Opinion
No. 1 CA-SA 14-0208
12-02-2014
KAREN M. ZABOROWSKI, Petitioner, v. THE HONORABLE TIMOTHY RYAN, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, MARK E. PENXA, Real Party in Interest.
COUNSEL McCulloch Law Offices, Tempe By Diana McCulloch Counsel for Petitioner Mark E. Penxa, Gilbert Real Party in Interest
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Petition for Special Action from the Superior Court in Maricopa County
No. FN2010-091669
The Honorable Timothy J. Ryan, Judge
VACATED
COUNSEL McCulloch Law Offices, Tempe
By Diana McCulloch
Counsel for Petitioner
Mark E. Penxa, Gilbert
Real Party in Interest
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Michael J. Brown joined. JONES, Judge:
¶1 Petitioner Karen M. Zaborowski (Wife) seeks special action review of the trial court's order finding her in continuing contempt for failure to make court-ordered spousal maintenance payments and requiring her to participate in Accountability Court. Because we agree the order was entered in violation of Wife's due process rights, we accept jurisdiction and vacate the trial court's order.
FACTS AND PROCEDURAL HISTORY
Husband did not file a response to Wife's petition for special action review. We therefore accept the factual allegations of the petition as true for purposes of this special action.
¶2 Mark E. Penxa (Husband) and Wife were divorced in 2010. At that time, Wife was ordered to pay Husband $1,088.33 in spousal maintenance monthly.
The duration of the spousal maintenance order is not included in the record before us.
¶3 In January 2013, Husband filed a petition to hold Wife in contempt for her non-payment of spousal maintenance. In August 2013, the trial court held an evidentiary hearing, subsequently determined Wife willfully failed to comply with the court-ordered spousal maintenance, and referred the matter to the Family Court Conference Center to provide an arrearage calculation. In January 2014, the trial court ordered Wife to pay Husband $9,628.81 by April 2, 2014, to purge the contempt. Wife timely paid the purge amount, and the trial court vacated the contempt finding.
¶4 Immediately following Wife's purge, Husband made an oral request at a review hearing for "an additional finding of contempt," based upon an alleged continued failure to pay the full amount of spousal maintenance due since the August 2013 evidentiary hearing, and failure to make any payment toward a prior award of attorneys' fees in Husband's favor. The trial court took the request under advisement.
¶5 Husband filed a written request for ruling on the oral motion in August 2014. The following month, noting no written objection was filed by Wife, the trial court granted Husband's oral request, held Wife in continuing contempt, and entered an order requiring Wife to appear in Accountability Court.
The Maricopa County Superior Court created the "Accountability Court" as a problem-solving court to assist parties who are chronically behind on family obligations to "overcome the barriers to compliance" through more consistent oversight and monitoring. See Fiscal Year 2011 Annual Report of Superior and Justice Courts Adult and Juvenile Probation, Judicial Branch of Arizona in Maricopa County, http://www.superiorcourt.maricopa.gov/MediaRelationsDepartment/d ocs/annualrep/FY2011AnnualRpt.pdf, at 23.
JURISDICTION
¶6 Whether to accept special action jurisdiction is a matter of our discretion, Potter v. Vanderpool ex rel. Cnty. of Pinal, 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257, 1260 (App. 2010), and "[a] primary consideration is whether the petitioner has an equally plain, speedy and adequate remedy by appeal." Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 9, 217 P.3d 1212, 1216 (App. 2009) (citations omitted). Other considerations include whether the case raises issues of statewide importance, issues of first impression, pure legal questions, or issues that are likely to arise again. Luis A. v. Bayham-Lesselyong ex rel. Cnty. of Maricopa, 197 Ariz. 451, 452-53, ¶ 2, 4 P.3d 994, 995-96 (App. 2000) (citing Andrade v. Superior Court, 183 Ariz. 113, 115, 901 P.2d 461, 463 (App. 1995)).
¶7 Because this case arises from an order of contempt, the sole avenue of appellate review is through special action. See State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 18, 66 P.3d 70, 73 (App. 2003) (citing Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35, 36 P.3d 749, 759 (App. 2001), and Elia v. Pifer, 194 Ariz. 74, 80, ¶ 30, 977 P.2d 796, 802 (App. 1998)). Additionally, we view the entry of orders of continuing contempt in the absence of notice and opportunity to be heard as a purely legal question likely to arise again. We therefore accept jurisdiction of this special action.
DISCUSSION
¶8 Wife argues imposition of the continuing order of contempt and requirement that she participate in Accountability Court were erroneous because she was not provided the required notice and opportunity to be heard on the issue in compliance with the Arizona Rules of Family Law Procedure. We agree.
¶9 While Arizona Rule of Family Law Procedure 91 controls the modification or enforcement of prior family court orders, Rule 92 governs civil contempt and sanctions for non-compliance with a court order arising from family court proceedings. See Ariz. R. Fam. L.P. 91(J) ("An action for contempt shall comply . . . with the provisions of this rule and with the provisions of Rule 92."); Ariz. R. Fam. L.P. 92(A) ("This rule governs civil contempt proceedings in all matters related to family law cases.").
