Nold v. Nold, 304 P.3d 1093 (Ariz. Ct. App. 2013). · Go Syfert
Nold v. Nold, 304 P.3d 1093 (Ariz. Ct. App. 2013). Cases Citing This Book View Copy Cite
213 citation events (213 in the last 25 years) across 1 distinct court.
Strongest positive: In Re Termination of Parental Rights as to S.M. (arizctapp, 2025-11-14)
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) In Re Termination of Parental Rights as to S.M. (2×) also: Cited as authority (rule)
Ariz. Ct. App. · 2025 · signal: see · quote attribution · 1 verbatim quote · confidence high
f the best interests of the child trump the consequences ordinarily imposed for violations of the rules, then they should not be ignored under the discretionary doctrine of waiver.
discussed Cited as authority (verbatim quote) Nobles v. Noce
Ariz. Ct. App. · 2025 · signal: see · quote attribution · 1 verbatim quote · confidence high
ailure to raise the issues with the family court does not prevent from considering argument that the family court erred by failing to make the required statutory findings.
discussed Cited as authority (verbatim quote) Jackson v. Jackson
Ariz. Ct. App. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
we agree with the general proposition that, when a party fails to raise an issue before the court, the issue is waived on appeal
discussed Cited as authority (verbatim quote) Solorzano v. Jensen
Ariz. Ct. App. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
f the best interests of the child trump the consequences ordinarily imposed for violations of the rules, then they should not be ignored under the discretionary doctrine of waiver.
discussed Cited as authority (verbatim quote) Solorzano v. Jensen
Ariz. Ct. App. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
f the best interests of the child trump the consequences ordinarily imposed for violations of the rules, then they should not be ignored under the discretionary doctrine of waiver.
discussed Cited as authority (quoted) In Re Term of Parental Rights as to H.H. and R.H.
Ariz. Ct. App. · 2026 · signal: see · quote attribution · 1 verbatim quote · confidence high
f the best interests of the child trump the consequences ordinarily imposed for violations of the rules, then they should not be ignored under the discretionary doctrine of waiver.
discussed Cited as authority (quoted) Eglivitch v. Davis
Ariz. Ct. App. · 2025 · quote attribution · 1 verbatim quote · confidence low
on appeal, we will not disturb the family court's custody or parenting time orders absent an abuse of discretion.
cited Cited as authority (rule) Hawkins v. Hawkins
Ariz. Ct. App. · 2026 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) Crewse v. Crewse (2×) also: Cited "see"
Ariz. Ct. App. · 2026 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). ¶12 The superior court must determine legal decision-making authority in accordance with the best interests of the child and must consider all relevant enumerated factors found in A.R.S. §§ 25-403(A) and - 403.01(B).
discussed Cited as authority (rule) Schritter v. Schritter (2×)
Ariz. Ct. App. · 2026 · confidence medium
We review a superior court’s parenting time order for an abuse of discretion, Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013), and will affirm if the court’s ruling is supported by substantial evidence, Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). 4 SCHRITTER v. SCHRITTER Decision of the Court ¶15 While a parent is “entitled to reasonable parenting time” to ensure “substantial, frequent, meaningful and continuing contact” with the child, the superior court is required to determine parenting time in accordance with the best interests of the child.
discussed Cited as authority (rule) In Re Term of Parental Rights as to H.K.
Ariz. Ct. App. · 2026 · confidence medium
The decision to find waiver, however, is discretionary, Logan B. v. Dep’t of Child Safety, 244 Ariz. 532 , 536, ¶ 9 (App. 2018), and because the best interests of a child are at stake, we decline to do so here and will address the merits, see Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013). ¶13 To terminate a parent-child relationship, the juvenile court must find (1) by clear and convincing evidence that at least one statutory ground for termination exists and (2) by a preponderance of the evidence that the termination is in the child’s best interests.
discussed Cited as authority (rule) Scott v. Scott
Ariz. Ct. App. · 2025 · confidence medium
See A.R.S. § 25-403(B); Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013) (explaining court must make specific findings stating why its decision is in the child's best interests).
discussed Cited as authority (rule) In Re Term of Parental Rights as to M.W.
Ariz. Ct. App. · 2025 · confidence medium
DeLong v. Merrill, 233 Ariz. 163, 166, ¶ 9 (App. 2013); Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013) (noting that the child’s best interests trump the discretionary doctrine of waiver). ¶11 To terminate parental rights, the superior court must find a statutory ground under A.R.S. § 8-533(B) by clear and convincing evidence, and that termination is in the child’s best interests by a preponderance of the evidence.
discussed Cited as authority (rule) Socop v. Socop
Ariz. Ct. App. · 2025 · confidence medium
DISCUSSION ¶5 Mother did not file an answering brief, which we could interpret as a confession of error, Savord v. Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014), but we reach the merits in the exercise of our discretion because the best interests of three children stand in the balance, see Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013) (the best interests of a child trumps the discretionary doctrine of waiver). ¶6 On appeal, Father challenged almost every aspect of the dissolution decree, including the superior court’s rulings on legal decision making, parenting time, spousal maintenan…
