JOSHUA M. COFFEE, Petitioner,
THE HONORABLE JENNIFER RYAN-TOUHILL, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, JENNIFER LEIGH APPLING, Real Party in Interest.
Petition for Special Action from the Superior Court in
Maricopa County No. FC2008-050057 The Honorable Jennifer C.
Murray Law Offices, PC, Scottsdale By Stanley D. Murray
Counsel for Petitioner
Law Group, Phoenix By Melanie G. Gable Counsel for Real Party
David D. Weinzweig delivered the opinion of the Court, in
which Presiding Judge Kenton D. Jones and Judge Peter B.
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.
This is the second of two consecutive petitions for special
action in this matter. In the first, 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.
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.
AND PROCEDURAL BACKGROUND
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 which Son would move from Arizona to Kansas
and Mother would become the primary residential parent.
Father responded and counter-petitioned.
The court treated Mother's emergency motion as one for
temporary orders without notice under Arizona Rule of Family
Law Procedure 48, and denied the motion after finding that
Mother had not shown irreparable injury, loss or damage. The
court set a limited evidentiary "return hearing" or
"emergency hearing," at which it would hear
testimony, but only from the parties and with no exhibits.
The actual hearing was more expansive than forecast. The
trial judge considered and relied on medical notes from the
child's therapist in Kansas. The notes had not been
disclosed to Father before the hearing, yet the judge
questioned him about their contents and relied on his answers
in deciding that Son should be relocated to Kansas. At
hearing's end, the judge expressed concern about
Son's safety in Arizona and doubt about Father's
parenting skills before announcing that "[Son] is going
to Kansas" based on the court's "risk
The superior court entered what it described as a
"temporary order," stating that "[b]ased on
testimony presented," Son "shall reside with Mother
in Kansas effective immediately pending further order of the
Court." The court did not mention or include any
specific findings on the relevant factors for parenting time
under A.R.S. § 25-403(A) or child relocation under
§ 25-408(I). The court did not address Mother's
request to modify child support or Father's
counter-petition to modify legal decisionmaking. A telephonic
follow-up hearing was scheduled.
Five weeks later, Father petitioned this court for special
action relief to vacate the superior court's ruling on
due process grounds and sought an order for Son's
immediate return to Arizona. This court accepted
jurisdiction, concluded that Father was denied due process,
ruled that the order "cannot stand," determined
that "a new hearing [was] required," and thus
"direct[ed] the superior court to conduct an evidentiary
hearing" within 60 days "that complies with
applicable rules and statutes." Coffee I, 2018
WL 5117110, at *1-5, ¶¶ 1, 5, 8, 20, 22. The
decision also directed the superior court to address the
relevant statutory factors when it ruled on "the pending
requests to modify legal decision-making, parenting time, and
child support," id. at *5, ¶ 22, which
meant revisiting the relocation question, see Berrier v.
Rountree,245 Ariz. 604, 606, ¶ 8 (App. 2018)
(parties "framed the issue as one of parenting
time" even though court was "effectively faced with
a relocation question"). The court did not ...