Chandler v. Hon. Hyatt/Bartolini

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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 HEATHER CHANDLER, Petitioner, v. THE HONORABLE CAREY SNYDER HYATT, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, BRIAN BARTOLINI, Real Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03-18-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-SA 10-0028 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Petition for Special Action from the Maricopa County Superior Court Cause No. FC 2008-053121 The Honorable Carey Snyder Hyatt, Judge JURISDICTION ACCEPTED; RELIEF GRANTED Mueller & Drury, P.C. By James P. Mueller Attorney for Petitioner The Harrian Law Firm, P.L.C. By Julius Harms Attorney for Respondent B A R K E R, Judge Scottsdale Glendale ¶1 Heather Chandler ( Mother ) filed this special action seeking relief from the family court s order granting (1) the motion to vacate a relocation provision in a default decree and (2) the alternative petition to modify custody. For the following reasons, we accept jurisdiction and grant the relief requested by Mother. Facts and Procedural History ¶2 Mother and Brian Bartolini ( Father ) are the parents of two minor children. Mother filed a petition for dissolution of marriage on October 3, 2008. After Father failed to respond to the petition for dissolution of marriage, the court entered a default decree dissolving the marriage on January 21, 2009. Pursuant to the default decree, Mother was awarded sole custody of the children. ¶3 Prior to the divorce, Mother, Father, and the children lived in Arizona, and the children attended school in Arizona. In August 2009, Mother and the children moved from Arizona to New York, and Mother subsequently remarried. In the fall of 2009, the children began attending a new school in New York. Father did not consent to Mother s relocation of the children. ¶4 After Mother moved to New York with the children, Father, for the first time, read the petition for dissolution of marriage and dissolution of the default marriage, decree. Mother 2 In requested the sole petition for custody and reasonable parenting time for silent on relocation terms. Father, but the petition was The custody and parenting time provision in the default decree provided: Petitioner/Mother shall have sole legal custody of the two (2) minor children. Respondent/Father shall have flexible parenting time as negotiated by the two parties and as determined in the best interests of the minor children. The children shall be in Mother s physical custody at all other times. During Father s parenting time, he may not travel outside the State of Arizona without Mother s written permission. Pursuant to ARS § 25408, Mother may relocate the minor children out of the State of Arizona or more than 100 miles, without Father s written permission or Court order. The receiving parent will provide the transportation at the beginning and end of parenting time periods for Father. (Emphasis added). ¶5 the On August 27, 2009, Father filed a motion to vacate relocation provision contained in the default decree because, he argued, this term in the default decree exceeded the scope of custody requested in the petition for dissolution of marriage. show cause One week later, Father filed a petition for order to to prevent relocation of alternative petition to modify custody. the children and an On December 2, 2009, the family court granted Father s motion to vacate, removed the relocation provision from the default decree, and ordered Mother to bring the children to Arizona by December 26, 2009. 3 Mother returned to Arizona with the children and filed a motion for new trial challenging this ruling. ¶6 After an evidentiary hearing regarding the relocation of the children to New York and Father s petition to modify custody, the family court entered an order on January 25, 2010, (1) denying Mother s request to relocate the children, (2) modifying custody from sole custody to joint custody, and (3) denying Mother s motion for a new trial. Mother filed this petition for special action relief on February 18, 2010. Discussion 1. Jurisdiction ¶7 Special action jurisdiction is highly discretionary, Blake v. Schwartz, 202 Ariz. 120, 122, ¶ 7, 42 P.3d 6, 8 (App. 2002), and is proper when there is speedy, and adequate remedy by appeal. 1(a). not an equally plain, Ariz. R.P. Spec. Act. Special action jurisdiction is especially appropriate to resolve pure issues of law. Chartone, Inc. v. Bernini, 207 Ariz. 162, 165 66, 83 P.3d 1103, 1106 07 (App. 2004). This case deals with the relocation of children and their placement in school. We accept special action jurisdiction because there is no adequately prompt remedy by appeal; an appeal would interfere with another semester of the children s schooling. See Jordan v. Rea, 221 Ariz. 581, 586, ¶ 9, 212 P.3d 919, 924 (App. 2009) 4 (accepting special action jurisdiction over case involving placement of child in a private religious school). 2. Relocation Provision ¶8 Mother argues the family court improperly modified the default decree by striking the relocation provision. Father does not address the merit of Mother s argument in his response to her petition for special action; however, Father contended before the family court that the relocation provision in the default decree was void because it exceeded the scope of relief sought in Mother s petition for dissolution of marriage. We review an order regarding relocation and child custody for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). ¶9 Family For good cause and in accordance with Arizona Rule of Law judgment. Procedure 85, the court Ariz. R. Fam. L.P. 44(C). can set aside a default Rule 85 allows a party to file a motion to correct mistakes or challenge a court order. Id. 85(C). Rule 85 states: 1. On motion and upon such terms as are just the court may relieve a party or a party s legal representative from a final judgment, order or proceeding for the following reasons: a. Mistake, inadvertence, surprise or excusable neglect; . . . . 