DePasquale v. Superior Court In and For County of Maricopa, No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtFIDEL
Citation890 P.2d 628,181 Ariz. 333
Decision Date21 February 1995
Docket NumberNo. 1,CA-SA
PartiesDiane P. DePASQUALE, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Paul Katz, a judge thereof, Respondent Judge, Douglas THRASHER, Real Party in Interest. 94-0359.

Page 628

890 P.2d 628
181 Ariz. 333
Diane P. DePASQUALE, Petitioner,
v.
SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Paul Katz, a judge thereof, Respondent Judge,
Douglas THRASHER, Real Party in Interest.
No. 1 CA-SA 94-0359.
Court of Appeals of Arizona,
Division 1, Department A.
Feb. 21, 1995.

Page 629

[181 Ariz. 334] Peskind Hymson & Goldstein, P.C. by Marilee Miller Clarke, Alexis J. Stanton and Leon B. Silver, Scottsdale, for petitioner.

Bendheim & Whitten, P.C. by Alice L. Bendheim, Phoenix, for real party in interest.

OPINION

FIDEL, Presiding Judge.

DePasquale brings this action to contest the trial court's interim award of physical custody of her nine-year-old son to Thrasher, the child's father. Without conducting an evidentiary hearing, the trial court changed custody from DePasquale to Thrasher pending a full-scale hearing on Thrasher's petition for permanent change of custody. The court based its order on the recommendation of a court-appointed psychologist, announcing before receiving the recommendation that it would place interim custody with whichever parent the psychologist suggested. We hold that the trial court erred in (1) delegating judicial authority to a court-appointed psychologist, (2) awarding a temporary change in custody without independently determining the best interests of the child, and (3) awarding a temporary change in custody without holding a hearing.

BACKGROUND

When DePasquale and Thrasher were divorced in 1991, DePasquale was awarded sole custody of their son, and Thrasher was awarded reasonable visitation. In 1993, upon Thrasher's first petition for modification, the respondent trial court awarded the parents joint legal and physical custody, leaving DePasquale the primary physical custodian.

On May 11, 1994, in a "Family Study Evaluation--Update" to the trial court, a court-appointed psychologist identified as "issues ... of some concern" DePasquale's failure to communicate with Thrasher, improper administration of the child's medication, and multiple changes in residence. Thrasher then filed a second petition for change of custody with a supporting affidavit incorporating the psychologist's issues of concern.

The trial judge issued a notice that on August 29, 1994, pursuant to Arizona Revised Statutes Annotated ("A.R.S.") § 25-339, he would review the petition to determine whether it set forth adequate cause for a full modification of custody hearing. Although, pursuant to local custom, the trial judge described the August 29 proceeding as a "339 Hearing," it was not in fact a hearing but an in camera review of pleadings at which the parties and lawyers were expressly instructed not to appear.

After completing his § 25-339 review, the trial court issued an order on September 15, 1994, finding adequate cause for a full modification hearing and setting that hearing for February 8, 1995. As intermediate measures, the court referred the parties for mandatory mediation and directed the psychologist to update his study if mediation failed. The trial court added:

that [the psychologist] shall expeditiously meet with the parties, their child if appropriate, the child's teacher(s), school counselor, and principal as may be necessary, and shall immediately make written recommendations to the Court if immediate changes in school enrollment or child access are warranted. The Court will adopt [the psychologist's] recommendations as an interim order of the Court until such time as the Order to Show Cause Hearing can be held.

The psychologist neither met nor communicated with DePasquale but on October 12, 1994, recommended to the trial court that primary physical custody of the child "be immediately transferred to the biological father, Douglas Thrasher."

On October 17, 1994, DePasquale filed an

Page 630

[181 Ariz. 335] affidavit contesting Thrasher's allegations. 1 She added that Thrasher was improperly medicating the child, leaving him in day care for extended periods, and otherwise improperly treating the child.

On November 7, 1994, the trial judge adopted the psychologist's recommendation and ordered an immediate transfer of physical custody "to Father with Mother to have reasonable visitation." Thrasher took custody of the child on November 10, 1994, and DePasquale's visitation was limited to six days per month. DePasquale filed this special action on December 30, 1994, and it was considered by the court on January 30, 1995. On January 31, we accepted jurisdiction, denied relief, and advised that an opinion would follow.

