In re Marriage of Dorman, No. 2 CA-CV 99-0113.

CourtCourt of Appeals of Arizona
Writing for the CourtHOWARD, Presiding.
Citation198 Ariz. 298,9 P.3d 329
Docket NumberNo. 2 CA-CV 99-0113.
Decision Date31 August 2000
PartiesIn re the MARRIAGE OF Victoria DORMAN, formerly known as Victoria Cabrera, Petitioner/Appellee, and Romeo Cabrera, Respondent/Appellant. Theodore Dorman, Third-Party Petitioner/Appellee.

9 P.3d 329
198 Ariz. 298

In re the MARRIAGE OF Victoria DORMAN, formerly known as Victoria Cabrera, Petitioner/Appellee, and
Romeo Cabrera, Respondent/Appellant.
Theodore Dorman, Third-Party Petitioner/Appellee

No. -0113.

Court of Appeals of Arizona, Division 2, Department B.

August 31, 2000.


9 P.3d 331
Cynthia L. Anson, Tucson, Attorney for Appellees

Michael H. Gottesman, Tucson, Attorney for Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant Romeo Cabrera challenges the trial court's order modifying the portion of the parties' marital dissolution decree relating to the physical custody of his and appellee Victoria Cabrera's son. Romeo contends the trial court erred in allowing Victoria to deviate from the prehearing change of custody procedures in A.R.S. § 25-411, in deviating from those procedures itself, and in granting visitation to Victoria's current husband, appellee Theodore Dorman. Because only our resolution of the issue concerning § 25-411 merits publication, we address the visitation issues in a separate memorandum decision. Ariz. R. Civ.App. P. 28(g), 17B A.R.S. We affirm.

BACKGROUND

¶ 2 The relevant facts are not in dispute. Romeo and Victoria's 1996 dissolution decree provided joint legal and physical custody of their son, with each parent having substantially equal time with the child. In March 1999, Victoria filed a verified petition requesting the court order that the child reside with Romeo because she was being deported to the Philippines and anticipated remaining there for six months to a year while her application for permanent resident status was processed. Her petition also asked that the court award her current husband visitation every other weekend and that she be awarded visitation in the Philippines under certain circumstances. Romeo objected and, after a two-day hearing, the trial court, in effect, granted Romeo primary physical custody of the child and Victoria and/or her current husband visitation on alternate weekends and in the Philippines during the summer and winter of 1999. This appeal followed.1

APPELLATE JURISDICTION

¶ 3 Preliminarily, Victoria challenges our jurisdiction to consider this appeal, arguing that the order from which Romeo appeals is a temporary, rather than a final, order. We have jurisdiction to review special orders made after judgment. A.R.S. §§ 12-120.21(A)(1) and 12-2101(C). To be appealable, a special order after judgment must raise different issues than those that would be raised by appealing the underlying judgment; it must affect the underlying judgment, relate to its enforcement, or stay its execution; and it must not be "merely `preparatory' to a later proceeding that might affect the judgment or its enforcement." Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902 P.2d 830, 832-33 (1995), quoting Lakin v. Watkins Associated Indus., 6 Cal.4th 644, 25 Cal.Rptr.2d 109, 863 P.2d 179, 184 (1993).

¶ 4 The order at issue here, which grants Romeo primary physical custody of the child, raises different issues than those that would

9 P.3d 332
have arisen from the underlying dissolution decree and affects the underlying decree and its enforcement. And the order is not "merely preparatory"; it resolves all the issues raised in the petition for an order to show cause and, although it is modifiable, see A.R.S. § 25-403, it can continue until the child reaches majority. The order is, therefore, an appealable special order after judgment. § 12-2101(C); see Cone v. Righetti, 73 Ariz. 271, 275, 240 P.2d 541, 543 (1952) (order modifying custody, visitation, and support was appealable special order after judgment). We have appellate jurisdiction. § 12-120.21(A)(1)

DISCUSSION

¶ 5 We first address Victoria's claim that § 25-411 does not apply to this case. The statute provides:

A party seeking a modification of any type of custody order shall submit an affidavit or verified petition setting forth detailed facts supporting the requested modification and shall give notice, together with a copy of his affidavit, or verified petition to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings, in which case it shall set a date for hearing on why the requested modification should not be granted.

Victoria contends § 25-411 does not apply here because she did not request that the court modify the prior custody order but, rather, that it modify "the child access schedule." We disagree. Victoria's request that the court change the parties' access to the child from substantially equal time to a situation in which the child resides with Romeo and has minimal visitation with Victoria 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(3) (defining joint physical custody as shared physical residence with substantially equal time with each parent).

