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McCarthy v. McCarthy

Court of Appeals of Arizona, Second Division

August 20, 2019

Aeyim Kim McCarthy, Petitioner/Appellee,
v.
James McCarthy, Respondent/Appellant.

          Appeal from the Superior Court in Gila County No. DO201800239 The Honorable Joe A. Albo Jr., Judge Pro Tempore

          Crider Law Firm PLLC, Mesa By Kay A. Jones and Brad J. Crider Counsel for Petitioner/Appellee

          Collins & Collins LLP, Payson By Joseph E. Collins Counsel for Respondent/Appellant

          Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

          OPINION

          STARING, PRESIDING JUDGE.

         ¶1 James McCarthy appeals the superior court's order affirming an order of protection in favor of Aeyim McCarthy. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

         Factual and Procedural Background

         ¶2 In July 2018, Aeyim filed a petition for order of protection against James in the Payson Justice Court. The justice court issued an ex parte order of protection that same day, ordering James to have "no contact whatsoever" with Aeyim. James requested a hearing on the order, but the justice court cancelled the hearing after learning Aeyim had commenced divorce proceedings in Gila County Superior Court. The justice court transferred the order of protection proceedings to the superior court pursuant to Rule 34, Ariz. R. Protective Order P., and A.R.S. § 13-3602(P).

         ¶3 Once transferred, James again requested a hearing on the order of protection. At the hearing, the superior court noted it was "only handling the Order of Protection this date and nothing will be addressed in the related family law matter." Afterwards, the court issued an under advisement ruling that kept the order of protection in effect. The court also issued a separate signed order and stated that it was entered pursuant to Rule 54(c), Ariz. R. Civ. P., and that it "resolves all claims in this proceeding and no further matters remain pending." This appeal followed.

         Discussion

         ¶4 Although neither party has raised the issue of jurisdiction, we have "an independent duty to examine whether we have jurisdiction over matters on appeal." Camasura v. Camasura, 238 Ariz. 179, ¶ 5 (App. 2015).

         ¶5 Arizona law requires that, if there is a pending family law case in the superior court between the parties to an order of protection matter, the order of protection matter is to be transferred to the superior court and merged into, or "docketed in," the superior court case. In part, § 13-3602(P) provides:

After issuance of an order of protection, if the municipal court or justice court determines that an action for . . . dissolution of marriage is pending between the parties, [it] shall stop further proceedings in the action and forward all papers, together with a certified copy of docket entries or any other record in the action, to the superior court where they shall be docketed in the pending superior court action . . . .

         Once such a case is transferred, the Arizona Rules of Family Law Procedure apply to the joined cases. Ariz. R. Protective Order P. 2 ("The Arizona Rules of Family Law Procedure apply to protective order matters heard in conjunction with pending family law cases."). Thus, because the order of protection proceeding was transferred to the superior court in accord with § 13-3602(P), to be heard "in conjunction with" the parties' pending divorce proceedings, the Arizona Rules of Family Law Procedure applied here. See id.; see also Ariz. R. Protective Order P. 34(a)(1); Vera v. Rogers, 246 Ariz. 30, ...


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