921 P.2d 21 (Ariz. 1996), CV-95-0500, Taliaferro v. Taliaferro

Docket Nº:CV-95-0500-PR.
Citation:921 P.2d 21, 186 Ariz. 221
Opinion Judge:[11] The opinion of the court was delivered by: Martone
Party Name:Clinton Charles TALIAFERRO, Petitioner-Appellant, and Robert A. Hirschfeld, Real Party in Interest, Non-Party Appellant, v. Johanna Antonia TALIAFERRO, Respondent-Appellee.
Attorney:[8] Robert A. Hirschfeld, Phoenix, In Propria Persona. [9] Martin LaPrade, Phoenix, Attorney for Johanna Antonia Taliaferro.
Case Date:June 20, 1996
Court:Supreme Court of Arizona
 
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921 P.2d 21 (Ariz. 1996)

186 Ariz. 221

Clinton Charles TALIAFERRO, Petitioner-Appellant, and

Robert A. Hirschfeld, Real Party in Interest, Non-Party Appellant,

v.

Johanna Antonia TALIAFERRO, Respondent-Appellee.

No. CV-95-0500-PR.

Supreme Court of Arizona.

June 20, 1996

In Banc.

Robert A. Hirschfeld, Phoenix, In Propria Persona.

Martin LaPrade, Phoenix, for Johanna Antonia Taliaferro.

OPINION

MARTONE, Justice.

We granted review in this marital dissolution action to consider whether the failure of a trial judge to honor a notice of change of judge under Rule 42(f)(1), Ariz. R. Civ. P., affects the subject matter jurisdiction of the superior court. We hold that it does not. We also hold that a party aggrieved by the denial of a notice of change of judge must seek timely review by way of special action relief.

  1. THE RELEVANT PROCEEDINGS

    Husband brought an action against wife for dissolution of their marriage. On January 27, 1993, Judge William Topf granted husband's petition for an order of protection against wife. On February 3, 1993, wife filed a notice of change of judge, and the case was assigned to Judge Alfred Rogers. Wife also filed a request for a hearing on the previously issued order of protection, which Judge Rogers scheduled for February 12, 1993. Husband "showed up and then left before the hearing commenced." Minute Entry of Feb. 12, 1993. Wife appeared, and the judge quashed the order of protection.

    On February 24, 1993, husband filed a notice of change of judge as to Judge Rogers. On February 25, 1993, Judge Rogers denied husband's notice of change of judge "for the reason that a scheduled, contested hearing has taken place before this Court." Minute Entry of Feb. 25, 1993. 1

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    [186 Ariz. 222] Husband did not seek special action relief from this denial. Instead, the case went to trial before Judge Rogers in July and August of 1993. On August 24, Judge Rogers signed a lengthy final judgment which, among other things, ordered husband's lawyer, out of the proceeds of the fee he earned from husband, to pay wife's lawyer's fees, and the balance, if any, to the clerk of the superior court, as a sanction for egregious misconduct. Both husband and his lawyer, Robert Hirschfeld, appealed to the court of appeals. That court concluded that husband did not waive his right to a change of judge, that the issue could be raised on appeal, and that once 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 important issue of law had been incorrectly decided, Rule 23(c)(4), Ariz. R. Civ.App. P., we granted review.

  2. ANALYSIS

    Wife argues that husband waived his right to file a notice of change of judge because he participated before Judge Rogers in a scheduled, contested matter within the meaning of Rule 42(f)(1)(D)(i), Ariz. R. Civ. P. After all, the...

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