Courtney v. Hon. foster/courtney

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOSEPHINA COURTNEY, Petitioner,
v.
THE HONORABLE GEORGE H. FOSTER, JR., Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,
CLINT COURTNEY, Real Party in Interest.
No. 1 CA-SA 14-0132
FILED 09-18-2014
Petition for Special Action from the Superior Court in Maricopa County
No. FC2014-003501
The Honorable George H. Foster, Jr., Judge
JURISDICTION ACCEPTED AND RELIEF GRANTED
COUNSEL
Cantor Law Group, PLLC, Phoenix
By Felicia Schumacher, Nicole Stearns
Counsel for Petitioner
Smith Law Office, Litchfield Park
By Terry Bays Smith
Counsel for Real Party in Interest
COURTNEY v. HON FOSTER/COURTNEY
Opinion of the Court
OPINION
Judge Maurice Portley delivered the Opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Margaret H. Downie
joined.
P O R T L E Y, Judge:
¶1 After filing her petition for dissolution, Petitioner Josephina
Courtney (“Mother”) sought temporary parenting time with her daughter.
Clint Courtney (“Father”) challenged her request because he had
previously secured an order of protection against Mother from the Tolleson
Municipal Court, and their daughter was listed as a protected person. The
superior court conducted an evidentiary hearing, found it did not have the
authority to modify the order of protection, and, as a result, denied Mother
any temporary parenting time. Mother seeks special action review of the
court’s decision.
PROCEDURAL BACKGROUND
¶2 Mother and Father married in April 1998 and have one minor
child. Father obtained an ex parte order of protection in January 2014
against Mother that included their minor daughter as a protected person.1
After a hearing, the municipal court amended the order of protection to
allow Mother to have e-mail or regular mail contact with her daughter.
¶3 Mother filed a dissolution petition the following month and
sought temporary parenting time.2 The order of protection was
subsequently transferred to the superior court pursuant to Arizona Revised
Statutes (“A.R.S.”) section 13-3602(P).3 Although the superior court
questioned whether it could modify the order of protection, the court held
an evidentiary hearing and took the issues under advisement. In a detailed
minute entry, the court determined that it did not have authority to modify
1 Rule 1(F) of the Arizona Rules of Protective Order Procedure (“Rules”)
governs when a child can be included in a protective order.
2 Father did not object to parenting time, but requested therapeutic
parenting time paid for by Mother.
3 We cite the current version of the statute unless otherwise noted.
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COURTNEY v. HON FOSTER/COURTNEY
Opinion of the Court
the order of protection and denied Mother’s request for temporary
parenting time.
JURISDICTION
¶4 Special action jurisdiction is discretionary, but appropriate,
when there is no equally plain, speedy, and adequate remedy by appeal.
Ariz. R.P. Spec. Act. 1(a). We have exercised special action jurisdiction over
a ruling on temporary orders because a party does not have the ability to
appeal the ruling. Villares v. Pineda, 217 Ariz. 623, 624-25, ¶¶ 10-11, 177 P.3d
1195, 1196-97 (App. 2008). Moreover, when an issue is one of first
impression, is a purely legal question, is of statewide importance and may
arise again, special action is appropriate. Jordan v. Rea, 221 Ariz. 581, 586,
¶ 8, 212 P.3d 919, 924 (App. 2009) (citing Vo v. Superior Court, 172 Ariz. 195,
198, 836 P.2d 408, 411 (App. 1992)). Accordingly, we exercise our discretion
and accept special action jurisdiction over the temporary orders ruling.
DISCUSSION
¶5 Mother challenges the superior court’s conclusion that “the
statute and the rule do not allow [her] under an order of protection to use a
subsequent family court legal decision-making request to circumvent an
order of protection.” She contends that the superior court has the authority
to determine whether and under what conditions she should have
temporary parenting time notwithstanding the order of protection. We
agree.
¶6 We review the interpretation of statutes and rules de novo.
Devenir Assocs. v. City of Phx., 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991);
Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1027, 1030 (App. 2005). We
interpret statutes and rules with the intent of the drafter and look to the
plain language of the statute or rule as the best indicator of that intent. Id.If the language is clear and unambiguous, it is the best and most reliable
index of the meaning of the rule or statute. In re Estate of Winn, 225 Ariz.
275, 277, ¶ 9, 237 P.3d 628, 630 (App. 2010). If, however, the language is
ambiguous and the intent is unclear, we will consider the context of the rule
and statute, “its language, subject matter, and historical background; its
effects and consequences; and its spirit and purpose.” Hayes v. Continental
Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).
¶7 We start our analysis by examining the superior court’s
authority to resolve the request for temporary parenting time. It is clear
that the superior court “is vested with original jurisdiction to hear and
decide all matters” relating to dissolving a marriage, including child
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COURTNEY v. HON FOSTER/COURTNEY
Opinion of the Court
custody matters. A.R.S. § 25-311; Pflum v. Pflum, 135 Ariz. 304, 305, 660 P.2d
1231, 1232 (App. 1982) (recognizing that the superior court has exclusive
jurisdiction over “the subject of custody and maintenance of the child of the
parties to the divorce”); Hunt v. Hunt, 22 Ariz. App. 554, 556, 529 P.2d 708,
710 (1974) (stating that “[i]t is well settled in Arizona that divorce is a
statutory action and that the trial court has only such authority as is given
it by statute”). Moreover, the superior court has statutory authority to issue
temporary orders, A.R.S. § 25-404(A), even if the parent seeking parenting
time has committed an act of domestic violence. A.R.S. § 25-403.03(F).
