In Re the Marriage of Morris & Mandel

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

IN RE THE MARRIAGE OF

ORETTE TARIZ SHAYANA MORRIS,
FKA ORETTE MANDEL,
Petitioner/Appellant,

and

CHRISTOPHER MANDEL,
Respondent/Appellee.

No. 2 CA-CV 2022-0083-FC
Filed April 25, 2023

Appeal from the Superior Court in Pima County
No. D20201560
The Honorable Cynthia T. Kuhn, Judge

AFFIRMED IN PART; REVERSED IN PART;
VACATED IN PART AND REMANDED

COUNSEL

Southern Arizona Legal Aid Inc., Tucson
By Christine Trueblood and Kristin Fitzharris
Counsel for Petitioner/Appellant

Law Office of Charles Brown PLLC, Phoenix
By Charles W. Brown Jr.
Counsel for Respondent/Appellee
 IN RE MARRIAGE OF MORRIS & MANDEL
Opinion of the Court

OPINION

Judge Sklar authored the opinion of the Court, in which Vice Chief Judge
Staring and Judge O’Neil concurred.

S K L A R, Judge:

¶1 This case requires us to address the statutory framework for
legal decision-making and parenting time when one parent has committed
domestic violence. The trial court ordered Orette Morris and Christopher
Mandel to share joint legal decision-making of their child. We conclude
that A.R.S. § 25-403.03(A) precluded it from doing so because the court also
found that Mandel had a significant history of domestic violence. We also
conclude that the court did not abuse its discretion in increasing Mandel’s
parenting time as the child reached school age. Finally, we conclude that
the court deviated from the child-support guidelines on past care and
support without appropriately considering the relevant factors.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Morris and Mandel have one minor child, K.M., who was
born in 2019. Morris filed a petition for dissolution in June 2020, when the
parties lived in Arizona. That same month, Mandel filed his own petition
for dissolution. The trial court treated that petition as a response to Morris’s
petition and consolidated the two cases.

¶3 With her petition, Morris filed a motion for emergency
temporary orders. She asserted that Mandel had engaged in a significant
history of domestic violence against her. She also sought a temporary order
allowing her to relocate with K.M. to South Korea for a military
deployment.

¶4 The domestic violence allegations arose in part from an
incident in 2018 that led to Mandel pleading guilty to criminal charges.
Because Mandel attended a diversion program, however, the charges were
dismissed. Morris also obtained orders of protection against Mandel in
2019 and 2020. Both orders were affirmed after contested hearings. In
addition, Mandel was jailed in 2019 for domestic violence against Morris.

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Morris dismissed the 2019 order before it expired to allow Mandel to be
present for K.M.’s birth.

¶5 After a hearing in July 2020, the trial court entered temporary
orders granting sole legal decision-making to Morris. The court reasoned
that Morris had “shown by a preponderance of the evidence that there ha[d]
been a significant history of domestic violence.” Therefore, the court
concluded that “an award of joint legal decision-making is barred by A.R.S.
§ 25-403.03(A).” The court also awarded primary parenting time to Morris
in South Korea, with Mandel entitled to daily video calls and parenting time
in South Korea during Morris’s leave.

¶6 Over the next two years, while the dissolution was pending,
Morris left the military, returned from South Korea, and moved to
Massachusetts. Mandel moved to South Carolina. In May 2022, after a
dissolution trial, the trial court issued a detailed ruling that included the
parties’ divorce decree.

¶7 In the decree, the trial court incorporated its prior finding that
Mandel had engaged in a significant history of domestic violence. It also
awarded the parties joint legal-decision making. In addition, it entered a
parenting plan designating Morris as the primary residential parent, with
Mandel having parenting time that would increase once K.M. began
kindergarten. Finally, it ordered Mandel to pay child support of $383 per
month, and it ordered Morris to pay $2,439 in past care and support.

¶8 Morris appealed. We have jurisdiction under A.R.S.
§ 12-2101(A)(1).

TRIAL COURT JURISDICTION

¶9 Because Morris, Mandel, and K.M. had left Arizona by the
time the trial court entered the decree’s legal decision-making and
parenting-time orders, we initially address the court’s jurisdiction to enter
those orders. Neither party addressed this issue in its briefing, but we have
an independent obligation to determine whether the court had subject-
matter jurisdiction. See Angel B. v. Vanessa J., 234 Ariz. 69, ¶ 5 (App. 2014).

