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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.

Page 280

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

         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, 358 P.3d 600 (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 ...


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