Griebel v. Phillips

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

MICHAEL GRIEBEL, Petitioner/Appellee,

v.

TIFFANY PHILLIPS, Respondent/Appellant.

No. 1 CA-CV 23-0121 FC
FILED 2-8-2024

Appeal from the Superior Court in Maricopa County
No. FC2015-090277
The Honorable Christopher A. Coury, Judge

VACATED AND REMANDED IN PART; AFFIRMED IN PART

COUNSEL

Slaton Roebuck PLLC, Scottsdale
By Sandra L. Slaton, Kristin Roebuck Bethell, Isaac Gilbert
Counsel for Respondent/Appellant

MEMORANDUM DECISION

Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Michael J. Brown and Judge Andrew M. Jacobs joined.
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Decision of the Court

G A S S, Chief Judge:

¶1 Mother appeals the post-decree orders awarding joint legal
decision-making to father, awarding father parenting time with the two
younger children, allocating professional fees between mother and father,
and deviating child support to zero. We affirm the child support order.
Because the orders lacked specific findings of fact and conclusions of law
despite mother’s request for them under Rule 82(a), Arizona Rules of
Family Law Procedure, we vacate and remand the legal decision-making,
parenting-time, and fee-allocation orders.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and father married in 2008 and divorced in 2016. They
have three children. At first, the parents stipulated to joint legal decision-
making, equal parenting time, and no child support. In 2019, the superior
court awarded father sole legal decision-making and reduced mother’s
parenting time to every other weekend and every Wednesday.

¶3 Within a year, mother sought emergency temporary orders
and leave to modify the 2019 legal decision-making order. Mother alleged
father physically and emotionally abused the oldest child. After an
evidentiary hearing, the superior court found no serious threat to the oldest
child’s physical, mental, or emotional health and denied mother’s request.

¶4 Mother later sought emergency temporary orders and to
modify legal decision-making, parenting time, and child support. This time,
she claimed father and his girlfriend physically and emotionally abused all
three children. Mother also obtained an order of protection limiting father’s
contact with her and the three children. In her order-of-protection petition,
mother claimed the children’s babysitter told her the two older children
said father had engaged in abusive behavior with the oldest child.

¶5 Before the superior court’s hearing on mother’s petition to
modify, mother and father agreed to quash the order of protection and to
have the three children live with mother. They also agreed to appoint a
therapeutic interventionist and a custody evaluator. Based on the parents’
stipulations, the superior court gave father supervised parenting time with
the two younger children as recommended by the interventionist. Mother
agreed to pay 75% of the interventionist’s fees and 50% of the supervisor’s
fees.

¶6 Within six months, father sought new temporary orders. And
the parents have been engaged in active litigation since. Mother appeals the

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superior court’s most recent orders. Those orders establish joint legal
decision-making for all three children, but they award father final say as to
the two younger children and mother final say as to the oldest child. The
superior court also found it in the two younger children’s best interests to
start the Family Bridges intensive reunification program if father could
afford his share of the cost. The superior court ordered father to pay 40%
and mother 60% of the reunification and therapy costs.

¶7 Because it was unclear if father could afford his allocated
share of the costs, the superior court issued two separate, alternative
temporary orders. The first applied if father successfully arranged to start
the Family Bridges program in the fall of 2022 (“the Family Bridges
temporary order”). The second applied if father could not afford to start the
Family Bridges program. In the second, the superior court ordered an
alternative, five-phase parenting-time plan for the two younger children.
The parenting time for the oldest child is not at issue on appeal.

¶8 As to child support, the superior court found application of
the Child Support Guidelines led to father owing mother $756.00 a month.
See A.R.S. § 25-320. The superior court found applying the Guidelines was
inappropriate or unjust and deviating to a zero obligation was in the
children’s best interests because of the reunification and therapy costs.

¶9 Mother moved to alter or amend the above orders. Because
the Family Bridges temporary order never took effect, the superior court
denied that request as meritless.

¶10 This court has jurisdiction over mother’s timely appeal of the
legal decision-making, parenting-time, child support, and allocation of
professional fees orders under article VI, section 9, Constitution of Arizona,
and A.R.S. §§ 12-2101.A.1 and -120.21.A.1.

