Kennedy v. Wybenga ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
JOHL J. KENNEDY, Petitioner/Appellant,
v.
CHRISTINE L. WYBENGA, Respondent/Appellee.
No. 1 CA-CV 17-0559 FC
FILED 9-11-2018
Appeal from the Superior Court in Maricopa County
No. FC2011-053288
The Honorable Roy C. Whitehead, Judge
REVERSED AND REMANDED
APPEARANCE
Johl. J. Kennedy, Phoenix
Petitioner/Appellant
KENNEDY v. WYBENGA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge David D. Weinzweig joined.
C A M P B E L L, Judge:
¶1 Johl J. Kennedy (“Father”) appeals from several superior
court orders that (1) dismissed his petition to modify child support, (2)
appointed a guardian ad litem (“GAL”) to determine whether Father could
represent himself due to his disability or needed a guardianship, and (3)
denied Father’s request for a change of judge. For the reasons stated below,
we reverse the dismissal of the petition to modify child support and the
order appointing a GAL and remand for reconsideration of Father’s petition
to modify child support and request for an accommodation pursuant to the
Americans with Disabilities Act (“ADA”). We lack jurisdiction to consider
the appeal from the order denying a change of judge.
BACKGROUND
¶2 Father and Christine L. Wybenga (“Mother”) divorced in
2012. In 2014, the superior court granted Mother’s request to relocate to
California with the parties’ children. In November 2016, Father petitioned
to modify child support, determine arrearages, and grant injunctive relief.
Mother argued Arizona no longer had jurisdiction over child support issues
because (1) the superior court ordered on July 24, 2015, that “all future
hearings shall occur in California, as Arizona no longer has jurisdiction
under UCCJEA,”1 and (2) the California court, on May 16, 2016, registered
the Arizona child support order for purposes of modification and
subsequently issued a child support order.
¶3 The superior court initially ruled that Arizona had
jurisdiction over the child support issues but reversed this decision after a
telephonic conference with a California family court judge and a California
Department of Child Support Services (“DCSS”) representative.
1Uniform Child Custody Jurisdiction and Enforcement Act, see Arizona
Revised Statutes (“A.R.S.”) §§ 25-1001 to 25-1067.
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KENNEDY v. WYBENGA
Decision of the Court
¶4 At the conclusion of the telephonic conference, the Arizona
superior court addressed Father’s request for accommodations under the
ADA to allow a cognitive interpreter. The court set another hearing to
determine if Father could represent himself or if the court should appoint a
GAL. At the subsequent hearing, the court appointed a GAL to meet with
Father and advise the court whether he was capable of representing himself
or if a guardianship was necessary.
¶5 Father also requested a change of judge, alleging that the
assigned judge appeared biased because he previously worked with
Father’s former attorney. The superior court summarily denied the request.
DISCUSSION
¶6 Mother did not file an answering brief. We decline to consider
her failure to do so as a confession of error, however, and address the merits
of the issues raised on appeal. See Cardoso v. Soldo, 230 Ariz. 614, 616, ¶ 4 n.1
(App. 2012).
I. Jurisdiction to Modify Child Support
¶7 After concluding California had jurisdiction over child
support issues, the superior court dismissed Father’s petition to modify
child support and determine arrearages. The court found that California
had “jurisdiction over legal decision making, parenting time, and child
support” issues. Father filed notices of appeal from these orders, and we
have jurisdiction under Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(3).
¶8 Father contends that California lacked jurisdiction and
improperly registered the child support order for modification in May 2016
because he was at all times an Arizona resident; thus, Arizona never lost
continuing, exclusive jurisdiction over child support issues according to the
Uniform Interstate Family Support Act (“UIFSA”), A.R.S. §§ 25-1201
to -1362, and the Full Faith and Credit for Child Support Orders Act
(“FFCCSOA”), 28 U.S.C. § 1738B. He also argues that his temporary
relocation to California did not deprive Arizona of continuing, exclusive
jurisdiction because he was residing in Arizona at the time he filed his
petition to modify in November 2016. We review the application and
interpretation of statutes de novo, McHale v. McHale, 210 Ariz. 194, 196, ¶ 7
(App. 2005), but defer to the superior court’s factual findings unless clearly
erroneous, see KPNX-TV Channel 12 v. Stephens, 236 Ariz. 367, 370, ¶ 7 (App.
2014).
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KENNEDY v. WYBENGA
Decision of the Court
¶9 The original and modified child support orders were issued
in Arizona, where Father resided when he filed his November 2016 petition.
The California court issued a child support order in October 2016 that stated
“[a]ll orders previously made in this action must remain in full force and
effect except as specifically modified below.” The California court then
ordered Father to reimburse Mother for specific medical expenses.
¶10 The superior court concluded that the California order
controlled because California registered the order for modification. At the
UIFSA conference, Judge Whitehead spoke with Judge Santos, the
California judge handling the custody and parenting time issues.2 Initially
both judges were of the opinion that child support jurisdiction remained in
Arizona. After learning the Arizona child support order was registered for
modification in California, both judges changed their positions and
concluded California had jurisdiction over the child support matters.
