Lewis v. Rehkow

• Decision Date: 27 February 2020
• Docket Number: No. 1 CA-CV 19-0075 FC,1 CA-CV 19-0075 FC
• Parties: In re the Matter of: KIMBERLY LEWIS, Petitioner/Appellee, v. WILLIAM ANDREW REHKOW, Respondent/Appellant.
• Court: Arizona Court of Appeals

In re the Matter of: KIMBERLY LEWIS, Petitioner/Appellee, v. WILLIAM ANDREW REHKOW, Respondent/Appellant.

No. 1 CA-CV 19-0075 FC

ARIZONA COURT OF APPEALS DIVISION ONE

February 27, 2020

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. FC2002-004726

The Honorable Ronee Korbin Steiner, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Kimberly Lewis, Phoenix

Petitioner/Appellee

William Andrew Rehkow, Las Vegas, Nevada

Respondent/Appellant

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge James B. Morse Jr. joined. Judge Diane M. Johnsen specially concurred.

JONES, Judge:

¶1 William Rehkow (Father) appeals the family court's order sealing the entire family court case file in this dissolution and post-dissolution matter. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Kimberly Lewis (Mother) were married in 2001 and divorced in October 2003.¹ For the past fifteen-plus years, Father and Mother have engaged in continuous contentious litigation concerning custody of their child (Child). See, e.g., Lewis v. Rehkow (Rehkow I), 1 CA-CV 05-0042 (consolidated cases) (Ariz. App. July 6, 2006) (mem. decision); Lewis v. Rehkow (Rehkow II), 1 CA-CV 08-0401, 2009 WL 387751, at *1, ¶ 2 (Ariz. App. Feb. 12, 2009) (mem. decision).

¶3 This appeal concerns the circumstances surrounding the sealing of the case file, which we addressed, in part, in Rehkow II. As related therein, beginning in November 2005:

Mother filed a Motion to Seal Court Records alleging that Father's pleadings negatively impacted her dance studio and that Father inappropriately attached personal documents to his pleadings concerning Mother and [Child]. On January 31, 2006, the family court granted Mother's Motion to Seal Records and directed the clerk of the court to seal the file and ordered that all future documents to not be opened without further order of the court [(the January 2006 Order)].

Rehkow II, 2009 WL 387751, at *1, ¶ 2. In the January 2006 Order:

The court stated that it "[found] that the nature and content of the pleadings being presented to the [c]ourt [wer]e inflammatory to the extent that unless sealed there is a risk presented eventually to the parties' minor child. The risk is emotional in nature and the child's ultimate awareness of the contents of the [c]ourt file could certainly be detrimental to her relationship with one or both of her parents and her best interest."

Id. at ¶ 2 n.1. Father did not appeal the January 2006 Order, but "continued to file multiple petitions, motions, and requests concerning [Child]'s custody arrangements." Id. at ¶ 3.

¶4 In November 2006, Mother filed a petition for injunction against Father for harassment. Id. The family court found multiple instances of harassment and granted the injunction (the December 2006 Order). Id. In pertinent part, the court ordered that:

Neither party shall disseminate or discuss personally or in any written form including e-mails any of the matters presented to the [c]ourt by way of testimony, exhibit, pleading or otherwise with any third parties including media of any kind or clients or co-workers of either party. The [c]ourt determines that such commentary on this case represents an indirect attempt to intimidate or harass.

See id. Father, again, did not appeal. Id.

¶5 Father's behavior continued, and, in February 2007, Mother moved for sanctions against him after discovering a website containing "inflammatory" information about the case that Mother believed Father was providing to the website creator. As this Court explained:

The website was created by a private investigator, Glen Scotti, at the direction of Father and discussed details about Mother, Mother's family, and [Child]. Additionally, the website contained a full discussion of Mother and Father's custody dispute, including, but not limited to, a discussion of the pleadings filed and the family court's hearing that occurred after the court ordered the court record sealed.

Id. at ¶ 4 n.4. After an evidentiary hearing, the family court found Father in violation of the December 2006 Order, noting "Father's actions in disseminating information so that it could be placed on a website in fullview of the general public not only represented harassment of Mother but was an act not in the best interest of the parties' [C]hild." See id. at ¶ 4. The court held Father in contempt and imposed sanctions. Id.