DISCUSSION

¶11 On review of a superior court ruling, factual findings are
sufficient “if they are ‘pertinent to the issues and comprehensive enough to
provide a basis for the decision.’” Miller v. Bd. of Supervisors of Pinal Cnty.,
175 Ariz. 296, 299 (1993) (citation omitted). “The reviewing court needs a
sufficient factual basis that explains how [the superior court] actually
arrived at its conclusion” to “effectively review [its] decision-making
process.” Id. When, as here, a parent timely requests findings of fact and
conclusions of law under Rule 82(a), this court “must be able to determine
the factual underpinnings of the [superior] court’s ruling.” See Stein v. Stein, 238 Ariz. 548, 550 ¶ 5 (App. 2015). To that end, the findings must explain

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how or why the superior court settled on the decision it did. See id. at 551
¶ 11.

I. Waiver

¶12 This court may, but need not, treat father’s failure to file an
answering brief as a confession of error. In re Marriage of Diezsi, 201 Ariz.
524, 525 ¶ 2 (App. 2002) (citing ARCAP 15(c)).

¶13 We also could treat mother’s challenges as waived. Even after
making a request under Rule 82(a), Arizona Rules of Family Law
Procedure, “[a] litigant must object to inadequate findings of fact . . . at the
trial court level so that the court will have an opportunity to correct them.”
Elliott v. Elliott, 165 Ariz. 128, 134 (App. 1990). True, mother moved to alter
or amend the superior court’s judgment, but mother did not refer to her
Rule 82(a) request. And mother’s motion challenged the sufficiency of the
findings on just four issues: parenting time, the professional fee allocation,
the child support deviation, and the attorney fee award. The balance of her
arguments related to whether the superior court applied the correct legal
standard or whether the superior court’s ruling contradicted the children’s
best interests. Even so, mother argues the superior court “merely made
conclusory statements . . . without making specific findings and that led to
its conclusion.”

¶14 Because this case involves the children’s best interests, we
decline to rely on waiver for father’s failure to file an answering brief. See
Diezsi, 201 Ariz. at 525 ¶ 2. We similarly decline to do so for mother’s failure
to ask the superior court to make more specific findings under Rule 82(a).

II. Legal decision-making and parenting time

¶15 This court reviews the superior court’s legal decision-making
and parenting-time orders for abuse of discretion. Engstrom v. McCarthy, 243 Ariz. 469, 471 ¶ 4 (App. 2018). The superior court abuses its discretion
when it makes a discretionary decision based on legal error or when the
record does not support the decision. Id.

A. Domestic violence under A.R.S. §§ 25-403 and 25-403.03

¶16 The superior court must determine whether to modify legal
decision-making and parenting-time in accordance with the child’s best
interests. A.R.S. § 25-403.A. The court must consider all factors relevant to
the child’s well-being, including those enumerated by statute. A.R.S.
§ 25-403.A. In a contested case, the court must also explain why its decision

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is in the child’s best interests. A.R.S. § 25-403.B. As part of the best-interests
analysis, the superior court must consider whether domestic violence or
child abuse has occurred. A.R.S. § 25-403.A.8; see also A.R.S. §§ 25-403.03
(further requirements for the court’s consideration of domestic violence),
13-3601 (defining domestic violence). When allegations of a parent’s
domestic violence exist, the superior court must make “detailed, specific
findings related to legal decision making and parenting time.” See DeLuna
v. Petitto, 247 Ariz. 420, 422 ¶ 4 (App. 2019) (citing A.R.S. § 25-403.03).
Failure to do so constitutes an abuse of discretion. See id. at 423 ¶ 9.

¶17 “The court shall consider evidence of domestic violence as
being contrary to the best interests of the child.” A.R.S. § 25-403.03.B. If the
superior court finds a parent has committed domestic violence, it must
determine whether the parent engaged in “significant” domestic violence
or if the parent has a “significant history of domestic violence.” A.R.S.
§ 25-403.03.A; DeLuna, 247 Ariz. at 423 ¶ 11. Such a finding “precludes an
award of joint legal decision-making.” DeLuna, 247 Ariz. at 423 ¶ 11.

