Washum v. Paskett

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KRISTA JEAN WASHUM, Petitioner/Appellant,

v.

SPENCER JAMES PASKETT, Respondent/Appellee.

No. 1 CA-CV 23-0759 FC

FILED 09-24-2024

Appeal from the Superior Court in Maricopa County
No. FC2019-096427
The Honorable Michael Valenzuela, Judge

VACATED AND REMANDED

COUNSEL

Cantor Law Group, PLLC, Phoenix
By Travis Owen, Amanda Rae Szpakowski
Counsel for Appellant

Woodnick Law, PLLC, Phoenix
By Markus W. Risinger
Counsel for Appellee
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MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

C A T T A N I, Judge:

¶1 Krista Washum (“Mother”) appeals the superior court’s order
granting Spencer Paskett (“Father”) joint legal decision-making and
parenting time as the primary residential parent. For reasons that follow,
we vacate the modification order and award of attorney’s fees and remand
for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father married in 2011 and have two children,
one born in 2014 and the other in 2015. In January 2020, Mother and Father
dissolved their marriage by consent decree. Neither was represented by
counsel at the time. The decree, as approved and entered by the court,
included a finding that “[s]ignificant domestic violence has occurred
during this marriage” but did not provide any underlying facts. The decree
awarded Mother sole legal decision-making, and Father received no
parenting time. Father later asserted that he agreed to the decree “because
he was depressed, felt pressured, and did not want to fight Mother in
court.”

¶3 Notwithstanding the parenting time orders in the decree,
Mother and Father agreed to allow Father parenting time. Father had
parenting time with the children every weekend from January to June 2020,
when Mother relocated with the children to Idaho. Father then moved to
set aside the decree and petitioned to modify legal decision-making,
parenting time, and child support, but the court denied both requests as
untimely.

¶4 In January 2021, Father again petitioned to modify legal
decision-making, parenting time, and child support. After a temporary
orders hearing later that year, the court ordered temporary joint legal
decision-making authority, with Mother having the final say, and awarded
Father parenting time on a phased schedule, starting with video chats and

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phone calls and increasing to unsupervised parenting time one weekend
each month.

¶5 Mother did not facilitate the calls as ordered, and Father
asked the court to appoint a therapeutic interventionist (“TI”) to aid with
reunification efforts. Mother and Father agreed on a TI, who opined that
the children seemed comfortable with Father and did not appear anxious
about spending time with him. As with Father’s phone calls, Mother failed
to facilitate the TI’s work, and the court later found that overall, Mother
“did not comply with the process.”

¶6 In August 2023, the court held an evidentiary hearing on
Father’s petition to modify at which Mother, Father, and the TI testified.
The court awarded Mother and Father joint legal decision-making, with
Father having final say. The court designated Father as the children’s
primary residential parent and granted Mother up to one week of parenting
time each month in Arizona. As part of the best-interests analysis, the court
noted that each party alleged the other had committed domestic violence
but found that neither had proven domestic violence. See A.R.S. §§ 25-
403(A)(8), -403.03. Finding a disparity in financial resources and that
Mother had been unreasonable, the court awarded Father a portion of his
attorney’s fees. See A.R.S. § 25-324(A).

¶7 Mother timely appealed from the merits judgment and
attorney’s fee award. We have jurisdiction under A.R.S. § 12-2101(A)(2).

DISCUSSION

¶8 Mother’s primary contention on appeal is that the superior
court erroneously disregarded the finding of significant domestic violence
in the consent decree and thus erred by failing to follow § 25-403.03’s
domestic-violence-specific strictures and presumptions as to legal decision-
making and parenting time. We review the superior court’s rulings on legal
decision-making and parenting time for an abuse of discretion, deferring to
the court’s factual findings, but consider de novo any questions of law.
DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). An error of law or a
decision lacking record support constitutes an abuse of discretion. Id.

I. Legal Decision-Making and Parenting Time.

¶9 Arizona courts determine legal decision-making and
parenting time “in accordance with the best interests of the child.” A.R.S. §
25-403(A). To do so, the court must consider all relevant factors bearing on
the children’s well-being. See, e.g., A.R.S. §§ 25-403(A)(1)–(11),

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-403.01(B)(1)–(4). In contested cases, the court must make express findings
“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).

