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.
Ryan-Touhill, Judge. JURISDICTION ACCEPTED; RELIEF GRANTED
Murray Law Offices, PC, Scottsdale, By Stanley D. Murray,
Counsel for Petitioner
Law Group, Phoenix, By Melanie G. Gable, Counsel for Real
Party in Interest
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 courts 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 Mothers request for modified child
support and Fathers counter-petition to modify legal
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 courts relocation
decision or require it to conduct a new trial. We accept
jurisdiction and grant relief because Fathers 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.
FACTS 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 ...