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Date: 02-05-2018

Case Style:

Dana Jennifer Engstrom v. James McCarthy

Case Number: 1 CA-CV 16-0689 FC

Judge: Portley

Court: Arizona Court of Appeals, Division One on appeal from the

Plaintiff's Attorney: Randi Burggraff, Justine Tash, Michael Dinn and Ruth Lusby

Defendant's Attorney: Stanley Murray

Description: ¶1 Dana Engstrom (“Mother”) and James McCarthy (“Father”)
both challenge the parenting time and legal decision-making terms of the
decree dissolving their marriage. Because we find their Arizona Rule of
Family Law Procedure (“Rule”) 69 agreement binding and no explanation
in the record for any modification, we vacate the legal decision-making and
parenting time orders and remand for further proceedings.
¶2 The parties married in 2002 and have four children. Mother
filed a petition for dissolution of marriage in 2014.
¶3 After trial, the family court dissolved the marriage, awarded
Mother sole legal decision-making authority, and awarded the parties
shared parenting time. We have jurisdiction over the cross-appeals from
the July 2016 decree under Arizona Revised Statutes (“A.R.S.”) section
¶4 Both parents challenge the award of parenting time and legal
decision-making. We will affirm the family court’s order of parenting time
and legal decision-making absent an abuse of discretion. Nold v. Nold, 232
Ariz. 270, 273, ¶ 11 (App. 2013). An abuse of discretion results when the
record is “devoid of competent evidence to support the decision,” or when
the court commits an error of law in the process of reaching a discretionary
conclusion. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2009). Moreover, we
defer to the court’s findings of fact unless they are clearly erroneous. See
Alvarado v. Thompson, 240 Ariz. 12, 14, ¶ 11 (App. 2016). But “[c]onclusions
1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
VI, Section 3 of the Arizona Constitution.
Opinion of the Court
of law and the interpretation of statutes and rules are reviewed de novo.”
A. Rule 69 Agreement
¶5 Father contends that, because he and Mother had entered into
a Rule 69 agreement before trial that was approved and adopted by the
court as an enforceable order, the court “could not modify [the] final,
existing order regarding legal decision-making and parenting time absent
a showing of a substantial and continuing change of circumstances.”
Mother disagrees, and claims “the [family] court had authority to reject the
parties’ Rule 69 Agreement because it ha[d] discretion” to do so under Rule
69(B) and A.R.S. § 25-317.
¶6 In an October 2014 pretrial resolution management
conference, the parties entered into a Rule 69 agreement in court. Mother
and Father agreed to share joint legal decision-making authority and
parenting time. The court found the agreement was “fair and equitable,”
and “in the best interest of the parties’ minor children.” Consequently, the
court approved the agreement “as an enforceable order of th[e] Court.”
¶7 At trial, Mother admitted she had voluntarily entered into the
Rule 69 agreement in court, and that she did so with her attorney present.
She claimed, however, that at the time she entered into the agreement she
believed its provisions were only temporary. After reviewing the
agreement and the “enforceable order,” the court ruled that “the agreement
for joint legal decision-making and equal parenting time was not
temporary.”2 Nevertheless, citing A.R.S. § 25-317 and Rule 69(B) as legal
authority, the court said that “[n]otwithstanding the parties’ binding
agreement, this [c]ourt can reject an agreement if the [c]ourt, pursuant to its
own discretion, finds a basis for rejecting an agreement.” The court then
modified the portion of the order granting Mother and Father joint legal
decision-making authority, and granted Mother sole legal decision-making
¶8 Under A.R.S. § 25-317(A), “parties may enter into a written
separation agreement containing provisions for . . . custody and parenting
time” while their dissolution of marriage is pending. The agreement is
2 Neither party presented the transcript of the Rule 69 proceeding that led
to the adoption of the agreement. As a result, we must presume the record
supports the court’s conclusion. See Reeck v. Mendoza, 232 Ariz. 299, 302, ¶
12 (App. 2013).
Opinion of the Court
“presumed to be valid and binding,” but a court retains authority to
“exercis[e] its independent discretion pursuant to A.R.S. § 25-317.” Ariz. R.
Fam. Law P. 69(B). Under A.R.S. § 25-317(D), a court has discretion to reject
a Rule 69 agreement if it is not “reasonable” as to custody and parenting
time. But if the court finds that the agreement “is reasonable as to support,
custody and parenting time of children, the separation agreement shall be
set forth or incorporated by reference in the decree of dissolution.” A.R.S.
§ 25-317(D) (emphasis added).
¶9 The family court erred by concluding that Rule 69 and A.R.S.
§ 25-317 vested it with authority to modify the agreement after it had
previously found the agreement was reasonable, and had approved it “as
an enforceable order.” Although courts can, in the first instance, reject a
Rule 69 agreement, neither the statute nor the rule vest courts with
