April - Maricopa County Bar Association

April, 2014
In this edition: Practice tips from the Honorable
Janet Barton and "Using quickbooks in divorce
cases" by Frank Pankow
EDITOR’S COMMENTS
There were a number of interesting family law
related memorandum decisions issued by
Division One of the Arizona Court of Appeals
since our last newsletter. The MCBA Family
Law Section board has summarized a few that
we felt were worth sharing.
TABLE OF CONTENTS
Announcements/Court News
Page 2
Presentations and CLE
Page 5
Legislative update
Page 8
Law Practice Tips
Page 9
Articles & Contributions
Page 12
New Arizona Cases
Page 15
Family Law Section contact information
For membership information or information about this newsletter, a Family Law
meeting or program from the Maricopa County Bar Association, please contact:
Laurie Williams: [email protected], (602) 257-4200
Published by the Board of Directors of the Family Law Section of the Maricopa County
Bar Association
Editors: Kellie Wells, Sylvina Cotto and Annette Cox
Messages may be sent to: Laurie Williams: [email protected]
The views in this newsletter are those of the contributors and editors and do not reflect
the official policy of either the Maricopa County Bar Association or the Maricopa County
Superior Court.
1
SUPREME COURT ADMINISTRATIVE ORDER NO. 2014-23
ELECTRONIC SERVICE OF DOCUMENTS BY AZ TURBOCOURTS
Administrative Order No. 2011-140 requires all attorneys to e-file post-initiation civil case
documents in the Superior Court in Maricopa County through the judiciary’s electronic filing system,
AZTurboCourt. Similarly, Administrative Order No. 2012-2 requires all attorneys to e-file all documents
in the Supreme Court and Court of Appeals, Division One, through AZTurboCourt, with specified
exceptions. Since 2011, AZTurboCourt has reliably e-delivered documents to the courts in more than
300,000 e-filing transactions. Since August 22, 2013, AZTurboCourt users have electronically served
their pleadings and other case documents on opposing counsel who consent as provided in Rule
5(c)(2)(D).
Electronic service through AZTurboCourt has furthered the efficiencies gained from e-filing and
has proven to be a reliable method of service by immediately delivering documents to opposing counsel
and providing a record of receipt. During the last quarter of 2013, a significant number of pleadings have
been successfully served electronically using AZTurboCourt. For these reasons, the Court has decided
not to require consent by attorneys for receipt of electronic service of pleadings and other documents
through AZTurboCourt.
Therefore, pursuant to Article VI, Section 3, of the Arizona Constitution,
IT IS ORDERED that the following provisions are adopted to govern electronic service of any
paper that is not required to be personally served in all case types for which AZTurboCourt is available in
the Supreme Court, Court of Appeals Division One, and the Superior Court in Maricopa County:
1. Any attorney of record may be electronically served through AZTurboCourt on or after March 8, 2014.
2. Service is complete upon transmission, and an additional five calendar days shall be added to any
period of time prescribed by these rules to do some act or initiate some proceeding.
3. Any provisions of this Order that are inconsistent with the Arizona Rules of Court shall supersede
procedural requirements of the rules.
Dated this 24th day of February, 2014.
2
MARICOPA COUNTY BAR ASSOCIATION
The directors of the Family Law Section for 2014:
Tabitha Jecmen Chair
Hallier & Lawrence, PLC
3216 North 3rd Street, Suite #300
Phoenix, Arizona 85012
Telephone: 602.285.5500
[email protected]
Jennifer L. Kupiszewski
Kile & Kupiszewski Law Firm LLC
8727 E. Via de Commercio
Scottsdale, AZ 85258
Telephone: 480-348-1590
[email protected]
Jennifer Raczkowski
DeShon Pullen Law
5333 North 7th Street, Suite A210
Phoenix, Arizona 85014
Telephone: 602.252.1968
[email protected]
Kellie Wells Chair Elect
Padish & Wells, PLLC
7373 East Doubletree Ranch Road Suite #255
Scottsdale, Arizona 85258
Telephone: 480.264.7470
[email protected]
Michael Skupin
Skupin Law Group, PLLC
2999 North 44th Street, Suite 308
Phoenix, AZ 85018
(602) 232-2000 – Work Phone
(866) 500-7718 – Work Fax
[email protected]
DeShon Pullen
DeShon Pullen Law
5333 North 7th Street, Suite A210
Phoenix, Arizona 85014
Telephone: 602.252.1968
[email protected]
Jared Sandler
Bellah Perez PLLC
5622 W. Glendale Ave
Glendale, Arizona 85301
Telephone: 602-252-9937
[email protected]
Sara Swiren Immediate Past Chair
Franks, Sheldon, Houser, PC
2111 East Highland Avenue, Suite #145
Phoenix, Arizona 85016
Telephone: 602.230.1265
[email protected]
Nicole Siqueiros-Stoutner
Hallier & Lawrence PLC
3216 North 3rd Street, Suite #300
Phoenix, Arizona 85012
Telephone: 602.285.5500
[email protected]
Annette Cox
Law Office of Annette M Cox, PLLC
60 East Rio Salado Parkway, Suite #900
Tempe, Arizona 85281
Telephone: 480.366.5780
[email protected]
Sylvina Cotto
Cotto Law Firm, PC
7272 East Indian School Road, Suite #110
Scottsdale, Arizona 85251
Telephone: 480.429.3700
[email protected]
Dorian L. Eden
Eden Law Office, PLLC
4809 E. Thistle Landing Drive, Suite 100
Phoenix, AZ 85044
(480) 285-1735
[email protected]
www.edenlawaz.com
Andrea E. Mouser
Mouser & Schmillen, PLLC
Kierland Executive Center I
7025 E. Greenway Pkwy, Suite 500
Scottsdale, AZ 85254
Phone: 480-422-3043
[email protected]
Jennika McKusick Secretary
Jeffrey G Pollitt PC
2425 East Camelback Road, Suite #1075
Phoenix, Arizona 85016
Telephone: 602.852.5577
[email protected]
3
PRESENTATIONS & CLE
Speed Network with the
Family Law Judges!
