Opinion
1 CA-SA 24-0160
11-26-2024
JENE SOBRINO, Petitioner, v. THE HONORABLE RONDA R. FISK, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, SERGIO SOBRINO, Real Party in Interest.
McCulloch Aviation Law Firm P.L.L.C., Scottsdale By Mitchell A. Vasin Counsel for Petitioner Singer Pistiner, P.C., Scottsdale By Jason Pistiner Counsel for Real Party in Interest
Petition for Special Action from the Superior Court in Maricopa County No. FC2020-097319 The Honorable Ronda R. Fisk, Judge
McCulloch Aviation Law Firm P.L.L.C., Scottsdale
By Mitchell A. Vasin
Counsel for Petitioner
Singer Pistiner, P.C., Scottsdale
By Jason Pistiner
Counsel for Real Party in Interest
Judge James B. Morse Jr. delivered the opinion of the Court, in which Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.
OPINION
MORSE, Judge:
¶1 Petitioner ("Wife") seeks special-action relief from the superior court's denial of her notice of change of judge ("Notice") as a matter of right. For the following reasons, we accept jurisdiction and grant relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 In October 2020, Wife filed a petition for dissolution of marriage. In 2021, Judge Blanchard entered a consent decree dissolving the marriage. Judge Blanchard continued to preside over the case for various post-decree matters until Judge Jackson rotated onto the Family Division in January 2023. At that time, Wife had a post-decree petition pending. A year later, Respondent ("Husband") filed a counter-petition. In April 2024, the court dismissed Wife's petition and Husband's counter-petition for lack of prosecution.
¶3 In June 2024, Husband filed a new post-decree petition seeking to enforce a provision of the decree and "force the sale of Wife's home." Wife filed the Notice, but the presiding family-court judge denied it, ruling that Husband's petition was a continuation of the original case and not a new "action" for which Wife could seek a peremptory change of judge. Wife filed this special action. We accept jurisdiction and grant relief.
JURISDICTION
¶4 Special-action jurisdiction is discretionary, City of Surprise v. Ariz. Corp. Comm'n, 246 Ariz. 206, 209, ¶ 6 (2019), and is appropriate when no "equally plain, speedy, and adequate remedy by appeal" exists, Ariz. R.P. Spec. Act. 1(a). Because this case involves a challenge to the denial of a peremptory change of judge, we accept jurisdiction. See Gilbert Prosecutor's Office v. Foster, 245 Ariz. 15, 17, ¶ 5 (App. 2018) ("noting that 'a challenge to the denial of a notice of peremptory change of judge . . . must be brought by special action'") (quoting State v. Ingram, 239 Ariz. 228, 232, ¶ 16 (App. 2016)).
DISCUSSION
¶5 Wife argues the superior court failed to follow the Arizona Rule of Family Law Procedure ("Family Rule") 6 when it denied her Notice. "In each action, whether single or consolidated, each party is entitled as a matter of right to a change of judge." Ariz. R. Fam. Law P. 6(b) (emphasis added). The parties disagree about whether a post-decree petition can qualify as an "action" under the Family Rules.
¶6 "We review the denial of a change of judge for an abuse of discretion," Coffee v. Ryan-Touhill in and for County of Maricopa, 247 Ariz. 68, 72, ¶ 17 (App. 2019), but interpret the Family Rules de novo, Ross v. Pratte in and for County of Pima, 254 Ariz. 91, 92, ¶ 4 (App. 2022). "We 'interpret rules of procedure by their plain meaning and we read them in conjunction with each other and harmonize them whenever possible.'" State v. Greene, 255 Ariz. 37, 57, ¶ 76 (2023) (quoting State v. Tillmon, 222 Ariz. 452, 454, ¶ 8 (App. 2009)).
¶7 The superior court agreed with Husband's argument that Hofstra v. Mahoney, 108 Ariz. 498 (1972), controls here. In Hofstra, our supreme court found that a petition to modify a decree of dissolution is a continuation of the prior action-not a new or independent action- especially when the petition has the "same title and number as that of the original case." Id. at 499-500. Thus, "once a party has participated in a proceeding affecting the merits of the case, his right to a change of judge is lost unless actual bias or prejudice is proved." Id. at 498-99. Relying on Hofstra, Husband contends that the reference to an "action" in Family Rule 6 refers to all proceedings that are filed under a discreet case number. Id. at 499.
¶8 Husband's argument might carry the day if Hofstra had interpreted the Family Rules. Instead, Hofstra addressed a request for change of judge under the Arizona Rules of Civil Procedure as they existed in 1972. Id. at 498. Thirty-four years after Hofstra, our supreme court adopted the Family Rules. See Ariz. R. Fam. Law P. (effective January 2006). And, in restyling the Family Rules, our supreme court stated that the 2019 amendments to the Family Rules separated the civil and family change of judge rules:
The amended rules also include some substantive changes, including .... The provisions for requesting a change of judge no longer incorporate a civil rule by reference but are instead set out in two new self-contained rules, Rule 6 ("change of
judge as a matter of right") and Rule 6.1 ("change of judge for cause").
Prefatory Comment to the 2019 Amendments, Ariz. R. Fam. Law P.
¶9 We follow the Family Rules "in all family law matters" and only apply the Arizona Rules of Civil Procedure if they are "expressly incorporated" by the Family Rules. Ariz. R. Fam. Law P. 1(c); see Hustrulid v. Stakebake, 253 Ariz. 569, 577, ¶ 22 (App. 2022). The Family Rules provide that a "'petition' is the initial pleading that begins a family law case or a post-decree matter." Ariz. R. Fam. Law P. 23(a). Further, "a party begins an action by filing a verified petition seeking" various forms of post-decree relief, including petitions to enforce, to modify, or for "relief otherwise authorized by statute." Id. at 23(a)(9)-(11). Post-decree petitions to enforce a decree's property-settlement agreement are authorized by statute. See A.R.S. § 25-317(E) ("Terms of the agreement set forth or incorporated by reference in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt."). Therefore, when Husband filed his petition to enforce the parties' property-settlement agreement, he began a new "action" pursuant to Family Rule 23(a)(11). Accordingly, Family Rule 6(b) allows Wife to file a notice of change of judge as a matter of right for that new action.
CONCLUSION
¶10 For the foregoing reasons, we accept special-action jurisdiction and remand to the superior court for further proceedings consistent with this opinion.