cited Cited as authority (rule) In Re Term of Parental Rights as to Ij and Aj
Ariz. Ct. App. · 2025 · confidence medium
DeLong v. Merrill, 233 Ariz. 163, 166, ¶ 9 (App. 2013); Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013) (the best interests of a child trumps the discretionary doctrine of waiver).
cited Cited as authority (rule) Anderson v. Wallace
Ariz. Ct. App. · 2025 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
cited Cited as authority (rule) Larsen v. Rangel
Ariz. Ct. App. · 2025 · confidence medium
Smith v. Smith, 253 Ariz. 2 LARSEN v. RANGEL Decision of the Court 43, 45, ¶ 9 (App. 2022) (citing Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013)).
cited Cited as authority (rule) King v. Bertram
Ariz. Ct. App. · 2025 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
cited Cited as authority (rule) Matie v. Meehan
Ariz. Ct. App. · 2025 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013) (parenting time); Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21 (App. 2008) (child support).
examined Cited as authority (rule) Mesa v. O'Connor (4×)
Ariz. Ct. App. · 2025 · confidence medium
See Francine C. v. Dep’t. of Child Safety, 249 Ariz. 289 , 297, ¶ 19 (App. 2020) (“Generally, an appellate court may infer that the superior court has made whatever additional findings are necessary to sustain its judgment . . . if the additional findings are reasonably supported by the evidence and do not conflict with any of the court’s express findings.”). 5 MESA v. O’CONNOR Opinion of the Court Superior Court, 181 Ariz. 333, 336 (App. 1995); Nold v. Nold, 232 Ariz. 270, 273-74, ¶ 14 (App. 2013). ¶17 Father claims our decisions in DePasquale and Nold prohibited the court from o…
cited Cited as authority (rule) Webber v. Webber
Ariz. Ct. App. · 2024 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) Washum v. Paskett (2×) also: Cited "see"
Ariz. Ct. App. · 2024 · confidence medium
See Christopher K. v. Markaa S., 233 Ariz. 297, 301, ¶ 18 (App. 2013); Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) In Re Term of Parental Rights as to C.C.
Ariz. Ct. App. · 2024 · confidence medium
DCS urges us to disregard Father’s arguments entirely because his brief does not include citations to legal authority or references to the record as required by Arizona Rule of Civil Appellate Procedure 13. ¶25 “[T]he best interests of [a] child trump the consequences ordinarily imposed for violations of the rules.” Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013).
cited Cited as authority (rule) Jimenez v. Dominguez
Ariz. Ct. App. · 2024 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
cited Cited as authority (rule) Schneider v. Perea
Ariz. Ct. App. · 2024 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
cited Cited as authority (rule) Tia C. v. Gabriel V.
Ariz. Ct. App. · 2024 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) Deguzman v. Deguzman
Ariz. Ct. App. · 2024 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). 3 DEGUZMAN v. DEGUZMAN Decision of the Court ¶10 Father first contends equal parenting time is presumed to be in the children’s best interests, citing Woyton v. Ward, 247 Ariz. 529 , 531, ¶ 6 (App. 2019).
discussed Cited as authority (rule) Hernandez v. Athey
Ariz. Ct. App. · 2023 · confidence medium
Arguments first raised in a reply brief are generally considered waived, Johnson v. Provoyeur, 245 Ariz. 239 , 243, ¶ 5 HERNANDEZ v. ATHEY Decision of the Court 13 n.5 (App. 2018), but we will consider Father's argument because it relates to the child's best interests, Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013). ¶17 Section 25-403.04 applies if the court finds that "a parent has abused drugs or alcohol or has been convicted of" specified offenses "within twelve months before the petition . . . [wa]s filed." (Emphasis added.) The court found no evidence that this section applied.
discussed Cited as authority (rule) Windschill v. Windschill
Ariz. Ct. App. · 2023 · confidence medium
We review parenting time orders for an abuse of discretion, Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013), but review questions of statutory interpretation de novo, Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 491, ¶ 9 (App. 2020).
discussed Cited as authority (rule) Nicaise v. Sundaram (2×)
Ariz. Ct. App. · 2023 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). 4 NICAISE v. SUNDARAM Decision of the Court I.
discussed Cited as authority (rule) Olesen v. daniel/burge (2×)
Ariz. Ct. App. · 2023 · confidence medium
“On appeal, we will not disturb the family court’s custody or parenting time orders absent an abuse of discretion.” Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
cited Cited as authority (rule) Peralta v. Murray
Ariz. Ct. App. · 2022 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) Gish v. Greyson (2×) also: Cited "see"
Ariz. Ct. App. · 2022 · confidence medium
The best interests of the child . . . are for the [family] court alone to decide.” Nold v. Nold, 232 Ariz. 270, 274, ¶ 14 (App. 2013) (quoting DePasquale v. Sup. Ct. (Thrasher), 181 Ariz. 333, 336 (App. 1995)); see also A.R.S. § 25-403(A). ¶47 In the 2021 Parenting Order, the court ordered that Griffin must reside with Mother “except for the times specifically designated for Father’s parenting time,” then stated that Father will “have supervised parenting time as directed by [the TI] until she determines that the child is 14 GISH v. GREYSON Opinion of the Court again ready to have…
discussed Cited as authority (rule) Berg v. Berg