RECEPTION
Wednesday
April 30, 2014
5:30-7:30 p.m.
Maricopa County Bar Association
303 East Palm Lane
Phoenix, Arizona 85004
Drinks and light appetizers will be served
This is a fun and casual way for the bench and bar to exchange information and engage in
conversation outside of the courtroom. Using the speed networking model, the judges will
rotate to the organized small groups of practicing family law attorneys.
Joining us will be:
Hon. Suzanne Cohen
Hon. Christopher Coury
Hon. Bethany Hicks
Hon. Carey Hyatt
Hon. Wendy Morton
Hon. Danielle Viola
Hon. Ben Norris
Hon. Jose Padilla
Hon. Sam Myers
Hon. Wendy Morton
Hon. Joseph Mikitish
Hon. Tim Ryan
Hon. Kristin Hoffman
And more...
Make your reservation by Monday, April 21 by contacting:
Teri Ruff at [email protected] or (602) 682-8584.
4
MCBA ANNUAL TRIAL ADVOCACY
SAVE THE DATE!!
Mark your calendars for June 20, 2014 for this year’s annual Trial Advocacy
CLE. The event will be from 1:00 p.m. until 5:00 p.m. at the Phoenix School of Law. The
Trial Advocacy CLE is in the format of a mock trial and will deal with a family law
topic. Renowned family law attorneys will present either a direct or cross-examination
of witnesses. A panel of sitting family law judges will hear the testimony, rule on
objections and consider the evidence. At the conclusion of the CLE, the judges will
issue rulings and provide valuable insight as to the trial techniques, and what was
persuasive, or annoying! Be sure to register early, this event fills up quickly and space
is limited.
FAMILY COURT NEWS
●
News from the Clerk (“The Brief”)
The following articles are provided by Michael K. Jeanes, Clerk of the
Maricopa County Superior Court. For additional information, contact:
Special Counselor and Public Information Officer, Aaron Nash: 602-5062309
Forms of Payment Changing January 1
Effective January 1, 2014, the Clerk of the Court’s Office will only accept cash, money
orders, and credit or debit cards for fees from self-represented parties and the public.
Additionally, wire transfers are acceptable as a method of payment for bonds. Personal
checks will no longer be an acceptable form of payment for these individuals.
This restructure in payment methods is being implemented in phases. Following this
action on January 1, the Office will then move to the next phase of implementing this
same measure with attorneys, process servers, and bonding companies at dates to be
determined.
The goal of this change is to move toward guaranteed forms of payment and away from
personal and business checks. This change mirrors practices from other courts within
5
Arizona and around the nation. Cash, wire transfers, and credit or debit cards with a
signature are reliable forms of guaranteed payment. Other forms of payment, such as
cashier’s checks and bank checks can be stopped, which results in insufficient funds.
This disrupts the court’s ability to conduct business and can place the Clerk’s Office at
substantial financial risk.
Thank you for your understanding and cooperation.
Remote Access to Records
Since this time last year, the Clerk’s Office has increased the electronic court record by
tens of millions of documents. In Maricopa County, public records are accessible over
the internet to parties and their attorney of record in their individual cases through the
Clerk’s ECR Online website. Other public records are available through public access
terminals located in Clerk and Superior Court facilities throughout the Valley.
The Supreme Court approved revisions to Supreme Court Rule 123 that authorize
attorneys to have remote access to records pursuant to the Arizona Code of Judicial
Administration (ACJA). The ACJA will be updated to provide the details for that access
after the statewide eAccess portal is available. The records portal is still in
development. In effect, Rule 123 allows Arizona’s Administrative Office of the Courts to
implement remote access to records when the technology is available. At this time,
remote access to Superior Court records in Maricopa County remains limited to
individual cases for parties and their attorneys or attorneys in the same firm.