¶10 Cross-jurisdictional legal decision-making and
parenting-time issues are governed by Arizona’s Uniform Child Custody
Jurisdiction and Enforcement Act, A.R.S. §§ 25-1001 to 25-1067 (UCCJEA).
Under the UCCJEA, the final orders were a “child custody determination,”
which is defined as a “permanent, temporary, initial and modification

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order, for legal custody, physical custody or visitation with respect to a
child.” § 25-1002(3)(a). Legal decision-making is synonymous with “legal
custody.” A.R.S. § 25-401(3).

¶11 Determining whether the trial court had authority to enter the
final orders requires us to first address whether it had authority to make an
“initial” child custody determination. A court has such authority if Arizona
was “the home state of the child on the date of the commencement of the
proceeding.” § 25-1031(A)(1). Here, when the proceedings commenced,
Arizona was K.M.’s home state, as he lived here from his birth in 2019 until
the proceedings commenced in June 2020. See § 25-1002(7)(a) (defining
“home state” as “state in which a child lived with a parent . . . for at least
six consecutive months immediately before the commencement of a child
custody proceeding”). Thus, the court had jurisdiction to make an initial
determination.

¶12 Here, the initial child custody determination came in the
temporary orders. See § 25-1002(3)(a) (including temporary orders in
definition of “child custody determination”), (8) (defining “[i]nitial
determination”). As noted, though, the parties and K.M. left Arizona after
the trial court made this determination and before trial. However, it does
not follow that the court lost jurisdiction. See § 25-1031(C) (“Physical
presence of or personal jurisdiction over a party or a child is not necessary
or sufficient to make a child custody determination.”). Rather, a court has
jurisdiction to modify its initial determination “if it has jurisdiction to make
an initial determination under § 25-1031.” § 25-1032(B). As we have
explained, the court had such jurisdiction. We therefore conclude that the
court had jurisdiction to enter the final orders, and we proceed to the
substantive issues.

LEGAL DECISION-MAKING

¶13 Morris first challenges the trial court’s award of joint legal
decision-making. She argues that once the court found in its temporary
orders that Mandel had engaged in a significant history of domestic
violence, it lacked the authority to modify that finding in its final orders.
But the final orders did not modify that finding. They incorporated it. We
therefore need not address whether the court had the authority to modify
the finding. Instead, we must address whether the court had the authority
to award joint legal decision-making despite finding in its final orders that
Mandel had a significant history of domestic violence.

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¶14 We review the trial court’s legal decision-making and
parenting-time orders for an abuse of discretion. Engstrom v. McCarthy, 243
Ariz. 469, ¶ 4 (App. 2018). An abuse of discretion occurs when the court
commits an error of law in reaching a discretionary conclusion or when the
record lacks competent evidence to support the decision. Id.

¶15 The relationship between domestic violence and legal
decision-making is governed primarily by A.R.S. § 25-403.03. When the
trial court finds a parent has committed an act of domestic violence against
the other parent, subsection (D) creates “a rebuttable presumption that an
award of sole or joint legal decision-making to the parent who committed
the act of domestic violence is contrary to the child’s best interests.”
§ 25-403.03(D). But “[n]otwithstanding subsection D,” when the court finds
“significant domestic violence” or a “significant history of domestic
violence,” subsection (A) requires that “joint legal decision-making shall
not be awarded.” § 25-403.03(A).

¶16 Here, Mandel does not challenge the trial court’s finding that
Morris had met her burden of establishing a significant history of domestic
violence by Mandel. Indeed, the court heard substantial evidence and
testimony to support that finding, and it adequately explained the finding
in its orders. At that point, no further analysis was needed. Under
§ 25-403.03(A), the court was precluded from ordering joint legal
decision-making.

¶17 Nevertheless, the trial court undertook the analysis that
applies when a parent has committed domestic violence that is not
“significant,” and it found that Mandel had rebutted the presumption
against an award of legal decision-making. See § 25-403.03(D), (E). But as
we have explained, subsection (D)’s rebuttable presumption did not apply.

¶18 Mandel argues that this result is unreasonable. He relies on
the trial court’s extensive findings that he had rebutted the presumption
and that joint legal decision-making was in K.M.’s best interests. He also
argues that as a public-policy matter, it is unfair to preclude a parent who
has committed significant domestic violence or has a significant history of
domestic violence from exercising joint legal decision-making. These
arguments are foreclosed by the language of § 25-403.03(A). See JH2K I LLC
v. Ariz. Dep’t of Health Servs., 246 Ariz. 307, ¶ 9 (App. 2019) (“When the
statute is clear and unambiguous, we must apply its terms without further
analysis.”). We therefore vacate the award of joint legal decision-making
and remand for the court to award sole legal decision-making to Morris.

