Hustrulid v. Stakebake

  • May the court grant joint legal decision-making to a legal parent and a third party requesting custody rights?
  • What standard does the court apply at an evidentiary hearing regarding third-party legal decision-making and placement?

Facts and Procedural History

Hustrulid was the biological father of two minor children. He was sentenced to prison for three years and his parental rights to the children were terminated, and his sister (Stakebake) adopted both children. After he was released from prison, he continued to have a relationship with the children while in his sister’s care. When his sister cut off contact between Hustrulid and the children, he filed a petition for third-party joint legal decision-making and placement under A.R.S. § 25-409(A), or alternatively third-party visitation under § 25-40(C).

The requirements for third-party decision-making are: (1) the person filing stands in loco parentis to the child; (2) it would be significantly detrimental to be left in the parent’s care; (3) an order for decision-making or parenting time has not been entered within the last year; and (4) one of the parents is deceased, the parents are not married to each other, or an action for divorce or legal separation is pending.

Stakebake filed a motion to dismiss Hustrulid’s petition. The court initially denied the motion to dismiss, but later reversed its ruling and dismissed the petition. The court determined that Hustrulid’s petition was facially deficient because it lacked sufficient factual allegations to establish the significant detriment element. The court also cited to Chapman v. Hopkins, which held that the court only considers the significant detriment element at the initial pleading stage, not at the subsequent evidentiary hearing. Hustrulid appealed.

Ruling

  • A court cannot award joint legal decision-making to a legal parent and a third-party, because it is inconsistent with the petitioner’s initial burden to establish a prima facie case that it would be significantly detrimental to leave the child in the care of the legal parent.
  • The petition must initially establish the significant detriment element to avoid being summarily dismissed. The facts may be disputed in the initial stage, but disputed facts don’t require dismissal. Well-pled factual allegations assumed true.
  • At the evidentiary hearing, the court must hear the merits of the case, including the § 25-409(A) elements as well as the rebuttable presumption that legal decision-making should remain with the legal parent. Clarifying Chapman, which only determined significant detriment at the initial pleading stage.
  • Secondary holding: An order terminating parental rights does not necessarily preclude the severed parent from filing a petition for third-party rights.

Hustrulid v. Stakebake, 1 CA-CV 21-0073 FC, 2022 WL 3097906 (App. Aug. 4, 2022).

Phillip B. v. DCS

  • When an accused party challenges a substantiated abuse or neglect finding by DCS, what legal requirements must be met before the allegation is entered into the Central Registry?

Facts and Procedural History

Phillip B. worked in a group home with children, and had worked with children in various capacities for almost 30 years. In June 2018, a minor resident of the group home became agitated, and Phillip put his hand on the child’s shoulder to calm him down, ripping his T-shirt. There was a dispute about what happened next—the child said he couldn’t breathe, but Phillip and other adult witnesses testified that Phillip never put pressure on the child’s neck.

Someone reported the incident to DCS and a caseworker investigated the allegation. Following the investigation, the caseworker found probable cause that Phillip abused the child. The DCS Protective Services Review Team (PSRT) notified Phillip that it intended to enter the substantiated abuse allegation in the Central Registry. Although not a criminal charge, an entry on the Central Registry may disqualify someone from obtaining certain licenses or certifications, or prevent the accused from working with children.

Phillip first requested a hearing before an Administrative Law Judge (ALJ). The ALJ took testimony from witnesses and found that no probable cause existed to substantiate the allegation of abuse. The ALJ’s decision was then reviewed by the DCS Director, who issued a Decision in which he partially accepted, partially rejected, and modified the ALJ’s findings and conclusions. Based on the modified Decision, the DCS Director determined that the allegation was substantiated and should be entered on the Central Registry.

Phillip filed a judicial review action in superior court. The superior court found substantial evidence to support the Director’s Decision and affirmed. Phillip then appealed the superior court’s ruling.

Ruling

Before being entered on the Central Registry, an allegation of abuse or neglect must follow the substantiation process set forth in the Arizona Administrative Code:

  1. The DCS caseworker completes an investigation and finds probable cause for abuse or neglect.
  2. The PSRT notifies the accused that DCS intends to substantiate the finding and informs the accused of their right to a probable cause hearing.
  3. If the accused timely requests a hearing (within 20 days of the PSRT notification), it goes to a hearing before an ALJ.
  4. If the ALJ finds probable cause, the DCS Director reviews the ALJ’s determination and, if appropriate, accepts it.

In this case, the ALJ found no probable cause to substantiate the allegation. Therefore, there was nothing for the Director to accept. The Director may not modify the ALJ’s findings to substantiate an allegation, even if it reaches a different conclusion after reviewing the evidence.