¶10 With regard to notice, the alleged contemnor is entitled to notice and an opportunity to be heard prior to entry of a contempt order. Ariz. R. Fam. L.P. 92(B); see also Ong Hing v. Thurston, 101 Ariz. 92, 99, 416 P.2d 416, 423 (1966) (holding in relation to indirect contempt, conduct alleged to have been committed outside the presence of the court, "[t]he party is entitled to his day in court"). The rules contemplate that, at a minimum, the moving party will provide, under oath, specific information regarding the "essential facts alleged to be contemptuous," and "all relief requested" from the court. Ariz. R. Fam. L.P. 91(A)(1), 92(B) (setting forth requirements for petition for sanctions for non-compliance with a court order). While Rule 92 does not specifically mandate written notice, see Ariz. R. Fam. L.P. 92(B) ("Civil contempt may be initiated by a petition . . . .") (emphasis added), Rule 91 does require the filing of a written petition to enforce an order, see Ariz. R. Fam. L.P. 91(A)(1) ("A party seeking to modify or enforce a prior family court order shall file a petition with the clerk of the court setting forth with specificity all relief requested, and pay the required filing fee.") (emphasis added), and both Rules 91 and 92 require service upon the opposing party. See Ariz. R. Fam. L.P. 91(L) ("[A]ll petitions, orders, warrants, and affidavits in support of post-decree or post-judgment relief shall be promptly served upon all opposing parties . . . at least ten (10) days prior to the scheduled conference or hearing . . . ."); Ariz. R. Fam. L.P. 92(B) ("The civil contempt petition and order to show cause or order to appear containing the hearing date and time must be personally served upon the alleged contemnor . . . ."). Rule 92 further directs the trial court to "make an express finding as to whether the alleged contemnor had notice of the petition and order to show cause or appear." Ariz. R. Fam. L.P. 92(D).
Failure to comply with a court order directing payment from one party to another is considered indirect contempt, involving "matters that arise at a distance and of which the court cannot have so perfect a knowledge unless by the confession of the party or the testimony of others." In re Quan, 39 Ariz. 13, 16, 3 P.2d 522, 524 (1931).
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¶11 These rules are consistent with traditional principles of due process, which contemplate a hearing, at which the allegations must be proven and/or the alleged contemnor may show cause as to why contempt orders should not enter. See Marco v. Superior Court, 17 Ariz. App. 210, 211-12, 496 P.2d 636, 637-38 (1972) (finding denial of due process where court entered orders based upon cross-petitions alone and without permitting parties to cross-examine witnesses and present evidence). Accordingly, Rule 92(E) authorizes the court to enter contempt orders and sanctions "[a]fter hearing the testimony and evidence presented." Ariz. R. Fam. L.P. 92(E). Indeed, absent sworn testimony, a trial court would be without the evidence necessary to make the specific "recital of facts on which the contempt finding is based," as required by Rule 92(E).
¶12 Moreover, Rule 91 specifically provides no response to a post-judgment petition is required. Ariz. R. Fam. L.P. 91(M) ("Unless otherwise specifically required by law or these rules, a party served with a petition for post-decree/post-judgment relief is not required to file a formal response to the petition."). Therefore, while a respondent might elect not to appear at a hearing scheduled to address a post-judgment petition for which she has received notice, and risk a contempt finding entering against her, that same contempt finding cannot enter based purely upon failure to file a responsive pleading or otherwise appear where no order to show cause or appear has been issued or served. See Ariz. R. Fam. L.P. 92(B) ("No civil contempt may be imposed without notice to the alleged contemnor and without providing the alleged contemnor with an opportunity to be heard. The civil contempt petition and order to show cause or order to appear containing the hearing date and time must be personally served upon the alleged contemnor . . . .").
¶13 Here, Husband did not file a petition for contempt or submit any other detailed statement of allegedly contemptuous facts under oath. No order to show cause or order to appear was issued, let alone served, and no hearing was held. The trial court did not make the required finding, pursuant to Rule 92(D), that Wife received the notice contemplated by the Arizona Rules of Family Law Procedure, and the record does not indicate Wife waived the notice requirement by actively defending the allegations. Nor was Wife required to file a written response or given an opportunity to respond to Husband's allegations, or present evidence or testimony to show cause why contempt orders should not enter. The only apparent occasion to do so was the eight-minute review hearing, immediately following Husband's oral request, without notice or opportunity to prepare or defend.
CONCLUSION
¶14 The Arizona Rules of Family Law Procedure require service of written notice of the charges upon the alleged contemnor, and that an evidentiary hearing be held prior to entry of any order of indirect contempt. Wife did not receive sufficient or appropriate notice, or any opportunity to be heard on the issue of continuing contempt. Neither the oral request by Husband nor the brief review hearing comported with the process required by the Arizona Rules of Family Law Procedure or due her under the circumstances. Berenter v. Gallinger, 173 Ariz. 75, 82, 839 P.2d 1120, 1127 (App. 1992) (recognizing that due process is not a static concept, its requirements varying "with the nature of the proceedings, the private and governmental interests at stake, and the risk that the procedure will lead to erroneous results.") (citing Maricopa Cnty. Juv. Action JD-561, 131 Ariz. 25, 27, 638 P.2d 692, 694 (1981)). We therefore vacate the trial court's order holding Wife in contempt for non-payment of spousal maintenance between September 2013 and July 2014 and requiring her to participate in Accountability Court for her conduct during that period.
¶15 Wife requests attorneys' fees on appeal pursuant to ARCAP 21, Arizona Rule of Procedure for Special Actions 4(g), and Arizona Revised Statutes section 25-324 (2014). In our discretion, we decline this request.