¶18 A rebuttable presumption against awarding an offending
parent sole or joint legal decision-making arises if the superior court finds
the parent “committed an act of domestic violence against the other
parent.” A.R.S. § 25-403.03.D. The presumption arises no matter whether
the act was “significant” or was part of a “significant history of domestic
violence.” Compare A.R.S. § 25-403.03.D (not requiring significance or
history beyond an act of domestic violence as defined in the subsection)
with A.R.S. § 25-403.03.A (requiring “significant” domestic violence or a
history of it for the subsection to operate). To determine whether the
offending parent rebutted the presumption, the superior court must
consider the factors listed in subsection 25-403.03.E and make
corresponding findings. Olesen v. Daniel, 251 Ariz. 25, 29 ¶¶ 15–16 (App.
2021) (holding those findings are required when denying offending
parent’s request for legal decision-making); DeLuna, 247 Ariz. at 423 ¶ 17
(holding same when granting such a request).

¶19 Mother argues it was error to award father joint legal
decision-making because the evidence showed father committed significant
domestic violence. She also argues the superior court orders do not
adequately explain why father’s domestic violence was either not
significant or did not constitute a significant history of domestic violence.

¶20 The orders say father committed “an act of domestic violence
to the extent that there was some credible evidence of discipline of the
Children historically.” The orders rejected “all other allegations.” But the

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record included allegations of spanking, tripping, pushing, controlling,
threatening, and emotionally abusive conduct. The orders did not specify
the specific allegations rejected versus those attributed to “discipline.”

¶21 Without a more detailed discussion of what incidents
constituted domestic violence and their significance, we cannot effectively
review the decision-making process underlying the orders. In particular,
we cannot determine the seriousness, frequency, or timing of the alleged
domestic violence. See DeLuna, 247 Ariz. at 424 ¶ 15 n.6 (noting seriousness,
frequency, and passage of time are reasonable factors to consider in
determining whether domestic violence is significant or if a significant
history of domestic violence exists).

¶22 The orders’ lack of findings here presents even greater
difficulty because mother requested written findings of fact and
conclusions of law under Rule 82(a). Factual findings are sufficient “if they
are ‘pertinent to the issues and comprehensive enough to provide a basis
for the decision.’” Miller, 175 Ariz. at 299. “The reviewing court needs a
sufficient factual basis that explains how [the superior court] actually
arrived at its conclusion” to “effectively review [its] decision-making
process.” Id.

¶23 The findings of no significant domestic violence and no
significant history of domestic violence were conclusory and reliant on
unexplained facts. The orders concluded it was not in the oldest child’s best
interests under A.R.S. § 25-403.03 to award father joint legal decision-
making. Yet the orders awarded father joint legal decision-making for all
three children. Because the orders did not explain these inconsistent
conclusions, we vacate the legal decision-making orders and remand for
further findings.

¶24 We also cannot determine whether the parenting-time orders
are in the children’s best interests. The orders say father committed an act
of domestic violence against at least one child. The orders then note father
had not committed further acts of abuse despite not completing a batterer’s
prevention program. The orders also include conclusory findings: “[f]ather
has demonstrated that being awarded the opportunity for intensive
reunification and substantially equal parenting time is in the best interests
of [the younger children], but not [the oldest child].”

¶25 The specific findings on the record must show the reasons for
the decision. See Christopher K. v. Markaa S., 233 Ariz. 297, 301 ¶ 19 (App.
2013). Though the orders say the ordered parenting-time was in the

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children’s best interests, they lack “specific findings explaining [the]
reasoning and conclusions” showing how the parenting time would not
endanger the children or significantly impair their emotional development.
Engstrom, 243 Ariz. at 474 ¶ 18; see Olesen, 251 Ariz. at 29 ¶ 17 (holding
A.R.S. § 25-403.B requires the superior court to make specific findings on
the record about domestic violence).

¶26 Here, the orders’ conclusory analysis lacks “the essential and
determinative facts on which the conclusion was reached.” See Miller, 175
Ariz. at 300 (citation omitted). We, thus, cannot determine what incidents
constituted domestic violence, when or how often they occurred, or what
father has done to prevent future acts of domestic violence.

