Arizona House Bill 2642

Arizona House Bill 2642 passed the House yesterday. The bill would give children 14 years and up the right to choose which parent they will live with in a divorce or custody proceeding. If the child is under 14, it requires the court to “strongly consider” the wishes of the child. The current law gives much more discretion to judges when considering a child’s wishes.

In some family court cases, a child is mature enough to express a preference on who they want to live with. But in many more cases, children are being influenced by one or both parents in inappropriate ways. It is not uncommon for one parent to poison a child’s relationship with the other parent, even when there are no legitimate concerns about parental fitness.

If the law passes, it will put extreme pressure on children in divorce proceedings to pick sides. Their parents will know that, if they can convince the child to live with them, it will almost ensure a favorable outcome in their case. An award of primary custody also has a significant effect on child support. In the middle of a divorce case, parents frequently act out of malice for the other parent or are motivated by financial gain, rather than the child’s best interest.

A child’s wishes should be a factor in determining custody (which is already the case under current law). However, it should not be the deciding factor. HB2642 would cause huge negative effects in the family court system and on children with divorced parents. It would also create a flood of litigation from parents who have already laid the groundwork to alienate the other parent. I oppose HB2642 and encourage you to contact your representative to express your views.

You can track the bill’s progress here.

Chaidez v. Grant

Chaidez v. Grant, No. 1 CA-CV 21-0037 FC, 2022 WL 456557 (Ariz. App. Feb. 15, 2022).

Facts and Procedural History

Kentrez Grant (Husband) and Judith Chaidez (Wife) were divorced in 2010 in Yuma County. The divorce decree awarded Wife a percentage of Husband’s future military retirement benefits, and the court retained jurisdiction over the matter to calculate the amount of future payments and resolve related disputes.

In 2019, Wife filed a petition to enforce the division of Husband’s retirement pay. At the time, Husband was receiving gross monthly payments of $2,336 per month. A portion of the payments was based on Husband’s disability.

In the 2019 enforcement action, the court calculated Wife’s percentage based on Husband’s gross monthly payment amount. The court also ordered Husband to continue making payments to Wife’s estate if she predeceased him. Husband appealed the ruling.

Ruling

Federal law imposes precise limitations on the division of military retirement benefits earned during the marriage. Here, the court erred in the following ways:

  1. The court improperly calculated Wife’s benefit percentage based on Husband’s gross monthly payment. It should have been based on Husband’s “disposable retired pay,” which is a term of art defined by federal law. It excludes disability benefits and certain other amounts calculated based on the servicemember’s disability rating.
  2. The court should not have ordered Husband to continue making payments after Wife’s death. Under federal law, a former spouse’s portion of military retired pay is not transferrable, “including by inheritance.” Therefore, all benefits terminate if Wife predeceases Husband.

The court of appeals vacated the order dividing Husband’s retired pay and remanded the case to the trial court for further hearings.

This case highlights the complexity of military retirement benefits and the need for parties to consult an expert before dividing the benefits—preferably before the decree is entered.

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Yee v. Yee

Yee v. Yee, 251 Ariz. 71, 484 P.3d 650 (App. 2021).

Facts and Procedural History

Karen Choy Lan Yee (Mother) and Martin Yee (Father) were divorced in 2009, but engaged in significant post-decree litigation. In May 2018, Father filed a post-decree application for attorney’s fees and was awarded more than $59,000 in fees and costs. Mother did not file an objection.

More than a year later, in August 2019, Mother filed a Rule 85 motion for relief from the May 2018 judgment. The court denied the motion as untimely in a December 2019 minute entry. Mother then filed a Rule 83 motion to amend the December 2019 minute entry, which was also denied.

In March 2020, Mother lodged a proposed final order which contained language that “no further matters remain pending and that the judgment is entered under Rule 78(c).” Mother filed a notice of appeal two days later, appealing from the April 2018 attorney’s fees judgment, the December 2019 minute entry denying the Rule 85 motion, and the January 2020 minute entry denying the Rule 83 motion.

Father moved to dismiss the appeal, arguing that each of the post-decree rulings Mother challenges is a “special order made after final judgment,” A.R.S. § 12-2101(A)(2), meaning they were immediately appealable when issued even though they lacked a Rule 78 statement of finality.

Ruling

The court of appeals held that a ruling on a post-decree motion is a “special order made after final judgment” that is immediately appealable without a certification of finality. An order is a “special order made after final judgment” if it involves different issues than “those that would arise from an appeal from the underlying judgment” and affects “the underlying judgment by enforcing it or staying its execution.” In family court, such a special order made after final judgment is appealable regardless of whether it includes a statement of finality.

Classically, the decree is the “final judgment” in a family law case for appellate jurisdiction purposes under A.R.S. § 12-2101(A)(1). When the petition initiating the family law case seeks a determination of paternity and/or legal decision making, the order resolving those issues is the “final judgment” under A.R.S. § 12-2101(A)(1). Because this case involves post-decree motion practice, the reference throughout is to motions filed after entry of the decree.

Yee v. Yee, 251 Ariz. 71, 484 P.3d 650, 654 (App. 2021)

Applying these principles, an order resolving a Rule 85 motion in a post-decree matter is a special order made after final judgment and is immediately appealable even if it lacks finality language under Rule 78(b) or (c).

However, not every order addressing a post-decree motion or petition is appealable. “[T]he family court must have fully resolved all issues raised in a post-decree motion or petition before an appeal can be taken under A.R.S. § 12-2101(A)(2).”

The May 2018 judgment for attorney’s fees fully resolved all issues raised in the post-decree motion, and was therefore immediately appealable even without Rule 78(b) or (c) language. Mother’s notice of appeal years later was therefore untimely.

