We want to talk to you about the process of appealing an order of protection consolidated with a divorce in Arizona. Specifically, we want to talk about the Arizona Court of Appeals’ decision on that issue in the case of McCarthy v. McCarthy.
Although a person can obtain an order of protection from a municipal court, justice court or the superior court, all orders of protection granted in a municipal court or justice court must be transferred to the superior court whenever a divorce case is filed in the superior court.
In other words, a municipal court or a justice court that issued an order of protection in Arizona must transfer that case to the superior court when a divorce case is pending between the parties in the order of protection in the superior court. This is required by Arizona Revised Statute Section 13-3602(P), which provides as follows:
After issuance of an order of protection, if the municipal court or justice court determines that an action . . . for dissolution of marriage is pending between the parties, [it] shall stop further proceedings in the action and forwards all papers, together with a certified copy of docket entries or any other record in the action, to the superior court where they shall be docketed in the pending superior court action . . . .
Justice Court Transfer of the Order of Protection File to Superior Court
In the McCarthy case, the wife obtained an order of protection against the husband in a justice court. The wife then filed for divorce in the superior court. The husband then filed a request for hearing on the order of protection in the justice court that originally issued the order of protection.
The justice court judge initially scheduled a hearing on the order of protection but subsequently canceled that hearing when the judge discovered a divorce had been filed by the wife in the superior court. The justice court judge then ordered the transfer of the order of protection file to the superior court as required by statute.
Once the superior court received the transferred order of protection file from the justice court, a hearing was scheduled on the order of protection in the superior court. After that hearing, the superior court judge issued an order keeping the order of protection in effect. The husband appealed that decision to the Arizona Court of Appeals.
Determining When an Order of Protection is Final for an Appeal in Arizona
When the court issued the order keeping the order of protection in effect, it certified that order as a final order pursuant to Rule 54(c) of the Arizona Rules of Civil Procedure. The husband, therefore, filed his appeal of the order of protection mistakingly thinking that order was a final and, therefore, appealable order. Unfortunately, he was wrong.
The Arizona Court of Appeals pointed out that, although a certification under Rule 54(c) of the Arizona Rules of Civil Procedure would normally be a final appealable order, it was not in this case. The reason that order was not a final appealable order was due to the fact that the order of protection was consolidated with the divorce case. Therefore, Arizona Rules of Family Law Procedure rule 78(b) applied to determine whether the order was a final appealable order.
Rule 78(b), likewise, requires that all issues in the divorce case must be final before a ruling upholding an order of protection that is consolidated with a divorce is considered a final appealable order.
As a result, the ruling upholding the order of protection is not appealable until the divorce is final. Since the husband’s and wife’s divorce case was not final when the husband filed his notice of appeal, the appellate court lacked jurisdiction to hear the husband’s appeal of the order upholding the order of protection.
However, all is not lost for the husband. Although his appeal was dismissed by the Arizona Court of Appeals, he will have the right to file another appeal when all of the issues in the divorce case are ruled upon and a final order is certified by the superior court trial judge.
Arizona Order of Protection Appellate Attorneys
If you have questions about appealing an order of protection consolidated with a divorce in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona restraining order and family law attorneys have over 100 years of combined experience successfully representing clients in restraining order and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your restraining order or family law case around today.
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