¶ 6 We next consider Romeo's argument that the trial court did not have jurisdiction to issue the order modifying the prior custody order because Victoria failed to initiate proceedings under § 25-411, and the trial court failed to determine, as required by § 25-411, whether Victoria had demonstrated adequate cause for modification before ordering a hearing. We review de novo whether the trial court had jurisdiction to issue its order. See In re Marriage of Crawford, 180 Ariz. 324, 326, 884 P.2d 210, 212 (1994).

¶ 7 Subject matter jurisdiction is "`the power to hear and determine cases of the general class to which the particular proceedings belong....'" Estes v. Superior Court, 137 Ariz. 515, 517, 672 P.2d 180, 182 (1983), quoting First Nat'l Bank & Trust Co. v. Pomona Machinery Co., 107 Ariz. 286, 288, 486 P.2d 184, 186 (1971). The trial court is vested with subject matter jurisdiction over domestic relations matters, including child custody...

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104 practice notes
  • State v. Payne, No. 2 CA-CR 2008-0166.
    • United States
    • Court of Appeals of Arizona
    • 24 July 2009
    ...(same). "We review de novo whether the trial court had jurisdiction to issue its order" assessing that fee. In re Marriage of Dorman, 198 Ariz. 298, ¶ 6, 9 P.3d 329, 332 (App.2000); see also State v. Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706, 709 ¶ 6 "Subject matter jurisdiction is `the powe......
  • Danielson v. Evans, No. 2 CA-CV 00-0184.
    • United States
    • Court of Appeals of Arizona
    • 18 December 2001
    ...made rulings in a case before us." Decola v. Freyer, 198 Ariz. 28, ¶ 8, 6 P.3d 333, ¶ 8 (App.2000). See also In re Marriage of Dorman, 198 Ariz. 298, ¶ 6, 9 P.3d 329, ¶ 6 ¶ 37 A trial court retains "continuing jurisdiction to enforce its orders for [child] support and [spousal] maintenance,......
  • James v. State, No. 2 CA-CV 2006-0124.
    • United States
    • Court of Appeals of Arizona
    • 31 May 2007
    ...89, 482 P.2d 454, 456 (1971) ("Denial of a motion to amend complaint is not an appealable order."); see also In re Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App.2000) ("To be appealable, a special order after judgment must raise different issues than those that would be raise......
  • Dougall v. Dougall, No. 2 CA–CV 2013–0056.
    • United States
    • Court of Appeals of Arizona
    • 18 December 2013
    ...791 P.2d 665, 667 (App.1990) (discussing comparable Rule 60(c), Ariz. R. Civ. P.); 5 [316 P.3d 595]In re Marriage of Dorman & Cabrera, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000). And, to the extent the motion was based on Rule 85(C), it was timely filed. See Ariz. R. Fam. Law P. 85(C)(......
  • Request a trial to view additional results
104 cases
  • State v. Payne, No. 2 CA-CR 2008-0166.
    • United States
    • Court of Appeals of Arizona
    • 24 July 2009
    ...(same). "We review de novo whether the trial court had jurisdiction to issue its order" assessing that fee. In re Marriage of Dorman, 198 Ariz. 298, ¶ 6, 9 P.3d 329, 332 (App.2000); see also State v. Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706, 709 ¶ 6 "Subject matter jurisdiction is `the powe......
  • Danielson v. Evans, No. 2 CA-CV 00-0184.
    • United States
    • Court of Appeals of Arizona
    • 18 December 2001
    ...made rulings in a case before us." Decola v. Freyer, 198 Ariz. 28, ¶ 8, 6 P.3d 333, ¶ 8 (App.2000). See also In re Marriage of Dorman, 198 Ariz. 298, ¶ 6, 9 P.3d 329, ¶ 6 ¶ 37 A trial court retains "continuing jurisdiction to enforce its orders for [child] support and [spousal] maintenance,......
  • James v. State, No. 2 CA-CV 2006-0124.
    • United States
    • Court of Appeals of Arizona
    • 31 May 2007
    ...89, 482 P.2d 454, 456 (1971) ("Denial of a motion to amend complaint is not an appealable order."); see also In re Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App.2000) ("To be appealable, a special order after judgment must raise different issues than those that would be raise......
  • Dougall v. Dougall, No. 2 CA–CV 2013–0056.
    • United States
    • Court of Appeals of Arizona
    • 18 December 2013
    ...791 P.2d 665, 667 (App.1990) (discussing comparable Rule 60(c), Ariz. R. Civ. P.); 5 [316 P.3d 595]In re Marriage of Dorman & Cabrera, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000). And, to the extent the motion was based on Rule 85(C), it was timely filed. See Ariz. R. Fam. Law P. 85(C)(......
  • Request a trial to view additional results

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