Reid v. Reid

HALL, Judge,

dissenting.

¶ 27 The majority’s determination that the waiver rule as explicated in Trantor does not *211 apply to custody modification hearings has the unfortunate effect of delaying certainty and stability where it is most needed and prolonging litigation where it is least desirable. I agree that the family court did not adequately comply with the statutory requirement that it “make specific findings on the record about all relevant factors.” 5 A.R.S. § 25-403(B). But as the supreme court explained in Trantor, a trial court should be afforded an opportunity to correct such an error before it may be raised on appeal:

Although findings of fact and conclusions of law are certainly helpful on appellate review, they do not go to the foundation of the case or deprive a party of a fair hearing. If the court has failed to make findings and a party wants them, all one has to do is to make that issue known in the trial court. The trial court will either make findings or it will not. If it does, the party gets what it wants. If it fails to do so, the issue is preserved for review. But by failing to act at all, a litigant is not in the position to complain about how helpful findings would have been on appeal.

179 Ariz. at 300-01, 878 P.2d at 658-59.

¶ 28 The majority reasons that Trantor is distinguishable because the failure of a family court to make specific findings of fact in a child custody ease is the type of “extraordinary circumstance” that excuses a party from providing the court an opportunity to correct the defect before any error may be raised on appeal. Although I agree with the majority’s observation that there are “compelling” reasons for a family court to make the specific findings required by § 25-403(B), including the overriding concern with the best interests of the child, I disagree that the importance of adequate findings in child custody cases is a reason for us to deviate from the sound jurisprudential principle that errors not raised in the trial court cannot be raised on appeal. Rather, I believe that the importance of such findings is all the more reason why a litigant should be required to first provide the family court an opportunity to correct what is a significant but easily correctable procedural omission before asserting on appeal that the omission constitutes reversible error.

¶ 29 The majority’s determination that such errors need not be raised in the family court means that, typically, they will not be. Every litigant (at least if represented by an attorney in the family court, as were these parties) who is dissatisfied with the outcome of a child custody battle knows that there is very little likelihood that a family court will change its decision when reminded of its obligation to make specific findings, and few will pursue that route if not required to do so before seeking appellate review. Instead, this opinion permits a litigant who loses in the trial court to simply appeal and try to secure a more favorable outcome before a different judge when the child custody determination is inevitably vacated and the case remanded. At a time when the Arizona Supreme Court has recently limited the use of this type of litigation tactic in criminal cases, see State v. Henderson, 210 Ariz. 561, 567, ¶ 19 , 115 P.3d 601, 607 (2005) (holding that a defendant who fails to object to trial error forfeits his right to appellate review unless he can establish fundamental error), we should not expand its use in civil cases.

¶ 30 Moreover, to the extent that my colleagues imply that Trantor is less applicable to statutes that specifically require findings, I disagree. First, one of the attorneys’ fees statutes at issue in Trantor was A.R.S. § 12-349 (2003), under which a court may not award fees for unjustified actions without “set[tingj forth the specific reasons for the award,” A.R.S. § 12-350 (2003). Second, Trantor cited approvingly to Bayless Invest *212 ment & Trading Co. v. Bekins Moving & Storage Co., 26 Ariz.App. 265, 270-71 , 547 P.2d 1065, 1070-71 (1976), which held that a party is precluded from raising for the first time on appeal the trial court’s failure to make findings when specifically required to do so by Arizona Rule of Civil Procedure 52(a). 179 Ariz. at 301, 878 P.2d at 657. Accordingly, I perceive that Trantor’s waiver rule applies with as much vigor to statutes or rules that specifically require findings as it does when the requirement is imposed by case law. Cf. Galloway v. Vanderpool, 205 Ariz. 252, 256, ¶ 17 , 69 P.3d 23, 27 (2003) (“Once published, our interpretation [of a statute] becomes part of the statute.”); Local 266, Int’l Bhd. of Elec. Workers, A.F. of L. v. Salt River Project Agric. Improvement and Power Dist., 78 Ariz. 30, 43 , 275 P.2d 393, 402 (1954) (recognizing that “unreversed statutory construction is to be held part of the statute as if originally so written”).

¶ 31 One further point. Because my colleagues choose not to apply Trantor’s waiver rule, they do not reach the underlying substantive issue raised by Father: Whether the family court’s denial of Father’s petition for a change in custody was supported by the evidence. As a consequence, this issue will remain unresolved pending a probable further appeal by these well-funded litigants. I would reach this issue and find that the trial court’s custody order was sufficiently supported by the evidence, thus bringing this particular chapter in the parties’ litigation history to a conclusion.

¶ 32 Based on the foregoing, I respectfully dissent.

. To be fair to the family court, it did list the factors under A.R.S. § 25-403(A) that it considered and did so in a manner that showed it evaluated at least some of those faclors in light of the evidence. For example, the family court specifically mentioned that it considered the medical condition of one of the parties' children in evaluating the statutory factors listed in subsections (A)(4) ("the child's adjustment to home, school and community") and (A)(5) ("The mental and physical health of all individuals involved”). Furthermore, the court also made some specific findings, including that Mother has always been the primary caretaker of the children, that Father failed to maintain current child support payments, and that Father's claim that the children’s dental health was imperiled by Mother's neglect was not substantiated by the evidence.