5 c. Fraud, misrepresentation, or other misconduct of an adverse party; d. The judgment is void; [or] . . . . f. Id. 85(C)(1). Any other reason justifying relief from the operation of the judgment. The motion must be filed within a reasonable time, and for reasons 1(a) . . . and (1(c) not more than six (6) months after the judgment or order was entered or proceeding was taken. Id. 85(C)(2). ¶10 A judgment or order is void if the court entering it lacked jurisdiction: (1) over the subject matter, (2) over the person involved, or (3) to render the particular judgment or order entered. State v. Cramer, 192 Ariz. 150, 153 54, ¶ 16, 962 P.2d 224, 227 28 (App. 1998) (holding license revocation order was voidable because Arizona Department of Transportation had jurisdiction over revocation orders). the subject matter, the parties, and A judgment or order is voidable when the court has jurisdiction over the parties and subject matter but enters an erroneous and reversible judgment or order. Id. Voidable judgments are subject to reversal on timely appeal. Auman v. Auman, 134 Ariz. 40, 42, 653 P.2d 688, 690 (1982) (finding trial court s decree 6 of dissolution giving wife exclusive use and occupancy of jointly owned property was voidable). ¶11 was Here, the relocation provision in the default decree not a void judgment because the family court had jurisdiction over the dissolution action and over Mother and Father. the Assuming the relocation provision exceeded the scope of petition grounds to for file 85(C)(1)(a) dissolution the for motion and to surprise misrepresentation. was vacate or voidable, term Rule Father pursuant had to Rule 85(C)(1)(c) for Father, however, filed the motion to vacate on August 27, 2009, which was more than six months after entry of the default decree. Thus, Father s motion was untimely, and the family court erred in granting the motion. ¶12 Father also pointed to the catch-all provision under Rule 85(C)(1)(f) and asserted the six-month time limit did not apply to his motion. vacate because exceeded for under Rule 85(C)(1)(a) or misrepresentation under Rule 85(C)(1)(c). The which could the Father filed the motion to petition dissolution, it We disagree. scope constitute of the surprise general catch-all provision cannot include already enumerated provisions; otherwise there would be no need for the specific provisions. 33794, 171 ( Specific See Ariz. In 90, statutory re Maricopa 93, 828 provisions 7 County, P.2d Juv. 1231, control Action 1234 over (App. those No. JA 1991) that are general. ); see also Ariz. R. Civ. P. 60(c) (the civil rule counterpart to Rule 85(C)(1)); Panzino v. City of Phoenix, 196 Ariz. 442, 445, ¶ 6, 999 P.2d 198, 201 (2000) (requiring a party demonstrate the reason for setting aside a judgment under the catch-all provision is not enumerated in the more specific provisions of Rule 60(c)). ¶13 In his deposition prior to the evidentiary hearing, Father admitted that he chose not to participate in the dissolution proceedings and did not inform himself of the terms of the Father default had six decree months until to Mother challenge relocated the to relocation New York. provision under Rule 85 but failed to do so in a timely manner. ¶14 Despite a parent s failure to timely file a Rule 85 motion, our statutes allow a parent to file a motion to modify a custody decree earlier than one year after its date . . . on the basis of affidavits that there is reason to believe the child s present environment may seriously endanger the child s physical, mental, moral or emotional health. ( A.R.S. ) § 25-411(A) (Supp. 2009). Father made no allegations that the seriously endanger[ed] the children. Ariz. Rev. Stat. In the motion to vacate, relocation to New York Consequently, the family court erroneously granted Father s motion to vacate. ¶15 Father also filed a petition for order to show cause to prevent relocation of minor children on September 4, 2009, 8 alleging relocation was inappropriate under A.R.S. § 25-408. In particular, Father challenged the relocation because Mother did not relocate provisions the of children A.R.S. § in accordance 25-408(B). with Subsection the (B) notice and the related provisions allowing a parent to challenge relocation do not apply if a provision for relocation of a child has been made by a court order or a written agreement of the parties that is dated child. within one year of the proposed A.R.S. § 25-408(E) (Supp. 2009). relocation of the Here, there was such an order. ¶16 Moreover, even if A.R.S. § 25-411 was the asserted basis for Father s petition, Father argued relocation to New York would cause the children to change schools and interfere with their relationship with Father, their relatives, and their school teachers inherent in seriously any in Arizona. move endanger to a General new standard state required agreement under A.R.S. § 25-411(A). detriment does to not to rise modify a children to the custody Thus, neither the motion to vacate nor the September 4 petition provided a basis for the trial court to strike the relocation provision from the default decree or otherwise prevent relocation to New York. 3. ¶17 Modification of Custody On January 25, 2010, the family court modified the custody agreement from sole custody to joint custody. 9 Father requested a modification of custody as an alternative in his September 4 petition for order relocation of minor children. to show cause to prevent As stated above, under A.R.S. § 25-411, [a] person shall not make a motion to modify a custody decree earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child s present environment may seriously endanger the child s physical, mental, moral or emotional health. A.R.S. § 25-411(A). Here, Father requested a modification of custody less than one year from the entry of the default decree. Father did not identify A.R.S. § 25-411 as the basis for his modification request, and nothing in Father s petition demonstrated the children s environment in New York seriously endanger[ed] their well-being. Consequently, the family court improperly modified the custody agreement. 1 ¶18 We note that after one year, a court may modify a custody agreement if there has been a change of circumstances materially affecting the welfare of the child. Hendricks v. Mortensen, 153 Ariz. 241, 243, 735 P.2d 851, 853 (App. 1987); 1 Because custody should not have been modified, the family court s modification of child support and award of attorneys fees was also erroneous. In addition, Mother seeks relief from the family court s failure to consider evidence at the evidentiary hearing. We do not address the evidentiary issue because the motion to vacate and petition to modify custody should not have been granted. 10 see also A.R.S. § 25-411(F). The one year period has now passed, and Father can file a petition to modify the custody agreement because Mother s substantial change children. Immediately either party may relocation materially file upon a to affecting the motion request to change custody is made. the issuance for a New of York welfare this temporary is of a the decision, order if a A.R.S. § 25-404 (2007). Conclusion ¶19 court s For the December foregoing 2 order reasons, granting the we vacate motion to the family vacate and January 25 order modifying custody. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ___________________________________ PETER B. SWANN, Judge 11

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