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In re Marriage of White

Court of Appeals of Arizona, First Division, Department C

October 29, 2013

In re the Marriage of: DAVID A. WHITE, Petitioner/Appellant,
KELLY S. WHITE, Respondent/Appellee, and STATE OF ARIZONA, ex rel. THE DEPARTMENT OF ECONOMIC SECURITY, Intervenor/Appellee.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Maricopa County Superior Court No. FC2003-091262



The court, Presiding Judge Samuel A. Thumma, Judge Michael J. Brown and Judge Diane M. Johnsen, has considered Appellant David A. White's "Motion to Compel Compliance With Appellant's Change of Judge Request" and "Motion to Vacate Superior Court's Finding of Fact and Orders." Appellee Kelly S. White did not respond to either motion and appellee State of Arizona ("the State") filed a response to the motion to vacate, stating the superior court's order regarding child support is void. Because we conclude that the superior court lacked jurisdiction to consider matters that are directly related to the issues still pending on appeal and the mandate has not yet issued, we vacate the superior court's "rulings on remand" dated September 9, 2013 and the court's minute entries dated August 13, September 12, and September 23 (collectively the "orders").

On July 18, 2013, we issued a memorandum decision addressing the issues Appellant raised in his appeal from the superior court's judgment denying his request for sole custody, reducing his parenting time, and ordering payment of child support. In our decision, we rejected Appellant's challenges to the change in parenting time, but concluded the superior court erred by not making specific findings of fact and conclusions of law in support of its custody order. Accordingly, we vacated the custody order and remanded for specific findings as required by Arizona Revised Statutes ("A.R.S.") section 25-403. We also concluded the superior court erred by making child support orders after expressly informing the parties that the court would refer child support issues to a Title IV-D commissioner, and therefore vacated the modified child support orders and remanded for further proceedings consistent with the decision.

After unsuccessfully seeking reconsideration of our decision, Appellant filed a petition for review with the Arizona Supreme Court, which has not yet ruled on the petition. Notwithstanding the pending petition for review, the superior court issued the orders, including rulings setting forth its findings of fact in support of the prior custody order and denying Appellant's request for change of judge. As a result, Appellant now requests that we vacate the orders and direct the court to grant his motion for change of judge.

As acknowledged by the State, "the filing of a notice of appeal . . . divests the trial court of jurisdiction to proceed other than to issue orders in furtherance of the appeal and to address matters unrelated to the appeal." In re Marriage of Flores and Martinez, 231 Ariz. 18, 21, ¶ 10, 289 P.3d 946, 949 (App. 2012). "[A]n appellate proceeding . . . does not terminate until the appellate court's mandate issues." Id. Therefore, orders entered during an appeal before a mandate has issued are void and not appealable. See id. at ¶¶ 10, 12, 289 P.3d at 949.

In this case, the superior court lacked jurisdiction to issue the orders because Appellant's petition for review is still pending before the supreme court and a mandate has not issued. Accordingly, Appellant cannot appeal from those orders. See id. Nonetheless, in our discretion, we construe Appellant's requests for relief as a petition for special action, accept jurisdiction and vacate the orders as void for lack of jurisdiction given that the mandate has not issued. See Ariz. R.P. Spec. Act. 1(a). We do not address the merits of any of the orders.

IT IS ORDERED vacating the superior court orders dated August 13, September 9, September 12, and September 23, 2013.

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