Posted on : December 14, 2016, By: Christopher Hildebrand
Changing Judges in an Arizona Divorce
The right to a change of judge is considered a matter of grace in Arizona. Either party can obtain a change of judge by following the dictates of Rule 42(f)(1), Ariz. R. Civ. P. But what happens when the judge the party seeks to remove declines to be removed? In Taliaferro v. Taliaferro, 921 P.2d 21 (1996) the Arizona Supreme Court considered the consequences.
Facts and Procedure
Mr. Taliaferro asked for a dissolution from his wife, Mrs. Taliaferro, and sought an order of protection. Judge Topf granted the protection order on January 27, 1993.
Mrs. Taliaferro filed a change of judicial notice under Rule 42(f). Judge Rogers took over the case. Mrs. Taliaferro submitted the protection order to Judge Rogers for rehearing. Husband appeared but did not stay for the hearing and the judge quashed the order.
In February 1993, Mr. Taliaferro filed a notice of change of judge as to Judge Rogers. But Judge Rogers denied husband’s notice of change of judge. He did so “for the reason that a scheduled, contested hearing has taken place before this Court.”
Changing Judges in an Arizona Divorce.
Husband did not seek special action relief from this denial. Instead, the case went to trial before Judge Rogers. On August 24, Judge Rogers signed a lengthy final judgment. It ordered husband’s lawyer to pay wife’s attorney fees and to pay sanctions.
Both husband and his lawyer, Mr. Hirschfeld, appealed to the court of appeals. The Court of Appeals ruled that Mr. Taliaferro could raise the change of judge issue on appeal. It ruled that once the notice was filed, Judge Rogers had no subject matter jurisdiction to proceed. It vacated the final decree. [See Taliaferro v. Taliaferro, 911 P.2d 619 (1995).] The Arizona Supreme Court granted review.
Change of Judge Notice Does Not Affect Subject Matter Jurisdiction
Clinton’s attorney claimed that Judge Rogers did not have subject matter jurisdiction after the change-of-judge notice was filed. The Arizona Supreme Court disagreed. It found that the notice of change of judge did not affect the subject matter jurisdiction of the court.
The Court discussed the meaning of the term “jurisdiction” in Rule 42(f). The judiciary amended Rule 42 to give a party the right to a change of judge. Before this amendment, a party challenged a judge via peremptory challenge. This was accomplished by a pro forma affidavit of bias and prejudice. These affidavits were also used for challenges for cause.
This created a blurred distinction between a peremptory challenge and a challenge for cause. Courts began to use the word “jurisdiction” in the context of affidavits of bias and prejudice. But, the Court noted, “jurisdiction” means different things in different contexts. Sometimes it is used to describe the authority to do a particular thing. In another, it means the court’s power to entertain an action of a particular subject matter.
The use of “jurisdiction” in Rule 42(f) is ambiguous. As written, the rule could talk about the authority to hear a case or it could refer to subject matter jurisdiction. However, the Arizona Constitution vests the superior court with jurisdiction to hear divorce proceedings. The judiciary cannot, under its rule-making power, reduce the constitutional grant of jurisdiction.
An erroneous ruling on a change-of-judge notice cannot shrink the court’s subject matter jurisdiction. This is reflected in the case law. It provides that the judge who decides the propriety of the notice under Rule 42 is the noticed judge. That means that the filing of the notice does not deprive that judge of power to act.
Even Rule 42(f)(3) allows the noticed judge to make temporary orders before transferring the action to another judge. Therefore, the noticed judge does not lose subject matter of a case because of a Rule 42 filing.
Challenging Rule-42 Errors
If the noticed judge fails to honor a change-of-judge notice, the injured party must be able to seek relief. A party waiting to challenge it until appeal after final judgment will have to show prejudice from the error. This is virtually impossible to do.
Getting a Different Judge in an Arizona Divorce.
In addition, it is not practical for these issues to be raised in post-judgment appeals. That would allow a party to overturn an entire case after it is completed. Once a judgment has been entered in a civil matter, it’s too late to rethink the judge.
The court system must have an opportunity to review a ruling on the propriety of a notice before the judge presides over the case. Special action relief provides that opportunity. A party wishing to test rulings about a peremptory challenge of a judge must seek special action relief.
In this case, husband never sought special action relief. He filed this appeal months after the trial court denied his notice of change of judge. The case was determined at trial. Clinton cannot now raise errors in connection with the notice of change of judge.
The Arizona Supreme Court ruled that a party challenging a ruling on a change-of—judge notice must seek special action relief. It vacated the court of appeals decision and remanded the case for consideration of issues properly raised on appeal.
Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.