Opinion
2 CA-CV 2021-0082-FC
01-26-2022
In re the Marriage of Aaron Curtis Kintopp, Petitioner/Appellant, and Andrea Faith Schulz, Respondent/Appellee.
Aaron Kintopp, Tucson In Propria Persona Southern Arizona Legal Aid, Inc., Tucson By Kristin Fitzharris Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20200057 The Honorable Dean Christoffel, Judge Pro Tempore.
Aaron Kintopp, Tucson
In Propria Persona
Southern Arizona Legal Aid, Inc., Tucson
By Kristin Fitzharris
Counsel for Respondent/Appellee 1
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge.
¶1 Aaron Kintopp appeals from the trial court's decree of dissolution of marriage, challenging its denial of his requests for a change of judge; its ruling on parenting time; and its award of sole legal decisionmaking to his former spouse. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the dissolution decree. In re Marriage of Foster, 240 Ariz. 99, ¶ 2 (App. 2016). In January 2020, Kintopp filed a petition to dissolve his marriage with Andrea Schulz. Kintopp, who has two minor children with Schulz, requested joint legal decision-making and "reasonable parenting time" for both parents. The trial judge assigned to hear the dissolution petition was the same judge who had affirmed an order of protection that Schulz had against Kintopp. In June 2020, Kintopp filed a motion to recuse the judge and a notice of change of judge; both were denied without comment.
¶3 The trial court subsequently issued the decree of dissolution awarding sole legal decision-making to Schulz because it found Kintopp had committed domestic violence against her and he had not overcome the presumption against joint legal decision-making. See A.R.S. § 25-403.03. It also awarded Kintopp parenting time with one of the minor children but not the other, "unless agreed to by the minor child, and [Schulz]." This appeal followed.
Jurisdiction
¶4 Although not raised by either party, we have an independent duty to assess our jurisdiction over an appeal. Ochoa v. Bojorquez, 245 Ariz. 535, ¶ 2 (App. 2018). As part of his appeal from the dissolution decree, Kintopp challenges the trial court's decision to deny his notice requesting a change of judge as a matter of right pursuant to Rule 6, Ariz. R. Fam. 2 Law P. But a party denied a change of judge as a matter of right must seek timely review by special action, not by appeal. Taliaferro v. Taliaferro, 186 Ariz. 221, 221-23 (1996); Smith v. Mitchell, 214 Ariz. 78, ¶ 2 (App. 2006) (peremptory request for change of judge in dissolution of marriage reviewable only by special action). In our discretion, we decline to treat this appeal as a special action, and we therefore lack jurisdiction to consider the court's denial of Kintopp's notice of change of judge pursuant to Rule 6. See Taliaferro, 186 Ariz. at 223-24. We have jurisdiction to address the remaining issues raised on appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
In family law cases, Rule 6, Ariz. R. Fam. Law P., not Rule 42.1, Ariz. R. Civ. P. (formerly cited as Rule 42(f)), mistakenly relied on by Kintopp, applies. See Ariz. R. Fam. Law P. 1(c) (civil procedure rules only apply to family law cases when expressly incorporated by family law rules). However, in interpreting the language of Rule 6, we may rely on case law interpreting substantially similar language set forth in Rule 42.1. Id.
Discussion
¶5 On appeal, Kintopp first contends that because the trial judge affirmed the contested order of protection brought against him by Schulz, the judge had a conflict of interest in the dissolution case: the judge "would essentially be ruling against his own judgment," if he were to rule favorably for Kintopp in the dissolution. He thus asserts the trial court erred in denying his motion for recusal based on a claim of bias or prejudice. We review this claim for an abuse of discretion, Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, ¶ 21 (App. 2013), and will affirm the court for any legally correct reason supported by the record, see Pettit v. Pettit, 218 Ariz. 529, ¶ 4 (App. 2008).
¶6 Prejudice or bias is "a hostile feeling or spirit of ill-will, or undue friendship or favoritism, towards one of the litigants." In re Guardianship of Styer, 24 Ariz.App. 148, 151 (1975). To prove prejudice or bias, an appellant must point to relevant facts other than adverse judicial rulings. See Stagecoach Trails MHC, 232 Ariz. 562, ¶ 21; Smith v. Smith, 115 Ariz. 299, 303 (App. 1977) ("bias and prejudice necessary to disqualify a judge must arise from an extra-judicial source"). Kintopp fails to direct us to anything in the record that would warrant a change of judge pursuant to A.R.S. § 12-409(B)(1)-(5). See Ariz. R. Fam. Law P. 6.1(a). Moreover, he waived his right to request a new judge under Rule 6.1, Ariz. R. Fam. 3 Law P., by failing to file an affidavit for cause. Thus, the court did not abuse its discretion in denying Kintopp's motion for recusal.
Rule 6.1(c) requires a party "file an affidavit seeking a change of judge for cause within 20 days after discovering that grounds exist for a change of judge." Kintopp has not directed us to an affidavit in the record, nor have we found one in our review.
¶7 Kintopp next argues the trial court erred by (1) improperly considering testimony by Schulz; (2) ruling evidence that had been "properly submitted" was inadmissible; (3) determining evidence relevant to parenting time was admissible over his objection; and (4) determining he had not rebutted the presumption against joint legal decision-making by failing to consider relevant evidence and by relying on false allegations of domestic violence. See § 25-403.03.
¶8 However, Kintopp does not support these arguments with appropriate legal authority and fails to adequately direct us to portions of the record that he relies on. See Ariz. R. Civ. App. P. 13(a)(7) (each issue presented for review must include supporting reasons with "citations of legal authorities and appropriate references to the portions of the record on which the appellant relies" and the appropriate standard of appellate review). We therefore decline to address these issues and deem them waived. See In re J.U., 241 Ariz. 156, ¶ 18 (App. 2016) ("We generally decline to address issues that are not argued adequately, with appropriate citation to supporting authority.").
Although Kintopp is not represented by counsel, he is "entitled to no more consideration" than a represented party and is held to the same standards as an attorney. See Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, ¶ 16 (App. 2000).
¶9 Finally, to the extent that Kintopp asks us to enforce elements of the dissolution decree, the trial court retains the authority to ensure its orders are followed. See Ariz. R. Fam. Law P. 91(b) (authorizing a party to file a petition to enforce prior family court judgment); cf. Danielson v. Evans, 201 Ariz. 401, ¶ 37 (App. 2001) (trial court retains jurisdiction to enforce child support and spousal maintenance orders). 4
Attorney Fees
¶10 Both Kintopp and Schulz have requested attorney fees on appeal. Kintopp proceeded in propria persona, and accordingly, his request for fees is denied. And, in our discretion, we deny Schulz's request for attorney fees as well. See A.R.S. § 25-324.
Disposition
¶11 For the foregoing reasons, we affirm the decree of dissolution. 5