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PARENTING TIME

¶19 We turn next to parenting time. The trial court ordered that
until K.M. began kindergarten, Mandel would exercise parenting time for
two continuous weeks at the end of each calendar quarter. Once
kindergarten began, Mandel’s parenting time would increase to eight
weeks in the summer, plus half of Christmas break and one week at spring
break. In addition, the court allowed him up to one week of parenting time
per month in Morris’s state of residence.

¶20 Morris argues that this arrangement improperly increased
Mandel’s parenting time once K.M. started kindergarten. As with legal
decision-making, we review parenting-time orders for an abuse of
discretion and treat a legal error as such an abuse. Engstrom, 243 Ariz. 469,
¶ 4.

¶21 Morris’s argument is premised in part on Mandel’s history of
domestic violence. Unlike with legal decision-making, our statutory
scheme does not prohibit parenting time for a parent who has engaged in
“significant domestic violence” or a “significant history of domestic
violence.” Rather, parents who have committed domestic violence—
“significant” or otherwise—must “prov[e] to the court’s satisfaction that
parenting time will not endanger the child or significantly impair the child’s
emotional development.” § 25-403.03(F).

¶22 If the parent does so, the trial court “shall place conditions on
parenting time that best protect the child and the other parent from harm.”
Id. The statute does not specify the conditions, but it provides that the court
“may” issue certain orders, such as: (1) requiring exchanges to occur in
protected settings; (2) requiring the perpetrator to complete an intervention
program; (3) prohibiting the perpetrator from consuming drugs or alcohol
during parenting time; or (4) “impos[ing] any other condition that the court
determines is necessary to protect the child, the other parent and any other
family or household member.” Id.

¶23 As with all parenting-time decisions, the trial court must also
conduct a best-interests analysis under A.R.S. § 25-403. The existence of
domestic violence and child abuse is one of that statute’s eleven
enumerated factors. See § 25-403(A)(8). It is also potentially relevant to
other enumerated factors. See, e.g., § 25-403(A)(1) (“past, present and
potential future relationship between the parent and the child”), (A)(5)
(“mental and physical health of all individuals involved”). For all those

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factors, courts must make specific findings on the record. Hart v. Hart, 220
Ariz. 183, ¶ 9 (App. 2009). The court must also consider domestic violence
as contrary to the child’s best interests, and it must consider the child and
victim’s safety to be “of primary importance.” § 25-403.03(B).

¶24 Here, the trial court engaged in a detailed analysis of K.M.’s
best interests. It made findings under § 25-403 that addressed Mandel’s
history of domestic violence. Although the court gave weight to that
history, it also found that Morris had withheld parenting time from Mandel
and misled the court about K.M.’s whereabouts. In addition, the court
found that K.M. had good relationships with both parents. Those findings
are supported by the record, and we find no abuse of discretion.

¶25 The trial court sufficiently addressed subsection (F), despite
Morris’s suggestion to the contrary. Although the court did not expressly
say so, it necessarily found that Mandel proved parenting time would not
endanger K.M. or significantly impair his emotional development. The
court noted that the parties had agreed Mandel could exercise
unsupervised parenting time, the domestic violence had occurred years
earlier, and K.M. was physically and mentally healthy. In addition, Morris
proposed a parenting plan that allowed Mandel to exercise parenting time.

¶26 The trial court also addressed the conditions that may be
imposed under § 25-403.03(F). First, it found that Mandel had completed a
batterer’s prevention program, which is one such condition. It also limited
communication during exchanges to further protect the parties. See
§ 25-403.03(F)(1) (allowing court to order that exchanges occur in protected
setting), (F)(9) (allowing court to impose other necessary conditions).
Expressly citing subsection (F) in this analysis would have been a better
practice. But because the court substantively addressed it, doing so
implicitly was sufficient.

¶27 Nor do we find an abuse of discretion in the trial court’s
parenting-time orders. The court reasonably recognized that as children
enter school, parenting-time arrangements must account for school
schedules. The two-weeks-per-quarter arrangement for K.M.’s
pre-kindergarten years would not work with most school calendars. As a
result, the court crafted a schedule that would comply. Morris has also
pointed to no authority that precludes a court from gradually increasing a
parent’s parenting time. Rather, the increase comports with the public
policy that absent evidence to the contrary, it is in a child’s best interests to
have “substantial, frequent, meaningful and continuing parenting time

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with both parents.” A.R.S. § 25-103(B)(1). We therefore affirm the
parenting-time orders.

