NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE
DIVISION ONE FILED: 09/21/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH
IN RE THE MARRIAGE OF:
) ) LISA A. BOWMAN, ) ) Petitioner/Appellee, ) ) v. ) ) RASHAD S. BOWMAN, ) ) Respondent/Appellant. ) ________________________________ )
1 CA-CV 09-0553 DEPARTMENT D MEMORANDUM DECISION (Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County Cause No. FC2009-001586 The Honorable Randall H. Warner, Judge AFFIRMED
Rashad S. Bowman Appellant
Florence
W I N T H R O P, Presiding Judge ¶1 Rashad S. Bowman (“Appellant”) appeals the superior
court’s signed minute entry filed on December 28, 2009, denying his “Notice of Motion and Motion to Amend/Correct Order.” For
the following reasons, we affirm the superior court’s denial of Appellant’s motion. FACTS AND PROCEDURAL HISTORY ¶2 Appellant is currently an inmate at the Arizona State He and Lisa A.
Prison Complex located in Florence, Arizona.
Bowman (“Appellee”) are the biological parents of a child who is in the Appellee’s care. Minnesota. ¶3 On January 20, 2009, the district court of Minnesota Both the Appellee and the child live in
(“the Minnesota court”) issued an order (“the Minnesota order”) granting Appellant the right to receive a weekly twenty-minute phone call (in addition to any existing phone privileges) so that he could participate in therapy sessions with the child. The Minnesota court joined the Maricopa County Superior Court (“the party. superior On court”) 4, to the action the as an interested court (ex third rel.
March
2009,
Minnesota
Appellant) filed a “Motion for Filing of a Foreign Judgment” in the superior court. ¶4 In response to the Minnesota court’s motion, the
superior court filed a minute entry (“the Arizona order”) on May 13, 2009, recognizing the validity of the Minnesota order. Arizona order in also his required child’s that therapy Appellant through be allowed a The to
participate
either
weekly
twenty-minute phone call or by any means “otherwise recommended
2
by
the
child’s
therapist.” Appellant’s
The
order
also
included “not
the [to]
qualification
that
phone
calls
were
interfere with or violate the policies or legitimate penalogical needs of the Arizona Department of Corrections” (“ADOC”). ¶5 To date, Appellant has never been permitted to either On
call or receive a phone call from his child’s therapist. 1
June 15, 2009, Appellant began a grievance process against the ADOC to enforce the Arizona order. On June 16, 2009, Appellant
filed a “Notice of Motion and Motion to Amend/Correct Order,” requesting that the superior court amend the Arizona order to incorporate the “exact language” of the Minnesota order. On
July 22, 2009, the superior court filed a minute entry denying Appellant’s motion to amend/correct the order. court signed the minute entry on December 28, 2009. ¶6 pursuant Appellant to timely appealed, and we have jurisdiction section 12The superior
Arizona
Revised
Statutes
(“A.R.S.”)
2101(B) (2003). 2 ANALYSIS
1
Appellant has never provided the therapist’s name or contact information to ADOC. Evidence was presented by ADOC to the superior court that called into question whether the therapist actually exists.
2
An answering brief was not filed in this case. Although we could treat the failure to file an answering brief as a confession of reversible error, such treatment is discretionary, and we have chosen to reach the merits of this case. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994). 3
¶7
Appellant argues that the superior court’s failure to the Arizona order violates the Full Faith and
amend/change
Credit Clause embodied in Article IV, Section 1, of the United States Constitution, § 12-1702 (2003). 3 28 U.S.C. § 1738 (West 2010), and A.R.S.
Appellant argues that by not adopting the
exact language of the Minnesota order, the superior court has made compliance with the order “option[al]” - in violation of the Full Faith and Credit Clause. ¶8 We review the superior court’s ruling for an abuse of See Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6, 995
discretion.
P.2d 281, 283 (App. 2000). ¶9 The Full Faith and Credit Clause is embodied in
federal law and reflected in our state law. Constitution states, in relevant part, that
The United States “Full Faith and
Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” art. § IV, § 1; Accord 28 U.S.C. § 1738. mirrors the federal U.S. Const.
Furthermore, A.R.S. requiring
12-1702
closely
legislation,
that Arizona treat “foreign judgment[s] in the same manner as a judgment of the superior court in this state.” ¶10 In this case, we find that the Arizona order complied A foreign judgment is
with the Full Faith and Credit Clause.
3
We cite the current version of the applicable statutes because no revisions material to this decision have since occurred. 4
given full faith and credit “when it is given the same effect that it has in the state where it was rendered with respect to the parties, the subject matter of the action and the issues involved.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v.
Greene, 195 Ariz. 105, 108, ¶ 12, 985 P.2d 590, 593 (App. 1999) (quoting Sainz v. Sainz, 245 S.E.2d 372, 375 (N.C. App. 1978)). The Arizona order confers upon Appellant the ability to make a weekly twenty-minute phone call or any other communication as recommended by the therapist. is neither ambiguous nor The language in the Arizona order makes compliance with the order
optional as Appellant contends. statutory requires judgment. requirement adoption The of that the the exact
We have found no precedent or Full Faith and a Credit final effect Clause foreign as the
language the
of
Arizona
order
gives
same
Minnesota order with respect to the parties, subject matter, and issues involved herein, and therefore, it has given full faith and credit to the Minnesota order. Until the therapist’s
contact information has been furnished by Appellant, ADOC will be incapable of complying with the Arizona order, but ADOC’s incapacity to effectuate the order does not mean that compliance is optional as Appellant suggests. 4
4
The record reflects several instances of unwillingness by the ADOC to comply with the court order. Appellant also claimed that ADOC has engaged in retaliatory action against him for seeking enforcement of this court order. We note that both the 5
¶11
Finally, the qualification in the Arizona order that
the communications with the therapist “not interfere with or violate the policies or legitimate penalogical needs of [ADOC]” does not violate the Full Faith and Credit Clause. “The methods
by which a judgment of another state is enforced are determined by the local law of the forum.” Id.; see also Restatement
(Second) of Conflict of Laws § 99 (1971) (stating “the local law of the forum determines the methods by which a judgment of
another state is enforced”).
The laws and policies of Arizona
should be complied with when giving full faith and credit to a foreign judgment. See Nat’l Union Fire Ins. Co, 195 Ariz. at Accordingly, it was neither an
108, ¶ 12, 985 P.2d at 593.
abuse of discretion nor a violation of the Full Faith and Credit Clause for the superior court to require that enforcement of the order not interfere or conflict with the legitimate penalogical policies and needs of ADOC.
Minnesota order and the Arizona order are legally binding, and once appellant has provided ADOC with the proper contact information, they must, without further delay, accommodate appellant’s communications with his child’s therapist in any manner that does not violate their policies or legitimate penalogical needs. Furthermore, the ADOC may not, under any circumstances, take any retaliatory action against appellant for attempting to enforce this order. 6
CONCLUSION ¶12 For the aforementioned reasons, we affirm the superior
court’s order denying Appellant’s motion to amend/correct the Arizona order.
___________________/S/_______________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING:
_____________/S/___________________ PATRICIA K. NORRIS, Judge
____________/S/____________________ PATRICK IRVINE, Judge
7
