Estes v. Superior Court, In and For Maricopa County, No. 16649-SA

CourtSupreme Court of Arizona
Writing for the CourtHOLOHAN
Citation137 Ariz. 515,672 P.2d 180
PartiesFrank C. ESTES, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable James H. Kemper, Judge Pro Tem of the Superior Court, and Cheri Rose Estes, real party in interest, Respondents. In re the MARRIAGE OF Frank C. ESTES, Petitioner, and Cheri Rose Estes, Respondent.
Docket NumberNo. 16649-SA
Decision Date02 November 1983

Page 180

672 P.2d 180
137 Ariz. 515
Frank C. ESTES, Petitioner,
v.
SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable James H. Kemper, Judge Pro Tem of the Superior Court, and Cheri Rose Estes, real party in interest, Respondents.
In re the MARRIAGE OF Frank C. ESTES, Petitioner,
and
Cheri Rose Estes, Respondent.
No. 16649-SA.
Supreme Court of Arizona, In Banc.
Nov. 2, 1983.

[137 Ariz. 516]

Page 181

Friedl & Richter by Joseph C. Richter, Phoenix, for petitioner.

James V. Scoggin, Phoenix, for respondent Cheri Rose Estes.

HOLOHAN, Chief Justice.

The petitioner Frank C. Estes challenges by this petition for special action the actions of the respondent judge in entering a child custody order in a marital dissolution proceedings. We accepted jurisdiction pursuant to Ariz. Const. art. 6 § 5(1). We deny the relief requested.

The marriage between petitioner and respondent Cheri Rose Estes was dissolved by a decree of dissolution dated December 23, 1982. All issues pertaining to the dissolution except for those relating to child custody were heard by the trial judge on October 1, 1982. On that day, the trial judge ordered that petitioner would "be ordered to pay child support with respect to any child placed in the custody of Respondent-Wife in an amount to be determined." (emphasis added). Later, on October 7 and 8, 1982, the trial judge heard the child custody portion of the proceedings and awarded custody of the three minor children to respondent Cheri Rose Estes.

Following entry of the formal decree, on January 6, 1983, petitioner filed a motion for reconsideration of the custody order, alleging ineffective assistance of counsel and that the trial judge failed to consider all pertinent evidence. During oral argument of the motion and for the first time, petitioner argued that the trial judge had violated the provisions of A.R.S. § 25-328 which require in all cases where custody or visitation are contested issues, all other issues including the amount of child support must be completely determined before the trial court hears any custody or visitation issues. Petitioner supplemented this argument with a memorandum on March 17, 1983. On March 24, 1983, the trial judge denied the motion, finding that petitioner was well represented by counsel, that all of the evidence had been considered, and that the statutory argument was untimely raised according to Rule 59, Rules of Civil Procedure.

This special action presents essentially the single issue of whether the bifurcation requirement of A.R.S. § 25-328 is jurisdictional or procedural. We have assumed for the purposes of this decision that the issue was properly raised in the trial court. The issue of jurisdiction of the court can, of course, be raised at any time.

A.R.S. § 25-328

Petitioner contends that the trial judge violated the bifurcation requirement of A.R.S. § 25-328 when the trial judge fixed the amount of child support after hearing issues regarding custody of the children. Petitioner argues that such a violation voided the child custody order because the trial judge lost jurisdiction by failing to follow the statute. We agree that the trial judge violated the statute, but conclude that the provisions of A.R.S. § 25-328 are procedural in nature.

This court has not considered this statute before, but both divisions of the court of appeals have addressed it, reaching directly conflicting views of the effect of violating A.R.S. § 25-328. The statute provides:

§ 25-328 Separate trials when custody or visitation is an issue

A. In all cases when...

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17 practice notes
  • State v. Payne, No. 2 CA-CR 2008-0166.
    • United States
    • Court of Appeals of Arizona
    • July 24, 2009
    ...which the particular proceedings belong. . . .'" Marriage of Dorman, 198 Ariz. 298, ¶ 7, 9 P.3d at 332, quoting Estes v. Superior Court, 137 Ariz. 515, 517, 672 P.2d 180, 182 (1983); see also State ex rel. Neely v. Rodriguez, 165 Ariz. 74, 76 n. 4, 796 P.2d 876, 878 n. 4 (1990) ("`Subject m......
  • In re Marriage of Dorman, No. 2 CA-CV 99-0113.
    • United States
    • Court of Appeals of Arizona
    • August 31, 2000
    ...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).......
  • Johnson Utilities, LLC v. Swing First Golf, LLC, No. 1 CA-CV 13-0625
    • United States
    • Court of Appeals of Arizona
    • August 27, 2015
    ...proceedings belong," In re Marriage of Dorman, 198 Ariz. 298, 301, ¶ 7, 9 P.3d 329, 332 (App. 2000) (quoting Estes v. Superior Court, 137 Ariz. 515, 517, 672 P.2d 180, 182 (1983)) (internal quotation marks omitted), and is conferred by our constitution or statutes, State v. Maldonado, 223 A......
  • Vicari v. Lake Havasu City, No. 1 CA-CV 08-0534.
    • United States
    • Court of Appeals of Arizona
    • August 4, 2009
    ...the power to perform a certain act, but the performing of it when it was prohibited, a very different thing"); Estes v. Superior Court, 137 Ariz. 515, 517, 672 P.2d 180, 182 (1983) (distinguishing the term jurisdiction from legal error); State ex rel. Dandoy v. City of Phoenix, 133 Ariz. 33......
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17 cases
  • State v. Payne, No. 2 CA-CR 2008-0166.
    • United States
    • Court of Appeals of Arizona
    • July 24, 2009
    ...which the particular proceedings belong. . . .'" Marriage of Dorman, 198 Ariz. 298, ¶ 7, 9 P.3d at 332, quoting Estes v. Superior Court, 137 Ariz. 515, 517, 672 P.2d 180, 182 (1983); see also State ex rel. Neely v. Rodriguez, 165 Ariz. 74, 76 n. 4, 796 P.2d 876, 878 n. 4 (1990) ("`Subject m......
  • In re Marriage of Dorman, No. 2 CA-CV 99-0113.
    • United States
    • Court of Appeals of Arizona
    • August 31, 2000
    ...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).......
  • Johnson Utilities, LLC v. Swing First Golf, LLC, No. 1 CA-CV 13-0625
    • United States
    • Court of Appeals of Arizona
    • August 27, 2015
    ...proceedings belong," In re Marriage of Dorman, 198 Ariz. 298, 301, ¶ 7, 9 P.3d 329, 332 (App. 2000) (quoting Estes v. Superior Court, 137 Ariz. 515, 517, 672 P.2d 180, 182 (1983)) (internal quotation marks omitted), and is conferred by our constitution or statutes, State v. Maldonado, 223 A......
  • Vicari v. Lake Havasu City, No. 1 CA-CV 08-0534.
    • United States
    • Court of Appeals of Arizona
    • August 4, 2009
    ...the power to perform a certain act, but the performing of it when it was prohibited, a very different thing"); Estes v. Superior Court, 137 Ariz. 515, 517, 672 P.2d 180, 182 (1983) (distinguishing the term jurisdiction from legal error); State ex rel. Dandoy v. City of Phoenix, 133 Ariz. 33......
  • Request a trial to view additional results

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