Amended Affidavits of Service
Case-initiating documents often list fictional parties to be named when the actual name
is determined. Note that the Clerk’s Office must process affidavits of service based on
the information stated on the affidavit. When appropriate, affidavits of service should
list who was served and whether the person accepting the documents did so for
someone else. For example, if an attorney accepts service for the true party, the affidavit
of service should state the name of the attorney who was served and “on behalf of” or
“for” followed by the true name of the party-defendant. Affidavits that state “Attorney
___” was served with the Summons and Complaint will result in the attorney being
added to the case as a party-defendant. The Clerk’s Office processes affidavits of service
as priority documents to ensure the information is available to the court as soon as
possible, which requires the office to rely on the plain language of the affidavit for party
information.
When a party, attorney, or process server becomes aware that an affidavit of service is
incorrect, an amended affidavit should be filed. To be useful, the amended affidavit
should specifically state who was originally served and who the Clerk should reflect as
the party-defendant on the case. There is no fee for filing an amended affidavit. The
Clerk’s Office can also add parties to a case based on the filing of an Amended Complaint
and by court order.
6
LEGISLATIVE UPDATES
JUVENILE LAW:
HB2314 – PROSECUTOR PRESENCE; INTERVIEWOF MINOR
Requires that in an interview of a minor child who is a victim, a prosecutor must be present even if the minor
child's parent initiates the interview with the defendant, defendant's attorney or agent of the defendant.
ARS Titles Affected: 8,13
First sponsor: Rep. J. Pierce
*Passed House
*Passed Senate Health and Human Services Committee
HB2021 – LITIGANTS DESIGNATION; VEXATIOUS
Defines vexatious litigants, and prohibits them from filing a lawsuit, motion or request relief without prior
leave of the court's presiding judge or the judge's designee.
ARS Title Affected: 12
First sponsor: Rep. Kavanagh
*Passed Judiciary and Rules Committees with amendment #4072
*Passed out of Senate Judiciary Committee
FAMILY LAW:
SB1038 – PARENTING TIME; CHILD RELOCATION
Notice is required for any change of residential address, regardless of distance, and the court is required to
adjust the parenting time or visitation arrangement to minimize the impact on the party who is not changing
address. Would become effective January 1, 2015.
ARS Title Affected: 25
First sponsor: Sen. Barto
*Passed out of Senate; assigned to House Reform and Human Services Committee
*Passed House Reform and Human Services Committee as amended
SB1061 – PATERNITY
Requires a potential or putative father to file a paternity action or claim of paternity as required by law in
order to assert an interest in the child. A mother is permitted to omit her address from an affidavit and notice
to potential fathers if the address of her attorney or agency is provided.
ARS Titles Affected: 8 25
First sponsor: Sen. Barto
*Passed Senate
*Passed unanimously out of House Reform and Human Services Committee
SB1320 – PARENT-CHILD RELATIONSHIP; TERMINATION; PETITION
Authorizes the county attorney of the county in which a prospective adoptive parent resides to prepare a
petition to terminate the parent-child relationship without expense to the prospective adoptive parent.
ARS Title Affected: 8
First sponsor: Sen. Pancrazi
*Passed Senate; transmitted to House
7
LAW PRACTICE TIPS
BY THE HONORABLE JANET BARTON
I was asked to provide insights from the bench regarding “practice tips”, “pet peeves”, “what
to do” and “what not to do”. So, as any smart presiding judge would do, I delegated! Set
forth below are the tips, peeves, best practices, pearls of wisdom, etc., which I received from
judges on the Maricopa County Superior Court family court bench. They are in no particular
order and represent those tips that I received from at least two judges. Here goes:
1.
Learn the applicable rules and statutes and follow them. Many of our peeves relate to
noncompliance with and/or indifference to the applicable rules and statutes. See, e.g., 4, 5, 6,
8, and 11, below. So, if you don’t know the applicable rules and statutes for family court
learn them; and if you do know them, please follow them.
2.
Make sure you rise above the fray and do not become part of the problem. As
recognized by the Arizona Rules of Professional Conduct, “a lawyer is not required to pursue
objectives or employ means simply because a client may wish that the lawyer do so.” See
Comment 1 to 2003 Amendment. When the client wants you to ask for sole legal decision
making, disproportionate parenting time, and/or spousal maintenance in the absence of any
facts that would warrant such relief, remember and if necessary remind your client of your
obligations under A.R.S. §25-324(B) and Rule 31(A), Ariz.R.Fam.L.Pro. (attorney’s
signature on a motion, petition, and/or pleading constitutes a certification that pleading is
well grounded in fact and warranted by existing law).
3.
Before filing a procedural motion such as a motion for extension of time, motion to
continue, motion for telephonic appearance, etc., contact the other side, get their position on
the issue. If the other side does not object to your motion, get their permission for you to
8
sign the pleading on their behalf and submit it as a stipulation. At a minimum, put their
position in the motion, e.g., the other side agrees/disagrees with the requested extension,
continuance, telephonic appearance, etc. If you don’t, we usually tickle the motion for a
response and depending how far in advance you’ve filed the motion, it may not be ruled on
until after the event has passed.
4.
Submit forms of Order with procedural motions.
5.
Comply with Rule 9(A)(2) or 9(B)(2), Ariz.R.Fam.L.Pro., when filing a motion to
withdraw. See also 4, above.
6.
