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Vera v. Rogers

Court of Appeals of Arizona, First Division

December 4, 2018

SALVADOR VERA, Petitioner,
v.
THE HONORABLE JOSHUA ROGERS, Judge, and THE HONORABLE MARAGARET BENNY, Judge Pro Tempore, of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judges, ARACELI CHAIDEZ, Real Party in Interest.

          Petition for Special Action from the Superior Court in Maricopa County No. FC2018-091238 No. FC2018-092621 The Honorable Joshua D. Rogers, Judge The Honorable Margaret Benny, Judge Pro Tempore

          Stewart Law Group, Phoenix By Dianne Sullivan Counsel for Petitioner

          MY AZ LAWYERS, Phoenix By Alison Briggs Counsel for Real Party in Interest

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

          OPINION

          MCMURDIE, JUDGE

         ¶1 Salvador Vera ("Father") seeks special action review of two conflicting orders issued by different judicial officers of the superior court. The first is a temporary order related to Father's petition for legal decision-making, parenting time, and child support, which granted Father temporary parenting time of his two children. The second order affirmed an active order of protection barring Father from any contact with the children's mother, Araceli Chaidez ("Mother"), and the children. We accept special action jurisdiction and hold that although the superior court may act to harmonize parenting-time and protective orders, its authority to do so is limited once a coordinate member of that same court affirms the protective order following an evidentiary hearing.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Father and Mother are the biological parents of two minor children. In April 2018, Mother obtained an ex parte order of protection in the Phoenix Municipal Court prohibiting Father from having any contact with Mother. The children were also designated as protected persons under the order of protection. Mother, without informing Father, then moved out of Arizona with the children, allegedly to escape the domestic violence that gave rise to the need for the order of protection.

         ¶3 Before Father realized Mother and the children had left the state, Father petitioned to establish legal decision-making authority, parenting time, and child support in the superior court ("the family case"). After learning Mother and the children had left Arizona, Father petitioned the court to issue a series of emergency ex parte temporary orders awarding Father sole legal decision-making authority over the children and requiring Mother to immediately return them to Arizona. The court denied Father's request to issue the orders ex parte but scheduled a temporary-orders hearing.

         ¶4 Between the time of the filing of Father's petition for temporary orders and the temporary-orders hearing, Father was served with the order of protection. On Father's motion, the municipal court, pursuant to Arizona Revised Statutes ("A.R.S.") section 12-3602(P), ordered the order-of-protection case to be transferred to the superior court "for consolidation under Case No. FC2018-091238 for all further proceedings." Once the transfer was effectuated, however, the superior court, pursuant to its obligations under Arizona Supreme Court Rule 123 and the Federal Violence Against Women Act, assigned the order of protection case a new cause number-FC2018-092621.

         ¶5 In the family case, the superior court held the temporary orders hearing as scheduled. Before the hearing, Father filed a pretrial statement notifying the court that the order of protection had been transferred to the superior court. At the hearing, the court heard testimony and took evidence concerning Father and Mother's relationship, their relationship with the children, the allegations of domestic violence by Father, and the order of protection. The court took the matter under advisement and subsequently issued temporary orders. The court awarded Mother sole legal decision-making authority regarding the children, but ordered that Father have regular access to the children, including daily remote communication and in-person parenting time on school holidays and breaks. But the court made no mention of the still-active order of protection prohibiting Father from any contact with Mother or the children.

         ¶6 Both Mother and Father immediately challenged the temporary orders as conflicting with the order of protection. Mother requested the court reconsider the parenting time aspects of its order given the order of protection, and Father requested the court amend the order of protection to implement the temporary order concerning parenting time. The court denied both requests by minute entry, mistakenly noting the order of protection had not been transferred to the superior court under a new cause number.[1] The court concluded that "[o]nce an Order of Protection is properly transferred to the Superior Court, a hearing may be properly requested and will take place accordingly."

         ¶7 Father then requested a hearing on the order of protection. At the order-of-protection hearing before a different judicial officer, Mother, Father, and the court discussed the conflict between the order of protection and the temporary orders issued by the court in the family case. The judge handling the order of protection interpreted the minute entry in the family case denying reconsideration of the temporary orders as placing priority on the active order of protection. The court determined that the parenting-time order would become effective only if the court modified the order of protection or removed the children from that order. Based on this interpretation, the court found that it could go forward with the hearing. Father did not object to proceeding in the manner outlined by the court.

         ¶8 After hearing testimony and taking evidence on the domestic abuse allegations raised by Mother against Father, the court affirmed the order of protection in its entirety. The court found Mother had met her burden of proving the domestic abuse allegations by a preponderance of the evidence, and that the involvement of the children in the incidents justified their inclusion on the order of protection. Father then filed this special action seeking an order directing the court in the family case to amend the order of protection to effectuate its temporary parenting-time order.

         SPECIAL ...


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