¶8 Section 25-403.03(F) provides that if “the court finds that a
parent has committed an act of domestic violence,” which could be
demonstrated by a protective order, the parent cannot have parenting time
unless the parent proves to “the court’s satisfaction that parenting time will
not endanger the child or significantly impair the child’s emotional
development.” And, if the parent meets his or her burden, the court may
order the exchange in a protected setting, order an agency to supervise
parenting time, order the parent who committed the act of domestic
violence into counseling or any “other condition that the court determines
is necessary to protect the child, the other parent and any other family or
household member.” Id.
¶9 Here, the Tolleson Municipal Court issued an order of
protection “for the purpose of restraining [Mother] from committing an act
included in domestic violence.” A.R.S. § 13-3602(A). After reviewing the
order from the municipal court, the superior court was statutorily
authorized to handle the order “as though the petition for an order of
protection had been originally brought in the superior court.” A.R.S. §
13-3602(P). The superior court, as a result, had authority over the protective
order as if it had originally issued the order. And, a court that issues an
order has the inherent authority to modify its order. See Arpaio v. Baca, 217
Ariz. 570, 572 n. 3, ¶ 4, 177 P.3d 312, 314 n. 3 (App. 2008) (noting the superior
court has inherent authority to take actions necessary to effectuate the
administration of justice in pending cases); Acker v. CSO Chevira, 188 Ariz.
252, 254, 934 P.2d 816, 818 (App. 1997) (noting that “[a] court’s inherent
authority may be defined as such powers as are necessary to the ordinary
and efficient exercise of jurisdiction”) (internal quotation marks omitted).
¶10 In addition to the superior court’s inherent authority to
modify a protective order in issuing a parenting time order, § 25-403.03(F)
specifically recognizes that the superior court “may” order an exchange in
a protected setting, establish supervised parenting time, order the parent to
pay for the supervision, order the address of the child and the other parent
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COURTNEY v. HON FOSTER/COURTNEY
Opinion of the Court
remain confidential, prohibit overnight parenting time, and “any other
condition that the court determines is necessary to protect the child, the
other parent and any other family or household member.”
¶11 Moreover, the protective order procedural rules recognize the
primacy of the superior court in custody and parenting time matters.
Rule 4, section B is entitled “Child Custody and Parenting Time,” and
subsection one states that “a protective order shall not contain provisions
regarding child custody or parenting time issues” because “[l]egal issues,
such as . . . custody, parenting time, dissolution of marriage . . . may only
be addressed by the superior court in a separate action under Title 25 of the
Arizona Revised Statutes.” Ariz. R. Prot. Ord. P. 4(B)(1). And, the
Committee’s Comment to the rule states that when an action is pending
under Title 25, “Family Law Judicial officers should refer to the options set
forth in A.R.S. § 25-403.03(F), including supervised exchanges of parenting
time, when a protective order is in effect.” Consequently, the rules
promulgated by our supreme court recognize the primacy of § 25-403.03(F)
in parenting time decisions. Therefore, and contrary to Father’s argument,
the superior court has the statutory authority to modify the protective order
if the court is satisfied that parenting time would not endanger the child or
significantly impair the child’s emotional development.4
¶12 The superior court did not decide whether Mother met her
burden of proof. The court will have to decide whether Mother met her
burden of proof under § 25-403.03(F) based on the evidence produced at the
evidentiary hearing or any subsequent hearing. And, if the court
determines that Mother met her burden of proof, the court can adopt any
4 Father also contends that Rule 4(B)(6)(a) does not allow the superior court
to modify a protective order. The Rule provides that a superior court
judicial officer may issue an original protective order, or “modify an
existing protective order that includes an exception allowing the defendant
to come near or contact the plaintiff in person in order to implement a child
custody order or parenting time order.” Ariz. R. Prot. Ord. P. 4(B)(6)(a).
Although the word “that” in the rules is used as a conjunctive between
“modify an existing protective order” and “includes an exception
allowing . . . ,” “that” is prospective after any modification because a
municipal court or justice court could not issue a protective order allowing
a defendant to come near or in contact with a plaintiff to implement a
parenting time order. See Rule 4(B)(5)(a). Consequently, under the rule,
much like § 25-403.03(F), a superior court can, if warranted, modify an order
of protection when handling a dissolution action involving custody and
parenting time.
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COURTNEY v. HON FOSTER/COURTNEY
Opinion of the Court
appropriate conditions even if the protective order has to be modified. We,
however, express no opinion about the evidence outlined in the ruling.
¶13 Father has requested his attorneys’ fees pursuant to § 25-324.
Because the record does not have any financial information to consider and
he did not prevail, we deny his request.
CONCLUSION
¶14 Based on the foregoing, we accept special action jurisdiction
and grant relief.
:gsh
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