¶6 Notwithstanding the January 2006 Order sealing the case file, the family court temporarily unsealed the case file at various points during litigation to allow the parties and other participants access to, for example, transcripts and copies of specific judgments to be recorded. After each instance, in nearly the same language, the court ordered the case file to be "re-sealed and remain sealed for all purposes, subject to further order of th[e] [c]ourt."

¶7 Moreover, upon Father's motion in early 2007, the family court granted him access to the sealed case file "through the Maricopa County Clerk's Office for the purpose of copying any documents" so that he could pursue a pending appeal in this Court and complaints Father reportedly filed with the Commission on Judicial Conduct and the State Bar of Arizona. In granting Father access to the case file, the court reiterated that Father could not disseminate documents to any other individuals or entities. Father's counsel "in other proceedings" was also permitted to access the case file. The court further granted the State Bar of Arizona access to three specific documents in the case file to be used "solely in furtherance of its investigation" into Father's complaint regarding Mother's counsel and ordered that the documents were not to be disseminated further.

¶8 In March 2010, the family court modified the January 2006 Order to allow the case file to be viewed by the parties, counsel, and certain other individuals involved in two civil actions brought by Father and Scotti against City of Phoenix employees (the City). Although, upon request, the court granted the City permission to make copies of certain documents within the case file, it denied a similar request by Father after noting that Father "already has access to the [case] file," but, for "legitimate reasons," had been previously barred from making copies or disseminating records. Nevertheless, the court, in the fall of 2012, granted Father, among others, permission to use certain documents from the case file in a separate civil case.

¶9 In January 2016, Father moved to unseal the case file. After ordering Child's best-interests attorney to provide a list of items to remain "sealed or marked confidential," the family court ordered the case file unsealed "from January 1, 2015 forward only." The court specified "[t]heremainder of the file prior to January 1, 2015 [would] remain sealed until further [o]rder of the [c]ourt."

¶10 On November 8, 2018, Mother moved to reseal the case file, citing the best interests and safety of Child and Mother.² Mother advised Scotti's website had been updated as recently as three days earlier, and Child's name had been re-published. Mother alleged the sole purpose of the website was to "harass, embarrass and financially hurt" Child and Mother, reiterating that Child now danced and taught at Mother's studio.

¶11 Father responded and objected to Mother's motion to reseal the case file. The family court granted the motion over Father's objection, finding, in its December 2018 Order:

[Father]'s response further supports why this case should be sealed from the public, with [Father] including significant information absolutely unnecessary to the response. The [c]ourt finds that the privacy interests of the [C]hild outweigh the public interest in disclosure. The [c]ourt further finds that there is no less restrictive means to achieve this overriding interest.

The December 2018 Order required "all future documents in this cause, not to be opened or disseminated without further order of the court."

¶12 Rehkow timely appeals, and asserts we have jurisdiction over his appeal pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(A)(2) and (5).³ The basis for our jurisdiction is not disputed, but nor is it clear. See McCarthy v. McCarthy, 247 Ariz. 414, 415, ¶ 4 (App. 2019) (explaining an appellate court has an independent duty to examine its jurisdiction to consider matters on appeal) (citing Camasura v. Camasura, 238 Ariz. 179, 181, ¶ 5 (App. 2015)). Nonetheless, given the nature of this dispute and the competing interests at stake, we choose to treat Father's appeal as a petitionfor special action and accept jurisdiction. See Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35 (App. 2001) (citing Lloyd v. State Farm Mut. Auto. Ins., 189 Ariz. 369, 375 (App. 1996), and A.R.S. § 12-120.21(A)(4)).

DISCUSSION

¶13 We review a family court's decision to seal records for an abuse of discretion. See In re Marriage of Flynn, 27 Ariz. App. 653, 655 (1976) (citing Hackin v. First Nat'l Bank of Ariz., 5 Ariz. App. 379, 385 (1967)). "We will accept the court's findings of fact unless they are clearly erroneous, but [] draw our own legal conclusions from facts found or implied in the judgment." Nash v. Nash, 232 Ariz. 473, 476, ¶ 5 (App. 2013) (citing McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6 (App. 2002)).

¶14 Court records in the State of Arizona are presumed open to members of the public for inspection or copying. Ariz. R. Sup. Ct. 123(c)(1). "However, in view of the possible countervailing interests of confidentiality, privacy or the bests interests of the state[,] public access to some court records may be restricted or expanded in accordance with [Arizona Rule 123 of the Supreme Court], or other provisions of law." Id.

¶15 Pursuant to Arizona Rule of Family Law Procedure (ARFLP) 17(a), "[a]ny person may...