Comply with Rule 65(A)(2)(c), Ariz.R.Fam.L.Pro., which precludes the filing of a
motion to compel “unless after personal consultation and good faith efforts to do so, counsel
have been unable to satisfactorily resolve the matter”. Sending a letter to opposing counsel
saying that you are going to file a motion to compel unless they answer your interrogatories,
produce the requested docs, etc., does not constitute either “personal consultation” or a
“good faith effort to satisfactorily resolve the matter”.
7.
Do not seek expedited or accelerated relief unless it is truly warranted; and if it is then
explain why in your pleading and send it to opposing counsel by e-mail, fax or hand-delivery.
Mailing such pleadings to opposing counsel indicates to us that expedited and/or accelerated
relief is not really that important to you. See also 4, above.
8.
Make sure a consent decree complies with Rule 45, Ariz.R.Fam.L.Pro.
9.
Do not seek, even by stipulation, a blanket admission of all trial exhibits. We
certainly encourage stipulations regarding the admissibility of exhibits. However, the only
exhibits you should seek to admit are those which are relevant and about which we will hear
testimony. If no witness has testified about a particular exhibit, we should not be expected to
review that exhibit to determine what relevancy, if any, it has, what issue it pertains to and
why we should consider it. And while on the topic of trial exhibits, before preparing bench
copies, call the judge’s division and find out whether that judge wants copies (some do and
some don’t). Also, if possible, make sure the numbers on the bench copies correspond with
the actual exhibit number.
10.
Be aware that the audio recording system used in our courtrooms is tied to the
microphones on counsel table and at the podium. If you are not talking into one of those
microphones what you are saying probably will not show up on FTR. So if you want a good
9
record for appeal purposes or otherwise, make sure you conduct your examinations while
seated at counsel table or at the podium and speak into the microphone.
11.
Make sure your parenting plan complies with A.R.S. §25-403.02. Based upon the
plans we are seeing, not everyone has changed their forms to comply with the statutory
changes that became effective January 1, 2013.
12.
Review current legal decision making/parenting time orders for a mediation provision
and if there is one, make sure that requirement has been satisfied before filing a petition to
modify.
13.
Finally, be courteous to court staff and opposing parties/counsel. As I said at the
outset, make sure you rise above the fray and do not become part of the problem.
See you in court. Judge Barton
If you have a law practice tip you would be willing to share, please send it to the
Family Law Section newsletter, c/o Laurie Williams (MCBA Representative) at:
[email protected]
When submitting a law practice tip, please let us know if you
would like your name included or not.
.
10
ARTICLES & CONTRIBUTIONS
Using QuickBooks in Divorce Cases
or How to Channel Your Inner Forensic Accountant
Frank G. Pankow, FAE1
“I just know my spouse is hiding money from me!” Divorce attorneys often hear this,
especially when the couple owns a small business. This article will provide some helpful
tips as to how QuickBooks can be used to find hidden income and/or assets.
QuickBooks is simply an electronic accounting program used by over 94% of all small
businesses. Therefore, there is a very good chance (94%) that the company owned by
your client uses this software. This is a good thing because QuickBooks has some pretty
cool features that aid the forensic accountant. Therefore, the company’s QuickBooks file
should be part of your information request whenever a small business is involved in one
of your cases (more on what to exactly ask for later).
Let’s assume that Joy and Jack own a small restaurant/bar called the “Dew Drop Inn.”
Joy is your client and thinks that Jack has been having an affair with a company
employee named Lola LaMore. Joy also believes that Lola’s two teen-age children
(names unknown) from a prior marriage work at the company. Jack’s ne’er-do-well
brother Cletus is also on the payroll, but Joy suspects he doesn’t actually work there. Joy
knows that Jack and Lola went to Hawaii on a business trip last August but thinks it was
just a disguised vacation. Jack also recently started complaining to Joy about how bad
business was and that she needs to significantly reduce her spending. (I realize these are
1
Forensic Accountant Extraordinaire.
11
bizarre assumptions that you would never see in your Family Law practice, but let’s roll with
them for now.)
You decide that the QuickBooks file should be part of your discovery in order help Joy
get a fair deal in property division and spousal maintenance. But what exactly do you ask
for?
Each QuickBooks program has an “Administrator.” This person has a specific username
and password which gives them complete access to every area of the QuickBooks data.
Other users may be restricted in which areas of the program they can access. Therefore,
it is critical that you ask for the administrator’s username and password.
Certain QuickBooks files can have time limits on the data. For example, you may only get
the last six months of records when you need the last five years.
Also, some
“accountant’s copies” will be cut-off at a certain date. Therefore, it’s important to
request a current QuickBooks “backup file.” These files have a “QBB” extension2 (i.e.
“dewdropinn.qbb”). Also specify the time period you’re looking for. For example: “We
need the company’s QuickBooks backup file with a QBB extension that contains data
from at least January 1, 2009, through a current date.” It’s also a good idea to request
data for the month end after the cut-off date. Assuming a December 31, 2013, cut-off
date, you’d request QuickBooks data up to January 31, 2014.
