Lowther v. Hooker, 2
| Decision Date | 24 July 1981 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 632 P.2d 271,129 Ariz. 461 |
| Parties | Danny LOWTHER, Petitioner, v. Honorable Robert J. HOOKER, Judge of the Pima County, Arizona Superior Court, Division I; Honorable William E. Druke, Presiding Judge of the Pima County, Arizona Superior Court; and Rosemary Lowther, Respondents and Real Party in Interest. 4044. |
| Court | Arizona Court of Appeals |
The subject of this special action is an order of the respondent court vacating a previously-entered superior court order modifying the child custody and support provisions of a divorce decree. Since matters concerning children are entitled to precedence and the remedy by appeal would thus be inadequate, we assume jurisdiction and grant relief.
The modification order was entered by a court commissioner pursuant to a stipulation executed by petitioner, the husband, and his former wife who had been awarded custody of the parties' minor child under the dissolution decree. The stipulation provided that the care, custody and control of the child be awarded jointly to both parents with the father being entitled to sole custody and control at all times except for specifically-designated periods. It further provided for termination of the father's obligation to pay child support to the mother on November 30, 1980. Petitioner, accompanied by his attorney, appeared before the commissioner when the stipulation was presented for an order of the court. The court was apprised of the circumstances giving rise to the new custodial arrangement and the parties' agreement. The court apparently concluded that custody modification as per the agreement was in the best interest of the child.
Approximately five months after the above modification was accomplished and the child's custody was changed pursuant thereto, the mother filed a motion to set aside the order. The grounds for the motion were that the mere stipulation of the parties was an insufficient basis for modifying the child custody provisions of the dissolution decree and that A.R.S. § 25-339 and Rule VIII of the Pima County Rules of Practice in Superior Court had not been complied with. A.R.S. § 25-339 provides:
Subsection B of Rule VIII, provides that "(n)o hearing for modification of a child custody order or decree shall be set aside unless there is compliance with A.R.S. § 25-339 and this rule." It further requires the filing of a petition for modification of child custody by any party seeking a modification of child custody, the form of notice to all persons entitled to notice under A.R.S. § 8-401 et seq., and the affidavit required by A.R.S. § 8-409.
The respondent court, in setting aside the previous order of the court commissioner, directed the father to file the proper motion for modification of the care, custody and control of the minor child within a designated period of time. The petition for special action was thereupon filed and we stayed all proceedings in the respondent court until disposition of the petition.
The respondent court apparently concluded that a petition for modification of custody was a jurisdictional prerequisite to a valid modification order. We do not believe under the circumstances here, that this conclusion was justified.
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Ertl v. Ertl
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