Court of Appeals of Arizona, First Division, Department E
Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure0
Petition for Special Action from the Superior Court in Mohave County Cause No. DO-2011-04406 The Honorable Richard Weiss, Judge
Law Office of Michele Holden, PLLC Michele Holden Attorney for Petitioner.
Law Offices of Paul Lenkowsky Paul Lenkowsky and Virginia L. Crews Attorneys for Real Party in Interest.
MICHAEL J. BROWN, Judge.
¶1 Yessenia Storing ("Mother") seeks special action relief from the trial court's temporary and final orders granting Myron Storing's ("Father") petition for modification of child custody and parenting time. For the following reasons, we conclude the court abused its discretion in treating Father's "emergency petition" as a request for modification on a permanent basis. We therefore accept jurisdiction and grant relief in part.
¶2 Father and Mother divorced in April 2012. The decree of dissolution provided that Mother and Father would have joint custody (with equal parenting time) of their two children, ages 7 and 11.
¶3 On January 10, 2013, Father filed an "Emergency Petition for Order to Appear to Modify [Mother's] Parenting Time; In the Alternative, Petition for Expedited Hearing to Modify [Mother's] Parenting Time and Order to Appear." Pursuant to Arizona Rule of Family Law Procedure ("ARFLP") 91(D) and A.R.S. § 25-414,  Father requested that Mother's parenting time be modified immediately, subject to a later hearing to be set by the court. In support of his petition, Father cited several incidents, including Mother's arrest for extreme DUI on December 5, 2012, and statements Mother allegedly made to the children impugning Father's character. Father argued those instances demonstrated that it was necessary for the health, safety, and welfare of the children that parenting time be "immediately modified." Father also petitioned the court to modify "parenting time" to provide that "Father shall be the exclusive and sole legal decision maker for the minor children and further shall have sole and exclusive parenting time with the minor children, subject only to restricted and supervised parenting time" by Mother. Father also requested that Mother be ordered to pay child support after any modification of parenting time.
¶4 On January 14, the trial court signed Father's proposed order, which modified parenting time "on an emergency basis." The order also modified the decree such that Father became the "exclusive and sole decision maker for the minor children." Father was also granted primary parenting time, subject only to supervised visitation with Mother during two four-hour periods each week. The order was to remain in effect until February 4, when the court would hold a 90-minute evidentiary hearing "to determine whether or not the modified parenting time orders shall continue in effect as a permanent parenting time order of the Court."
¶5 On January 24, Mother moved to quash the temporary custody order and to dismiss Father's petition. In her motion, Mother argued that Father's petition failed to meet the requirements set forth in ARFLP 48 and A.R.S. § 25-411(L). According to Mother, Father's petition did not comply with those requirements because the factual basis for the petition was insufficient to warrant the court's temporary custody order. On the same day, Mother filed a response to Father's emergency petition, denying the majority of Father's allegations.
¶6 The court used the majority of the time allocated for the February 4 hearing to conduct in camera interviews with the children. Because only twenty minutes remained available for presentation of evidence, the court discussed various options with counsel. Mother's counsel expressed her client's desire to move forward with presentation of at least some evidence, explaining that "first of all[, ] that this hearing is being held outside the time frame of an emergency ex parte order. So something needs to be done. We need to have it. And it can't be delayed significantly given that my client hasn't even had a chance to put on her evidence." The court declined to rule on Mother's pending motion to quash/motion to dismiss, indicating that Father still had additional time to file a response. After approximately twenty minutes of testimony from Father's witnesses, the court agreed to give the parties an additional 50—60 minutes on February 13. Counsel for Mother asked the court if it had given "any thought" to changing the temporary orders. In response, Father's counsel urged the court to leave the "current emergency orders" in place pending the continued hearing, which the court agreed with.
¶7 At the continued hearing on February 13, the parties presented additional testimony. During closing arguments, Mother indicated she understood the proceedings were being conducted according to ARFLP 48 and were not for a permanent change in custody. Mother argued it was not clear to her that "a real petition has been filed to modify custody on a permanent basis." Father countered that his motion was brought pursuant to Rule 91(D) and therefore was intended to be one for permanent changes to the custody plan. Near the close of proceedings, Mother requested that the court set a trial date regarding permanent changes in custody.
¶8 On the record at the conclusion of the hearing, and after considering the evidence, the court ordered that the temporary orders remain in place. Mother again raised the issue whether Father's original petition was brought pursuant to Rule 91(D) and, if so, whether the procedural rules were followed. After hearing Mother's arguments, the court expressed some uncertainty as to which rules applied ...