¶27 The orders also contradict the two experts’ recommendations
for parenting time and legal decision-making without explanation. Though
they disagreed as to the details, both the interventionist and the custody
evaluator recommended further assessment before father began
unsupervised parenting time. Even so, the orders implemented
unsupervised parenting time automatically once the Family Bridges
temporary order expired, despite the experts’ recommendations and
without finding father met the burden of proving his parenting time would
not endanger the children or significantly impair their emotional
development. See A.R.S. § 25-403.03.F.

¶28 The orders did not articulate any balancing of the domestic
violence concerns with the experts’ recommendations for parenting time.
For these reasons, we vacate the parenting-time orders and remand for
further findings. Based on our rulings, we need not address mother’s other
arguments about domestic violence and child abuse.

B. Other best-interests factors under A.R.S. § 25-403.A

¶29 Mother also argues the orders did not sufficiently analyze the
best-interests factors listed in A.R.S. § 25-403.A. She also argues the
evidence does not support finding the parenting-time orders are in the
children’s best interests.

¶30 Mother argues the orders did not adequately consider the
children’s wishes. See A.R.S. § 25-403.A.4. When the superior court
considered the children’s wishes, it found the children to be alienated from
father because of both parents’ actions, to varying degrees. The children
wanted to live with mother and to limit parenting time with father. Mother
is effectively arguing the children’s wishes should be given greater weight.

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We do not address this argument because we do not reweigh evidence on
appeal. Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009).

¶31 Mother also argues the orders do not explain why father is
more likely to allow frequent, meaningful, and continuing contact with
mother in the short term. See A.R.S. § 25-403.A.6. But the orders based that
finding on mother’s preference for a “protracted reunification process with
small steps[.]” Mother may disagree with the superior court’s view of the
evidence, but the superior court sufficiently stated its reasoning.

¶32 Finally, mother challenges the finding of the children’s
adjustment to home, school, and community. See A.R.S. § 25-403.A.3. The
orders say the children were happy and well-adjusted living with mother
and estranged from father but “preparing to work towards reunification”
with him. Still, the orders did not address how the parenting-time orders
or the reunification process will affect the children once father exercises
regular parenting time. On remand, the legal decision-making and
parenting-time orders must explain how this factor is weighed. See A.R.S.
§ 25-403.B; Miller, 175 Ariz. at 299.

III. Allocation of professional fees

¶33 The superior court ordered Mother to pay 60% of all future
reunification therapy fees and supervised parenting-time costs. Mother
challenges the orders on two grounds: (1) the record does not support the
implicit finding she could afford those costs, and (2) the orders do not
discuss her ability to pay those costs as Rule 95 requires.

¶34 Mother’s most recent financial affidavit shows she has no
income, does not work outside the home, and has $10,810.00 in monthly
expenses, including about $4,000.00 a month for the interventionist’s fees.
Father’s most recent financial affidavit shows he earns $5,150.00 a month
and has $9,417.00 in monthly expenses. Both parents claimed to have
additional debts, and mother filed for bankruptcy during these
proceedings.

¶35 Mother testified she could not afford to continue to pay 75%
of the interventionist’s fees under the previous orders or contribute to an
intensive reunification program. She also testified she has exhausted all her
financial resources and still owes money to the interventionist. Even so, she
testified she will pay the interventionist’s fees “the best she possibly can” if
ordered to do so. In response to the superior court’s direct questions about
her ability to pay for future interventionist’s fees, mother testified she
generally could pay a portion of them but not the $7,000.00 a month she had

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been paying. Mother expected the cost would decrease as the parents
progressed towards unsupervised parenting time. But on redirect, she
clarified she meant costs should come down under the proposed parenting
plan, not that she could afford the lower cost.

