Vera v. Hon rogers/chaidez , 246 Ariz. 30 ( 2018 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SALVADOR VERA, Petitioner,
v.
THE HONORABLE JOSHUA ROGERS, Judge, and THE HONORABLE
MARAGARET 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
FILED 12-4-2018
Petition for Special Action from the Superior Court in Maricopa County
No. FC2018-091238
No. FC2018-092621
The Honorable Joshua D. Rogers, Judge
The Honorable Margaret Benny, Judge Pro Tempore
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Stewart Law Group, Phoenix
By Dianne Sullivan
Counsel for Petitioner
MY AZ LAWYERS, Phoenix
By Alison Briggs
Counsel for Real Party in Interest
VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
OPINION
Judge Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
M c M U R D I E, 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.
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VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
¶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
1 At the time the new cause number was assigned to the
order-of-protection case, a case note was added to the digital files for both
cases which stated that the order of protection had been transferred to a
new cause number and that the new case was connected to the family case.
We have taken judicial notice of this case note, located in the records of the
superior court. See State v. Valenzuela, 109 Ariz. 109, 110 (1973) (court may
take judicial notice of related superior court records).
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VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
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 (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 (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 (quoting Escalanti v. Superior Court ex rel.
County of Maricopa, 165 Ariz. 385, 386 (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).
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VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
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 (2016) (statutes); State v. Fitzgerald, 232 Ariz. 208, 210, ¶ 10 (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 (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. “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 (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).
2 The Arizona Supreme Court has recently adopted new rules
abrogating and replacing the Rules of Family Law Procedure almost in their
entirety, effective January 1, 2019. See Order Amending the Arizona Rules
of Family Law Procedure and Rule 9, Arizona Rules of Civil Appellate
Procedure, Arizona Court Order 0023 (adopted August 30, 2018). We refer
to these new rules as the “2019 Rules of Family Law Procedure,” and will
note any changes that substantially modify the current rules discussed in
this opinion.
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VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
¶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.
§ 13-3602(P).
¶14 When a parent’s request for temporary parenting time
conflicts with an active order of protection transferred to the superior court,
the Family Rules3 recognize the court’s concurrent authority over both
actions by permitting it to consider them together in a joint hearing. Family
Rule 5(A) provides:
When actions within the scope of these rules involving a
common child, common parties, or a common question of law
or fact, are pending before the court, the court may order a
joint hearing . . . of any or all the matters in issue in the
actions . . . and the court may make such orders concerning
proceedings therein to avoid unnecessary costs or delay or to
serve in the best interest of a minor child.
(Emphasis added. 4) A joint hearing to consider both actions is especially
appropriate in a case such as this. Requests for temporary parenting time
and orders of protection that bar contact with a parent’s child necessarily
involve a common child and will typically concern common questions of
law or fact. By resolving the issues raised by both actions in a joint hearing,
the court may ensure that conflicts do not arise between the order of
3 To the extent they do not conflict, the Arizona Rules of Protective
Order Procedure explicitly incorporate the Arizona Rules of Family Law
Procedure. Ariz. R. Protect. Ord. P. 2.
4 To eliminate any confusion regarding whether a court may hold a
joint hearing on an order of protection and parenting time, the 2019 Family
Rules explicitly recognize the court’s authority to hold such a hearing. 2019
Rule of Family Law Procedure 5(a)(4) (“The court may not consolidate a
case involving an order of protection with a family case but may conduct a
joint hearing.”).
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VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
protection and the parenting-time order and avoid forcing the alleged
victim of domestic abuse to testify multiple times.
¶15 Thus, if at the end of a joint hearing a court finds both that (1)
the requesting parent is entitled to immediate, temporary parenting time
and (2) the protective order should not remain in effect as originally issued,
it may harmonize the temporary parenting-time order and the order of
protection. Ariz. R. Fam. Law. P. 5(A) (“[T]he court may make such
orders . . . to serve in the best interest of a minor child.”). In doing so, a court
may fashion an appropriate solution from the range of statutory and
procedural options available to it, including amending the order of
protection to remove any child listed as a protected person. See, e.g., A.R.S.