CHILD SUPPORT

¶28 In calculating past care and support, the trial court treated the
parties as if they had equal parenting time through March 2022, although
Mandel had exercised little time. The court reasoned that it was
“appropriate to attribute equal parenting time based on Father’s inability
to exercise parenting time with the minor child internationally, or without
a tremendous financial burden.” Morris challenges this conclusion.

¶29 Child-support awards are within the trial court’s discretion,
and we review them only for an abuse of that discretion. State ex rel. Dep’t
of Econ. Sec. v. Ayala, 185 Ariz. 314, 316 (App. 1996). As with legal
decision-making and parenting time, a legal error in reaching a
discretionary conclusion is an abuse of discretion. In re Marriage of Robinson
& Thiel, 201 Ariz. 328, ¶ 5 (App. 2001).

¶30 Application of the child-support guidelines is mandatory.
A.R.S. § 25-320(D) (“The amount resulting from the application of the[]
guidelines is the amount of child support ordered . . . .”). Under the
guidelines, trial courts must calculate parenting time based on either a
“court order, a parenting plan, by the parents’ expectation, or by historical
practice.” A.R.S. § 25-320 app. § V(C).

¶31 In certain circumstances, however, the trial court “must
deviate” from the child-support guidelines. Before ordering a deviation,
the court must “consider[] all relevant factors.” § 25-320 app. § IX(B). These
factors include those set forth in § 25-320 and applicable case law. Id. The
court must: (1) conclude that applying the guidelines is inappropriate or
unjust; (2) consider the child’s best interests; (3) make written findings why
application of the guidelines is inappropriate and unjust, as well as why a
deviation is in the child’s best interests; (4) show in its order the amount of
the award without a deviation; and (5) show in its order the amount after
deviating. Id.

¶32 Here, we agree with Morris that, in the past-care-and-support
ruling, the trial court did not calculate parenting time based on “court
order, a parenting plan, by the parents’ expectation, or by historical
practice,” as required by § 25-320 app. § V(C). It instead considered a
different factor, namely, Mandel’s inability to exercise parenting time given

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the distance between the parties. The court erred in calculating parenting
time in this manner, as it is unsupported by the statute or guidelines.

¶33 Of course, the trial court was authorized to deviate from the
guidelines. That was arguably the effect of its decision. In fact, the
child-support guidelines provide that a deviation may be warranted where
the parenting plan “will require a parent to incur significant travel expenses
related to parenting time and the cost thereof in combination with child
support may impede the parent’s ability to exercise parenting time.”
§ 25-320 app. § IX(D)(4). The court concluded, however, that “[n]o evidence
was presented to support a deviation.” It also did not follow the procedure
for a deviation, which includes making findings and incorporating
child-support worksheets showing the deviation. Accordingly, the
decision constituted a legal error.

¶34 We therefore vacate the trial court’s decision on past care and
support and remand for additional proceedings consistent with this
decision. In its discretion, the court may order a deviation from the
child-support guidelines if it follows the required procedures and considers
the required factors.

ATTORNEY FEES AND COSTS ON APPEAL

¶35 Mandel requests an award of attorney fees and costs on
appeal under Rule 21, Ariz. R. Civ. App. P., and A.R.S. § 25-324. Section
25-324 allows a court to award a party reasonable attorney fees “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.” Having
reviewed the record as to the financial resources of both parties and
considered the reasonableness of the parties’ positions, we deny Mandel’s
request for attorney fees in our discretion. See Doherty v. Leon, 249 Ariz. 515,
¶ 24 (App. 2020).

¶36 Mandel is also not the prevailing party on appeal, as Morris
prevailed on more issues. Mandel is therefore not entitled to his costs on
appeal. See id. Although Morris did not request fees on appeal, we
conclude that she is the prevailing party, so she is entitled to her costs upon
compliance with Rule 21(b). See id.

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DISPOSITION

¶37 We reverse the trial court’s decision to award the parties joint
legal decision-making, and we vacate the decision on past care and support.
We remand with directions that the court enter a new decree that awards
sole legal decision-making to Morris and addresses past care and support
in a manner consistent with this opinion. We otherwise affirm.

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