Never, ever accept a paper copy of the QuickBooks file – that is a total waste of time and
trees. You must get an electronic file on a flash drive or access to the account on-line
(the QuickBooks “cloud”). A paper copy will not have all the descriptions shown and
does not allow the forensic accountant to “drill down” on a given transaction. As Nancy
Reagan would opine “Just say NO to paper.”
Now that we have the company’s QBB file and the administrator’s username and
password, let’s see what we can find out about the mysteries surrounding the Dew Drop
Inn.
QuickBooks allows us to quickly run certain reports. For example, we can find the payroll
records of the two teenage children by looking for anyone named “LaMore.” Same
2
Other file extensions exist, but let’s stick with “easy” and “simple” for now.
12
thing with brother Cletus. QuickBooks doesn’t know if they’re actually working, but we
do know they’re getting paid by the company. Another report can be run by date range.
This would allow us to see the expenses associated with that Hawaiian “business trip”
last August. We can also run reports by company name. Let’s say that Jack had replaced
the air conditioning unit on their home and Joy knew the work was done by the Goettl
company. We simply run a report to see if Goettl was paid by the Dew Drop Inn for what
is obviously a personal expense. Reports can also be run based on dollar amount (“He
bought Lola a $4,500 diamond necklace but I don’t know from where or when.”) and
address (“He goes on fishing trips to Alaska.”). Jack would have coded the Goettl air
conditioner under “repairs,” the necklace under “office supplies” and the Alaska trip to
“seminars.” By having Joy provide just one piece of the event (amount, date, etc.),
QuickBooks allows us to find the actual transaction.
One of the best forensic features of QuickBooks is the Audit Report. Because Jack
doubled Lola’s salary when they started having an affair, he decided to go into the
QuickBooks file and lower the amounts he paid her on each check to keep Joy from
finding out. He also deleted all the checks paid to Cletus. What Jack didn’t know is that
QuickBooks records any change (or deletion) to a transaction in a secret file called the
Audit Report (“Activity Log” for cloud users).
Usually, only the QuickBooks
administrator has access to this file. See now why its important to get that person’s
username and password? Therefore, we can see each time Jack changed one of Lola’s
payroll checks or deleted one to Cletus. Even if Jack knew about the Audit Report, he
can’t turn it off – its always running in the background. Not even the administrator can
turn it off. How cool is that (forensically speaking)?
While this article just scratches the surface of what can be done with QuickBooks, at
least now you know to:
 Request an electronic file with a QBB extension (and never any paper copies)
 Specify the date range of the data you wish to review
 Request the QuickBooks administrator’s username and password
13
By the way, Jack and Lola must have had a great time in Hawaii judging by what we
found in QuickBooks.
NEW ARIZONA CASES
◘
Abbreviations Used
Please note the following abbreviations commonly used in the analysis of the cases that follow:
C/A
T/CT
S/C
F
M
Court of Appeal
Trial Court
Supreme Court
Father
Mother
H
W
S/M
C/S
C/C
Husband
Wife
Spousal Maintenance
Child Support
Child Custody
P/T
ARS
C/P
S/P
Parenting Time
AZ Revised Statutes
Community Property
Separate Property
Case reviews are provided by members of the
Board of Directors of the Family Law Section.
●
ARIZONA: SELECTED MEMORANDUM DECISIONS
While Memorandum Decisions are printed by the Arizona Judicial Branch with limitations on their use (see
below), these decisions often contain informative discussion and review of published opinions and selected
topics of interest to family law attorneys. The unpublished opinions discussed should be used for educational
purposes only, and should not be cited or relied upon except as permitted under the Rules of Court.
SUPREME COURT WARNING:
CAUTION: Memorandum Decisions issued by Division One of the Arizona Court of Appeals are
governed by rules of the Arizona Supreme Court that provide: “Memorandum decisions shall not
be regarded as precedent nor cited in any court except for (1) the purpose of establishing the
defense of res judicata, collateral estoppel, or the law of the case or (2) informing the appellate
court of other memorandum decisions so that the court can decide whether to publish an opinion,
grant a motion for reconsideration, or grant a petition for review. Any party citing a
memorandum decision pursuant to this rule must attach a copy of it to the motion or petition in
which such decision is cited.” ARCAP 28(c); Ariz. R. Crim. P. 31.24; Ariz. R. Supreme Court 111(c).
14
Case/Cite
Uribe v. Webster, 1 CA-CV 12-0874
Procedural History
The superior court entered a Consent Decree in January 2009 approving the parties’
agreement related to parenting time and child support. Although the parties had
predominantly equal parenting time, the child support worksheet entered with the Decree
did not reflect equal parenting time. On June 28, 2012 Father filed his third Petition to
Modify Child Support (Father had made 2 other requests to modify child support in 2010
and 2011—both of which were either denied or dismissed for failure to show a
substantial and continuing change in circumstances). This time, Father requested
modification of support based on the emancipation of one child and the change in
parenting time with the other. Mother filed a Motion to Dismiss, again alleging that
Father failed to show a substantial and continuing change in circumstances. The trial
court granted Mother’s motion and dismissed the petition. Husband timely appealed.
