Opinion
2 CA-CV 2023-0294
07-17-2024
In the matter of Hannah Sage Hirsch, fka Hannah Sage Perlmutter, an adult.
Jaburg & Wilk P.C., Phoenix By Kathi Mann Sandweiss Counsel for Appellee Laurence Hirsch Focused Appeals PLLC, Mesa By Austin Martineau Counsel for Appellant David Perlmutter
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. PB2023001331 The Honorable Joseph Rhoades, Judge Pro Tempore
Jaburg & Wilk P.C., Phoenix
By Kathi Mann Sandweiss
Counsel for Appellee Laurence Hirsch
Focused Appeals PLLC, Mesa
By Austin Martineau
Counsel for Appellant David Perlmutter
Vice Chief Judge Eppich authored the decision of the Court, in which Presiding Judge Sklar and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Vice Chief Judge:
¶1 David Perlmutter appeals the adult adoption of his biological daughter, Hannah, by her step-father, Laurence Hirsch. Perlmutter asserts the superior court erred by denying his motion to set aside the adoption. He argues the court incorrectly concluded he is not an "interested person" and exceeded its authority in entering the adoption decree, rendering it void. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In April 2023, shortly after she turned eighteen, Hannah and Hirsch filed a joint petition for Hirsch to adopt Hannah. The petition sought to "formalize" their family relationship which has existed for more than eleven years. Hannah's mother, who married Hirsch in 2012, consented to the adoption.
¶3 Perlmutter was served with notice of the petition and filed a written objection to the adoption. In July 2023, the superior court held a hearing where it considered an investigative report and Perlmutter, Hannah, and Hirsch testified. At the end of the hearing, the court granted the petition finding the adoption is "in the best interest for both [Hirsch] and [Hannah] and is in the public interest." The court then entered the adoption decree ("the judgment").
¶4 Approximately two months later, Perlmutter filed a motion to set aside the judgment pursuant to Rule 60(b)(4), Ariz. R. Civ. P., asserting it is void. He stated he is an "interested person" who opposes the adoption petition and argued the superior court has "no authority to enter the decree after only an initial hearing" under the Arizona Rules of Probate Procedure. The court denied the motion. It acknowledged the "emotional toll" that may accompany learning that one's biological adult child may be adopted by another adult but concluded that Perlmutter is not "legally entitled to object to the adult adoption as an interested person." The court further concluded that even if Perlmutter is an "interested person," it had followed the proper procedures by complying with the adult adoption statute which "controls as it is substantive law." This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(2), (9).
The denial of the motion to set aside was the first judgment certified as final under to Rule 54(c), Ariz. R. Civ. P. Therefore, Perlmutter's appeal is timely as to both the underlying decree and the denial of his motion to set it aside, and we have jurisdiction to consider both. See Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, ¶ 13 (App. 2016) (decree entered in title 14 formal proceedings must comply with Rule 54); A.R.S. §§ 14-1201(27) ("[f]ormal proceedings" under title 14 are those "conducted before a judge with notice to interested persons"), 14-8101 (adult adoption statute in title 14). Even so, Perlmutter's arguments on appeal are limited to the denial of his motion to set aside. Any arguments related to the underlying judgment are therefore waived. See Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007).
Discussion
¶5 On appeal, Perlmutter asserts the superior court erred by concluding he is not an "interested person" who "may appear and object to the proposed adoption." A.R.S. § 14-8101(D). He also contends that because he is an "interested person" who objected, the court had no authority to enter the judgment without first providing him the procedures for "contested matters" under the Arizona Rules of Probate Procedure. Failure to do so, he asserts, rendered the judgment void under Rule 60(b)(4).
¶6 We assume, without deciding, that the superior court erred by concluding Perlmutter is not an "interested person" as contemplated by § 14-8101(D). But we disagree that the judgment is void. We review the court's denial of a Rule 60(b)(4) motion de novo. See Sycamore Hills Ests. Homeowners Ass'n, Inc. v. Zablotny, 250 Ariz. 479, ¶ 6 (App. 2021).
¶7 A party may seek relief from a final judgment as void under Rule 60(b)(4) if the superior court either lacked jurisdiction over the subject matter or person involved or lacked authority to render the judgment. Sycamore Hills, 250 Ariz. 479, ¶ 7; see also Shinn v. Ariz. Bd. of Exec. Clemency, 254 Ariz. 255, ¶¶ 27, 35 (2022). A void judgment has no legal effect and may be set aside at any time. Shinn, 254 Ariz. 255, ¶ 26. If, however, none of the three scenarios apply, even if the judgment is erroneous, it is merely voidable. Id. ¶ 27. On its face, Rule 60(b)(4) does not apply to voidable judgments.
