Winters v. Perez

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

GREGORY WINTERS, Petitioner,

v.

MACIE PEREZ, Respondent.

No. 1 CA-SA 26-0094
FILED 8-12-2026

Petition for Special Action from the Superior Court in Maricopa County
No. FC2024-090003
The Honorable Amanda M. Parker, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

RJ Peters & Associates PC, Phoenix
By Rich J. Peters
Counsel for Petitioner

Defenders of Children, Phoenix
By Shannon Maier Brien
Counsel for Respondent

WINTERS v. PEREZ
Opinion of the Court

OPINION

Vice Chief Judge David D. Weinzweig delivered the opinion of the Court,
in which Presiding Judge Michael J. Brown and Judge Andrew J. Becke
joined.

W E I N Z W E I G, Vice Chief Judge:

¶1 A party who invokes the Fifth Amendment privilege against
self-incrimination in dissolution proceedings may not offer personal
testimony to support his case, and the trial judge may draw a negative
inference from his silence. In a dissolution proceeding that turns on one
issue, like child custody, the rule is absolute and the invoking party may
not offer any personal testimony. But dissolution proceedings often turn
on more than one issue. When a proceeding raises discrete, unrelated
issues, invoking the privilege on one issue does not bar testimony on the
others. We hold that Father may invoke the privilege on domestic violence
questions and still testify about the division of marital assets and debt, and
the superior court erred by ruling otherwise.

FACTS AND PROCEDURAL BACKGROUND

¶2 Gregory Winters (“Father”) and Macie Perez (“Mother”)
married in March 2019 and share three minor children. Mother petitioned
for divorce in 2024. The parties disputed legal decision-making, parenting
time, child support, property division, debt allocation and attorney fees.

¶3 In her pretrial statement, Mother alleged a significant history
of domestic violence by Father, stressing an incident from December 2023,
when he flashed a gun at Mother and her friends and cocked it. Mother
planned to testify about that history at trial to defeat Father’s request for
legal decision-making authority. See A.R.S. § 25-403.03.

¶4 Father planned to invoke the Fifth Amendment if questioned
about the December 2023 incident, accepting the court could draw a
negative inference from his silence. But he wanted to testify about
unrelated financial issues, like the division of marital assets and debt, which
he viewed as separate from the domestic violence allegations.

¶5 Father took the stand at trial and invoked his Fifth
Amendment privilege with respect to the December 2023 incident. The

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Opinion of the Court

superior court then ruled Father could not testify about any issues. Father
objected, arguing he should be permitted to testify about unrelated
financial issues. The court continued the trial so Father could seek special
action review. We accepted jurisdiction and granted relief with an opinion
to follow. This is that opinion.

JURISDICTION

¶6 Special action jurisdiction is discretionary and appropriate
when no “equally plain, speedy, and adequate” remedy exists by appeal.
Ariz. R.P. Spec. Act. 12(a).

¶7 We accept jurisdiction. Father has no adequate remedy by
appeal. He faces a constitutional dilemma: waive the privilege and risk
criminal exposure, or preserve it and forfeit his chance to testify about
financial issues. See Ariz. R.P. Spec. Act 12(b)(2). The issue on appeal can
also evade review because parties faced with this dilemma tend to waive
the privilege rather than litigate. See Ariz. R.P. Spec. Act. 12(b)(5).

DISCUSSION

¶8 We review evidentiary rulings for an abuse of discretion but
review constitutional and legal questions de novo. State v. Pandeli, 215 Ariz.
514, 522, ¶ 11 (2007).

¶9 The Fifth Amendment directs that no person “shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. The privilege applies to the states, Malloy v. Hogan, 378 U.S. 1, 6
(1964), and extends to civil litigation when a witness is asked to answer a
question that might incriminate them in a future criminal case, Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973). But it operates differently in civil and criminal
settings. In civil proceedings, the factfinder may draw a negative inference
from a defendant’s silence. Montoya v. Superior Court, 173 Ariz. 129, 131
(App. 1992). In criminal proceedings, the factfinder may not. State v. Parker, 231 Ariz. 391, 406, ¶ 67 (2013).

¶10 At issue here is whether a party who invokes the Fifth
Amendment privilege on one issue in dissolution proceedings may still
testify about other discrete, unrelated issues.

¶11 Both parties agree that Montoya v. Superior Court controls, but
they disagree about what it means here. 173 Ariz. 129. Montoya was a child
custody dispute. Id. at 129–30. Each parent wanted parenting time and
legal decision-making over their child—no more. Id. Father invoked his

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Fifth Amendment privilege to avoid questions about prior drug use. Id.
For that reason, the superior court struck his pleadings and entered default
judgment for the mother. Id. We vacated the court’s order, holding that the
superior court imposed an “undue cost” on father’s exercise of the
privilege. Id. at 131–32 (quoting Mahne v. Mahne, 66 N.J. 53, 61 (1974)). We
agreed, however, that an all-or-nothing principle governed: if the father
invoked the privilege, the court could draw a negative inference, and he
could offer no personal testimony to support his case. Id.