discretion to modify an agreement the court has adopted.3 Once the court
determines that the provisions addressing “support, custody and parenting
time of children” are reasonable, the statute states that the court “shall” set
forth the provisions in the decree of dissolution or incorporate them by
¶10 We do not suggest that an agreement that was approved and
adopted as an enforceable order cannot be subsequently modified. See
A.R.S § 25-317(F) (“Except for terms concerning the maintenance of either
party and the support, custody or parenting time of children, entry of the
decree shall thereafter preclude the modification of the terms of the decree.”
(emphasis added)); see also A.R.S. § 25-411(A) (discussing grounds on which
legal decision-making or parenting time can be modified); Ariz. R. Fam.
Law P. 85(C). But the legal basis giving the court authority to modify the
Rule 69 agreement is in other rules and statutes. A party may, for example,
request a modification of legal decision-making or parenting time by
satisfying the requirements of A.R.S. § 25-411. And “[i]n considering a
motion for change of custody, the court must initially determine whether a
change of circumstances has occurred since the last custody order.”
Pridgeon v. Superior Court (LaMarca), 134 Ariz. 177, 179 (1982); see also A.R.S.
§ 25-411(L) (explaining that a court shall deny a motion “[t]o modify any
type of legal-decision making or parenting time order . . . unless it finds that
adequate cause for hearing the motion is established by the pleadings”); cf.
Burk v. Burk, 68 Ariz. 305, 309 (1949) (noting that a modification of custody
3 But the court can, for example, relieve a party from an order if the court
finds fraud, misrepresentation, or other misconduct by an adverse party.
Ariz. R. Fam. Law P. 86(C)(1)(c). This was neither alleged nor demonstrated
at trial.
Opinion of the Court
requires “that a change of conditions and circumstances be shown, or new
facts presented, which were unknown to the applicant at the time the decree
was entered”). Here the parties disagree on whether a change of
circumstances occurred, and both parties make reasonable arguments to
support their positions. But the court did not consider any alleged change
of circumstances after the Rule 69 agreement was adopted as an enforceable
order because it relied solely on A.R.S. § 25-317 and Rule 69. And given the
fact-intensive nature of the inquiry, this court is not the appropriate forum
to first resolve the issue on appeal without the family court having done so.
¶11 As a result, we vacate the order changing decision-making
authority to the extent it modified the approved Rule 69 agreement. We
remand the case to the family court so it can determine in the first instance
whether there was a change of circumstances after the court accepted the
agreement warranting a modification of the original order, or whether there
was another rule or statute allowing the court to modify the Rule 69
B. Domestic Violence Findings4
¶12 The court declined to grant Father’s request for an award of
joint legal decision-making authority because, among other things, the
court concluded Father had engaged in “significant domestic violence.” See
A.R.S. § 25-403.03(A) (“Notwithstanding subsection D of this section, joint
legal decision-making shall not be awarded if the court makes a finding of
the existence of significant domestic violence pursuant to § 13-3601 or if the
court finds by a preponderance of the evidence that there has been a
significant history of domestic violence.”). Father does not attack the
factual findings of the court, but argues the “findings do not establish the
commission of domestic violence as defined under Arizona law.” The court
explained its findings by stating the following:
[T]he domestic violence involved in this case is significant. It
involves coercive control and using the parties’ children to
further traumatize Mother. While the court does not find
sexual violence occurred, the Court does find Father exerted
control over Mother by encouraging Mother to participate in
online sexual activity, have sex with prostitutes, threatening
to have affairs or leave Mother if Mother failed to gratify
Father, and convincing Mother that she was the one who tried
to “control” Father. Further, Father’s actions in driving by
4 We address this issue because it will likely arise on remand.
Opinion of the Court
Mother’s workplace with the children in the car to ensure
Mother was at work, buying clothing for the children with the
same-sounding name as Mother’s online porn name,
exploiting his telephonic contact with the children, and
otherwise trying to manipulate the children in order to
further control (i.e., victimize) Mother is untenable and
intolerable. In the spectrum of domestic violence, the acts in
this case are significant.
The factual findings, some of which occurred before the parties entered into
their Rule 69 agreement, were supported by the record, and were consistent
with the testimony of Mother’s expert, who noted that, in her field, that
behavior is characterized as domestic violence.5
¶13 An expert’s characterization of what he or she believes
constitutes domestic violence is not, however, legally binding.
Encouraging Mother to participate in certain activities, threatening to be
