Banales v. Smith
In Banales v. Smith, 200 Ariz. 419, 26 P.3d 1190 (App. 2001), the lower court awarded sole legal and physical custody to the mother after considering and making numerous detailed findings on all but one of the various 25-403(A) factors. Id. at 419-20, PP 3-5, 26 P.3d at 1190-91.
On appeal, the father argued that this omission constituted an abuse of the court's discretion. Id. at PP 3-4.
The Court noted that the father had failed to raise this omission in his motion for new trial or in any other objection or motion filed before the trial court, and the Court held that the father had waived the issue on appeal. Banales, 200 Ariz. at 420, PP 5-8, 26 P.3d at 1191.
The Court further reasoned that the record indicated the parties had raised the omitted factor before the trial court, which demonstrated that it knew the factor was relevant, and the court's numerous other detailed findings in its minute entry showed "the court made every attempt to comply with 25-403 in considering the best interests of the child." Id. at P 7.
The Court therefore opined that the trial court's failure to make an express finding regarding that single factor could have been a simple oversight that could easily have been corrected if the father had raised the issue below. Id. at P 8.
The Court also observed that "the possibility that the court did not consider this factor or that an express finding on the factor would have changed the result here seems remote." Id. at P 7.