Ariz. Ct. App. · 2022 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). ¶28 Mother argues the week on/week off parenting time order was not in the children’s best interests because the children will then spend time at Father’s office on electronic devices.
cited Cited as authority (rule) Stock v. Barton
Ariz. Ct. App. · 2022 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
cited Cited as authority (rule) McCanless v. McCanless
Ariz. Ct. App. · 2022 · confidence medium
Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (citation omitted); Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013) (citation omitted).
cited Cited as authority (rule) Adina v. Allen
Ariz. Ct. App. · 2022 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) Michaels v. Shimo
Ariz. Ct. App. · 2022 · confidence medium
See A.R.S. § 25-403(B); Nold v. Nold, 232 Ariz. 270, 173, ¶ 11 (App. 2013). 4 MICHAELS v. SHIMO Decision of the Court ¶17 Mother also contends her due process rights were violated because the court afforded her insufficient time to fully testify and cross-examine Father. ¶18 We review de novo Mother’s claims that she was denied due process.
discussed Cited as authority (rule) In Re Pima County Mental Health Case No. Mh20200860 (2×)
Ariz. Ct. App. · 2022 · confidence medium
Nevertheless, we may review a waived argument in our discretion, see Nold v. Nold, 232 Ariz. 270, ¶ 10 (App. 2013), and, in light of the liberty interests implicated by forced administration of anti-psychotic medication, as well as the long- established requirement of strict statutory compliance, we do so here. 5 IN RE PIMA CNTY.
discussed Cited as authority (rule) Nickel v. Potter
Ariz. Ct. App. · 2022 · confidence medium
Further, we disagree with Father that the court abdicated its responsibility to use its independent judgment, in contravention of In re Nold v. Nold, 232 Ariz. 270, 273-74, ¶ 14 (App. 2013), and DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 336 (App. 1995), by quoting the older child’s counselor when making its findings. ¶17 Although the better practice would be to follow the general template provided by § 25-403, the superior court’s findings here are adequate to provide a baseline on which Father (or Mother) might file a future petition for modification, and on which the cou…
cited Cited as authority (rule) Rosenberg v. Conzoner
Ariz. Ct. App. · 2022 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) Mindiola v. Mindiola
Ariz. Ct. App. · 2021 · confidence medium
E.g., Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013) (parenting issues); Birnstihl v. Birnstihl, 243 Ariz. 588 , 590, ¶ 8 (App. 2018) (child support); Hefner v. Hefner, 248 Ariz. 54, 57, ¶ 6 (App. 2019) (property).
discussed Cited as authority (rule) De Leon v. Pizarro, Sr.
Ariz. Ct. App. · 2021 · confidence medium
He primarily challenges the court’s refusal to lift a requirement that his parenting time with his son be conducted with the assistance of a TI. ¶16 We review the family court’s denial of a petition for legal decision-making and parenting time for an abuse of discretion, Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013), and the denial of a motion for reconsideration, Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009).
cited Cited as authority (rule) Alcott v. Killebrew
Ariz. Ct. App. · 2021 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) Jamison v. Jamison
Ariz. Ct. App. · 2021 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013) (parenting time); Birnstihl v. Birnstihl, 243 Ariz. 588 , 590, ¶ 8 (App. 2018) (child support); Hefner v. Hefner, 248 Ariz. 54, 57, ¶ 6 (App. 2019) (property division and attorney’s fees). 3 JAMISON v. JAMISON Decision of the Court A. The Superior Court Did Not Abuse its Discretion in Awarding Parenting Time. ¶12 When parenting time is contested, “the court shall adopt a parenting plan that . . . maximizes [the parents’] respective parenting time” and determine parenting time based on the best interests of the children.
cited Cited as authority (rule) Moncur v. Moncur
Ariz. Ct. App. · 2021 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). ¶10 Again, mother’s failure to provide a transcript renders us unable to evaluate fully her argument.
discussed Cited as authority (rule) Gonzalez v. Gonzalez
Ariz. Ct. App. · 2021 · confidence medium
Husband raised this claim both at trial and in the Motion to Amend, and the court declined to award an offset for the alleged settlement. ¶22 “The [superior] court has an obligation to equitably divide clearly identified community property.” Nold v. Nold, 232 Ariz. 270, 274, ¶ 20 (App. 2013).
cited Cited as authority (rule) Cordero v. Hazlitt
Ariz. Ct. App. · 2021 · confidence medium
Engstrom v. McCarthy, 243 Ariz. 469 , 471, ¶ 4 (App. 2018); Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
discussed Cited as authority (rule) Olesen v. daniel/burge
Ariz. Ct. App. · 2021 · confidence medium
All superior 4 But cf. Nold v. Nold, 232 Ariz. 270, 274, ¶ 14 (App. 2013) (The superior court “can neither delegate a judicial decision to an expert witness nor abdicate its responsibility to exercise independent judgment.
discussed Cited as authority (rule) Kennedy v. Kennedy (2×) also: Cited "see"
Ariz. Ct. App. · 2020 · confidence medium
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
Retrieving the full opinion text from the archive…
In re the Matter of Dana K. NOLD
v.
Andrew P. NOLD
No. 1 CA-CV 12-0214.
Court of Appeals of Arizona.
May 30, 2013.
304 P.3d 1093
Scott L. Patterson, PLLC By Scott L. Patterson, Tempe, Attorneys for Petitioner/Appellee., Gene R. Stratford, Phoenix, and The Murray Law Offices, P.C. By Stanley D. Murray, Scottsdale, Attorneys for Respondent/Appellant.
Eckstein, Orozco, Swann, Tempore.
Cited by 132 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 68%
Citer courts: Court of Appeals of Arizona (1)