¶11 Pursuant to A.R.S. § 25-1225(C), if another state has issued a
child support order under UIFSA that modified an existing Arizona child
support order, the Arizona court “shall” recognize the continuing,
exclusive jurisdiction of the other state. But Mother sought enforcement of
the Arizona child support order, not modification. In particular, she
requested enforcement of the reimbursement provisions for uncovered
medical expenses contained in the Arizona order. As a result, the California
order simply enforced the reimbursement of medical expenses consistent
with the Arizona order. Indeed, the California order specified that all
previous orders remained in effect except as specifically modified therein;
however, the California order did not modify the Arizona orders. Thus, the
California order did not usurp Arizona’s continuing, exclusive jurisdiction.
And while Arizona and California courts have both issued child support
orders, Arizona retains continuing, exclusive jurisdiction to modify its
original child support order because (1) Arizona issued the “controlling”
order under A.R.S. § 25-1227(B), and (2) Father lived in Arizona when he
petitioned to modify child support and determine arrearages under A.R.S.
§ 25-1225(A)(1).
¶12 UIFSA’s one-order system supports this result. The state
issuing the original child support order:
retains continuing, exclusive jurisdiction over a child support
order until another state modifies the order in accordance
2Judge Santos did not handle the child support issues and suggested the
conference include a DCSS representative.
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KENNEDY v. WYBENGA
Decision of the Court
with the pertinent statutory requirements, including
registration. See [UIFSA] § 205 cmt. (amended 2001) (“Even if
all parties and the child no longer reside in the State, the
support order continues in existence and is fully enforceable
unless and until a modification takes place in accordance with
the requirements of Article 6 [including registration
requirements].”[3]); see also 28 U.S.C. § 1738B(a)(1), (d), (i)
(FFCCSOA, providing state tribunal shall not modify a child
support order unless it is registered and issuing court retains
continuing, exclusive jurisdiction until another state properly
modifies order). Unless the foreign child support order is
registered, the issuing state retains exclusive jurisdiction,
which means another state lacks jurisdiction to modify the
order unless it is registered and other prerequisites are
satisfied.
Glover v. Glover, 231 Ariz. 1, 6-7, ¶ 21 (App. 2012) (first alteration in original).
¶13 California could register and enforce the Arizona order, but
lacked jurisdiction to modify it unless both parents lived in California and
the child no longer lived in Arizona. See 28 U.S.C. § 1738B(i); Cal. Fam. Code
§ 5700.613(a) (authorizing California to modify another state’s child
support order if both parents live in California and the child no longer lives
in the issuing state); see also A.R.S. § 25-1313(A).4
3 Revisions to UIFSA § 205 in 2008 made no material changes to this
comment.
4 Arizona’s statute is comparable and aligns with UIFSA’s policy concerns:
A keystone of UIFSA is that the power to enforce the order of
the issuing tribunal is not “exclusive” with that tribunal.
Rather, on request one or more responding tribunals may also
exercise authority to enforce the order of the issuing tribunal.
Secondly, under the one-order-at-a-time system, the validity
and enforceability of the controlling order continues
unabated until it is fully complied with, unless it is replaced by
a modified order issued in accordance with the standards established
by Sections 609-616.
UIFSA § 206 cmt. (2008) (emphasis added).
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KENNEDY v. WYBENGA
Decision of the Court
¶14 Father’s temporary relocation to California did not affect
Arizona’s continuing, exclusive jurisdiction because he was living in
Arizona when he filed his petition to modify child support. The comment
to UIFSA § 205 (2008) supports this conclusion:
[A]ny interruption of residence of a party between the date of
the issuance of the order and the date of filing the request for
modification does not affect jurisdiction to modify. . . . If the
[original] order is not modified during this time of mutual
absence, a return to reside in the issuing state by a party or
child immediately identifies the proper forum at the time of
filing a proceeding for modification.
We conclude that California can enforce the Arizona child support order
because it was properly registered in California. Arizona did not, however,
lose continuing, exclusive jurisdiction because California did not modify
the Arizona order, despite the confusing “for modification” language in the
California caption. Accordingly, the superior court erred in dismissing
Father’s petition to modify.
II. Appointing GAL
¶15 At some point in the litigation, Father began working with an
aide he characterized as a “support person” under the ADA. See generally
42 U.S.C. §§ 12101 to 12213. Father formally requested permission to allow
his personal aide to assist him as an ADA accommodation—specifically, to
speak on his behalf. The superior court denied this request, explaining that
only a licensed attorney could speak for another in a court proceeding.
Undeterred, the aide tried to discuss Father’s residence with the court.
When the court repeated that it could not hear from the aide, she argued
that Father’s motion to allow her to speak as an ADA accommodation was
still pending.