Ruling
Although the Court generally reviews a trial court’s findings related to substantial and
continuing change in circumstances for abuse of discretion, here the trial court did not
weigh evidence, it merely dismissed the case based on the sufficiency of Father’s
pleading. Therefore, the Court reviewed the issues presented in this case de novo. The
Appellate Court found that Father’s Petition set forth a prima facie basis for modification
of parenting time and child support. The Court found that Mother’s assertion that Father
agreed to pay child support until all of the children were emancipated without receiving
credit for parenting time created a factual dispute for which the Court should have
received evidence. The appellate Court found that the trial court should consider the
original agreements related to parenting time and child support and weigh those
agreements against the current circumstances to determine if a substantial and
continuing change has taken place.
Reversed and remanded.
Note: A.R.S. § 25-317(F), -327(A); Guidelines § 25; Guerra v. Bejarano, 212 Ariz. 442
(Ct. App. 2006) require the superior court to recalculate child support when a party
seeks modification after a child’s emancipation.
15
Case/Cite
Savittieri v. Williams, 1 CA-CV12-0517
Procedural History
Superior Court judgment after trial annulling marriage. Williams appeals. Appellate
Court affirmed the trial Court’s order annulling marriage.
Summary /Ruling
August 2007-Carolyn’s doctor signed a statement that she was disabled due to dementia
and could not handle her own affairs.
January 2011- Williams met with Carolyn’s minister and asked him to marry them.
March 2011 – Carolyn’s daughter took Carolyn to hospital where she was diagnosed with
Dementia.
Shortly thereafter, Savittieri sought appointment as Carolyn’s conservator and guardian.
April 2011 – probate court investigator interview Carolyn and determined she was
incapacitated and she needed full guardianship.
The next day Williams married Carolyn.
Two days later Savittieri was appointed Carolyn’s temporary guardian, moved Carolyn to
residential care facility, and was then appointed as her permanent guardian.
Savittieri sought annulment or in the alternative dissolution.
Carolyn dies.
The Court holds trial on annulment and rules that Carolyn lacked the mental capacity to
enter in to the marriage, and therefore granted the annulment.
Williams appeals arguing Carolyn was happy in marriage and was no irretrievably
broken. Appellate court rules that this argument is irrelevant to the annulment and only
applicable to alternate dissolution petition which was rendered moot due to Carolyn’s
death.
Williams argues the trial court erred in admitting testimony from a witness he argues was
irrelevant. Appellate court ruled it will not disturb trial court’s ruling unless a clear abuse
16
of discretion appears and prejudice results.
Williams argues the trial court erred in admitting testimony and erred in giving significant
weight to another witness. Appellate court ruled it will defer to trial court’s assessment of
witness credibility.
William argues that trial court showed prejudice in referring to Carolyn as “Mrs. Mohn”
and not “Mrs. Williams.” Appellate Court’s review of transcripts do not indicate bias or
prejudice.
Williams argues Savittieri was improperly appointed garden for Carolyn. Appellate Court
ruled that the issues are not properly before the Appellate Court as there is no appeal of
the guardianship order.
Final Ruling: Superior Court made extensive findings after an evidentiary hearing. The
evidence of the record supports the trial court’s annulment order. Affirmed.
Case/Cite Rewers v. Pope, 1 CA-CV 13-0007
Procedural History/Facts
Pope (Father) appealed after his Motion to Dismiss a domesticated foreign judgment for
child support arrearages against him was denied.
Facts:
Pope and Rewers divorced in CA in 1984 and Pope was ordered to pay child support.
Rewers and daughter relocated back to Illinois in 1993 and petitioned to domesticate the
CA decree and petitioned for OSC re: unpaid child support. Attorney for Pope in Illinois
moved to quash petitions for lack of personal jurisdiction. Court found jurisdiction
existed. Parties settled and Pope ordered to pay monthly support, portion of child’s future
expenses, including college, medical and dental and arrears.
In 2007 Pop retired to AZ and in 2007 Rewers filed the IL judgment in AZ pursuant to
UEFJA.
In 2012 Rewers filed a petition in AZ requesting Pope appear and answer questions
concerning his assets pursuant to ARS 12-1631 and 1632. Pope field MTD stating he
had no knowledge of the judgment and that he had paid all CA CS, but could not produce
proof of previous payments. Pope argued IL lacked personal jurisdiction, doctrine of
equitable estoppel and laches applied, SOL barred the action.
Court denied Pope’s MTD, noting Pope had and IL attorney and that he had notice and
filed a false affidavit.
Trial court issued a judgment denying MTD and Pope appealed.
Ruling
17
Issue:
Was domestication of an Illinois support order judgment on child support arrears arising
from a California case in Arizona proper ever after Rewers (Mother) waited past 10 years
to domesticate the judgment.
Ruling:
AZ adopted the UIFSA (A.R.S. § 25-1201) that states the SOL of this state or the issuing
state, whichever is longer applies re: a “support order” judgment. IL judgment was the
support order and Rewers domesticated the judgment in AZ, not the divorce decree.
