STORING v. HON. WEISS/STORING

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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 YESSENIA STORING, ) ) Petitioner, ) ) v. ) ) THE HONORABLE RICHARD WEISS, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MOHAVE, ) ) Respondent Judge, ) ) MYRON STORING, ) ) Real Party in Interest. ) __________________________________) No. 1 CA-SA 13-0104 DIVISION ONE FILED: 06/20/2013 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Petition for Special Action from the Superior Court in Mohave County Cause No. DO-2011-04406 The Honorable Richard Weiss, Judge JURISDICTION ACCEPTED; RELIEF GRANTED IN PART Law Office of Michele Holden, PLLC By Michele Holden Attorney for Petitioner Law Offices of Paul Lenkowsky By Paul Lenkowsky and Virginia L. Crews Attorneys for Real Party in Interest B R O W N, Judge Kingman Bullhead City ¶1 Yessenia relief from the Storing trial ( Mother ) court s seeks temporary special and final action orders granting Myron Storing s ( Father ) petition for modification of child custody 1 and parenting time. 2 For the following reasons, we conclude the court abused its discretion in treating Father s emergency petition permanent basis. as a request for modification on a We therefore accept jurisdiction and grant relief in part. BACKGROUND ¶2 Father and Mother divorced in April 2012. The decree of dissolution provided that Mother and Father would have joint custody (with equal parenting time) of their two filed children, an ages 7 and 11. ¶3 On January Petition for Order Time; In the 10, to 2013, Appear Alternative, to Father Modify Petition for Emergency [Mother s] Expedited Parenting Hearing to 1 As of January 1, 2013, the legislature changed all references to legal custody in Arizona Revised Statutes ( A.R.S. ) title 25, chapter four to legal decision-making. See 2012 Ariz. Sess. Laws, ch. 309, § 4 (2d Reg. Sess.); A.R.S. § 25-401(3). The revised statute applies to these proceedings. Court rules, however, still use the term custody and thus we use the terms interchangeably here. 2 Mother also challenges the trial court s order requiring that she appear for an evidentiary hearing. Because the hearing has already taken place and Mother appeared for it, the issue is moot and we do not consider it. See Stop Exploiting Taxpayers v. Jones, 211 Ariz. 576, 578, ¶ 6, 125 P.3d 396, 398 (App. 2005) ( Generally, a court will not consider moot questions. ). 2 Modify [Mother s] Parenting Time and Order to Appear. to Arizona Rule of Family Law Procedure ( ARFLP ) Pursuant 91(D) and A.R.S. § 25-414, 3 Father requested that Mother s parenting time be modified immediately, subject to a later hearing to be set by the court. In support of his petition, Father cited several incidents, including Mother s arrest for extreme DUI on December 5, 2012, and statements Mother allegedly made to the children impugning Father s character. Father argued those instances demonstrated that it was necessary for the health, safety, and welfare of modified. the children Father that also parenting petitioned time the be immediately court to modify parenting time to provide that Father shall be the exclusive and sole legal decision maker for the minor children and further shall have sole and exclusive parenting time with the minor children, subject only to restricted and supervised parenting time by Mother. Father also requested that Mother be ordered to pay child support after any modification of parenting time. ¶4 On January 14, the trial court signed Father s proposed order, which modified parenting time on an emergency basis. became The order also modified the decree such that Father the exclusive and sole 3 Section 25-414 appears to proceedings because Father did refused without good cause to parenting time order[.] 3 decision maker for the minor have no relevance in these not assert that Mother had comply with a visitation or children. Father was also granted primary parenting time, subject only to supervised visitation with Mother during two four-hour periods each week. until February 4, when The order was to remain in effect the court would hold a 90-minute evidentiary hearing to determine whether or not the modified parenting time orders shall continue in effect as a permanent parenting time order of the Court. ¶5 On January 24, Mother moved to quash the temporary custody order and to dismiss Father s petition. Mother argued requirements that set Father s forth in petition ARFLP 48 In her motion, failed and to A.R.S. § meet the 25-411(L). According to Mother, Father s petition did not comply with those requirements petition was insufficient to warrant the court s temporary custody order. On the same because day, the Mother factual filed a basis response for to the Father s emergency petition, denying the majority of Father s allegations. ¶6 The court used the majority of the time allocated for the February 4 hearing to conduct in camera interviews with the children. Because only twenty minutes remained available for presentation of evidence, the court discussed various options with counsel. Mother s counsel expressed her client s desire to move with forward presentation of at least some evidence, explaining that first of all[,] that this hearing is being held outside the time frame of an emergency ex parte order. 