§ 25-403.03(F) (listing conditions that may be placed on parenting time
when the court finds a parent has committed an act of domestic violence);
A.R.S. § 13-3062(G) (listing conditions that may be imposed by an order of
protection); Ariz. R. Protect. Ord. P. 35 (modification of an order of
protection to permit one parent to contact the other parent to implement
legal decision-making and parenting-time orders). But given the priority
placed upon protective orders—and the criminal penalties associated with
them—the court must ensure that any decision affecting the order of
protection will not hinder the “understanding and compliance by the
parties and ease of enforcement by law enforcement officers.”
Ariz. R. Protect. Ord. P. 35(d); see also Ariz. R. Protect. Ord. P. 21(c)
(protective orders control over conflicting legal decision-making orders);
A.R.S. § 13-2810 (criminal penalties for violations of protective orders).
¶16 We note two important caveats to the superior court’s
authority to amend an order of protection. First, while the superior court
has the discretion to hold a joint hearing to harmonize parenting-time orders
and an order of protection, it is not obligated to do so. See
Ariz. R. Fam. Law. P. 5(A). Second, the court’s authority to modify an order
of protection only exists pursuant to the statutes and rules controlling
protective orders. See, e.g., Ariz. R. Protect. Ord. P. 2 (“To the extent not
inconsistent with these rules, the Arizona Rules of Family Law Procedure
apply to protective order matters heard in conjunction with pending family
law cases.” (emphasis added)). With this background in mind, we now turn
to the issues Father raises.
B. The Statutes and Rules Governing Orders of Protection Do Not
Authorize the Relief Father Seeks in this Case.
¶17 Father argues the superior court in the family case erred by
failing to amend the order of protection to effectuate its parenting-time
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VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
orders. Father’s argument hinges on his contention that “this Court has
already reviewed this issue” in Courtney, and the straightforward
application of our holding in that case authorizes us to order the superior
court to amend the order of protection. We disagree.
¶18 In Courtney, the superior court denied a mother’s request for
temporary parenting time with her minor child because the court found it
could not amend an active order of protection that included the child as a
protected person. We accepted special action jurisdiction to determine
whether the superior court had the authority to amend an order of
protection that had been issued, contested, and affirmed in the municipal
court before its transfer to superior court. Courtney, 235 Ariz. at 615, ¶¶ 2–3,
5–6. After examining the applicable rules and statutes governing protective
orders and temporary parenting-time orders, we concluded the superior
court had the authority “to modify the protective order if the court is
satisfied that parenting time would not endanger the child or significantly
impair the child’s emotional development.” Id. at 616, ¶ 11; accord Michael
M. v. Arizona Dept. of Economic Sec., 217 Ariz. 230, 233, ¶ 14 (App. 2007)
(“[J]uvenile court has authority under § 8–202(F) to issue orders that take
precedence over a pre-existing municipal court order of protection and
therefore supersede it.”).
¶19 Here—and critically distinct from the circumstances at issue
in Courtney—a superior court judicial officer, at Father’s request, held a
hearing on the order of protection and affirmed it in its entirety before
Father filed the instant special action. Father’s claim for relief thus requires
us to determine whether the statutory and procedural scheme described
above authorizes the superior court to amend an order of protection that
has been affirmed by a coordinate member of the same court. 5 We conclude
it does not.
¶20 The superior court’s authority to amend an active order of
protection after a contested hearing in the superior court exists only to the
extent such action would not conflict with the statutes and procedural rules
governing protective orders. See Ariz. R. Protect. Ord. P. 2. Pursuant to
both A.R.S. § 13-3602(H) and Arizona Rule of Protective Order Procedure
5 The judicial officer hearing the order-of-protection case is a full-time
court commissioner but presided over the action as a judge pro tempore. As
a pro tempore judge, she had the same authority as a full-time regularly
seated superior court judge. See Ariz. Const. art. 6, § 31(B); State v. White,
160 Ariz. 24, 32 (1989).
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VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
(“ARPOP”) 38, a party restrained by an order of protection is only entitled
to one hearing to contest the order. Michael M., 217 Ariz. at 233, ¶ 12
(“[A.R.S. §] 13–3602 sets forth the proper procedure to contest an order of
protection, entitling a party to one hearing and an appeal . . . .”). Once that
hearing has been held, an affirmed order of protection may be amended or
dismissed only in two ways: (1) by a request of the party protected by the
order, Ariz. R. Protect. Ord. P. 40(a), 6 41(a); or (2) by appeal, Ariz. R. Protect.
