Badertscher v. Badertscher

• Decision Date: 24 October 1969
• Docket Number: CA-CIV,No. 2,2
• Citation: 460 P.2d 37,10 Ariz.App. 501
• Parties: Louis BADERTSCHER, Appellant, v. Noel Faith BADERTSCHER, Appellee. 649.
• Court: Arizona Court of Appeals

Page 37

460 P.2d 37

10 Ariz.App. 501

Louis BADERTSCHER, Appellant, v. Noel Faith BADERTSCHER, Appellee.

No. 2 CA-CIV 649.

Court of Appeals of Arizona, Division 2.

Oct. 24, 1969.

John Aboud, Tucson, for appellant.

Knez & Glatz, by Nick Knez and Richard D. Crites, Tucson, for appellee.

HATHAWAY, Judge.

This appeal is from an order modifying child custody. The parties were divorced on March 7, 1967, and the mother was given custody of the two minor children. The father was ordered to pay child support. On April 9, 1968, the father obtained an ex parte order awarding him the custody of the children and terminating the child support payments.

On July 9, 1968, Judge Truman set aside the ex parte order and reinstated custody in the mother. In addition, Judge Truman ordered the father to pay $200 a month in child support, and attorneys fees and costs. The father was given six weeks visitation rights in the summer, and ordered to post a $500 bond prior to taking custody of the children during visitation.

Judge Truman was out of town when this matter initially came up for hearing, and due to the presence of out-of-town witnesses, and with the parties' consent, the case was assigned to Judge Fenton. While the case was before Judge Fenton, witnesses were sworn and placed under the Rule, opening statements were made, and a ruling was made on a motion to strike an affidavit. After these items occurred, Judge Fenton learned that Judge Truman was returning the following day and reassigned the case to her. In so doing, Judge Fenton stated:

'* * * it is very clear that the order of Judge Truman is very important in this case, and in view of the opening statements and the fact of what transpired before Judge Truman is apparently going to be an issue in this case * * * the right thing to do in this matter would be to refer the matter back to Judge Truman for disposition, because she, better than anyone else, knows what transpired in the hearing before her when she issued the order.'

The appellant contends the Arizona Conference Corporation of Seventh Day Adventists v. Barry, 72 Ariz. 74, 231 P.2d 426 (1951), applies and controls our disposition of this matter. In that case the Supreme Court held that a request for a change of judge based on an affidavit of bias and prejudice was not timely filed after the court had heard evidence and had ruled on a motion, and thus the trial court was duty bound to proceed with the case. The court further stated that a judge may not assign a case '* * * when the judge has heard and ruled on contested matters.'

In Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721 (1955), the court disapproved of the Barry ruling that if a judge ruled on any litigated or contested matter it was too late to disqualify, and reaffirmed Stephens v. Stephens, 17 Ariz. 306, 152 P. 164 (1915). In Marsin the court stated:

'* * * this court is committed to the rule that if a judge is allowed to receive evidence Which of necessity is to be used and weighed in deciding the ultimate issues, it is too late to disqualify him on the ground of bias and prejudice.' (Emphasis added) 78 Ariz. at 315, 279 P.2d at 725.

No question of bias and prejudice is presented here. The record is clear that the case was reassigned to Judge Truman in view of her former contact and familiarity with the case. The matter of assignments should not be viewed from its most technical aspects, but rather from a standpoint of substance, bearing in mind that a litigant has no right to insist that a matter be heard before any particular judge. We note that Judge Fenton conferred with the Court Administrator before making the assignment, and since no ruling has been made on any contested or litigated matter which was to be used in the final determination of the case, we conclude that the assignment was correctly made and that Judge Truman had jurisdiction to proceed as she did.

The father next contends that Judge Truman, in setting aside the April 9, 1968, order on the basis of Rule 60(c), 16 A.R.S., committed an abuse of discretion. Rule 60(c) provides for relief from a judgment or order taken against a party through his mistake, inadvertence, surprise, or excusable neglect. When the order was entered the appellee remained in Chicago, Illinois, where she resided with the children. The record shows that she did not have sufficient funds to return to Arizona. Based on advice from her Illinois attorney that the Arizona court did not have jurisdiction over her due to improper service, she did not defend the April 9, 1968 action. The attorney also advised her that she was in no danger of losing the custody of the children.

The appellant fails to rebut this evidence except to intimate that she should never have left Arizona in the first place, and 'deliberately created the plan to ignore Arizona's authority and depends on the Illinois court's protection.' Such contentions are without basis.

Viewing the record most favorably to sustaining the trial court, we conclude that appellee's reliance on the advice of her attorney is, alone, sufficient basis for setting aside a judgment. Central Bank of Willcox v. Willcox-Pima Overland Co., 21 Ariz. 314, 188 P. 133 (1920). This being a child custody case, a full hearing on the merits is particularly appropriate, and the overall circumstances clearly justifies relief from the operation of the judgment of April 9, 1968.

In considering appellant's contention that it was error to award the custody of the children to the appellee, our main consideration is, of course, the children's welfare. The trial court's judgment concerning the children's best interests will not be set aside unless it clearly appears that the court abused its discretion. In re Clay, 96 Ariz. 160, 393 P.2d 257 (1964).

Although the appellee worked to support herself and the children, she always insured that the children were constantly supervised. When not at work she gave her time, love and affection to the children. She took steps to protect their health, made arrangements for schooling, provided a modest but neat and clean apartment, and she adequately fed, dressed and disciplined the children. The record tells a story of a working mother who is devoted to her children and who is doing the best possible for her children under the circumstances. Although the appellant makes several innunendos about appellee's moral fitness, the trial court apparently found them to be unfounded, nor is it for us to tell the trial judge which testimony she must believe. The custodial order is supported in the evidence.

The appellant states that the portion of the July 9, 1968 order dealing with child support was unjust and an abuse of discretion in that it requires him to pay support for the months of February through June, 1968. The record shows that appellant was in arrears in making support payments from February through April 9, 1968. There is nothing unjust nor is there an abuse of the court's discretion in requiring him to pay support for the period he was legally obligated to do so.

Thus, the question is whether there was an abuse of discretion in ordering the appellant to pay support from April 9, 1968, when he received custody of the children, through June, 1968. We believe this was an abuse of the court's discretion. The appellant actually supported the children during this period and to require that he also furnish the full support payments to appellee is unwarranted. Furthermore, a court is without authority to increase child support retroactively. 27 C.J.S. Divorce § 322(1) c, p. 687; Adair v. Superior Court, 44 Ariz. 139, 33 P.2d 995, 94 A.L.R. 328 (1934). In Adair the court also held that an order requiring the father to pay $60 in back money to the mother, for funds she had expended for the care of the child, was unauthorized. See also Chapman v. Chapman, 177 Or. 239, 161 P.2d 917 (1945). The general rule is that a father should be allowed credit for expenditures made whild the child is in his custody, where such payments constitute a substantial compliance with the spirit and intent of the decree. 2 A.L.R.2d 832--833. The order is modified to eliminate support payments from April 9, 1968 through June, 1968.

The July 9, 1968 order reinstated the appellant's support obligation at $100 a month per child. Appellant says that the court erred in not reinstating that amount with the same condition as in the separation agreement--that in the event appellee remarried the support payments were to be reduced to $50 per month per child. The separation...