DAUENHAUER v. FEATHERMAN
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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. FILED BY CLERK SEP 23 2010 COURT OF APPEALS IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO ) ) Petitioner/Appellee, ) ) v. ) ) KATIE FEATHERMAN, ) ) Respondent/Appellant. ) ) DIVISION TWO KYLE DAUENHAUER, 2 CA-CV 2010-0041 DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 28, Rules of Civil Appellate Procedure APPEAL FROM THE SUPERIOR COURT OF GRAHAM COUNTY Cause No. DO2005217 Honorable D. Corey Sanders, Judge Pro Tempore APPEAL DISMISSED Law Office of Matt N. Clifford, P.C. By Jeremy J. Waite Katie Featherman E C K E R S T R O M, Judge. Safford Attorneys for Petitioner/Appellee Bloomington, Illinois In Propria Persona Appellant Katie Featherman seeks to challenge on appeal the trial court s ¶1 order entered pursuant to A.R.S. § 25-404, awarding temporary custody of the parties children to appellee Kyle Dauenhauer.1 However, as Dauenhauer correctly notes in his answering brief, this court lacks jurisdiction to consider the appeal. This court s power to review actions of the superior court on appeal is ¶2 prescribed by A.R.S. §§ 12-120.21 and 12-2101. Searles v. Haldiman, 3 Ariz. App. 294, 294, 413 P.2d 860, 860 (1966). A temporary order for physical custody issued pursuant to § 25-404 is not an order from which an appeal may be taken under § 12-2101. In DePasquale v. Superior Court, 181 Ariz. 333, 337, 890 P.2d 628, 632 (App. 1995), we specifically observed that a temporary custody order issued under A.R.S. § 25-333, renumbered in 1996 as the current § 25-404, is not appealable. See 1996 Ariz. Sess. Laws, ch. 192, §§ 2, 32. Section 25-333 and § 25-404 are the same in relevant part. Because the temporary custody order here is not appealable under § 12-2101, we lack jurisdiction to consider it. ¶3 The proper procedure to challenge a temporary custody order is by special action, which allows the proceedings below to be stayed in a timely fashion and enables this court to grant meaningful relief with minimal disruption to a child s life. See DePasquale, 181 Ariz. at 336-37, 890 P.2d at 631-32. Here, the trial court s signed minute entry order granting Dauenhauer temporary custody was filed December 29, 2009. Featherman never sought to stay the court s ruling, nor did she seek special action 1 We note that in the same order, the trial court found Featherman in contempt of court. However, her notice of appeal and appellate brief make clear Featherman is only challenging the temporary custody order. 2 relief in this court. Therefore, although we have discretion to treat the appeal as a special action, see Robinson v. Kay, 225 Ariz. 191`, ¶ 7, 236 P.3d 418, 420 (App. 2010), we decline to do so here. ¶4 Featherman s appeal is dismissed. /s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Judge CONCURRING: /s/ Garye L. Vásquez GARYE L. Và SQUEZ, Presiding Judge /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge 3
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