¶8 As mentioned above, Perlmutter argued the judgment was void because the superior court lacked authority to enter it under the Arizona Rules of Probate Procedure. The court disagreed. It explained that § 14-8101 provides procedures for adult adoptions and is controlling- specifically the statute provides criteria for petitioning the court, criteria for deciding the petition, and guidance for handling evidence. The court further noted that Perlmutter's argument "would lead to conflicting procedure for the Court" given the differences between § 14-8101 and the probate rules. It concluded that applying the probate rules "would make the controlling adult adoption statute, and the procedures set forth therein, superfluous, unnecessary, and immaterial."
¶9 On appeal, Perlmutter renews his argument that the superior court lacked authority to enter the judgment. He argues § 14-8101 and the probate rules can be harmonized; but even if they conflict, the probate rules control the procedure. Thus, he asserts, the court had no authority to enter the judgment absent compliance with the probate rules regarding contested matters.
Hirsch argues Perlmutter has waived arguments related to the probate rules because he never requested the superior court apply them. At the hearing, Perlmutter stated that "[t]his matter is contested" and requested an evidentiary hearing. We need not reach, however, whether such statements sufficiently preserved Perlmutter's argument because a void judgment lacks legal effect and may be set aside at any time. See Shinn, 254 Ariz. 255, ¶ 26. Accordingly, we address the argument.
¶10 We agree with Perlmutter that the Arizona Rules of Probate Procedure apply to adult adoptions. "Unless specifically provided to the contrary in [title 14] or unless inconsistent with its provisions, the rules of probate procedure govern formal proceedings under [title 14]." A.R.S. § 14-1304. The rules of probate procedure govern the procedures "in all probate proceedings in the superior court." Ariz. R. Prob. P. 1(a). A "probate proceeding" is a "court proceeding arising under . . . A.R.S. Title 14." Ariz. R. Prob. P. 3(c)(1). An adult adoption is a court proceeding arising under title 14. See § 14-8101.
¶11 "A probate proceeding becomes contested when an interested person opposes a petition" by written or oral response. Ariz. R. Prob. P. 15(e). "Interested person" is defined in the probate rules by the same definition found in title 14 and includes a party. Ariz. R. Prob. P. 2(m); § 14-1201(34). "If an interested person has opposed the requested relief . . . the court must follow the procedures set forth in Rules 27-29 relating to contested matters." Ariz. R. Prob. P. 17(b)(2). Rules 27 through 29 provide for management of contested proceedings, disclosure and discovery, and jury trial demands. Ariz. R. Prob. P. 27, 28, 29.
¶12 However, as the superior court observed, there are potential conflicts between the probate rules for contested procedures and § 14-8101. For example, under Rule 4(a)(2)(A), Ariz. R. Prob. P., "[t]he Arizona Rules of Evidence apply in contested hearings unless all parties and the court agree those rules will not apply." But under § 14-8101(G), "the court may consider evidence without regard to the rules of evidence." Additionally, § 14-8101(D) and (E) contemplate "a hearing on the petition" at which "[a]ny interested person may appear and object" and at which the court examines the parties. If the court determines the adoption is in "the best interests of the parties and in the public interest" it shall grant the petition. § 14-8101(E). Whereas Rule 27 requires the court to set litigation deadlines or order the parties to file a proposed scheduling order which specifies deadlines for, as applicable and among other things: initial disclosures, depositions, a settlement conference, a pretrial statement, and ultimately, a trial date.
¶13 But we need not reach whether the probate rules for contested hearings and § 14-8101 can be harmonized, and if they cannot, which controls. While defects may render a judgment erroneous, a "wrong" judgment is not necessarily void. Cockerham v. Zikratch, 127 Ariz. 230, 235 (1980). As explained below, the superior court's noncompliance with the probate rules, erroneous or not, did not deprive it of the authority to render the judgment here.
Perlmutter asserts Hirsch "does not contest the conclusion that [the] judgment is void" and argues we should construe this as a confession of error. We disagree with Perlmutter's assessment, given Hirsch's argument that "Perlmutter has not met the test to establish that the [j]udgment is void" and his assertion that the superior court's procedural analysis is correct. In any event, applying confession of error is discretionary, and we decline to apply it here. See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).
¶14 Perlmutter asserts that the superior court's authority to render the judgment here is analogous to that of the superior court in Shinn, 254 Ariz. 255. In Shinn, our supreme court considered a judgment the superior court lacked authority to render, observing that this basis for voiding a judgment is "the least examined in our jurisprudence." Id. ¶¶ 30, 34. There, a defendant was sentenced for a murder committed in 1994 to "25 calendar years without the possibility of release until those years have been served." Id. ¶ 4. At the time of the murder, parole had been eliminated. Id. ¶ 2. In 2020, the judge who had sentenced the defendant wrote a letter stating he had "inten[ded] that [the defendant] be eligible for all avenues of release, including parole, after twenty-five years." Id. ¶ 6. The defendant and the state subsequently stipulated that at the time of sentencing everyone had "believed and intended that after twenty-five years in prison, [the defendant] would be eligible for parole." Id. ¶ 8. The superior court then amended the defendant's sentence nunc pro tunc pursuant to Rule 24.4, Ariz. R. Crim. P., to provide for "parole and any other type of release" after serving twenty-five years, despite the amended sentence being illegally lenient. Shinn, 254 Ariz. 255, ¶¶ 8, 38.
