Divorces and child custody matters are often rife with disputes and frustrations. So if a judge does not follow court rules when making decisions in such cases, the cost to those involved can be more than just increased attorney fees.
Such an example was addressed earlier this week when the Arizona Court of Appeals vacated -or reversed- a parenting time order issued by Judge David Thorn of the Cochise County Superior Court nearly one year ago in the case of Sarah Branson v. Roman Gaskill, who were divorced in July 2019.
Thorn’s order was reversed, according to the Dec. 29 appellate decision, because it did not comply with Rule 78 of the Arizona Rules of Family Law Procedure. But before the court of appeals could get to that point the case was delayed for nearly two months while Thorn had to reissue another deficient order
Public records show that at the time of the Branson-Gaskill divorce, Thorn awarded the parents joint decision-making authority and shared parenting time, with Branson’s home to be their two children’s primary residence. A short time later Gaskill sought mediation to resolve custody issues.
The parents were unable to reach an agreement through conciliation court, leading Thorn to conduct a contested parenting time trial in February 2020. He then issued two orders, one about child support and one which addressed when each parent would have time with their children.
Branson appealed the parenting time order in May, but her appeal was put on hold in October when the court of appeals discovered Thorn’s parenting time order was missing “finality language.” Court rules require such language to make it clear that a trial judge is done ruling on the matter at hand.
The case was then sent back to Thorn for a corrected order and to allow him to rule on a pending motion for clarification. A new order was submitted in November, but there was a further delay when the court of appeals found that it also “omits the requisite language of finality pursuant to (Rule 78).”
On Dec. 16, Branson’s appeal from May was finally submitted to a three-judge panel for consideration. But their unanimous Dec. 29 decision is likely not what she nor Gaskill expected.
Instead, Presiding Judge Karl Eppich noted the court of appeals is “unable to perform an appropriate appellate review” at this time. The problem, Eppich noted, is that a trial court must base its decision in a contested parenting time case on the best interests of the children, considering all 11 factors set forth in Arizona Revised Statute 25-403 relevant to a child’s physical and emotional well-being.
But Thorn’s order does not address the required language of § 25-403. And a court “abuses its discretion when it fails to make specific findings under § 25-403” or it fails to explain how the court weighed those various factors in reaching its decision, Eppich noted.
As a result, the court of appeals vacated the parenting time order that was issued in early 2020 and sent the case back to Thorn “for further proceedings.” Once Thorn complies with a proper order then Branson can again pursue her appeal.
In the meantime, the ex-spouses do not have closure on the issue of child custody which was first brought before the court more than 17 months ago.
Arizona Daily Independent reached out to two attorneys familiar with family law about dealing with situations in which a court does not comply with rules of procedure. Neither attorney was involved in the Branson and Gaskill case.
Jared P. Smith of the Sierra Vista Divorce Law Firm says he understands divorce and custody cases can be stressful, time consuming, and expensive enough without the need for a drawn out appeal that is not the fault of either party.
“Unfortunately, that is not justice,” he said of the lack of § 25-403 findings in the Branson-Gaskill parenting plan order.
“Of course the court should know what it’s required to do, but it’s part of the attorney’s job to make sure that the court makes the required findings,” Smith said. “I cannot guess as to why the court in this case did not make the specific findings required, but it’s our practice to ensure that the court does make those findings.”
Attorney Chris Russell of The Russell’s Law Firm talked about the problems with getting final judgments done in a timely manner and how the delays can impact the appeal rights of the parties.
“I can’t speculate on the internal workings of the bench and why there are problems getting final judgments done timely,” Russell said. “If the minute entry is the final order it’s incumbent on the judge to include the final judgment language as required by rule and to sign the decision so that the litigants know that the notice of appeal time has started.”
He also noted delays can be mitigated if the lack of finality language is noticed at the time an order is issued.
“It’s my belief that part of our role as the trial attorney is to assist the court in meeting these kinds of requirements,” Russell said. “It’s my practice, when the required language is missing, to call the judge’s office and speak with the judge’s Judicial Assistant to ensure that all orders comply with the rules.”
That’s important, he added, because if a party misses the notice of appeal deadline “they have forfeited their right to appeal the decision.”
It is unknown whether Thorn will issue the required § 25-403 findings based on the February 2020 trial transcript or if he will conduct another hearing with the parties.