4 So something needs to be done. We need to have it. And it can't be delayed significantly given that my client hasn t even had a chance to put on her evidence. The court declined to rule on Mother s pending motion to quash/motion to dismiss, indicating that Father still had additional time to file a response. approximately twenty minutes of testimony from After Father s witnesses, the court agreed to give the parties an additional 50 60 minutes on February 13. Counsel for Mother asked the court if it had given any thought to changing the temporary orders. In response, Father s counsel urged the court to leave the current emergency orders in place pending the continued hearing, which the court agreed with. ¶7 At the continued hearing on February 13, the parties presented Mother additional indicated she testimony. understood During the closing proceedings arguments, were being conducted according to ARFLP 48 and were not for a permanent change in custody. Mother argued it was not clear to her that a real petition has been filed to modify custody on a permanent basis. Father countered that his motion was brought pursuant to Rule 91(D) and therefore was intended to be one for permanent changes to the custody plan. Mother requested that the Near the close of proceedings, court permanent changes in custody. 5 set a trial date regarding ¶8 after On the record at the conclusion of the hearing, and considering the evidence, the temporary orders remain in place. court ordered that the Mother again raised the issue whether Father s original petition was brought pursuant to Rule 91(D) and, if so, whether the procedural rules were followed. After hearing uncertainty Mother s as to arguments, which rules the court applied and expressed stated some it would independently review the rules and determine the proper course of action. ¶9 On granting Father s and February primary 27, the petition, parenting time court awarding for filed him the sole a minute entry decision-making children. The court determined that Father s petition did not seek temporary relief under Rule 48, but rather sought emergency relief post decree contending his children s physical, mental, moral or emotional health was seriously endangered. supporting parenting its time. modification The court The court then made findings of legal decision-making issued a Order signed and Granting Parenting Time Legal Decision Making to Father on April 19. Mother then filed this special action. DISCUSSION ¶10 Acceptance discretionary. of special action jurisdiction is highly See Snyder v. Donato, 211 Ariz. 117, 119, ¶ 6, 118 P.3d 632, 634 (App. 2005). 6 Because this matter affects young children, see J.A.R. v. Superior Court, 179 Ariz. 267, 273, 877 P.2d 1323, 1329 (App. 1994), and Mother lacks a plain and adequate remedy by appeal for the procedural irregularities she alleges, see In re Marriage of Dorman, 198 Ariz. 298, 303, ¶ 11, 9 P.3d 329, 334 (App. 2000), in our discretion we accept jurisdiction of this special action. ¶11 Mother challenges the court s temporary and permanent orders Under modifying Rule Actions, 3 legal of three the decision-making Arizona questions Rules may be of and parenting Procedure raised on time. for Special special action, including whether a determination was arbitrary and capricious or an abuse of discretion. State ex rel. Romley v. Superior Court, 184 Ariz. 409, 410, 909 P.2d 476, 477 (App. 1995). court abuses unreasonable its or is discretion based if on a decision untenable is grounds discretion is exercised for untenable reasons. A manifestly or if its Schwartz v. Superior Court, 186 Ariz. 617, 619, 925 P.2d 1068, 1070 (App. 1996). ¶12 A party seeking to modify child custody arrangements following a valid decree or judgment may do so by filing a petition under ARFLP 91(D). In its opening sentence, Rule 91(D) states that [n]o hearing for modification of a child custody order or decree shall be set unless there is compliance with [Arizona Revised Statutes] § 25-411 and the requirements set 7 forth in this paragraph. As relevant here, under A.R.S. § 25- 411(A), [a] person shall not make a motion to modify a legal decision-making or parenting time 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 Rule 91(D) petition that alleges facts sufficient to support a modification under A.R.S. § 25-411 must be served on all persons entitled to notice, and an opposing parent has 20 days to respond if he or she is served in Arizona and 30 days otherwise. ARFLP 91(D)(3), (4). Upon filing of the petition, the court must determine whether a hearing is necessary to resolve the petition, and if so, may set a Resolution Management Conference or evidentiary hearing. ¶13 ARFLP 91(D)(6). Rule 91(D), by itself, does not provide a trial court with authority to enter temporary custody orders. Indeed, Rule 91(I) specifically states that [a] request for post-decree or post-judgment temporary orders, if accordance with Rules 47 and 48. filed a Rule 91(D) petition any, shall be filed in Thus, when a parent who has also seeks a temporary custody order, the parent must comply with Rule 47 or 48. ¶14 As applicable Orders without Notice. here, Rule 48 addresses Temporary Under that rule, [a] party seeking a 8 temporary order without notice shall do so by filing a motion, verified or supported by affidavit, together with a proposed form of order, and a notice of hearing on the motion. 