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.

[*272] ¶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 § 25-403 factors in a motion for new trial precluded him from raising the argument on appeal. 200 Ariz. 419, 420, ¶ 8, 26 P.3d 1190, 1191 (App.2001).

¶ 8 However, in Reid v. Reid, a factually similar ease, this court declined to apply the waiver doctrine to a parent’s failure to object to the lack of findings required by § 25-403.B, to the family court. 222 Ariz. 204, 209-10, ¶¶ 19-20, 213 P.3d 353, 358-59 (App. 2009). Reid distinguished the holding in Ba-nales in which the court made findings on all but one statutory factor. Id. at 207-08, ¶¶ 14-16, 213 P.3d at 356-57. In Reid, the court provided no explanation why its custody decision was in the children’s best interests. Id. at 207, ¶ 13, 213 P.3d at 356.

¶ 9 The order in this case is more analogous to Reid. The family court made no findings regarding any of the statutory factors. We cannot ascertain how the family court weighed the statutory factors to reach its determination that Father’s joint physical custody during the school year should be significantly reduced to parenting time every other weekend. See id. We decline to apply the doctrine of waiver when the family court makes no findings on the record because to do so “would inappropriately deprive the family court and all parties of the baseline information required for future petitions involving a child’s or children’s best interests.” Id. at 209, ¶ 19, 213 P.3d at 358.

