Opinion
No. 1 CA-SA 12-0012
02-09-2012
ALEJANDRA AMARILLA NASH, Petitioner, v. THE HONORABLE THOMAS LECLAIRE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STEPHEN JOHN NASH, Real Party in Interest.
Hallier & Lawrence, PLC By Angela K. Hallier And Jones, Skelton & Hochuli, P.L.C. By Eileen Dennis GilBride Attorneys for Petitioner Mariscal, Weeks, McIntyre & Friedlander, P.A. By Steven D. Wolfson, Robert L. Schwartz And Anne L. Tiffen Attorneys for Real Party in Interest
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Petition for Special Action from the
Maricopa County Superior Court
Cause No. FC2010-007378
The Honorable Thomas L. LeClaire, Judge
JURISDICTION ACCEPTED IN PART AND RELIEF GRANTED IN PART;
JURISDICTION DECLINED IN PART
Hallier & Lawrence, PLC
By Angela K. Hallier
And
Jones, Skelton & Hochuli, P.L.C.
By Eileen Dennis GilBride
Attorneys for Petitioner
Phoenix
Mariscal, Weeks, McIntyre & Friedlander, P.A.
By Steven D. Wolfson, Robert L. Schwartz
And Anne L. Tiffen
Attorneys for Real Party in Interest
Phoenix
GOULD, Judge ¶1 Petitioner, Alejandra Amarilla Nash ("Wife"), seeks special action relief from the family court's order prohibiting the parties from disseminating information about this case to the media and other third parties and precluding Wife from obtaining a copy of the trial transcript. For the following reasons, we accept jurisdiction of the petition and grant relief as to Wife's request to obtain a copy of the trial transcript. We decline jurisdiction regarding the order prohibiting the parties from disseminating information about this case to the media and others as review of this order can await disposition in the pending appeal.
Factual and Procedural History
¶2 On December 15, 2010, Plaintiff/Real Party in Interest Steven John Nash ("Husband") filed a Petition for Dissolution of Marriage. On April 29, 2011, Husband and Wife entered into a Joint Custody Agreement ("JCA") concerning their minor children. The JCA stated that Wife and Husband would not "do or say anything to the children" that would "negatively impact" the children's "opinion or respect for the other parent." On May 4, 2011, the court entered an order adopting the JCA. ¶3 A dissolution trial was held on August 10, 2011. Prior to the trial Wife and Husband stipulated to close the trial to the public. See Ariz. R. Family Law P. 13(B) (permitting court to enter an order closing the courtroom in a dissolution case). Once the trial started, the court ordered the electronic record of the trial sealed. ¶4 On August 24, the court, sua sponte, issued an order directing the clerk "to seal the file in this cause and all future documents filed under this cause." On November 8, Wife filed a motion to unseal the electronic record of the trial in order to have it transcribed. Wife stated in her motion that she needed a copy of the transcript to pursue an appeal. Husband objected to Wife obtaining a copy of the transcript. ¶5 Three months later, the court filed a minute entry order prohibiting the parties from engaging in any negative communications about each other, especially to the media. The court reasoned that such disparaging comments are "likely, over time, to be viewed by the minor children." ¶6 The court subsequently filed a minute entry order prohibiting Husband and Wife from speaking to any person about the information contained in the documents, records or transcripts filed in the case. The order also restricted Wife's access to the trial transcript; Wife's counsel was permitted to obtain a copy of the transcript, but Wife was not allowed to have a copy. Wife may review the transcript in her attorney's office, but cannot physically remove the transcript from her attorney's office. The court did not similarly restrict the Husband. ¶7 Wife then filed a notice of appeal from the judgment and dissolution decree entered in this case. She filed a petition for special action on January 17, 2012, as well as a motion to unseal all filings related to the special action.
The court issued this order pursuant to the recommendations of the parenting coordinator, which were adopted and approved by the court.
The orders regarding communication with third parties and the trial transcript were made "pursuant to Rule 13(B), Arizona Rules of Family Law Procedure and A.R.S. § 25-407(D)." Section 25-407(D) provides that a court can seal a record in any custody proceeding to protect the welfare of a minor child.
Wife filed two additional notices of appeal on December 21, 2011. See Maricopa County Superior Court Cause No. FC2010-007378.
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Jurisdiction
¶8 We accept jurisdiction over Wife's special action petition. Apart from special action relief, Wife has no "equally plain, speedy, and adequate remedy by appeal" to obtain the transcript prior to the ruling on her appeal. Ariz. R.P. Spec. Act. 1(a); Chartone, Inc. v. Bernini, 207 Ariz. 162, 165, ¶ 7, 83 P.3d 1103, 1106 (App. 2004). The other issues raised in her petition, however, can be resolved on appeal, which will provide her with an adequate remedy.
Discussion
¶9 Wife is entitled to obtain a copy of the trial transcript. Wife has a due process right to obtain a copy of the transcript so that she can fully participate in the appeal and provide meaningful assistance to her attorney. E.g. Lindsey v. Normet, 405 U.S. 56, 64-69 (1972) (stating that right of due process is applicable to civil proceedings); Encinas v. Magnum, 203 Ariz. 357, 359, ¶ 10, 54 P.3d 826, 828 (App. 2002) (same); see also State v. Stolze, 112 Ariz. 124, 125, 539 P.2d 881, 882 (1975) (holding that an indigent defendant has a right to due process in pursuing an appeal that includes obtaining a transcript of his trial). Even though Husband is concerned that Wife may use the transcript to communicate with the media, the family court's order already prohibits this action. If Wife violates the order, the family court has authority to sanction her for the violation.
Motion to Unseal
¶10 Wife filed a motion to unseal all filings related to this special action with her petition. Wife's motion is denied. If filings related to this special action are unsealed, documents or records previously sealed by the family court would be made available for third parties to view in our file. As a result, Wife will indirectly obtain relief on an issue that we have already declined to accept special action jurisdiction over, namely, Wife's request to vacate the family court's order regarding dissemination of information to third parties. Unsealing the record, as well as Wife's request to communicate about this case to third parties, must be resolved in conjunction with Wife's pending appeal.
Conclusion
¶11For the foregoing reasons, we accept jurisdiction and grant relief as to Wife's request to obtain a copy of the trial transcript. We decline jurisdiction to consider Wife's remaining issues.
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ANDREW W. GOULD, Judge
CONCURRING: _______________
MAURICE PORTLEY, Presiding Judge
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ANN A. SCOTT TIMMER, Judge