Only if both conditions are met—the ALJ finds probable cause and the Director accepts the ALJ’s finding—is a finding substantiated and entered into the Central Registry.

Phillip B. v. Arizona Dep’t of Child Safety, 1 CA-CV 20-0569, 2022 WL 2128078 (App. June 14, 2022).

Milham v. Milham (mem.)

  • If there is a delay between a participant spouse commencing pension benefits and the entry of a domestic relations order dividing those benefits, does the alternate payee spouse have a claim to the missed payments during the interim period?

Facts and Procedural History

The parties divorced in 1998, and Wife was awarded 32.43% of Husband’s military retirement benefits upon his retirement from active service. The decree did not order Husband to pay the benefits directly to Wife, and the parties did not enter a domestic relations order at the time of divorce.

As Husband was approaching retirement, Wife contacted DFAS, the entity responsible for administering military retirement benefits. DFAS initially denied Wife’s application, instructing her to obtain a clarifying order from the trial court. After months of litigation, Husband eventually agreed to the entry of a stipulated domestic relations order dividing Husband’s military retirement.

During the interim period, Husband received 100% of his retirement benefits. The trial court entered a judgment in Wife’s favor for the payments she should have received during the interim period. Husband appealed that judgment, arguing that nothing in the decree required him to make payments to Wife directly during that period.

Ruling

Unsurprisingly, the court of appeals rejected Husband’s argument and affirmed the judgment to Wife for the interim payments. The payments were Wife’s separate property under the decree, and it was no fault of Wife’s that the payments were delayed. Wife acted promptly to secure her share of the benefits prior to Husband’s retirement. Any other result would have been clearly inequitable under the circumstances.

Milham v. Milham, 1 CA-CV 21-0581 FC, 2022 WL 1801049 (App. June 2, 2022) (mem.).

Costaras v. Costaras

  • If a foreign judgment includes support and non-support components, is it subject to the four-year statute of limitations for domesticating foreign judgments in A.R.S. § 12-544(3)?

Facts and Procedural History

Bill and Pana were divorced in Ohio in 1999. In 2016, another Ohio court entered judgment against Bill for $174,467.84–30% for spousal support arrearages and the remaining 70% for a “civil judgment” for attorney’s fees and costs.

Pana domesticated the judgment in Arizona about five years later. Bill moved to set aside the judgment, arguing that it was time-barred by A.R.S. § 12-544(3), which requires foreign judgments to be domesticated within four years after they become enforceable. Foreign judgments for support, however, are exempt from this statute of limitations.

The trial court held that the judgment could not be “dissected,” and therefore the entire judgment was exempt from the statute of limitations because the judgment included a support component. Bill appealed.

Ruling

Judgments that include support and non-support components can be bifurcated. The four-year statute of limitations in A.R.S. § 12-544(3) only applies to the non-support components of the foreign judgment, and the support components remain exempt.

If you’re not familiar with § 12-544, here’s what it says about domesticating foreign judgments:

There shall be commenced and prosecuted within four years after the cause of action accrues, and not afterward, the following actions: […] Upon a judgment or decree of a court rendered without the state, or upon an instrument in writing executed without the state. This paragraph does not apply to a judgment for support, as defined in section 25-500, and to associated costs and attorney fees.

Costaras v. Costaras, 1 CA-CV 21-0401, 2022 WL 1467900 (App. May 10, 2022).

Ali v. Ali

  • Do you need to register an out-of-state child support under UIFSA if neither party is required to pay support?

Facts and Procedural History

The parties were married with one child in California. The parties filed for divorce in California, and Mother and the child moved to Arizona while the divorce was pending. The parties agreed that Mother would have sole legal and physical custody based on a history of domestic violence. The California court ordered that California would relinquish UCCJEA jurisdiction to Arizona upon the entry of the divorce decree. Father then registered the California orders in Arizona pursuant to the UCCJEA.

Two years later, Father filed for modification of custody and requested that the Arizona court enter a child support order. Father stated on the record that California never entered a child support order. But after the order was entered, Father disputed Arizona’s jurisdiction to order child support.

Father cited Glover v. Glover, where the court of appeals held that a child support order must be registered to confer subject matter jurisdiction on Arizona courts under UISFA. 231 Ariz. 1 (App. 2012). The trial court denied Father’s motion to amend, and Father appealed.

Ruling

  • A zero-dollar child support award from another state is a valid order that, under Glover, must be registered in Arizona before it can be modified.
  • Glover doesn’t apply here because Father never introduced evidence of another child support order. Because there was nothing in the record to suggest there was an existing order, the trial court had the authority to enter an order.
  • Father may be able to motion for relief from judgment if he can produce the existing order (because a contest to subject matter jurisdiction is never waived).

Ali v. Ali, 1 CA-CV 21-0434 FC (App. Apr. 26, 2022).