[*273] ¶ 10 Although we agree with the general proposition that, when a party fails to raise an issue before the trial court, the issue is waived on appeal, see, e.g., Trantor, 179 Ariz. at 300-01, 878 P.2d at 658-59, “we observe that neither Trantor nor its progeny has created an unalterable rule of waiver,” especially as it relates to the statutory findings in a contested custody matter. See Reid, 222 Ariz. at 208, ¶ 16, 213 P.3d 353 at 357. As our supreme court stated in Hays v. Gama, 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695, 698 (2003), in child custody cases, when a child is affected by sanctions, A.R.S. § 25-403.A “mandates that the [family] court make its determination ‘in accordance with the best interests of the child.’ ” Therefore, if the best interests of the child trump the consequences ordinarily imposed for violations of the rules, then they should not be ignored under the discretionary doctrine of waiver. Accordingly, Father’s failure to raise the issues with the family court does not prevent us from considering his argument that the family court erred by failing to make the required statutory findings.

Custody Order

¶ 11 On appeal, we will not disturb the family court’s custody or parenting time orders absent an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1191 (App.2002). When physical custody is contested, the family court must comply with the requirement in A.R.S. § 25-403 to make specific findings regarding the reasons why its decision is in the children’s best interests. Owen v. Blackhawk, 206 Ariz. 418, 421, ¶ 11, 79 P.3d 667, 670 (App. 2003). Owen is directly on point and specifically states that “a change in joint physical custody is a change in custody, whereas visitation is one aspect of custody.” Id. As in Owen, “[b]ecause this ease involved a substantial change in physical custody that [was] disputed, ... the trial court was obligated to make specific findings required by A.R.S. § 25-403[.B].” Id. See also Diezsi, 201 Ariz. at 525-26, ¶¶ 1, 4-5, 38 P.3d at 1190-91 (holding that in case contesting only physical custody, court was required to make findings required by § 25-403). Failure to make these findings in an order or on the record constitutes an abuse of discretion. See Reid, 222 Ariz. at 207, ¶ 12, 213 P.3d at 356; see also Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 19, 80 P.3d 775, 780 (App.2003).

¶ 12 The family court stated that it considered the parties’ stipulation to joint legal custody, as well as the factors listed in § 25-403 in awarding joint legal custody. However, the court did not include any discussion of the statutory factors in resolving the dispute over joint physical custody, other than to state that “no persuasive evidence established a sound reason for deviating from the parenting time schedule [the custody evaluator] suggested.”[3]

¶ 13 Mother argues that the family court’s order was sufficient because it adopted the custody evaluator’s assessment of the § 25-403 factors as consistent with the evidence at trial. Although the family court stated that the evidence was consistent with and supported the custody evaluator’s opinions, there are no findings in the record detailing the evaluator’s opinions or the supporting evidence upon which the family court relied. The evaluator’s report was a trial exhibit, but the record does not indicate the family court’s specific findings about the relevant statutory factors and the reasons why its decision is in the children’s best interests as required by A.R.S. § 25-403.B.

¶ 14 Furthermore, it appears that the family court thought the custody report was the baseline for custody when it stated that “no persuasive evidence established a sound reason for deviating from the parenting time schedule [the custody evaluator] suggested.” This statement indicates that the family court delegated its obligation to independent ly weigh the evidence in determining the children’s best interests to the evaluator. See DePasquale v. Superior Court (Thrash[*274] er), 181 Ariz. 333, 336, 890 P.2d 628, 631 (App.1995). The family court “can neither delegate a judicial decision to an expert witness nor abdicate its responsibility to exercise independent judgment. The best interests of the child ... are for the [family] court alone to decide.” Id. By using the report as the baseline for custody, the family court delegated its judicial decision to the evaluator, abdicated its responsibility to decide the best interests of the children, and therefore abused its discretion.

¶ 15 The family court’s failure to make the statutorily mandated findings requires us to remand this case to allow the family court to perform the necessary statutory analysis. See Reid, 222 Ariz. at 207, 209-10, ¶ 13, 20, 213 P.3d at 356, 358-59; see also Downs, 206 Ariz. at 501, ¶ 19, 80 P.3d at 780; see also Owen, 206 Ariz. at 421-22, ¶ 12, 79 P.3d at 670-71; see also Diezsi, 201 Ariz. at 527, ¶ 11, 38 P.3d at 1192. Therefore, we vacate the physical custody order and remand for consideration and compliance with A.R.S. § 25-403.B.

