Vera v. Rogers

• Citation: 433 P.3d 1190,246 Ariz. 30
• Decision Date: 04 December 2018
• Docket Number: No. 1 CA-SA 18-0229,1 CA-SA 18-0229
• Parties: Salvador VERA, Petitioner, v. The Honorable Joshua ROGERS, Judge, and the Honorable Margaret Benny, Judge Pro Tempore, of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judges, Araceli Chaidez, Real Party in Interest.
• Court: Court of Appeals of Arizona

246 Ariz. 30

433 P.3d 1190

Salvador VERA, Petitioner,

v. The Honorable Joshua ROGERS, Judge, and the Honorable Margaret Benny, Judge Pro Tempore, of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judges,Araceli Chaidez, Real Party in Interest.

No. 1 CA-SA 18-0229

Court of Appeals of Arizona, Division 1.

FILED December 4, 2018

Stewart Law Group, Phoenix, By Dianne Sullivan, Counsel for Petitioner

MY AZ LAWYERS, Phoenix, By Alison Briggs, Counsel for Real Party in Interest

Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

McMURDIE, Judge:

¶ 1 Salvador Vera ("Father") seeks special action review of two conflicting orders issued by different judicial officers of the superior court. The first is a temporary order related to Father’s petition for legal decision-making, parenting time, and child support, which granted Father temporary parenting time of his two children. The second order affirmed an active order of protection barring Father from any contact with the children’s mother, Araceli Chaidez ("Mother"), and the children. We accept special action jurisdiction and hold that although the superior court may act to harmonize parenting-time and protective orders, its authority to do so is limited once a coordinate member of that same court affirms the protective order following an evidentiary hearing.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Father and Mother are the biological parents of two minor children. In April 2018, Mother obtained an ex parte order of protection in the Phoenix Municipal Court prohibiting Father from having any contact with Mother. The children were also designated as protected persons under the order of protection. Mother, without informing Father, then moved out of Arizona with the children, allegedly to escape the domestic violence that gave rise to the need for the order of protection.

¶ 3 Before Father realized Mother and the children had left the state, Father petitioned to establish legal decision-making authority, parenting time, and child support in the superior court ("the family case"). After learning Mother and the children had left Arizona, Father petitioned the court to issue a series of emergency ex parte temporary orders awarding Father sole legal decision-making authority over the children and requiring Mother to immediately return them to Arizona. The court denied Father’s request to issue the orders ex parte but scheduled a temporary-orders hearing.

¶ 4 Between the time of the filing of Father’s petition for temporary orders and the temporary-orders hearing, Father was served with the order of protection. On Father’s motion, the municipal court, pursuant to Arizona Revised Statutes ("A.R.S.") section 12-3602(P), ordered the order-of-protection case to be transferred to the superior court "for consolidation under Case No. FC2018-091238 for all further proceedings." Once the transfer was effectuated, however, the superior court, pursuant to its obligations under Arizona Supreme Court Rule 123 and the Federal Violence Against Women Act, assigned the order of protection case a new cause number—FC2018-092621.

¶ 5 In the family case, the superior court held the temporary orders hearing as scheduled. Before the hearing, Father filed a pretrial statement notifying the court that the order of protection had been transferred to the superior court. At the hearing, the court heard testimony and took evidence concerning Father and Mother’s relationship, their relationship with the children, the allegations of domestic violence by Father, and the order of protection. The court took the matter under advisement and subsequently issued temporary orders. The court awarded Mother sole legal decision-making authority regarding the children, but ordered that Father have regular access to the children, including daily remote communication and in-person parenting time on school holidays and breaks. But the court made no mention of the still-active order of protection prohibiting Father from any contact with Mother or the children.

¶ 6 Both Mother and Father immediately challenged the temporary orders as conflicting with the order of protection. Mother requested the court reconsider the parenting time aspects of its order given the order of protection, and Father requested the court amend the order of protection to implement the temporary order concerning parenting time. The court denied both requests by minute entry, mistakenly noting the order of protection had not been transferred to the superior court under a new cause number.¹ The court concluded that "[o]nce an Order of Protection is properly transferred to the Superior Court, a hearing may be properly requested and will take place accordingly."

¶ 7 Father then requested a hearing on the order of protection. At the order-of-protection hearing before a different judicial officer, Mother, Father, and the court discussed the conflict between the order of protection and the temporary orders issued by the court in the family case. The judge handling the order of protection interpreted the minute entry in the family case denying reconsideration of the temporary orders as placing priority on the active order of protection. The court determined that the parenting-time order would become effective only if the court modified the order of protection or removed the children from that order. Based on this interpretation, the court found that it could go forward with the hearing. Father did not object to proceeding in the manner outlined by the court.