Hence, AZ or IL SOL applies, whichever is longer. AZ law, A.R.S. § 25-503(K) states any
judgment for support and for associated costs and attorney fees is exempt from renewal
and is enforceable until PIF and that if collection efforts commence 10 years after
emancipation of the youngest child, oblige can argue unreasonable delay.
Pope’s daughter was emancipated in 1996 and the support order was for arrearages and
therefore it is enforceable until PIF. Rowers waited until 2008 to execute on the IL
judgment in AZ. The 10 years does not affect domestication of a judgment, just collection
upon said judgment. MTD on domestication is denied. Pope may assert unreasonable
delay; however, it does not prevent domestication of the judgment.
Case/Cite
Masen v. Masen 1 CA-CV 12-0885
Procedural History
M appeals from T/CT’s contempt remedy and award of attorney fees incurred in
defending a contempt proceeding. F appeals from T/CTs order unsealing the file.
Ruling
Affirmed in part and vacated in part.
M filed for contempt due to F’s alleged failure to timely reimburse M for the children’s
medical expenses. M did not seek a contempt order but asked that F be required to pay
his support obligations on the 1st day of each month or be fined $500 each time his
payment was late. T/CT declined to hold F in contempt and required F to pay certain
medical providers directly. T/CT required M to pay $2,500 to F for attorney fees. T/CT,
over F’s objection, unsealed the record prospectively. On appeal, M claimed the T/CT
failed to rule on the contempt issue and argued the award of attorney fees for defending
the contempt issue was in error because the original petition never alleged contempt for
18
failure to pay support. C/A ruled that T/CT did rule on contempt petition when it required
Father to pay the medical providers directly. As to the attorney fees issues, the C/A
found that the T/CT abused its discretion and vacated the award of attorney fees to F
since there was no prevailing party on the contempt issue.
The record was previously sealed pursuant to stipulation of the parties. The T/CT sua
sponte unsealed the record prospectively for the convenience of the parties and the
Court. F argued that the T/CT had no authority to do so because this provision of the
Decree was not modifiable. The C/A affirmed the Order as a family court is not bound
by agreements between the parties to permanently seal a file (citing Phx. Newspapers,
Inc. v. Super.Ct. of Maricopa Cnty., 140 Ariz. 30, 35, 680 P.2d 166, 171 (App. 1983).
Case name/Cite
HOPE V. HOPE, 1 CA-CV 13-0112
DUSCUSSION
In Hope v. Hope, the Arizona Court of Appeals evaluated jurisdictional issues arising
from a party’s attempt to modify and to enforce a foreign custody and support order.
The parties were married and had three children. The parties separated while living in
South Carolina. Mother filed for divorce. The parties proceeded by consent decree,
which awarded the parties joint custody of the minor children and designated Mother
as the primary residential parent. The settlement agreement, which was incorporated
into the consent decree, contained language stating that future actions regarding
custody and visitation “will be adjudicated in the home state of the minor children, and
for purposes of the foreseeable future, the home state of the minor children is the State
of Arizona.”
While Mother and the children were residing in Arizona, Father filed the South Carolina
consent decree in Maricopa County Superior Court pursuant to the Uniform
Enforcement of Foreign Judgments Act (“UEFJA”) and sent Mother notice pursuant to
A.R.S. § 12-1703(B). Father then filed a petition seeking (1) to prevent Mother from
relocating to Mexico and (2) to modify custody. For the next several months, the
parties engaged in highly contentious litigation. Notably, in November 2011, the Court
modified and then suspended Father’s child support obligation to Mother, and in
January 2012, the Court awarded sole custody to Father. Over the course of the
litigation, Mother disobeyed many court orders and repeatedly failed to appear at
hearings. The court repeatedly sanctioned Mother and awarded Father his attorney’s
fees. Mother timely appealed the family court’s orders concerning custody, child
support, enforcement of parenting time provisions of the South Carolina decree, and
the related sanctions and attorney’s fee awards.
The Court of Appeals considered whether there was subject matter jurisdiction under
the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), A.R.S. §§
25-1001 et seq., to modify the foreign custody order, and whether there was subject
19
matter jurisdiction under the Uniform Interstate Family Support Act (“UIFSA”), A.R.S.
§§ 25-1201 et seq., to modify the foreign child support order.
Under UCCJEA, an Arizona family court does not have jurisdiction to modify a foreign
court’s custody order unless the foreign court makes a determination that (1) it no
longer has exclusive continuing jurisdiction over the case, or (2) the child and the
child’s parents no longer live in the foreign jurisdiction. If there is no determination by
the foreign court, the Arizona court may determine whether the child and the child’s
parents no longer live in the foreign jurisdiction. The Court of Appeals determined that
it was not clear that the South Carolina Court relinquished its continuing jurisdiction
and that given numerous relocations by both Father and Mother during the
proceedings, the record was unclear whether the family court had jurisdiction to modify
the South Carolina custody order. The Court of Appeals therefore remanded for
determination on this issue.
