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Change of Judge After a Special Action Appeal in Arizona

Reasons Father Filed a Notice of Change of Judge After His Special Action Appeal.

We want to share some helpful information with you about whether you can get a change of judge after a Special Action Appeal in Arizona.

A Special Action Appeal occurs when one of the parties to the case want to appeal a decision a judge makes in a lawsuit during the pendency of the case but before the judge enters final orders.

The Arizona Court of Appeals in the case of Coffee vs. Ryan-Touhill case dealt with a Special Action of Appeal dealing with a father’s claim he was denied due process by the trial court when it changed child custody orders at a Temporary Orders hearing.

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Reasons Father Filed a Notice of Change of Judge After His Special Action Appeal

In the Coffee case, the father and the mother were divorced. The divorce decree granted both parents joint legal decision-making rights over their son but ordered the father to be the child’s primary residential parent. After the divorce, the mother moved from Arizona to Kansas.

After moving to Kansas, the mother filed an emergency petition asking the court to modify the existing child custody award to make her the child’s primary residential parent in Kansas and a request to modify child support. The father responded by asking the court to modify the prior joint legal custody orders issued in the divorce.

The judge assigned to the case denied the mother’s emergency petition to change custody of the child immediately and, instead, scheduled a short temporary orders trial. However, the court’s order setting that trial indicated that only the parents would be permitted to testify and ordered that neither parent would be allowed to use exhibits during the hearing.

Despite the order indicating neither parent could use exhibits at the hearing, the court reviewed the child’s medical notes provided by the mother to the court. These medical notes were not disclosed to the father prior to the hearing.

After concluding the hearing, the court issued a temporary order that the child be taken from the father’s custody and move to Kansas to live with the mother. The court did not rule on the mother’s request to modify child support nor the father’s request to modify the form of legal decision-making for the child.

Since these orders were only temporary orders and not the final decision of the court on these issues, the father did not have a right to a direct appeal of the court’s temporary orders. If these orders were final orders, the father could exercise his right to a direct appeal to the Arizona Court of Appeals. However, the father did have the right to file a Special Action Appeal; which is what he did.

The Arizona Court of Appeals concluded the father’s constitutional due process rights were violated and directed the trial court to allow the father to present evidence in the form of witnesses and exhibits.

The Notice of Change of Judge Was Denied by the Trial Court

The Notice of Change of Judge Was Denied by the Trial Court.

The father then filed a Notice of Change of Judge to remove the judge who initially heard the case and have a new judge assigned for the new temporary orders hearing to be scheduled. However, the trial judge refused to recognize the Notice of Change of Judge and stayed on the case. The father, therefore, filed another Special Action Appeal to address whether the trial judge was right or wrong in not accepting the Notice of Change of Judge filed by the father.

In looking at the issue, the Arizona Court of Appeals started by pointing out that, unlike a regular appeal of a final court order, jurisdiction never transfers from the Superior Court to the Arizona Court of Appeals. As a result, the trial court is not prohibited from conducting additional hearings or ruling on matters at the trial court order unless the Arizona Court of Appeals specifically issues a “stay order” limiting the trial court’s ability to hold a hearing or rule on an issue.

Change of Judge is Permitted if a New Trial Must be Conducted After the Special Action Appeal

Change of Judge is Permitted if a New Trial Must be Conducted After the Special Action Appeal.

The Arizona Court of Appeals pointed out a rule that permits a party to change judges if an appeal results in the need for a new trial. However, if the only thing a judge has to do is change his or her orders in conformance with a ruling from the Arizona Court of Appeals and does not need to have another trial to take evidence, a party does not have a right to request a new judge be appointed to the case.

The Arizona Court of Appeals indicated that the reason a person is allowed to request a new judge after a ruling on a Special Action when a new trial is required is to ensure fairness and impartiality from a judge after a person has appealed that judges ruling.

The rule allowing a party to obtain a new judge after a Special Action Appeal is in place to prevent a trial judge from having a bias toward the ruling he or she previously entered. The rule seeks to protect people from the possibility of judicial bias by a judge who may not be happy with a party who appealed his or her decision on the case.

In this case, the decision from the Court of Appeals on the father’s Special Action required the trial court to schedule another trial to permit the father to present the witnesses and exhibits he was not allowed to present at the temporary orders hearing. As a result, the Court of Appeals concluded the trial judge should not have rejected the father’s Notice of Change of Judge and a new judge should have been appointed to preside over that new hearing.

The Court of Appeals also rejected the mother’s argument that the father failed to show the trial judge was biased against him. The Court of Appeals indicated actual bias does not have to be proven. Simply the potential existence of bias is enough to allow the father to obtain a new judge on the case.

If you have questions about a change of judge after a Special Action Appeal in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have decades of combined experience successfully representing clients in child custody 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 child custody or family law case around today.

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