Taliaferro v. Taliaferro
| Decision Date | 17 October 1995 |
| Docket Number | No. 1,CA-CV,1 |
| Citation | 184 Ariz. 613,911 P.2d 619 |
| Parties | In re the Marriage of Clinton Charles TALIAFERRO, Petitioner-Appellant, and Robert A. Hirschfeld, Real Party in Interest, Non-Party Appellant, v. Johanna Antonia TALIAFERRO, Respondent-Appellee. 93-0547. |
| Court | Arizona Court of Appeals |
Appellant raises several issues in this appeal from the trial court's final decree of dissolution. Attorney Robert Hirschfeld also appeals from the trial court's order sanctioning him $20,000 for violation of various disclosure rules. However, the threshold issue in this appeal is whether the trial court erred in failing to honor appellant's notice of change of judge. We find that the court did err, and thus we reverse.
In June 1992, appellant Clinton Taliaferro (husband) filed a petition for dissolution of marriage from appellee Johanna Taliaferro (wife). On January 27, 1993, husband, then proceeding pro per, obtained an order of protection against wife from Judge William Topf, the judge assigned to the case at that time. 1 Wife subsequently filed a notice of change of judge, see Rule 42(f), Arizona Rules of Civil Procedure, and the case was assigned to Judge Alfred J. Rogers. Wife then requested a hearing to respond to the January 27th order of protection, 2 and the matter was set for hearing on February 12, 1993, before Judge Rogers.
No court reporter was present at the February 12th hearing, but the court's minute entry reflects that husband was neither present nor represented by counsel. Specifically, the court noted in its minute entry that husband "showed up and then left before the hearing commenced." Without noting whether the court heard argument from wife, the court ordered the January 27th order of protection issued against wife be quashed.
On February 24, 1993, attorney Robert Hirschfeld filed a notice of appearance of counsel and a notice of change of judge on behalf of husband. In his notice of change of judge, husband requested reassignment of the case pursuant to Rule 42(f), asserting that Judge Rogers "has not heard any proceeding in which [husband] has participated in this matter." Judge Rogers denied husband's notice on February 25th "for the reason that a scheduled, contested hearing has taken place before this Court."
After a lengthy trial before Judge Rogers, the court entered a decree ordering the marriage between the parties dissolved. The court also made various orders regarding custody of the parties' minor child, child support, spousal maintenance, and visitation. The court also entered an order sanctioning attorney Hirschfeld $20,000 for failing to disclose that husband had taken an overdose of prescription medication in May 1993 in what the court found to be a suicide attempt. Both husband and Hirschfeld appealed.
Husband argues that his February 24th notice of change of judge was timely and was not waived; therefore, he argues, Judge Rogers was without jurisdiction to proceed and every ruling and order by Judge Rogers after February 24th should be "reversed and declared void."
Rule 42(f)(1) provides that each side in an action is entitled as a matter of right to one change of judge, if the notice of change of judge is filed within the time constraints set forth in subsection (C). 3 Rule 42(f)(1)(D) provides, in part:
(D) Waiver. A party waives the right to change of judge as a matter of right when, after a judge is assigned to preside at trial or is otherwise permanently assigned to the action, the party agrees to the assignment or participates before that judge in:
(i) Any scheduled contested matter in the case....
(Emphasis added.) Because the parties did not agree to the assignment, there are two elements to the determination of waiver under subsection (D)(i): whether husband (1) participated before the noticed judge (2) in a scheduled contested matter.
In denying husband's Rule 42(f) notice of change of judge in this case, Judge Rogers found that he had heard a "scheduled contested matter"--the February 12th hearing requested by wife to respond to the order of protection issued against her. See generally Sarchett v. Superior Court, 168 Ariz. 321, 812 P.2d 1139 (App.1991) (); Lewis v. Kelliher, 171 Ariz. 228, 829 P.2d 1274 (App.1992) (). Judge Rogers did not, however, make any finding with regard to whether husband "participated" in that hearing. We find that husband did not.
According to the court's own minute entry, husband was neither present nor represented by counsel at the February 12th hearing. In addition, the court's minute entry reflects that husband "showed up and then left before the hearing commenced." In so doing, husband essentially waived his right to participate at the hearing on February 12th--the very antithesis of participation itself. In our opinion, it would all but eliminate the participation element from Rule 42(f)(1)(D) if we were to construe husband's "non-appearance" to be "participation" at that hearing.
Wife contends that husband cannot now raise this issue for the first time on appeal. We disagree. Although a number of notice of change of judge issues come to this court by way of special action, see Rules 1 and 3, Arizona Rules of Procedure for Special Actions, and although that might be the expedient method by which to raise the issue before this court in most cases, we have never held that Rule 42(f) issues cannot be raised on direct appeal from the final judgment. Cf. Tash v. Saunders, 153 Ariz. 322, 325, 736 P.2d 805, 808 (App.1987) (). When a proper notice of change of judge is timely filed, the noticed judge "has no jurisdiction to do more than order the cause transferred to another judge." Huck v. Haralambie, 122 Ariz. 63, 64, 593 P.2d 286, 287 (1979) (emphasis added); Hordyk v. Farley, 94 Ariz. 189, 382 P.2d 668 (1963); Murray v. Thomas, 80 Ariz. 378, 298 P.2d 795 (1956); see also Rule 42(f)(3) (). Thus, we conclude that this issue was properly raised on appeal. See Matter of Maricopa County Juvenile Action No. JD-05401, 173 Ariz. 634, 640, 845 P.2d 1129, 1135 (App.1993) (). 4
Finally, husband does request this court to affirm the grant of the dissolution of marriage pursuant to A.R.S. section 25-325(A), which provides, in part:
A decree of dissolution of marriage ... is final when entered, subject to the right of appeal. An appeal from the decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision, and either of the parties may remarry pending appeal.
Although we are not unmindful of the possible ramifications of our decision, we simply are unable under current law to affirm the decree in this case. We believe that section 25-325(A) allows a decree to stand, presuming no issues are raised on appeal with regard to the breakdown of the marriage, only when that decree was entered by a...
To continue reading
Request your trial
- Rowe ex rel. Rowe v. Bankers Life and Cas. Co.
-
Taliaferro v. Taliaferro
...and the sanction on grounds that the trial court had erroneously denied Father's notice of change of judge. Taliaferro v. Taliaferro, 184 Ariz. 613, 911 P.2d 619 (App.1995). The supreme court then vacated our decision on grounds that "rulings by noticed judges on the propriety of the notice......
-
Taliaferro v. Taliaferro
...the notice was filed, Judge Rogers had no subject matter jurisdiction to proceed. It vacated the final decree. Taliaferro v. Taliaferro, 184 Ariz. 613, 911 P.2d 619 (App.1995). Because its opinion drew into question the validity of untold numbers of judgments, and believing further that an ......
- Allstate Ins. Co. v. Powers