Under UIFSA, an Arizona family court does not have jurisdiction to modify a foreign
court’s child support order unless the order is registered in compliance with UIFSA. To
comply with UIFSA, a party must send a letter requesting registration and enforcement
and include two copies (one certified) of the original order, a sworn statement by the
person requesting registration or a certified statement by the custodian of the records
showing the amount of any arrearage, and the names and relevant information
regarding the obligor and oblige. Upon receiving the request, the court must file the
support order as a foreign judgment and then provide notice of the registration to the
non-registering party. This registration process is necessary to confer subject matter
jurisdiction. The record demonstrated that Father did not register the divorce decree in
compliance with the UIFSA until July 2013. Therefore, the Court of Appeals
determined that the family court acted without jurisdiction when it modified child
support in November 2012 and vacated the order modifying child support. Because
the court lacked subject matter jurisdiction to modify the child support order, it also
lacked jurisdiction to enter an attorney’s fee award in connection therewith.
Accordingly, the fee award also was vacated.
Despite these jurisdictional issues relating to modification of the orders, the Court
concluded that the Court did have jurisdiction to enforce the South Carolina decree
under A.R.S. § 25-1053, which provides that “[a] court of this state shall recognize and
enforce a child custody determination of a court of another state if the latter court
exercised jurisdiction in substantial conformity with this chapter…”
20
Case/Cite
In re the Marriage of Kari K. Stonehouse v. Barry Stonehouse, 1 CA-CV
13-0003
Procedural History
T/CT held temporary orders hearing and ordered H to pay temporary attorney’s fees of
$8000 for W’s attorneys’ fees and litigation expenses and $4500/mo for S/M. H failed
to pay. W’s attorney notified T/CT of H’s failure to pay and T/CT set resolution
management conference and stated if H had not paid the attorneys’ fees by the RMC
date, H would be required to show good cause why T/CT should not sanction, including
default. H did not pay. At RMC, H and W both testified, T/CT ordered default judgment
against H. T/CT held default hearing and entered default decree, entered judgment
against H, ordered S/M and further attorneys’ fees. H appealed.
Ruling
Affirmed T/CT ruling. C/A noted a default judgment entered as a sanction is
appealable. Default judgment is an inherent power of court for party’s failure to follow
Rules of Family Law Procedure or Court Order.
Before T/CT can issue default judgment as sanction, T/CT must hold evidentiary
hearing and make findings regarding (1) was violation party or counsel’s, (2) was
violation willful or in bad faith, and (3) does violation warrant default judgment?
T/CT made requisite findings after evidentiary hearing. T/CT also found H to be not
credible. C/A will not review witness credibility on appeal.
H claimed T/CT judge biased against him. C/A noted an unfavorable ruling does not
show bias. Any bias must be from something arising outside of case.
W requested attorneys’ fees on appeal but failed to cite a basis for the award. C/A
denied W’s request for fees.
21
Case/Cite Teamer v. Daniells (Ariz. App., 2014)
Procedural History
M appeals from T/C’s order awarding F attorney’s fees based upon M’s
unreasonableness. The T/C had concluded M acted unreasonably when “1) taking
community funs without regard to the effect on Father; 2) seeking ‘sole custody of the
child when there was clearly no basis for making such a request’; and 3) ‘seeking to
unreasonably limit Father’s parenting time.’”
Case Summary
M and F had one child and had lived in Arizona for five years. F later went towork in
PA and came home to AZ every two to three weeks. Prior to filing for dissolution, the
parties had planned to move to PA and enrolled the child. M filed for dissolution. M
and F agreed to joint legal decision-making, and at a temporary orders hearing, F
agreed the child could remain in AZ to finish high school. No other parenting time
agreement was reached. T/C ordered equal parenting time, alternating weeks in AZ.
With regards to community funds, M withdrew $8000 from a joint account, which F
later testified was to be used to pay business taxes. “The reasonableness of a party’s
position is evaluated using an objective standard; not by considering the party’s
subjective intent.” (citing to In re Marriage of Williams, 219 Ariz. 546, 548 ¶ 10, 200
P.3d 1043, 1045 (App. 2008). C/A held that M had an equal right to manage the
community account and it was not unreasonable for her to withdraw funds for her
living expenses.
With regards M’s sole custody request, the C/A noted that by the time the parties had
reached temporary orders, they had agreed to joint legal custody. So although
Mother had initially plead a request for sole legal custody, it did not continue
unreasonable conduct.
With regards to limiting F’s parenting time, the M was accused of preventing F from
having parenting time because she claimed the child had a birthday party to attend;
and had an appointment another weekend. M’s conduct did not violate any court
orders as none were in place. M also objected to F taking the child to England if he
was taking his significant other, and that F accused M of timing the filing of her
petition for dissolution to prevent him and the child from moving to PA as originally
planned. The C/A accepted that M engaged in these acts, that it was unreasonable,
but that it still did not support a $10000 attorneys’ fee award. The C/A narrowed the
acts down to what actually caused litigation and stated that the two weekend incidents
were not enough to support the award as the events are not unusual in family law
litigation. The C/A also noted F had greater financial resources.
The C/A vacated the award of attorney’s fees to F.
22