¶15 Our supreme court held that "courts lack authority to enter a nunc pro tunc order absent clerical error or mistake in the record, rendering such an order void." Id. ¶ 1. It described the scope of nunc pro tunc power as "ministerial" and noted that Rule 24.4, "as the modern procedural vehicle of the common law inherent power," is expressly limited to "clerical mistakes or error." Shinn, 254 Ariz. 255, ¶¶ 17, 18. Our supreme court concluded the superior court's nunc pro tunc order did not remedy a clerical error, but a "purported judicial error," and therefore was beyond that court's inherent power. Id. ¶¶ 20, 23. Rule 24 carries "jurisdictional consequence," because a "trial court's jurisdiction in post-trial motions is limited to that set out in the Rules, and an exercise of that jurisdiction is permissible only upon the grounds specified therein." Shinn, 254 Ariz. 255, ¶ 32 (quoting State v. Falkner, 112 Ariz. 372, 374 (1975)). Accordingly, the nunc pro tunc order was void because the court lacked authority to render it. Id. ¶¶ 34, 38.
¶16 Perlmutter argues that just as Rule 24.4 does not allow the superior court to remedy a judicial error, the probate rules do not allow the court to grant a petition in a title 14 matter after an initial hearing if the petition is opposed. But as demonstrated by Shinn, the authority to enter a nunc pro tunc order in a criminal case comes from a "common law inherent power" as formalized in Rule 24.4. 254 Ariz. 255, ¶ 18. Adoption did not exist at common law. In re Adoption of A.R., 241 Ariz. 356, ¶ 4 (App. 2016). And the rules of probate procedure do not grant the court the authority to enter an adult adoption decree; such authority comes solely from the adult adoption statute. See § 14-8101(E) ("If the court determines that the adoption will be for the best interests of the parties and in the public interest, the court shall approve the agreement of adoption and make a decree of adoption declaring that the person adopted is the child of the adopting person."); Adoption of A.R., 241 Ariz. 356, ¶ 4 (adoption is a statutory proceeding which limits the court's power to that granted by statute). Shinn is distinguishable and does not persuade us that the judgment here was void.
¶17 Perlmutter points to other cases in which default judgments were void because the litigants were not provided proper notice in compliance with the rules of civil procedure. See Gustafson v. McDade, 26 Ariz.App. 322, 323 (1976); BYS Inc. v. Smoudi, 228 Ariz. 573, ¶ 21 (App. 2012); Champlin v. Bank of Am., N.A., 231 Ariz. 265, ¶¶ 7-14, 19 (App. 2013). These cases, however, concern a litigant's due process right to notice, the absence of which typically renders a subsequent judgment void for lack of personal jurisdiction. Compare Duckstein v. Wolf, 230 Ariz. 227, ¶ 18 (App. 2012) (proper service is essential for the court to have jurisdiction), and Blair v. Burgener, 226 Ariz. 213, ¶¶ 7-8, 19, 26 (App. 2010) (notice complied with due process and judgment not void for lack of personal jurisdiction), with Cockerham, 127 Ariz. at 234 (entering default in violation of rule of civil procedure requiring affidavit is reversible error but does not render judgment void). Those cases are therefore inapposite. See Shinn, 254 Ariz. 255, ¶¶ 33, 35 (distinguishing challenges based on jurisdiction as opposed to authority to render judgment). In any event, Perlmutter was provided with notice and opportunity to be heard. See Huck v. Haralambie, 122 Ariz. 63, 65 (1979) ("Due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.").
Perlmutter arguably was afforded more process than the statute requires, insofar as it permits, but does not mandate, the superior court to require notice of the hearing to be served on interested persons other than the parties. See § 14-1801(D).
Perlmutter additionally argues that failure to strictly comply with a statute renders a judgment void, but he has not alleged how the superior court here failed to comply with § 14-8101.
¶18 Even if the superior court was wrong in not applying the procedures for contested matters provided by the probate rules, such error did not deprive the court of authority to enter the judgment. See Cockerham, 127 Ariz. at 235; Shinn, 254 Ariz. 255, ¶¶ 27, 35. The judgment is, at most, voidable, not void. See Shinn, 254 Ariz. 255, ¶ 26. Therefore, the court did not err in denying Perlmutter's Rule 60(b)(4) motion.
Disposition
¶19 For the foregoing reasons, we affirm.