Beard v. Greer, 1

• Decision Date: 06 October 1977
• Docket Number: No. 1,CA-CIV,1
• Citation: 116 Ariz. 536,570 P.2d 223
• Parties: Robert G. BEARD, Petitioner, v. The Honorable D. L. GREER, Judge of the Apache County Superior Court, Respondent, and Stephanie L. Beard, Real Party in Interest. 3968.
• Court: Arizona Court of Appeals

Page 223

570 P.2d 223

116 Ariz. 536

Robert G. BEARD, Petitioner, v. The Honorable D. L. GREER, Judge of the Apache County Superior Court, Respondent and Stephanie L. Beard, Real Party in Interest.

No. 1 CA-CIV 3968.

Court of Appeals of Arizona, Division 1, Department B.

Oct. 6, 1977.

Behrens, MacLean & Jacques by William F. Behrens, Phoenix, for petitioner.

Stephen G. Udall, St. Johns, for real party in interest Stephanie L. Beard.

OPINION

HAIRE, Judge.

In this special action, the petitioning father requested that we prohibit the respondent judge from proceeding further in Apache County Civil Action No. C-5560. Petitioner contended that his motion to dismiss should have been granted because exclusive jurisdiction was vested in the Maricopa County Superior Court. After hearing oral argument, we accepted special action jurisdiction and entered an order directing that the Apache County proceedings be dismissed. This opinion sets forth the reasons for our decision.

The trial court proceedings involved questions concerning the custody of the two minor sons of the petitioning father. Pursuant to a decree of dissolution of marriage entered on February 26, 1974, in Maricopa County Superior Court Cause No. D-149428, petitioner was awarded custody of his two sons. He was at that time, and continues to be, a resident of Maricopa County. Sometime after the entry of the decree of dissolution, the respondent mother moved to Apache County where she now resides.

In July of this year petitioner took the two sons to Apache County and left them there for a visit with their mother. During this period of visitation, the respondent mother commenced a new action in Apache County, seeking a modification of the child custody provisions set forth in the previously entered Maricopa County decree. The father immediately filed a motion to dismiss, contending that exclusive jurisdiction was vested in the Maricopa County Superior Court. When his motion to dismiss was denied, he filed a special action petition seeking relief from this Court.

In Warren v. Meyers, 21 Ariz.App. 111, 516 P.2d 53 (1973), this Court considered a question substantially identical to that now presented in this special action proceeding. We were asked to prohibit the Coconino County Superior Court from taking further action in a habeas corpus proceeding involving the custody of the petitioner's minor children. The petitioner contended that by reason of prior divorce proceedings initiated in the Maricopa County Superior Court, exclusive jurisdiction concerning custody of his two minor children was vested in the proceedings in that Court, and that therefore the Coconino County Superior Court had no jurisdiction to proceed in the habeas corpus proceeding. In arriving at the conclusion that the Coconino County habeas corpus proceedings should be dismissed, we stated:

"In the case at hand, there can be no contention that the Maricopa County Superior Court did not have jurisdiction to determine custody questions in the original divorce proceedings, nor can its continuing jurisdiction under A.R.S. § 25-321 be questioned. Woodford v. Superior Court, 82 Ariz. 181, 309 P.2d 973 (1957); Anderson v. Anderson, 14 Ariz.App. 195, 481 P.2d 881 (1971); Robayo v. Robayo, 3 Ariz.App. 519, 416 P.2d 198 (1966). With this in mind, we are of the opinion that the contentions urged in Byers (Byers v. Superior Court, 61 Ariz. 284, 148 P.2d 999 (1944)) are sound and require a holding that the attempted exercise of jurisdiction by the Coconino County Superior Court in the habeas corpus proceedings is inconsistent with the continuing jurisdiction vested in the Maricopa County Superior Court proceedings. In our opinion this result is required by the Arizona Supreme Court's decision in Allen v. Superior Court of Maricopa County, 86 Ariz. 205, 344 P.2d 163 (1959). In Allen the Maricopa County Superior Court had attempted to exercise jurisdiction in divorce proceedings involving, inter alia, child custody and maintenance questions, although prior proceedings had been instituted in the Cochise County Superior Court. In granting its writ prohibiting Maricopa County Superior Court from assuming jurisdiction, the Arizona Supreme Court held that the court first acquiring jurisdiction (Cochise County) retained it to the exclusion of the Maricopa County Superior Court. See also Davies v. Russell, 84 Ariz. 144, 325 P.2d 402 (1958). We can see no reason why these same principles would not apply to the continuing jurisdiction of the Maricopa County Superior Court and the fact situation under consideration. To hold otherwise would encourage judge and forum shopping by the dissatisfied spouse, undermining the principles established by the Arizona Supreme Court in Hofstra v. Mahoney, 108 Ariz. 498, 502 P.2d 1317 (1972)." 21 Ariz.App. at 114, 516 P.2d at 56.

Notwithstanding the fact that substantial changes have been made in the Arizona statutes governing marital dissolutions and attendant child custody proceedings subsequent to the fact situation considered in Warren v. Meyers, supra, we are of the opinion that its underlying principles remain sound and require a similar result here.

Considering these statutory changes, we first note that the 1973 marital dissolution code, A.R.S. § 25-331, provides two separate methods for the settling of parental disputes concerning child custody:

"D. A child custody proceeding is commenced in the superior court:

"1. By a parent, by filing a petition:

"(a) For dissolution or legal separation; or

"(b) For custody of the child in the county in which the child is permanently resident or found;"

The method provided by subsection D(1)(a) for the resolution of such custody questions as an incident to pending dissolution proceedings is no innovation, and, aside from certain new procedural guidelines, represents merely a continuance of prior Arizona practice. On the other hand, the statutory provision in subsection D(1)(b) for a "petition for custody", independent of any dissolution proceeding, does represent a new step in Arizona practice, at least insofar as statutory recognition of such a procedure is concerned. In prior practice, as discussed in our opinion in Warren, supra, the remedy of habeas corpus was frequently utilized to determine inter-parental custody questions where...