FILED BY CLERK
IN THE COURT OF APPEALS DEC -7 2006
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
RHONDA DENISE SMITH, )
)
Petitioner, )
)
v. )
) 2 CA-SA 2006-0075
THE HON. DOUGLAS P. MITCHELL, ) DEPARTMENT B
Commissioner of the Superior Court of )
the State of Arizona, in and for the ) OPINION
County of Pima; and THE HON. JOHN S. )
LEONARDO, Presiding Judge of the )
Superior Court of the State of Arizona, in )
and for the County of Pima, )
)
Respondents, )
)
and )
)
HOWARD EDWARD SMITH, )
)
Respondent/Real Party in Interest. )
)
SPECIAL ACTION PROCEEDING
Pima County Cause No. D 2004-0862
JURISDICTION ACCEPTED; RELIEF GRANTED IN PART
Schwanbeck & Present, P.L.L.C.
by Victor R. Schwanbeck Tucson
Attorneys for Petitioner
Everlove & Cossitt
By Erika L. Cossitt Tucson
Attorneys for Respondent/Real
Party in Interest
E S P I N O S A, Judge.
¶1 In this special action, petitioner Rhonda Smith challenges both the respondent
judge’s and respondent commissioner’s denials of her requests for a change of judge, arguing
that each applied an incorrect legal standard in ruling on her requests. We accept jurisdiction
of the special action and grant relief.
Jurisdiction
¶2 It is appropriate that we accept jurisdiction of this special action because the
denial of a peremptory request for a change of judge is properly reviewed only by special
action. Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23 (1996). It is also
appropriate because the issue here is solely a question of law. ChartOne, Inc. v. Bernini, 207
Ariz. 162, ¶ 8, 83 P.3d 1103, 1106-07 (App. 2004). And, because we conclude the
respondent commissioner abused his discretion by committing an error of law in entering a
discretionary ruling, we grant relief. See Ariz. R. P. Spec. Actions 3, 17B A.R.S.; Twin City
Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 284-85 (2003).
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Factual and Procedural Background
¶3 Rhonda filed a petition for dissolution of her marriage to real party in interest
Howard Smith. After a trial, the respondent commissioner, who had been assigned to the
case, signed a decree disposing of, inter alia, the parties’ ownership interests in several
parcels of real property. Rhonda appealed that decree and this court vacated the portion
relating to the marital residence of the parties because the commissioner had applied the
wrong legal presumption to determine the parties’ respective interests. Smith v. Smith, 2 CA-
CV 2005-0054 (memorandum decision filed Nov. 30, 2005). We remanded the case for
redetermination of the ownership interests in the property, which required application of the
correct presumption, a determination of whether Howard had rebutted the presumption, and
a redetermination of payments necessary to provide an equitable distribution of the marital
assets.
¶4 On remand, Rhonda filed a notice of change of judge pursuant to Rule
42(f)(1)(E), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, claiming her right to a peremptory change of
judge had revived when the case was remanded.1 The respondent commissioner denied the
request, stating the case had not been remanded for a new trial. Rhonda then sought to
1
Rule 42(f)(1)(A) provides each side with a change of one judge and of one
commissioner as a matter of right. The rule further provides that a party “shall file a ‘Notice
of Change of Judge’” to exercise their rights. Ariz. R. Civ. P. 42(f)(1)(A). Accordingly,
although Rhonda sought a change of the commissioner assigned to her case, we use the term
“change of judge” for simplicity.
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remove the respondent commissioner through a change of judge for cause under Rule
42(f)(2), which the respondent judge denied.
Discussion
¶5 Rule 42(f), Ariz. R. Civ. P., governs changes of judge in civil cases. Each side
is entitled to one change of judge and one change of commissioner as a matter of right,
provided the change is timely requested. Ariz. R. Civ. P. 42(f)(1)(A). This right may be
waived either by agreement or by failing to exercise it before the challenged judge has heard
any contested matter in the case. Ariz. R. Civ. P. 42(f)(1)(C), (D). We review the denial of
a change of judge as of right for an abuse of discretion, but review the court’s interpretation
of Rule 42(f)(1)(E) de novo. Anderson v. Contes, 212 Ariz. 122, ¶ 5, 128 P.3d 239, 241
(App. 2006).
¶6 Rule 42(f)(1)(E) provides that a party’s right to a change of judge is renewed
after a case has been remanded to the trial court for “a new trial on one or more issues.” But,
if this right to a change of judge was previously exercised, it is not renewed upon remand.