unfaithful if Mother did not perform in the way Father wanted, and acting
in a controlling manner might be distasteful, but those actions do not
necessarily support the legal conclusion that he is a perpetrator of domestic
violence. See A.R.S. § 25-403.03(A) (directing courts to consider “domestic
violence pursuant to section 13-3601”); see also A.R.S. § 13-3601 (defining
acts that constitute “domestic violence”); A.R.S. § 25-403.03(D) (defining
“an act of domestic violence” for purposes of that subsection). It is the
Legislature’s job to define what conduct constitutes “domestic violence.”
See Loveland v. State, 53 Ariz. 131, 140 (1939) (“It is within the province of
the Legislature in creating an offense to define it by a particular description
of the acts constituting it, or to define it as an act which produces a certain
defined or described result.”). And the Legislature has defined domestic
violence in Title 13 and Title 25. See A.R.S. §§ 13-3601(A), 25-403.03(D).
¶14 Mother contends that “[d]omestic violence is a nebulous
concept that is constantly evolving and can take many forms.” Although
we do not question her assertion that domestic violence can take many
forms, neither statutes nor case law define domestic violence as a nebulous
concept subject to ad hoc facts, particularly where a parent’s fundamental
rights are at stake. See Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005)
(“Parents possess a fundamental liberty interest in the care, custody, and
management of their children.”). Indeed, adopting Mother’s position could
likely raise due process notice concerns. Cf. State v. Phillips, 202 Ariz. 427,
5 Mother concedes that these factual findings constituted the basis for the
court concluding Father had perpetrated “significant” domestic violence.
Opinion of the Court
436, ¶ 39, n.3 (2002) (“[C]riminal provisions must clearly define the conduct
prohibited and the punishment authorized to satisfy the notice
requirements of the Due Process Clause.”).
¶15 It may well be that some of Father’s actions constituted
domestic violence under the statute. The court, however, relied on many
acts that do not statutorily constitute domestic violence, and did not explain
why Father’s actions amounted to “significant” domestic violence. As a
result, we cannot determine whether the court would have reached the
same conclusion had it considered only the acts that legally constituted
domestic violence. Therefore, we find that the court erred by finding the
existence of significant domestic violence, vacate the finding, and remand
the issue back to the court.
¶16 On remand, we direct the family court to consider whether
Father’s conduct, after the entry of the order approving the Rule 69
agreement, amounted to domestic violence or “significant domestic
violence” by relying on the § 13-3601(A) statutory definitions referenced in
§ 25-403.03(A), and not on the expert’s own views. Similarly, if the court
finds that Father committed “an act” of domestic violence against Mother
under § 25-403.03(D), the court should make appropriate factual findings
by looking at the definitions of domestic violence under
§ 25-403.03(D)(1)–(3).
C. Parenting Time Analysis
¶17 Mother argues the court erred when, after finding that Father
had committed domestic violence, it awarded him parenting time with the
children without conducting an analysis pursuant to A.R.S. § 25-403.03(F).
We agree.
¶18 If, on remand, the court finds a legal basis to modify the Rule
69 agreement and concludes Father committed “an act of domestic
violence” after entry of the order adopting the Rule 69 agreement, see Burk,
68 Ariz. at 309, the court must determine whether Father has met his burden
of proof “to the court’s satisfaction that parenting time will not endanger
the child or significantly impair the child’s emotional development.” See
A.R.S. § 25-403.03(F). The court must then make specific findings
explaining its reasoning and conclusions. Cf. Christopher K. v. Markaa S., 233
Ariz. 297, 301, ¶ 18 (App. 2013). “If [Father] meets [his] burden to the
court’s satisfaction, the court shall place conditions on parenting time that
best protect the child and the other parent from further harm.” A.R.S.
§ 25-403.03(F). It is within the court’s discretion to determine which
Opinion of the Court
conditions are appropriate to protect the child, Mother, or any other
household member. A.R.S. § 25-403.03(F)(1)–(9) (giving the court broad
discretion on which conditions should be imposed).
D. Testimony of Father’s Expert
¶19 Mother also contends the family court erred by allowing
Father’s expert to testify. We disagree.
¶20 First, Mother argues Father’s expert, Dr. Gaughan, “was not
timely disclosed” before the June 27 trial, in violation of Rule 49(H). That
assertion is meritless.
¶21 Rule 49(H) states that “[a] party shall not be allowed to call an
expert witness who has not been disclosed at least sixty (60) days before
trial or such period as may be ordered by the court.” Father first disclosed
his intention to call his expert in January 2016, when he filed an “Expedited
Motion for Appointment of Psychologist to Perform Comprehensive
Family Evaluation” that specifically and repeatedly identified Dr.
Gaughan. In March, the court declined Father’s request for a courtappointed