The court also held that Rule 83 is limited to a motion to alter or amend a Rule 78(b) or (c) judgment. A Rule 83 motion must be filed within 25 days “after the entry of judgment under Rule 78(b) or (c).” In other words, “a Rule 83 motion challenging a post-decree order or any ruling other than a Rule 78(b) or (c) judgment is improper and can provide no basis for relief.”

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Tracy D. v. DCS

Tracy D. v. Dep’t of Child Safety, 1 CA-JV 20-0204, 2021 WL 6139285 (App. Dec. 30, 2021).

This is a juvenile court case but includes a good discussion of UCCJEA jurisdiction and due process requirements for a telephonic evidentiary hearing.

Facts and Procedural History

Mother travelled to Indiana near the end of her pregnancy and gave birth to her daughter, T.D., in early June 2019. Father remained in Arizona during the birth. Mother returned to Arizona with T.D. about seven weeks later. In August 2019, DCS filed a dependency action alleging neglect and substance abuse.

The trial court terminated the parent-child relationship between T.D. and her parents, and both parents appealed. Before the case was fully briefed, the court of appeals stayed the appeal and remanded to allow the trial court to conduct a UCCJEA conference. The trial court determined it had jurisdiction under the UCCJEA (albeit for the wrong reasons).

Ruling

There are four bases for a court to make an initial custody determination under the UCCJEA: (1) home state, (2) significant connection, (3) more appropriate forum, or (4) jurisdiction by default.

Home state

For a child less than six months old, the “[h]ome state” is “the state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.”

T.D. was in Indiana for approximately seven weeks after her birth, and Indiana could have exercised jurisdiction at that time. But because T.D. was already living in Arizona when the dependency proceeding commenced, she was no longer living “from birth” in Indiana.

A state may also have jurisdiction if it was “the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”

At the time DCS commenced the dependency proceeding, Mother was no longer living in Indiana and Father still lived in Arizona. There was no parent or person acting as a parent that still lived in Indiana.

Additionally, Mother’s stay in Indiana was not a “temporary absence” from Arizona. “The temporary absence provision of § 25-1002(7)(b) comes into play only when a parent temporarily leaves the state where the child was born and then returns to that state.”

Significant connection

If there is no home state (or the home state declined to exercise jurisdiction), a court may exercise jurisdiction if this state is the more appropriate forum, “the child and at least one parent … have a significant connection with this state other than mere physical presence,” and “[s]ubstantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.”

In T.D.’s case, she did not have a signficiant connection to either Indiana or Arizona other than mere physical presence. She lived in Indiana for only seven weeks and Arizona for only three weeks when DCS commenced the dependency proceeding.

More appropriate forum

A court of this state may exercise jurisdiction if the child’s home state declines to exercise jurisdiction because this state is a more appropriate forum. This ground did not apply to T.D. because neither Arizona or Indiana has home state jurisdiction.

Jurisdiction by default

Finally, the court determined that Arizona did have jurisdiction under the UCCJEA because no other state has jurisdiction under any of the first three grounds. Indiana does not have jurisdiction, and Arizona law provides that “[t]he juvenile court [has] exclusive original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present in the state.”

Telephonic hearing

The court also determined that the telephonic evidentiary hearing conducted at the beginning of the COVID-19 pandemic met the basic requirements of due process. Generally, due process requires an opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319 (1976).

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Barr v. Barr (mem.)

Barr v. Barr, No. 1 CA-CV 20-0701 FC, 2022 WL ______ (Ariz. App. Feb 3. 2022) (mem.).

Facts and Procedural History

Elizabeth and Dennis Barr were married in 1983. In 1997, Dennis started working for The Kroger Company and continued working there throughout the marriage. He was still working there when Elizabeth filed for divorce in September 2018.

In July 2019, the parties entered into a Rule 69 agreement that resolved all issues, including the division of Dennis’s retirement accounts with Kroger. However, before any settlement documents were submitted to the court, Kroger offered Dennis the choice of either an early retirement package or a severance package. Dennis accepted the severance package which included severance pay, a lump sum payment for COBRA premiums, and payment for unused vacation. By accepting the severance package, Dennis forfeited unvested stock options that he had agreed to split with Elizabeth in the Rule 69 agreement.

Elizabeth moved the trial court to characterize the severance package as community property and make her whole for the loss of the unvested stock options. The court denied her request and she appealed.

Ruling

Elizabeth argued that her case was analogous to Bowser v. Nguyen, where the court held that a severance package paid after the community ended was still community property. 249 Ariz. 454 (App. 2020). But the court of appeals distinguished Bowser because in that case, the employment contract that included the severance package was signed prior to marriage, but performance under contract only occurred during the (short) marriage—it was therefore “acquired” during the marriage. In this case, there was nothing in the record to indicate that Dennis had any right to the severance package before Kroger offered it to him after the community ended.

[This case misstates the facts of Bowser. In Bowser, the husband signed the employment contract prior to marriage, but only worked at the company during the marriage. The court in Barr incorrectly says that the contract was formed during the marriage.]

The court also distinguished Sebestyen v. Sebestyen, where the court held that a disability pension constituted deferred compensation that had been earned during the marriage. 250 Ariz. 537 (App. 2021). In this case, there was no indication that Dennis’s severance package was deferred compensation because it was not offered to Dennis until after the community ended.

Although it determined that the severance package was separate property, the court held that Elizabeth may have a right to the unvested stock options that were forfeited when Dennis accepted the severance package. Citing Brebaugh v. Deane, the court of appeals directed the trial court to determine on remand whether the unvested options were intended to compensate Dennis for work performed during the marriage, or whether they were intended to incentivize future work. 211 Ariz. 95 (App. 2005). If the former, Elizabeth should receive half of their value.

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