48(A). ARFLP The rule further requires that a Rule 48 motion shall be filed after or concurrently with an initial pre-decree, postdecree or post-judgment petition authorized by statute. A trial court may grant a Rule 48 motion only if: 1. it clearly appears from the specific facts shown by affidavit or by the verified motion that irreparable injury will result to the moving party or minor child of the party . . . if no order is issued before the other party can be heard in opposition; and 2. the moving party or the party s attorney certifies to the court, in writing, the efforts, if any, that have been made to give the notice to the other party or the reasons supporting the claim that notice should not be required. ARFLP 48(A). If the court grants a Rule 48 motion, it must set a hearing within 10 days of entering its order. ¶15 requested In this both case, Father s temporary child custody arrangement. and petition permanent ARFLP 48(B). appears to modifications to have the The opening sentence of Father s petition requested that pursuant to [Rule] 91(D) . . . the Court [] modify the parenting time schedule of [Mother] on an Emergency basis or [schedule] an expedited hearing to modify the parenting time orders previously issued in this matter[.] Father further asserted that the health, safety and welfare of 9 the parties minor children are immediately threatened by the conduct and behavior of [Mother]. rules and applicable case law, After reviewing the relevant we conclude that the trial court s treatment of Father s petition failed to provide Mother adequate notice and clarification of which requested form of relief (temporary or permanent changes to custody arrangement) would be adjudicated at the February 4 and February 13 evidentiary hearing. ¶16 The record reflects that Mother understood and treated Father s petition as requesting temporary custody modification. For example, in her closing argument, Mother stated, [a]nd no matter what we re doing here, I just want to emphasize that they are temporary orders. been And it s not even clear to me that a real petition has filed to modify custody on a basis[.] Mother also questioned when the trial court would set the matter for a permanent custody determination. permanent Moreover, at the close of the evidentiary hearing, the court itself indicated it was not entirely certain whether brought under Rule 91 or 48. procedure in this case Father s petition was Thus, the uncertainty of the deprived Mother of a meaningful opportunity to be heard on any matters beyond a request for temporary changes in legal decision-making and parenting time. See Marco v. Superior Court, 17 Ariz. App. 210, 212, 496 P.2d 636, 638 (1972) (noting that no citizen shall be deprived of 10 his life, or his liberty, or his property, without reasonable notice and reasonable opportunity to be heard according to the regular and established rules of procedure. ). ¶17 In sum, we conclude the procedural irregularities and lack of clarity throughout these proceedings deprived Mother of due process as it pertained to any permanent alteration of the custody arrangement. We therefore vacate the trial court s ruling that purported to modify the decree based on a Rule 91 petition. Nonetheless, because Mother clearly treated the petition as one for temporary orders and because we have no basis to think that the best interests of the children would be served by altering the temporary orders at this decline to vacate the court s temporary orders. trial court shall promptly convene a hearing point, we However, the to permit both parties to present additional evidence on the issue of whether legal decision-making under A.R.S. § and 25-411(A) parenting time and 91. Rule should Cf. be modified DePasquale v. Superior Court, 181 Ariz. 333, 336, 890 P.2d 628, 631 (App. 1995) (explaining that a temporary custody order improperly granted is particularly troublesome in an interim change of custody because it subjects the child to a custodial disruption that may be unfounded and creates the risk that interim custody will solidify into a fait accompli by the time a delayed hearing is convened ). 11 CONCLUSION ¶18 For the foregoing reasons, we accept jurisdiction of this special action. We vacate the trial court s order filed on April 19, 2013, and remand for further proceedings consistent with this decision. ______________/s/________________ MICHAEL J. BROWN, Judge CONCURRING: _______________/s/_________________ PATRICIA K. NORRIS, Presiding Judge _______________/s/_________________ DIANE M. JOHNSEN, Judge 12

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