¶10 Among the myriad factors bearing on best interests, the court
must specifically consider “[w]hether there has been domestic violence or
child abuse pursuant to § 25-403.03.” A.R.S. § 25-403(A)(8). Section 25-
403.03, in turn, creates an array of prohibitions and presumptions
applicable to legal decision-making and parenting time decisions when the
court finds various types or degrees of domestic violence by one or both of
the parents. See, e.g., A.R.S. § 25-403.03(A)–(B), (D)–(E), (F). First, the statute
flatly prohibits an award of joint legal decision-making if the court finds
“significant” domestic violence as defined in § 13-3601 or a “significant
history” of domestic violence. A.R.S. § 25-403.03(A). If the court finds one
parent committed “an act” of domestic violence against the other, the
statute imposes a rebuttable presumption that awarding legal decision-
making to the perpetrator is contrary to the child’s best interests; no
presumption applies if each parent has committed domestic violence
against the other. A.R.S. § 25-403.03(D) (qualifying acts and presumption),
(E) (rebutting the presumption). A parent found to have committed an act
of domestic violence must prove that granting parenting time will not
endanger the child, and the court may impose conditions on any parenting
time awarded as necessary to protect the child and the other parent. A.R.S.
§ 25-403.03(F). And in all cases, the court must consider domestic violence
to be against a child’s best interests and place “primary importance” on the
victim’s and child’s safety. A.R.S. § 25-403.03(B).

¶11 As with any best-interests factor relevant to a contested case,
the court must make findings regarding the existence of domestic violence
(“significant” or otherwise) and whether the statutory presumption has
been rebutted. Olesen v. Daniel, 251 Ariz. 25, 29, ¶ 17 (App. 2021) (as
amended); see also In re Marriage of Diezsi, 201 Ariz. 524, 526, ¶ 5 (App. 2002).
Failure to make the requisite findings is reversible error. See Christopher K.
v. Markaa S., 233 Ariz. 297, 301, ¶ 18 (App. 2013); Nold v. Nold, 232 Ariz. 270,
273, ¶ 11 (App. 2013).

A. Significant Domestic Violence.

¶12 Mother argues that the superior court’s ruling is fatally
flawed because the court found no domestic violence (and made its legal
decision-making and parenting time decisions accordingly) despite the
finding of significant domestic violence in the consent decree. We agree.

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¶13 In ruling after the evidentiary hearing on modification, the
superior court acknowledged that each party alleged the other had
committed domestic violence and recited the relevant statutory provisions,
but it found that neither had proven the existence of domestic violence.
Although the court carefully considered the evidence presented at the
evidentiary hearing in reaching this conclusion, the court was not writing
on a blank factual slate.

¶14 The consent decree included an express finding that
“[s]ignificant domestic violence has occurred during this marriage.”
Although initially devised by the parties’ agreement, the superior court
approved the consent decree—making the findings its own—and entered
the decree as a final judgment. See Ariz. R. Fam. Law P. 78(a)(1), (c).
Although the court here found that changed circumstances warranted
modification, the question of whether domestic violence (here, significant
domestic violence) existed had already been litigated and decided. See
Olesen, 251 Ariz. at 30, ¶¶ 20–22. Accordingly, the superior court erred by
disregarding the prior finding of significant domestic violence.

¶15 The consent decree’s recital that “[s]ignificant domestic
violence has occurred during this marriage” affects the court’s ruling in
several ways. First, because the finding reflects significant domestic
violence, § 25-403.03(A) precludes an award of joint legal decision-making
as the court here directed. On remand, the court must determine which
parent should be awarded sole legal decision-making.

¶16 Second, the existence of significant domestic violence
presupposes the existence of at least some act of domestic violence, which
likely implicates the presumption against awarding legal decision-making
authority to the perpetrator. See A.R.S. § 25-403.03(D). As Father
highlights, however, the consent decree did not describe the facts
underlying the domestic violence finding, or even which of them
perpetrated the violence. On remand, the court must determine whether
the domestic violence was committed by Mother, Father, or both.
Depending on that factual determination, the court must consider whether
the presumption under § 25-403.03(D) applies and, if so, whether the
perpetrator has rebutted that presumption as described in § 25-403.03(E).

