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In re Nold

Court of Appeals of Arizona, First Division, Department A

July 16, 2013

In re the Matter of: DANA K. NOLD, Petitioner/Appellee,
v.
ANDREW P. NOLD, Respondent/Appellant.

Appeal from the Superior Court in Maricopa Cause No. FC2010-052627, Honorable Douglas Gerlach, Judge

Scott L. Patterson, PLLC, Tempe, By Scott L. Patterson Attorneys for Petitioner/Appellee

Gene R. Stratford, Phoenix And The Murray Law Offices, P.C., Scottsdale, By Stanley D. Murray Attorneys for Respondent/Appellant

AMENDED OPINION

OROZCO, Judge

¶1 Andrew P. Nold (Father) appeals the family court's custody order and the allocation of certain property to Dana K. Nold (Mother). We conclude that the family court failed to comply with the requirement for specific findings on the record regarding the physical custody decision. We also vacate the family court's award of the life insurance policy, the John C. Lincoln 401k, and the Pioneer individual retirement account (Pioneer IRA) to Mother and remand for division of those assets.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mother filed a petition for legal separation and obtained an order of protection in July 2010. After a hearing, the family court quashed the order. In Father's response to the petition for legal separation, he requested that the petition for legal separation be converted to a petition for dissolution of marriage.[1]

¶3 After Father moved out of the family home, the parties equally shared physical custody of their three children on an alternating week schedule. At trial, Mother requested that Father have the children every other weekend during the school year and alternating weeks only during the summer months. Father sought to continue joint physical custody year-round.

¶4 As directed by the family court, the parties filed separate pretrial statements in July 2011, two weeks before trial. Mother listed the Pioneer IRA and employer-provided retirement accounts among the contested issues. Father did not mention any retirement accounts or insurance policies in his description of contested issues. At trial, Father questioned Mother about her John C. Lincoln 401k, the Pioneer IRA, and the Ozark life insurance policy. Mother objected, arguing Father's pretrial statement did not set forth any claim to the John C. Lincoln 401k or the cash value of the life insurance policy, and therefore, Father could not claim any community property interest in these assets. The family court agreed that Father failed to preserve his claim that there was a community property interest in Mother's John C. Lincoln 401k, the life insurance policy, or any other retirement account by not asserting these claims in his pretrial statement.

¶5 The family court adopted the parenting time schedule recommended by the custody evaluator, allowing the children to reside with Mother during the week and every other weekend during the school year, with the parents sharing joint physical custody only during the summer. In support of this ruling, the court stated that "no persuasive evidence established a sound reason for deviating from the parenting time schedule [the custody evaluator] suggested." The family court also stated that it considered the factors listed in A.R.S. § 25-403 (Supp. 2012)[2], but it did not make any findings as to those factors. The family court also found no evidence of domestic violence sufficient to preclude the award of joint legal custody pursuant to A.R.S. §§ 25-403.A.11 and 403.03.

¶6 Father filed a motion for new trial but did not object to the sufficiency of the statutory findings regarding custody. The family court denied the motion and Father filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101.A.1, 5(a) (Supp. 2012).

DISCUSSION

Waiver

¶7 Mother contends Father waived any objection to the lack of statutory findings by failing to make this objection in his motion for new trial. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (holding that "absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal"). In support of her waiver argument, Mother cites Banales v. Smith, which held that the father's failure to object to the family court's omission of one of the ยง 25-403 factors in a motion for new trial ...


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