Marriage of Flynn, In re

• Decision Date: 26 October 1976
• Docket Number: CA-CIV,No. 1,1
• Parties: In re the MARRIAGE OF John J. FLYNN, and Margaret M. Flynn. John J. FLYNN, Margaret M. Flynn, Sean Joseph Flynn and Margaret Mary Flynn, minor children, by their guardian ad litem, Robert H. Allen, Appellants, v. PHOENIX NEWSPAPERS, INC., Intervenor, Appellee. 3310.
• Court: Arizona Court of Appeals

Page 1085

557 P.2d 1085

27 Ariz.App. 653

In re the MARRIAGE OF John J. FLYNN, and Margaret M. Flynn.

John J. FLYNN, Margaret M. Flynn, Sean Joseph Flynn and Margaret Mary Flynn, minor children, by their guardian ad litem, Robert H. Allen, Appellants, v. PHOENIX NEWSPAPERS, INC., Intervenor, Appellee.

No. 1 CA-CIV 3310.

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

Oct. 26, 1976.

Rehearing Denied Dec. 2, 1976.

Petition for Review Denied Dec. 21, 1976.

Goldstein, Mason & Ramras, Ltd. by Philip T. Goldstein, Phoenix, for appellant John J. Flynn.

Sullivan & Brook, P.C. by Otis D. Sullivan, Phoenix, for Margaret M. Flynn.

Allen, McClennan & Fels by Robert H. Allen, Phoenix, for appellants Sean Joseph Flynn and Margaret Mary Flynn.

Gust, Rosenfeld, Divelbess & Henderson by James F. Henderson and Dan Hutchinson, Phoenix, for appellee.

OPINION

JACOBSON, Judge.

The narrow issue presented by this appeal is the authority of the superior court to seal from the public the transcript of a custody proceeding which was part of an action for dissolution of marriage, where the testimony reflected in that transcript was initially given in an open proceeding.

The background of this litigation which culminated in the trial court's order which is the subject matter of this appeal may be of titillating interest, but not legal. Suffice it to say that the marriage of John and Margaret Flynn was dissolved on March 17, 1975. As a part of that dissolution proceeding, a lengthy hearing was conducted which concerned itself with the question of the custody of the two minor children of the parties. This hearing at the time it was conducted was open to the public, ¹ that is, it was not closed pursuant to A.R.S. § 25--336(C). Following the entry of the decree of dissolution in that matter, the court reporter who was present at the custody hearing was contacted by an attorney, not representing any of the parties to the action, to prepare a transcript of those proceedings. As a result of this contact, appellant John Flynn moved the court to either destroy or seal the record of those proceedings. While appellant Margaret M. Flynn originally opposed that motion, she subsequently joined in the motion as did the minor children of the parties, through their guardian ad litem. During the proceedings on the motion, appellee Phoenix Newspapers, Inc. was allowed to intervene.

Following the taking of testimony, the submission of briefs, the preparation of the disputed transcript and the trial judge's reading of that transcript, the trial court denied the motion to seal the prior dissolution proceedings. In doing so, by written judgment, the trial court found:

'(i) the transcript of the proceedings constitutes a public record and (ii) the court is without any legal basis or authority to seal the record and prohibit the transcription and publication thereof . . ..'

This appeal followed.

A great portion of the briefs before this court entered on whether the trial court has authority to seal, after the fact, the record in an open trial proceeding. However, at time of oral argument, it was conceded that such authority, in a child custody proceeding, does exist under A.R.S. § 25--336. This statute provides:

' § 25--336. Custody hearings; priority; costs; record

'A. Custody proceedings shall receive priority in being set for hearing.

'B. The court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems necessary to determine the best interest of the child.

'C. The court, without a jury, shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child's best interest, the court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the court.

'D. If the court finds that to protect the child's welfare, the record of any interview, report, investigation, or testimony in a custody proceeding should be kept secret, the court may then make an appropriate order sealing the record. Added Laws 1973, Ch. 130; § 2.'

It is apparent from this statute that subsection C provides statutory authority to close a child custody hearing to the public upon a finding that such a hearing 'may be detrimental to the child's best interest.' Likewise, it is equally apparent under subsection D that after the fact, the record taken in open hearing may be sealed, that is, 'kept secret', again upon a showing that such a sealing is necessary 'to protect the child's...