Ord. P. 42(a)(2), (b). Mother has not requested that the order be amended,
and Father did not appeal from the court’s final judgment. Therefore,
neither remedy is now available to Father.
¶21 We note that ARPOP 40(a) specifically limits modification
requests to the “plaintiff” for an important reason—to avoid potential
harassment from a defendant who might repeatedly seek reconsideration
or modification of a protective order. In this case, Father had two options
after the court denied his motion to reconsider the inconsistent orders: (1)
file a special action petition challenging the court’s denial of his motion to
reconsider based on the court’s erroneous factual premise that it could not
harmonize the two orders because the order-of-protection case had not
been transferred to the superior court; or (2) ask for a hearing on the order
of protection. Father chose the latter option, did not prevail at the hearing,
and then sought relief from this court to circumvent the order-of-protection
ruling. Under the rules governing protective orders, Father is bound by the
strategy he chose. See State v. West, 176 Ariz. 432, 447 (1993) (defendant is
bound by his counsel’s tactical or strategic decisions to waive even
constitutional rights), overruled on other grounds by State v. Rodriguez, 192
Ariz. 58 (1998); Bobrow v. Bobrow, 241 Ariz. 592, 598, ¶ 29 (App. 2017) (a
6 ARPOP 40 provides:
(a) A plaintiff may ask for modification of a protective order
at any time during the term of the order.
* * *
(c) If a contested hearing has not yet been requested or held,
the judicial officer must personally interview the plaintiff and make
sufficient inquiry of the plaintiff to determine that the plaintiff is
not making the request under duress or coercion.
(d) If a contested hearing has been requested or has occurred,
the motion to modify must be set for hearing with notice to the
defendant.
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VERA v. HONS ROGERS, BENNY/CHAIDEZ
Opinion of the Court
party may not sit by and allow error to be committed and, upon receiving
an unfavorable judgment, ask for a new trial on that ground).
¶22 Furthermore, a superior court judicial officer is not to engage
in horizontal appellate review of another judicial officer’s decision to affirm
an order of protection. “[A] superior court judge has no jurisdiction to
review or change the judgment of another superior court judge when the
judgment has become ‘final.’” Davis v. Davis, 195 Ariz. 158, 161, ¶ 11 (App.
1999); see also Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 333, ¶ 26
(App. 2009). “An Order of Protection . . . that is . . . affirmed . . . after a
hearing at which both parties had an opportunity to appear” is a final,
appealable order. Ariz. R. Protect. Ord. P. 42(a)(2); see also Mahar v. Acuna,
230 Ariz. 530, 533, ¶ 11 (App. 2012) (signed order of protection issued after
a hearing is a final, appealable order under the Rules of Protective Order
Procedure, A.R.S. § 12-2101(A)(1), and A.R.S. § 12-2101(A)(5)(b)). Once the
superior court judicial officer presiding over the order-of-protection
hearing affirmed the order of protection, Father’s sole remedy was to
appeal that ruling to this court, which he did not do.
ATTORNEY’S FEES AND COSTS
¶23 Father and Mother each request an award of attorney’s fees
and costs. Because neither cites authority to support the request, neither is
entitled to an award of attorney’s fees. ARCAP 21(a)(2); see also Ariz. R.P.
Spec. Act. 4(g) (Arizona Rules of Civil Appellate Procedure apply to the
extent not inconsistent with these rules); Roubos v. Miller, 214 Ariz. 416, 420,
¶ 21 (2007). However, as the prevailing party, Mother is entitled to her costs
upon compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶24 For the foregoing reasons, we accept special action
jurisdiction, but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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