Coffee v. Ryan-Touhill

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

          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, 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 which Son would move from Arizona to Kansas and Mother would become the primary residential parent. Father responded and counter-petitioned.

         ¶5 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.

         ¶6 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 analysis."

         ¶7 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.^[2]

         ¶8 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 ...