See Brush Wellman, Inc. v. Lee, 196 Ariz. 344, ¶ 14, 996 P.2d 1248, 1252-53 (App. 2000).
Rhonda had not previously exercised her right to a change of judge in this case. In
Valenzuela v. Brown, 186 Ariz. 105, 107, 919 P.2d 1376, 1378 (App. 1996), this court
determined that a party was entitled to a peremptory change of judge following the reversal
of a grant of partial summary judgment, because “the reason for the rule [is] avoiding the
possibility of judicial bias after reversal and remand.” Id. at 108, 919 P.2d at 1379. The
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Valenzuela court explained that “[w]here, as here, the judge has made a decision on the
merits of the case, he has shown unequivocally what he believes the proper outcome of the
case to be . . . . The judgment now having been reversed, the policy reasons for permitting
a change of judge as a matter of right on remand are all the more apparent.” Id. at 109, 919
P.2d at 1380.
¶7 This rationale first appeared in King v. Superior Court, 108 Ariz. 492, 502 P.2d
529 (1972), where our supreme court explained the importance of the right to a change of
judge after remand.
In the case of an appeal, reversal and a remand for a new trial,
it is always possible that the trial judge may subconsciously
resent the lawyer or defendant who got the judgment reversed.
The mere possibility of such a thought in the back of a trial
judge’s mind means that a new judge should be found.
Id. at 493, 502 P.2d at 530.
¶8 In Evans v. Evans, 117 Ariz. 561, 561, 574 P.2d 49, 49 (App. 1977), this court
had remanded a case to the trial court, finding it “error to modify custody without affording
both parents an opportunity to present evidence of all the circumstances which might affect
the court’s determination of the primary question.” Although the case was specifically
remanded for further proceedings in the custody matter, we held that “petitioner’s timely
request for a change of judge should have been honored.” Id. at 562, 574 P.2d at 50. The
Evans decision did suggest the result might have been different if the judge assigned to the
case after remand had heard the earlier case, as in Hofstra v. Mahoney, 108 Ariz. 498, 502
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P.2d 1317 (1972). However, Hofstra addressed newly initiated post-decree proceedings to
enforce or modify an existing final decree, not a remand following the appeal of the initial
decree. Id. at 498, 502 P.2d at 1317; see Ross v. Superior Court, 109 Ariz. 414, 414, 510
P.2d 386, 386 (1973).
¶9 In contrast, Anderson was a special action following the appeal of post-decree
proceedings that had apparently been resolved without an independent hearing. In the
appeal, Division One of this court had remanded the case “‘for further proceedings’ on
Father’s claims that the trial court failed to award him interest on the BMW debt and that the
award of attorneys’ fees was improper.” Anderson, 212 Ariz. 122, ¶ 3, 128 P.3d at 240. On
remand, Father requested a change of judge, which the trial court denied by “limiting the
remanded issues to oral argument based ‘on the evidence presented at the time of trial in
2003.’” Id. ¶ 4. Division One determined that because the “further proceedings” it had
referred to in the appeal were “a continuation of the proceedings already held rather than a
de novo redetermination of the remanded issues,” it was not a new trial as contemplated by
Rule 42(f)(1)(E). Id. ¶ 9.
¶10 The issues on remand in Anderson were limited—why the trial court had
assessed interest on unpaid debts against one spouse but not the other and for clarification
of which of the father’s positions the trial court had considered unreasonable to justify
awarding the mother attorney fees. Id. ¶ 13. Thus, the case had been remanded based on
“the insufficiency of the trial court’s explanations, and not the insufficiency of the evidence.”
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Id. ¶ 14. No part of the decree had been vacated and the trial court was not required to make
any new determinations of who was to receive certain property. In essence, Division One
asked the trial court to explain why it had entered particular orders, not to enter new and
potentially different ones.
¶11 The language of Rule 42(f)(1)(E)—a “new trial on one or more
issues”— appears to be conclusive of the issue here. The court in Anderson emphasized the
difference between an issue requiring a “de novo redetermination” and one requiring only
“further proceedings.” 212 Ariz. 122, ¶ 9, 128 P.3d at 242. Here, in contrast, we vacated the
underlying judgment awarding the real property and remanded the case for a new
determination of fact and law.2 Because the judgment on that issue was vacated, it
“restor[ed] the parties to the same position as if the [issue] had never been tried.” Tucson
Gas & Elec. Co. v. Superior Court, 9 Ariz. App. 210, 213, 450 P.2d 722, 725 (1969), quoting
Markel v. Transamerica Title Ins. Co., 103 Ariz. 353, 362, 442 P.2d 97, 106 (1968),
overruled on other grounds, Burch & Cracchiolo, P.A. v. Pugliani, 144 Ariz. 281, 283, 697
P.2d 674, 676 (1985).