¶12 That rule does not apply here. Montoya raised one contested
issue—child custody—and father’s drug use was directly relevant to that
issue. See id. at 130; A.R.S. § 25-332(A)(5) (1992) (directing courts to consider
“the mental and physical health of all individuals involved”). Against that
backdrop, an all-or-nothing rule followed.

¶13 This case is different. The parties here raise several distinct
legal issues: legal decision-making, parenting time, property division, debt
allocation and attorney fees. The December 2023 domestic violence
incident bears on legal decision-making and parenting time, see A.R.S. § 25-
403.03 (2025) (prohibiting joint legal decision-making upon finding
significant domestic violence and directing courts to consider domestic
violence as contrary to a child’s best interests),1 but not on the division of
marital property. That issue turns on when the disputed property was
acquired, Bender v. Bender, 123 Ariz. 90, 92 (App. 1979), and it proceeds
“without regard to marital misconduct,” A.R.S. § 25-318(A).

¶14 Our reading is confirmed by Montoya’s reliance on Brown v.
United States, 356 U.S. 148, 155–56 (1958), where the U.S. Supreme Court
held that a party who elects to testify “cannot reasonably claim that the Fifth
Amendment gives him not only this choice but, if he elects to testify, an
immunity from cross-examination on the matters he has himself put in
dispute.” (Emphasis added). Father has not placed legal decision-making
or parenting time in dispute. Just the opposite. He concedes those issues
are off the table once he invokes the privilege and accepts the negative
inference.

¶15 A party may not use privileged information as a sword while
asserting the privilege as a shield. U.S. v. Rylander, 460 U.S. 752, 758 (1983).

1 Earlier this year, the legislature substantially amended A.R.S. § 25-
403.03. See H.B. 2995, 57th Leg., 2d Reg. Sess. (Ariz. 2026). The dissolution
proceedings in this case preceded the amendment, so we refer to the
statute’s prior version.

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Father wields no sword. He does not propose to testify about his fitness as
a parent, his conduct in December 2023, or any other fact relevant to legal
decision-making or parenting time. He intends to testify only about
finances—matters the privilege does not reach.

¶16 Because Father seeks only to testify about finances, the
superior court imposed an impermissible penalty on his silence. A party
who invokes the Fifth Amendment “should suffer no penalty for his
silence.” Wohlstrom v. Buchanan, 180 Ariz. 389, 391 (1994) (quoting Wehling
v. Columbia Broad. Sys., 608 F.2d 1084, 1087 (5th Cir. 1979)). A “penalty” is
“the imposition of any sanction which makes assertion of the Fifth
Amendment privilege ‘costly.’” Id. (quoting Spevack v. Klein, 385 U.S. 511,
515 (1967)). There are natural consequences of invoking the Fifth
Amendment privilege that are not penalties. When Father invokes the
privilege in response to domestic violence questions, he loses the right to
testify on those issues, and the court may draw a negative inference. See
Montoya, 173 Ariz. at 130–31. That is not a penalty.

¶17 But here, the superior court barred Father from testifying
about asset and debt division because he exercised a constitutional right
and invoked the privilege on a different topic. That is an unconstitutional
penalty. Wohlstrom, 180 Ariz. at 391.

¶18 Mother argues that departing from Montoya’s all-or-nothing
rule will complicate dissolution trials because financial issues can turn on
the same domestic violence conduct Father refuses to discuss under oath.
That concern is legitimate. Section 25-318(C) provides that a family court
may consider “all actual damages and judgments from conduct that
resulted in criminal conviction of either spouse in which the other spouse
or a child was the victim.” And a marital waste claim might conceivably
implicate domestic violence allegations. But those limited cases do not
justify a categorical rule that punishes Father for invoking a constitutional
right. The answer to complexity is judicial management, not a blunt
preclusion order.

¶19 We do not reach whether a parent who invokes the privilege
on a parental fitness issue may still offer other testimony bearing on the
child’s best interests. Father never asked for that. He asked only to testify
about finances, and that is all we decide.

CONCLUSION

¶20 Accepting special action jurisdiction, we grant relief and
vacate the superior court’s order barring Father’s testimony on financial

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matters. Father remains precluded from testifying about legal decision-
making and parenting time if he invokes the privilege on the December
2023 domestic violence incident, and the superior court may draw a
negative inference on those issues. We remand for proceedings consistent
with this opinion.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JT

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