DISCUSSION

A. Jurisdiction

We denied relief on January 31 because, as we later explain, DePasquale's delay in filing this petition precluded effective relief. We accepted jurisdiction, however, to clarify screening procedures pursuant to A.R.S. § 25-339, to preclude future delegation of transfer decisions to expert witnesses, and to preclude future interim transfers of custody without a hearing.

B....

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61 practice notes
  • Gutierrez v. Fox, No. 1 CA–SA 17–0047
    • United States
    • Court of Appeals of Arizona
    • 13 Abril 2017
    ...over temporary orders. Villares , 217 Ariz. at 625, ¶ 11, 177 P.3d 1195 ; see DePasquale v. Super. Ct. In and For County of Maricopa, 181 Ariz. 333, 336–37, 890 P.2d 628 (App. 1995) (the proper challenge to a temporary order is by special action). ¶ 13 We also have discretion to accept spec......
  • In re Marriage of Dorman, No. 2 CA-CV 99-0113.
    • United States
    • Court of Appeals of Arizona
    • 31 Agosto 2000
    ...or her current husband is a modification of the physical custody order and is subject to § 25-411. See DePasquale v. Superior Court, 181 Ariz. 333, 890 P.2d 628 (1995) (applying former A.R.S. § 25-339, now § 25-411, to request for modification of physical custody); see also A.R.S. § 25-402(......
  • McIntosh v. Wells Fargo Bank, N.A., No. CV-12-01218-PHX-GMS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 19 Noviembre 2012
    ...order must expire within ten days and may be extended only for good cause." DePasquale v. Superior Court In and For Cnty. of Maricopa, 181 Ariz. 333, 336, 890 P.2d 628, 631 (Ct. App. 1995). Thus June 8, 2012, was the expiration date of the TRO under Arizona law. Removal of the case to feder......
  • Walliser v. May, 1 CA-CV 11-0039
    • United States
    • Court of Appeals of Arizona
    • 3 Abril 2012
    ...598 (App. 2010). A temporary custody order is not appealable pursuant to A.R.S. § 12-2101. See DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 337, 890 P.2d 628, 632 (App. 1995). Because the denial of a temporary order is not appealable under § 12-2101, we lack jurisdiction to consi......
  • Request a trial to view additional results
61 cases
  • Gutierrez v. Fox, No. 1 CA–SA 17–0047
    • United States
    • Court of Appeals of Arizona
    • 13 Abril 2017
    ...over temporary orders. Villares , 217 Ariz. at 625, ¶ 11, 177 P.3d 1195 ; see DePasquale v. Super. Ct. In and For County of Maricopa, 181 Ariz. 333, 336–37, 890 P.2d 628 (App. 1995) (the proper challenge to a temporary order is by special action). ¶ 13 We also have discretion to accept spec......
  • In re Marriage of Dorman, No. 2 CA-CV 99-0113.
    • United States
    • Court of Appeals of Arizona
    • 31 Agosto 2000
    ...or her current husband is a modification of the physical custody order and is subject to § 25-411. See DePasquale v. Superior Court, 181 Ariz. 333, 890 P.2d 628 (1995) (applying former A.R.S. § 25-339, now § 25-411, to request for modification of physical custody); see also A.R.S. § 25-402(......
  • McIntosh v. Wells Fargo Bank, N.A., No. CV-12-01218-PHX-GMS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 19 Noviembre 2012
    ...order must expire within ten days and may be extended only for good cause." DePasquale v. Superior Court In and For Cnty. of Maricopa, 181 Ariz. 333, 336, 890 P.2d 628, 631 (Ct. App. 1995). Thus June 8, 2012, was the expiration date of the TRO under Arizona law. Removal of the case to feder......
  • Walliser v. May, 1 CA-CV 11-0039
    • United States
    • Court of Appeals of Arizona
    • 3 Abril 2012
    ...598 (App. 2010). A temporary custody order is not appealable pursuant to A.R.S. § 12-2101. See DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 337, 890 P.2d 628, 632 (App. 1995). Because the denial of a temporary order is not appealable under § 12-2101, we lack jurisdiction to consi......
  • Request a trial to view additional results

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