¶36 The orders did not address the evidence of mother’s ability to
pay the professional fees. Rather, they said it was appropriate for mother to
pay more of the professional fees instead of father receiving attorney fees.
The allocation of 60% of the professional fees to mother was, in part, a
sanction for her acting unreasonably during the litigation. Mother concedes
sanctions are an appropriate consideration in allocating the fees, but she
argues father is the one who acted unreasonably and should have to pay
more. But the orders say both parties acted unreasonably without
explaining how their behavior justified allocating 60% of the professional
fees to mother. And the record contains no findings about the parties’
financial resources, which must be considered under A.R.S. § 25-324.A.

¶37 True, we could parse the child support and attorney fees
findings to draw inferences to support affirming the allocation of
professional fees. For example, in the child support discussion, the orders
acknowledge mother filed for bankruptcy, but they also note mother was
able to “mount[] a thorough and substantial legal challenge” while her
husband supported the family. This acknowledgment implies mother could
pay more of the professional fees than father. But even then, the findings
do not show why allocating the professional fees as a sanction was
appropriate. And we cannot assume those findings underpinned the
unrelated professional fees findings because of mother’s Rule 82 request.
See Miller, 175 Ariz. at 300; Elliot, 165 Ariz. at 135.

¶38 We, thus, vacate the allocation of professional fees and
remand for further findings of fact necessary under Rules 82(a) and 95(a).

IV. Child support deviation

¶39 The orders say the $756.00 child support obligation under the
Guidelines was inappropriate and unjust here, and they deviated the award
to zero. This court reviews the superior court’s child support orders for an
abuse of discretion. Nash v. Nash, 232 Ariz. 473, 476 ¶ 5 (App. 2013).

¶40 The superior court must order child support in the amount
resulting from applying the Guidelines unless it finds in writing the
application of the Guidelines is inappropriate or unjust based on all
relevant factors, including those listed in A.R.S. § 25-320.D. Nia v. Nia, 242
Ariz. 419, 424 ¶ 20 (App. 2017). Those factors include, as relevant here, (1)

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the children’s financial resources and needs, (2) the parents’ financial
resources and needs, (3) the children’s physical and emotional condition
and educational needs, (4) the children’s medical support needs, and (5) the
duration of parenting time and related expenses. A.R.S. § 25-320.D.1, 2, 4,
6, 8. Mother argues the findings are insufficient and the record does not
support the deviation.

¶41 The orders include a child support worksheet showing the
income and adjusted child support incomes of both parents. The orders say
father would owe $756.00 monthly under the Guidelines but then says
applying the Guidelines is inappropriate and unjust. The orders also say
downward deviation was in the children’s best interests and still enabled
the parents to provide the children with the necessities of life. The orders
also awarded zero child support because it found the “[f]unds are best used
to reunify the family relationships.” This explanation sufficiently explained
why the superior court settled on zero. See Elliot, 165 Ariz. at 135.

¶42 The findings did not reference the specific paragraphs of
subsection 25-320.D. But the orders addressed the parents’ current incomes
and the cost of the reunification professionals. And it says the children’s
needs are being met. The orders, thus, included the necessary findings
under the statute and provides an adequate factual basis under Rule 82(a).

¶43 Mother claims she cannot afford to support the children and
the reunification efforts without child support. The superior court rejected
her claim because she had the resources to engage in “thorough and
substantial” litigation of those issues. We defer to this credibility
determination. Hurd, 223 Ariz. at 52 ¶ 16.

¶44 Mother also argues father did not meet his burden of showing
why a deviation was appropriate. Father testified he could not afford to pay
both child support and 25% of the professional fees as ordered. He testified
his financial affidavit was accurate and he earned $58,000.00 annually. The
interventionist and the parenting-time supervisor cost several thousand
dollars each month.

¶45 We affirm the child support orders, but if on remand the
orders for legal decision-making, parenting time, or the allocation of
professional fees change, the superior court must reconsider child support.

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CONCLUSION

¶46 We vacate the legal decision-making and parenting-time
orders and remand for sufficient written findings of fact and conclusions of
law to support the orders. We also vacate and remand the allocation of
professional fees for sufficient written findings of fact and conclusions of
law addressing mother’s ability to pay under Rule 95(a). We affirm the child
support orders, subject to reconsideration based on any changes on remand
to the legal decision-making, parenting-time, or professional fee allocation
orders.

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

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