Coffee v. Ryan-Touhill

          As Amended 7/25/2019

Page 667

          Petition for Special Action from the Superior Court in Maricopa County, No. FC2008-050057, The Honorable Jennifer C. Ryan-Touhill, Judge. JURISDICTION ACCEPTED; RELIEF GRANTED

         The Murray Law Offices, PC, Scottsdale, By Stanley D. Murray, Counsel for Petitioner

          Schill Law Group, Phoenix, By Melanie G. Gable, Counsel for Real Party in Interest

         Judge David D. Weinzweig delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.

          OPINION

         WEINZWEIG, Judge:

         [¶1] At issue here is whether parties may remove a trial judge under Arizona Rule of Civil Procedure ("Rule") 42.1(e) if they secure a new evidentiary hearing from the appellate court in a special action and they have not previously exercised their right to a change of judge.

         [¶2] This is the second of two consecutive petitions for special action in this matter. In the first,

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Coffee v. Ryan-Touhill ("Coffee I"), No. 1 CA-SA 18-0217, 2018 WL 5117110 (Ariz. App. Oct. 18, 2018), Joshua M. Coffee ("Father") moved for special action relief from the superior court’s order that his minor son ("Son") immediately move from Arizona to Kansas and live with Jennifer Leigh Appling ("Mother"). A different panel of this court accepted jurisdiction and concluded the superior court had deprived Father of due process. This court ordered the superior court to conduct a second evidentiary hearing at which Father receives due process, and then revisit its decision to relocate the child based on a developed record. The superior court was also ordered to consider Mother’s request for modified child support and Father’s counter-petition to modify legal decision-making.

         [¶3] This second special action followed after Father unsuccessfully moved to change the trial judge before the second evidentiary hearing under Rule 42.1(e). The superior court determined that Rule 42.1(e) did not apply because Coffee I did not reverse the court’s relocation decision or require it to conduct a new trial. We accept jurisdiction and grant relief because Father’s right to change the trial judge was renewed under Rule 42.1(e) after Coffee I granted relief requiring a new evidentiary hearing and decision.^[1]

          FACTS AND PROCEDURAL BACKGROUND

         [¶4] Mother and Father divorced in 2008 with one minor child, Son. The superior court ordered joint legal decision-making authority over Son in the dissolution decree, but designated Father as the primary residential parent. Mother moved to Kansas in 2010 and the parties stipulated to a long-distance parenting plan. In July and August 2018, Mother filed a petition and emergency motion to modify parenting time and child support based on allegations that Son was engaging in dangerous behavior. Mother requested a "role reversal" in ...