advisor, but authorized him to retain an expert and directed
Mother to “fully cooperate with any evaluation sought by Father,” thereby
putting Mother on further notice that Father intended to call Dr. Gaughan
as his expert. Moreover, we note that although Mother was instructed to
“fully cooperate” with Dr. Gaughan, the court found she had failed to do
so, thereby diminishing any notice prejudice that could have resulted had
there been a lack of disclosure.
¶22 Mother also claims that the admission of Dr. Gaughan’s
testimony violated Arizona Rule of Evidence 702 (“Rule 702”). “We review
evidentiary rulings for an abuse of discretion.” E.R. v. Dep’t of Child Safety,
237 Ariz. 56, 60, ¶ 19 (App. 2015); see also State v. Chappell, 225 Ariz. 229, 235,
¶ 16 (2010) (reviewing “evidentiary rulings on the admissibility of expert
opinions for an abuse of discretion”).
¶23 To “testify in the form of an opinion or otherwise,” an expert
witness must be “qualified as an expert by knowledge, skill, experience,
training, or education.” Ariz. R. Evid. 702. Moreover, (1) the expert’s
knowledge must “help the trier of fact to understand the evidence or to
determine a fact in issue,” (2) the testimony must be both “based on
sufficient facts or data” and “the product of reliable principles and
methods,” and (3) the expert must “reliably appl[y] the principles and
methods to the facts of the case.” Ariz. R. Evid. 702(a)–(d). No single factor
is dispositive of the reliability of the expert’s testimony, and not all factors
Opinion of the Court
will apply to all experts or to every case. State ex rel. Montgomery v. Miller,
234 Ariz. 289, 299, ¶ 25 (App. 2014).
¶24 Father offered Dr. Gaughan, a licensed psychologist, “as an
expert witness in the area of custody evaluations and family court
evaluations.” Dr. Gaughan testified he had completed “domestic training
every single year for at least since 1984.” He said he had previously
conducted “dozens and dozens and dozens of family assessments under
court appointment.” He added he had “taken [many] classes in custody
evaluations.” He explained he was on a court roster and had done between
fifty and one hundred “evaluations, therapeutic intervention[s], family
coordinator work, [or] psychological evaluations, among other things.” He
said he had never been excluded from testifying as an expert witness. And,
after specifically recognizing Dr. Gaughan from previous dissolution cases,
the court said it “[did not] have a problem finding that he’s an expert.”
There was sufficient evidence establishing that Dr. Gaughan was a qualified
¶25 Nor did the court abuse its discretion by allowing Dr.
Gaughan to testify in the form of an opinion because his methodology did
not violate Rule 702. Despite being retained by Father, Dr. Gaughan told
the lawyers for both parents at the outset that he was “intending from start
to finish to approach th[e] evaluation as a neutral party.” He informed
them he would first meet with both parents together, then individually with
each parent, and finally “see the children with father and see the children
with mother on separate days.” He would then meet with the parties
together to discuss the evaluation findings, and engage in a “back and forth
exchange” with the parties to clarify any issues.
¶26 Dr. Gaughan subsequently had a two-hour appointment with
Mother, a two-hour meeting with Father, and a session in which he
interviewed the “children separately, each of the four of them by
themselves.” During the interviews, he extensively questioned both
parents about their relationships with each other, as well as their
relationships with the children. He asked the children about their
relationships with their parents, and sought their views and opinions on
the custody arrangements as they existed at the time. Although he
explained he would have generally conducted a psychological evaluation
of both parents, Mother refused to participate in the evaluation despite the
court’s previous instruction that she “fully cooperate with any evaluation
sought by Father.” And because he was trying to be “a neutral person” as
much as he possibly could, he did not conduct a psychological evaluation
Opinion of the Court
of Father, noting that “if I don’t do testing on one parent, I’m not going to
do testing on the other.”
¶27 The court did not abuse its discretion by allowing Father’s
expert to testify and give his opinions. Dr. Gaughan was a licensed
psychologist who had undergone years of training and served as an expert
witness in dozens of cases. Moreover, he interviewed all the relevant
parties and reached his expert opinion based on the interviews he
conducted and the facts he learned from those interviews. As a result, there
was no abuse of discretion.6

* * *

6 Because we are remanding this case, we direct the court to consider Dr.
Gaughan’s report only after receiving the written affirmations required by
A.R.S. § 25-406(A).

Outcome: ¶28 For the foregoing reasons, we vacate the family court’s order
as it relates to legal decision-making authority and parenting time and
remand for further proceedings consistent with this decision.

Plaintiff's Experts:

Defendant's Experts:


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