2
We note the determination of whether a proceeding is a “trial” is not necessarily
whether new evidence must be received. “A trial is ‘the judicial examination of the issues
between the parties, whether they be issues of law or fact.’” Valenzuela v. Brown, 186 Ariz.
105, 108, 919 P.2d 1376, 1379 (App. 1996). On the record before us, however, it is likely
that new evidence would be required to comply with this court’s directive to determine
whether Howard can rebut a presumption that was not applied during the trial and to
determine a corollary question left “open” in our prior decision. We do not suggest that a
remand directing a trial court to merely reverse a legal conclusion and reconsider previously
established facts would be a “new trial” for purposes of Rule 42(f)(1)(E).
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¶12 On remand, the commissioner will have to determine anew the ownership of
the property and the amount, if any, of compensation required to effect an equitable
distribution of the assets. Thus, this would appear to be “a de novo redetermination of the
remanded issue” which revives Rhonda’s previously unexercised right to a peremptory
change of judge. See Muchesko v. Muchesko, 191 Ariz. 265, 274, 955 P.2d 21, 30 (App.
1997) (vacating portions of a divorce decree and remanding to trial court with instructions:
“[a]mong other issues to be retried, the trial court shall reconsider the award of the Schwab
account and attribution of income to Husband based on that account”) (emphasis added).
¶13 Howard’s response, although focused on the change of judge for cause issue,
relies heavily on criminal cases interpreting Rule 10.2, Ariz. R. Crim. P., 16A A.R.S. That
rule, however, has no language corresponding to Rule 42(f)(1) (E) or specifically applying
to post-remand proceedings applicable to a trial of “one or more issues.” Ariz. R. Civ. P.
42(f)(1)(E). We note, too, that although Howard asserts the respondent commissioner’s
decree “specifically addresses [the correct] legal ‘presumption’ three (3) different times in
paragraph six,” and concludes this established “that the presumptions and evidence regarding
the ownership of the Sierra Nevada property is not a ‘new issue,’” a review of the decree
shows the correct presumption was mentioned only to show it was not being applied. There
was no indication that the presumption had been considered by the commissioner or was even
an issue at the trial.
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¶14 Howard additionally asserts that “[p]ublic policy concerns for judicial economy
and tradition” support the same judge “rehear[ing] a case that has been remanded, reversed
or ended in a mistrial.” He relies on King, 108 Ariz. 492, 502 P.2d 529, claiming that case
sets identical standards for a case that is mistried and a case that is remanded after appeal.
In fact, King, as quoted above in ¶ 7, emphasized that remands are different from mistrials
and should be treated differently. Id. at 493, 502 P.2d at 530. Moreover, this court directly
addressed the issue in Valenzuela, stating “judicial economy is not a basis for denying a party
the right to an automatic change of judge.” 186 Ariz. at 109, 919 P.2d at 1380. The
language of Rule 42(f)(1)(E) itself, with its provision for a new judge after a case has been
reversed and remanded, undercuts this claim.
¶15 Rhonda also challenges the respondent judge’s denial of her request for a
change of judge for cause, but we see no error in that ruling. Although the respondent
commissioner erred by not granting the initial request for a peremptory change of judge, the
respondent judge’s ruling was correct because a ruling in a case, without more, cannot be the
basis of a request for a change of that judge for cause. See Smith v. Smith, 115 Ariz. 299,
303, 564 P.2d 1266, 1270 (App. 1977) (“It is generally conceded that the bias and prejudice
necessary to disqualify a judge must arise from an extra-judicial source and not from what
the judge has done in his participation in the case.”).
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Disposition
¶16 Accordingly, we accept jurisdiction, grant relief on the denial of the
peremptory change of judge, and remand this matter to the trial court for proceedings
consistent with this decision. In our discretion, Rhonda’s request for attorney fees pursuant
to A.R.S. § 25-324, consistent with our previous determination under that statute of the
relative financial positions of the parties, is denied.
PHILIP G. ESPINOSA, Judge
CONCURRING:
PETER J. ECKERSTROM, Presiding Judge
GARYE L. VÁSQUEZ, Judge
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