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In re DeLuna

Court of Appeals of Arizona, First Division

September 5, 2019

In re the Matter of: SYLVIA ROSE DELUNA, Petitioner/Appellant,

          Appeal from the Superior Court in Maricopa County No. FC2017-051406 The Honorable Jennifer C. Ryan-Touhill, Judge.

          The Law Office of Kristen Kaffer, PLLC, Phoenix By Kristen E. Kaffer Counsel for Petitioner/Appellant.

          Law Offices of James B. Rolle, Phoenix By James B. Rolle, III Counsel for Respondent/Appellee.

          Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie joined. Judge Jennifer M. Perkins specially concurred.


          WINTHROP, JUDGE.

         ¶1 In this opinion, we address the superior court's statutory obligation to state its analysis on the record when making legal decisionmaking and parenting-time decisions after the court finds that a parent has engaged in domestic violence. We hold Arizona Revised Statutes ("A.R.S.") section 25-403.03(A) and (D) (2019)[1] require different analyses regarding legal decision making and those specific findings must be stated on the record. We further hold that A.R.S. § 25-403.03(F) requires the superior court to make specific findings on the record when determining parenting time.

         ¶2 As a preliminary matter, we start with some statistical information for context. In recent years, superior court filings involving divorce, legal decision making and/or parenting time have substantially increased. In 2018, per statistics published by the Maricopa County Superior Court Clerk's Office, [2] there were 35, 757 family court cases involving children filed in Maricopa County.[3] Many of those filings include requests for the court to initially determine or modify legal decisionmaking and parenting-time orders.

         ¶3 In general the statutes governing decisions concerning parenting time, legal decision making, and relocation impose on a superior court the obligation to make specific findings supporting those decisions. See A.R.S. §§ 25-403, -408(G), (I); Owen v. Blackhawk, 206 Ariz. 418, 421-22, ¶¶ 9-12 (App. 2003) (holding that although A.R.S. § 25-408 makes no reference to findings of fact, specific findings were required by A.R.S. § 25-403 because a proposed relocation involved a substantial and disputed change in physical custody); see also Murray v. Murray, 239 Ariz. 174, 177, ¶ 9 (App. 2016) ("Under Owen, when the superior court holds a hearing on a request for relocation that necessarily implicates a change in parenting time or legal decision making, the court must make the specific findings of fact required in cases of parenting time and legal decision making under § 25-403.").[4]

         ¶4 Similarly, over that same time period, allegations of domestic violence by a parent-directed at a spouse or a child, or both-have also dramatically increased. The legislature has, in turn, enacted and amended statutes that require the superior court make additional detailed, specific findings related to legal decision making and parenting time where there are allegations of domestic violence. See A.R.S. § 25-403.03. At times, those statutes and amendments have been imprecise or lack definitions of critical terms, leading to confusion and unintended errors by the superior court in applying the law to the facts of the particular case, sometimes resulting in inconsistent rulings that do not fulfill the statutory mandate.[5]

         ¶5 In this matter, Sylvia Rose DeLuna ("Mother") appeals from a decree of dissolution awarding joint legal decision-making authority and unsupervised parenting time to Giovanni Alexander Petitto ("Father") and denying her request that Father be ordered to reimburse the community for paying Father's separate debt. Because the superior court failed to properly apply the domestic violence statutes about legal decision-making and parenting-time determinations, we vacate the legal decision-making and parenting-time orders and remand for reconsideration. We affirm the denial of the reimbursement request.


         ¶6 The parties were married in 2016 and have three children. Before their marriage, in 2013, Father was arrested after he assaulted Mother and her daughter from a prior relationship. Mother ultimately did not cooperate in the prosecution of the resulting charges, and the charges were dismissed.

         ¶7 After the parties separated in July 2017, Mother obtained an order of protection based on Father's stalking and harassing behaviors. Father was ordered to not have any contact with Mother except through text messages about the children's welfare. In August 2017, Father violated the protective order when he entered Mother's residence and took her cell phone after an argument. Later that same day, Father waited outside Mother's residence but left before the police arrived.

         ¶8 Mother petitioned for dissolution in September 2017, and the superior court held a trial on the petition in September 2018. After the trial, the court issued a lengthy decree of dissolution finding that, although Father had committed domestic violence, it was not "significant domestic violence" under the provisions of ยง 25-403.03(A). The court ruled that Father was not precluded from joint legal decision-making authority, and also awarded Father parenting time three weekends per month, alternating holidays, and every other week during the summer months. The court denied Mother's request to reimburse the community for paying Father's separate child ...

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