¶17 Third, a parent found to have committed an act of domestic
violence must prove that parenting time would not endanger the children.
See A.R.S. § 25-403.03(F). Depending on the court’s factual determination
as to the perpetrator(s) of domestic violence, the court on remand must

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assess whether that burden of proof has been met and whether conditions
on parenting time are necessary. See A.R.S. § 25-403.03(F)(1)–(9).

¶18 Finally, the court’s factual determination on remand as to the
perpetrator(s) of the domestic violence may (or may not) affect its
assessment of other best-interests factors, including which parent is more
likely to permit contact with the other under A.R.S. § 25-403(A)(6), whether
Mother’s relocation should be weighed against her under A.R.S. § 25-
403.03(I), and how to weigh that factor under A.R.S. § 25-403.03(B).

¶19 Accordingly, we vacate the modification order and remand
for the superior court to make additional findings and adjust its best-
interests assessment as necessary given the existing finding of significant
domestic violence in the consent decree. Other than the prohibition on
awarding joint legal decision-making under § 25-403.03(A), the superior
court has discretion on remand to award sole legal decision-making and
parenting time as appropriate, after making the requisite findings and
engaging in the domestic-violence-specific analysis described above. We
express no opinion on the court’s ultimate conclusions as to the appropriate
allocation of authority and parenting time.

B. Other Considerations.

¶20 Mother challenges the court’s parenting time decision on
several grounds distinct from the domestic-violence issue. We address
these arguments insofar as they may constrain the issues on remand.

¶21 Mother argues that the court erred by designating Father as
the primary residential parent because the children had lived with her for
a substantial period without issue. See Johnson v. Johnson, 13 Ariz. App. 574,
577 (App. 1971) (“[W]here young children have by a custody award been
placed in one home and have remained there for a substantial period of
time and the situation there appears to be satisfactory, the court should be
reluctant to remove them.”). But status quo is not a substitute for a best-
interests assessment, particularly when the court has found a change in
circumstances warranting modification. See Backstrand v. Backstrand, 250
Ariz. 339, 343, 345–46, ¶¶ 14, 25 (App. 2020).

¶22 Here, the court analyzed all best-interests factors (other than
the domestic violence issue described above) under A.R.S. § 25-403(A)(1)–
(11), as well as factors bearing on relocating the children from Idaho to
Arizona under A.R.S. § 25-408(I)(2)–(8). The court found no credible
evidence that Father was a threat to the children and concluded that Mother
had acted to frustrate Father’s relationship with the children. Mother

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asserts that Father’s lack of contact with the children was not due to her
relocation or interference, but rather because the consent decree granted
him no parenting time or legal decision-making authority. But the court
highlighted Mother’s noncompliance with the temporary orders that did
grant Father a share of legal decision-making and phased-in parenting time,
and the court considered evidence from Father and the TI outlining
Mother’s actions hindering the reunification process. Although Mother
views things differently, the court had an adequate basis supporting its
decision to designate Father as the primary residential parent (subject to the
court’s consideration of the domestic-violence issue on remand).

¶23 Mother further contends that the court erred by giving
improper weight to the TI’s testimony. Although the court cannot delegate
to an expert witness its responsibility to make an independent best-interests
assessment, the court here did not do so. See Nold, 232 Ariz. at 273–74, ¶ 14.
Rather, the court recounted certain evidence provided by the TI and
permissibly exercised its discretion to credit that evidence, just as it may
weigh conflicting evidence and assess the credibility of witnesses generally.
See Backstrand, 250 Ariz. at 346, ¶ 27.

¶24 Accordingly, Mother has not shown error beyond the
domestic-violence issue described above.

II. Attorney’s Fees in Superior Court.

¶25 Mother argues the superior court erred by awarding Father
attorney’s fees under A.R.S. § 25-324(A), asserting that the court wrongly
found that she took unreasonable positions. Because we vacate the
modification order on which the fee award was based, we likewise vacate
the award of attorney’s fees without prejudice to a future request on
remand.

III. Attorney’s Fees on Appeal.

¶26 Both sides request an award of attorney’s fees on appeal.
Mother cites only ARCAP 21, which is not a substantive basis for an award.
See ARCAP 21(a)(2). Father seeks an award under A.R.S. § 25-324(A).
Having considered the relevant statutory factors and in an exercise of our
discretion, we deny both requests.

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CONCLUSION

¶27 For the foregoing reasons, we vacate the modification order
and attorney’s fee award and remand for further proceedings consistent
with this decision.

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

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