Property Allocation

¶ 16 Father argued at trial that there was a community property interest in the John C. Lincoln 401k, the Pioneer IRA, and the Ozark life insurance policy. The family court awarded the John C. Lincoln 401k and the life insurance policy to Mother as her separate property. The family court found that Father waived his claim to the property because he failed to raise his community property interest in these assets as a contested issue in his pretrial statement. This issue is reviewed for an abuse of discretion. See Sheppard v. Crow-Barker-Paul No. 1 Ltd. P’ship, 192 Ariz. 539, 546-47, ¶¶ 37-40, 968 P.2d 612, 619-20 (App.1998) (court’s decision to consider issues not presented in a pretrial statement is reviewed for an abuse of discretion).

¶ 17 In spite of Father’s failure to contest the community nature of these assets in his pretrial statement, Mother listed the John C. Lincoln 401k and Pioneer IRA as contested issues in her pretrial statement.[4] Father argues that because Mother listed those assets in her pretrial statement, the family court erred by failing to divide them.

¶ 18 In Leathers v. Leathers, 216 Ariz. 374, 378, ¶ 18, 166 P.3d 929, 933 (App.2007), neither party addressed the continuation of a life insurance policy as a contested issue in the joint pretrial statement. We held the family court erred in ordering the husband to maintain the policy to secure future spousal maintenance for the wife’s benefit. Id. at ¶¶ 18-19,166 P.3d at 933.

¶ 19 Father argues that Leathers is distinguishable because it did not involve allocating an item of community property specified in one party’s pretrial statement, but involved an order to maintain life insurance to secure full payment of spousal maintenance. We agree.

¶ 20 The family court has an obligation to equitably divide clearly identified community property. See A.R.S. § 25-318.A (Supp.2012). This obligation cannot be ignored simply because one spouse failed to list the property as a contested issue in a separately filed pretrial statement and the other party did not. We distinguish Leathers, and hold the division of an asset is not automatically waived when one or both of the parties fails to list the asset in a pretrial statement, if exhibits are admitted and testimony regarding the asset is given at trial.

¶ 21 We therefore vacate the award of the John C. Lincoln 401k, the Pioneer IRA, and the Ozark life insurance policy to Mother and remand for an equitable reallocation consistent with this opinion.

Attorney Fees and Costs on Appeal

¶ 22 Both parties request an award of attorney fees on appeal pursuant to A.R.S. § 25-324 (Supp.2012). Father seeks an award of fees due to financial disparity on the grounds that Mother was awarded more assets and, therefore, has greater financial resources. Father also claims his positions on appeal were more reasonable than Mother’s. Mother cites Father’s greater financial resources in support of her request for an award of fees on appeal. We conclude that[*275] neither party took unreasonable positions on appeal. Because we are remanding to reallocate the John C. Lincoln 401k, the Pioneer IRA, and the Ozark life insurance policy, there is likely no significant financial disparity warranting an award of fees to either party. Father, as the successful party on appeal, is entitled to his costs pursuant to A.R.S. § 12-342.A (2003) and upon his compliance with Arizona Rules of Civil Appellate Procedure 21.

CONCLUSION

¶ 23 We vacate the parenting time order and remand for further consideration with instructions to make specific findings on the record pursuant to A.R.S. § 25-403. We also vacate the order awarding the John C. Lincoln 401k, and the Pioneer IRA, and the Ozark life insurance policy to Mother and remand for an equitable reallocation consistent with this opinion.

CONCURRING: PETER B. SWANN, Judge, and PAUL F. ECKSTEIN, Judge Pro Tempore.*
1

If one "party objects to a decree of legal separation, ... the court shall direct that the pleadings be amended to seek a dissolution of the marriage.” Ariz. Rev. Stat. (A.R.S.) section 25-313.4(2007).

2

Effective January 1, 2013, §§ 25-403 and 25-403.03 (Supp.2012) changed the term "custody” to "legal decision-making" and § 25-403.B now requires the court to make specific findings in contested legal decision-making or parenting cases. See 2012 Ariz. Sess. Laws, ch. 309, §§ 5, 9.

3

Although the decree states this is a parenting time order, the parties actually disputed whether to continue joint physical custody. Compare A.R.S. § 25-402.3 (2007) (defining joint physical custody as substantially equal time and contact with both parents), with § 25-402.4 (defining parenting time as a parent’s "right to have a child physically placed with the parent and the right and responsibility to make, during that placement, routine daily decisions").

4

Mother did not list the Ozark life insurance policy in her pretrial statement.