¶16 The superior court set a hearing to address Father’s request
for ADA accommodations “for the sole purpose of determining if [Father]
is ‘unable to represent himself pro se due to his disability’ and thus
requiring the Court to determine if the appointment of a [GAL] is
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KENNEDY v. WYBENGA
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warranted.”5 Although this order did not finally resolve this issue, Father
filed a notice of appeal.
¶17 At the hearing to address the accommodation request, Father
and his aide explained that Father has difficulty speaking coherently due to
cognitive disabilities and PTSD. Father wanted to use a cognitive
interpreter for future hearings who was licensed to practice law in New
York, but would not appear as his attorney. The superior court expressed
concern that this would constitute practicing law in Arizona without a
license. Then, the court sua sponte appointed a GAL for Father and ordered
the GAL to meet with Father and advise the court “whether he is capable
of representing himself in this matter, and whether a guardianship is
necessary.” Father filed a timely notice of appeal from these orders.
¶18 These orders are not final because the superior court did not
ultimately determine whether Father could represent himself or if a
guardianship was necessary.6 See A.R.S. § 12-2101(A)(1), (10) (stating that
final orders and orders adjudicating a person as incompetent are
appealable). Nevertheless, in light of the due process implications, we
exercise our discretion to treat Father’s appeal from these orders as a special
action and accept jurisdiction. See Lloyd v. State Farm Mut. Auto. Ins. Co., 189
Ariz. 369, 375 (App. 1996); see also Maricopa Cty. Juv. Action No. JD-6982, 186
Ariz. 354, 359, n.5 (App. 1996) (“[T]he appointment of a general guardian
implicates due process.”).
¶19 The ADA requires reasonable accommodations for a person
with a disability to provide “an even playing field,” but does not require
5The court later entered a signed order corresponding to the original,
unsigned order.
6Father subsequently moved to remove the GAL and permit his request for
a cognitive interpreter as an ADA accommodation, contending the
appointment of a GAL violated the ADA. The court denied this request
without comment. At a later status conference, Father was ordered to
schedule an appointment with the GAL. The court issued repeated orders
for Father to meet the GAL, which he has apparently never done. As it
previously cautioned Father, the court dismissed Father’s pending petitions
relating to spousal maintenance and property issues for failing to meet the
GAL as ordered.
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KENNEDY v. WYBENGA
Decision of the Court
preferential treatment or accommodations of the person’s choice. Goldblatt
v. Geiger, 867 F. Supp. 2d 201, 210 (D.N.H. 2012) (quoting Felix v. N.Y.C.
Transit Auth., 324 F.3d 102, 107 (2d Cir. 2003)); see generally 42 U.S.C. §§
12101 to 12103. The superior court did not expressly deny Father’s request
for a cognitive interpreter as a reasonable accommodation; instead, the
court appointed a GAL to advise whether a guardianship was necessary.
Father contends the court lacked authority to appoint a GAL and violated
his due process rights by doing so.
¶20 This was a post-decree child support and marital property
dispute; it was not a probate or a juvenile court matter. Father has never
been found incompetent or incapacitated. The superior court failed to cite
any procedural rule or statute authorizing the appointment of a GAL for an
adult who has not previously been ruled incompetent or incapacitated in
post-decree support and property litigation. This is a family law matter
governed by the rules of Family Law Procedure—rules which specifically
preclude the court from appointing a guardian to act on behalf of an
incompetent person, except as provided in A.R.S. Title 14. Ariz. R. Fam. Law
P. 10(I).
¶21 In this case, Father has never been found incapacitated or
incompetent. Thus, the superior court lacked authority and failed to follow
the constitutionally-mandated procedures before appointing a GAL. The
appointment of a GAL under these circumstances deprived Father of due
process. We vacate the order appointing the GAL and remand for
reconsideration of Father’s request for an ADA accommodation. The
superior court also dismissed several pending motions raising spousal
maintenance and property issues because of Father’s failure to meet with
the GAL. Because we vacate the order appointing the GAL, we also vacate
the related order dismissing the pending motions.
III. Request for New Judge
¶22 In his motion to reconsider the order finding California had
jurisdiction of child support issues, Father also requested a new judge for
cause. The superior court denied the motion without comment. An order
denying a request for a change of judge is not appealable and must be
reviewed by special action. See Taliaferro v. Taliaferro, 186 Ariz. 221, 223
(1986). We decline to treat the appeal as a special action, thus lack
jurisdiction to review the order denying Father’s request for a change of
judge.
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KENNEDY v. WYBENGA
Decision of the Court
CONCLUSION
¶23 We reverse the superior court’s order dismissing Father’s
petition to modify child support and remand for reconsideration. We vacate
the orders appointing a GAL and dismissing the pending motions and
remand for reconsideration of Father’s request for ADA accommodations.
We lack jurisdiction over the appeal from the order denying Father’s
request for a change of judge.
AMY M. WOOD • Clerk of the Court
FILED: AA
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