcome the presumption of
judicial impartiality. See Rossi, 154 Ariz. at 247; see also Medina, 193 Ariz. at
510, ¶ 11.
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OLESEN v. DANIEL/BURGE
Decision of the Court
III. A.R.S. § 25-409
¶17 Father also argues the superior court abused its discretion in
awarding Grandparents sole legal decision-making of L.D. and almost all
parenting time, and he challenges the court’s best interests findings. We
review legal decision-making authority and parenting time orders for an
abuse of discretion, Nold, 232 Ariz. at 273, ¶ 11, but we review the court’s
interpretation and application of A.R.S. § 25-409 de novo, Chapman v.
Hopkins, 243 Ariz. 236, 240, ¶ 14 (App. 2017).
¶18 Father claims the court erred in making A.R.S. § 25-403 best
interests findings that are not supported by clear and convincing evidence,
and A.R.S. § 25-409 findings that are unsupported by explicit findings of
fact.
¶19 Arizona law establishes a rebuttable presumption that
“awarding legal decision-making to a legal parent serves the child’s best
interests because of the physical, psychological and emotional needs of the
child to be reared by a legal parent.” A.R.S. § 25-409(B). A third party may
rebut that presumption if she establishes, “by clear and convincing
evidence that awarding legal decision-making to a legal parent is not
consistent with the child’s best interests.” Id. Section 25-403(A) provides
specific factors for the court to consider in determining a child’s best
interests. The child’s best interests are the primary consideration in
awarding legal decision-making authority and parenting time. See Hays v.
Gama, 205 Ariz. 99, 102, ¶ 18 (2003).
¶20 Father claims the court’s § 25-403 best interests findings are
not supported by clear and convincing evidence. But the record shows the
court considered all the statutory factors described above, and the court
considered “the entirety of the file” when making its findings. See supra
¶ 14. The superior court evaluated all relevant evidence and provided
detailed findings in its 27-page order in compliance with § 25-403.
¶21 As to A.R.S. § 25-409 findings, Father argues the court’s ruling
is only one sentence long and does not explain “the reasons for which the
decision is in the best interests of the child.” See A.R.S. § 25-403(B). The
court’s findings must be stated on the record and cannot be presumed or
implied, as Mother and Grandparents suggest. See DeLuna v. Petitto, 247
Ariz. 420, 425, ¶ 19 (App. 2019).
¶22 We agree the superior court’s statement that it need not make
§ 25-409 findings after finding Father failed to rebut the § 25-403.03(D)
presumption was an incorrect statement of the law. However, the court
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sufficiently incorporated its previous § 25-409 findings into the 2022 order.
There is no requirement that the court restate its § 25-409 findings in the
2022 order when it had already incorporated them by reference.
¶23 Father also argues the court erred in incorporating the
findings from its 2020 order into the 2022 order. Father claims the superior
court cannot reinstate a vacated order, and he asserts Grandparents do not
currently have legal decision-making authority, primary physical custody,
or parenting time of L.D. because this court vacated the original order
granting them custody and parenting time. But in Father’s previous appeal,
this court only vacated the superior court’s ruling to the extent it failed to
make required findings regarding whether Father established a change in
circumstances to rebut the statutory presumption that his previous
domestic violence issues rendered him unfit to have legal decision-making
authority regarding L.D. Olesen, 251 Ariz. at 31, ¶¶ 24-25. Father cites no
relevant legal authority to support his argument that under these
circumstances a court may not incorporate findings from a previous order
into its present order. Accordingly, the court did not err by incorporating
the findings from its 2020 order into its 2022 order.
IV. Attorneys’ Fees
¶24 Mother and Grandparents request an award of attorneys’ fees
on appeal pursuant to A.R.S. §§ 12-349(A) and 25-324. We decline to award
fees as a sanction under § 12-349(A), but, after considering the relative
financial resources of the parties and the reasonableness of the positions
asserted on appeal, we award Mother and Grandparents reasonable
attorneys’ fees and costs under § 25-324(A), upon compliance with ARCAP
21.
CONCLUSION
¶25 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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