¶ 8 After hearing testimony and taking evidence on the domestic abuse allegations raised by Mother against Father, the court affirmed the order of protection in its entirety. The court found Mother had met her burden of proving the domestic abuse allegations by a preponderance of the evidence, and that the involvement of the children in the incidents justified their inclusion on the order of protection. Father then filed this special action seeking an order directing the court in the family case to amend the order of protection to effectuate its temporary parenting-time order.

SPECIAL ACTION JURISDICTION

¶ 9 "Special action jurisdiction is discretionary, but appropriate, when there is no equally plain, speedy, and adequate remedy by appeal." Courtney v. Foster ex rel. County of Maricopa , 235 Ariz. 613, 615, ¶ 4, 334 P.3d 1272 (App. 2014) (citing Ariz. R.P. Spec. Act. 1(a) ). Because temporary orders issued pursuant to A.R.S. § 25-404 are not appealable, they are well-suited for special action review. Gutierrez v. Fox , 242 Ariz. 259, 264, ¶ 12, 394 P.3d 1096 (App. 2017). Moreover, special action jurisdiction is appropriate when "a petition ‘presents a purely legal issue of first impression that is of statewide importance.’ " Id. at 264, ¶ 13, 394 P.3d 1096 (quoting Escalanti v. Superior Court ex rel. County of Maricopa , 165 Ariz. 385, 386, 799 P.2d 5 (App. 1990) ).

¶ 10 The petition for special action in this case raises an issue of first impression concerning the interplay between the procedural rules and statutes governing protective orders and family law proceedings. Thus, in the exercise of our discretion, we accept special action jurisdiction pursuant to Arizona Rule of Procedure for Special Actions 1(a).

DISCUSSION

A. The Superior Court Has the Authority to Hold a Joint Hearing Regarding Temporary Parenting-Time and Protective Orders.

¶ 11 We begin by clarifying how the statutes and procedural rules address the interrelationship between temporary parenting-time orders and active orders of protection. We review the interpretation of statutes and court rules de novo . Premier Physicians Grp., PLLC v. Navarro , 240 Ariz. 193, 194, ¶ 6, 377 P.3d 988 (2016) (statutes); State v. Fitzgerald , 232 Ariz. 208, 210, ¶ 10, 303 P.3d 519 (2013) (court rules). "We interpret statutes and rules in accordance with the intent of the drafters, and we look to the plain language of the statute or rule as the best indicator of that intent." Fragoso v. Fell , 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1027 (App. 2005). "If the language is clear and unambiguous, it is the best and most reliable index of the meaning of the rule or statute." Courtney , 235 Ariz. at 615, ¶ 6, 334 P.3d 1272. "However, we must construe related statutes and rules in conjunction with each other and harmonize them whenever possible." Fitzgerald v. Myers , 243 Ariz. 84, 96, ¶ 39, 402 P.3d 442 (2017).

¶ 12 A parent may petition to determine legal decision-making and parenting time "in any proceeding for marital dissolution, legal separation, annulment, paternity or maternity, or modification of an earlier decree or judgment." A.R.S. § 25-402(B)(1). Once a legal decision-making or parenting time proceeding is initiated, the court may, on motion by a party, issue temporary orders awarding parenting time. A.R.S. § 25-404(A) ; Ariz. R. Fam. Law. P. ("Family Rule") 47.² When issuing a temporary parenting-time order, the court must consider "all factors that are relevant to the child’s physical and emotional well-being," including whether conditions should be placed on parenting time if a parent has committed an act of domestic violence. A.R.S. § 25-403(A)(8) ; see also A.R.S. § 25-403.03(F) (listing examples of conditions the superior court may place on parenting time).

¶ 13 The superior court has exclusive jurisdiction to issue orders of protection when a family law action is pending. A.R.S. § 13-3602(P) ; see also Ariz. R. Protect. Ord. P. 34(a). A.R.S. § 13-3602(P) provides that an order of protection issued in a municipal or justice court must be promptly transferred to the superior court when a family law action is pending between the parties. See also Ariz. R. Protect. Ord. P. 34(c). Upon transfer, the court is authorized to "proceed as though the petition for an order of protection had been originally brought in the superior court." A.R.S. §...