NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JAMES SNYDER DELLARIPA, Petitioner
v.
THE HONORABLE STEVEN K. HOLDING, COMMISSIONER
OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE
COUNTY OF MARICOPA, Respondent Commissioner
v.
JULIE DELLARIPA, Real Party in Interest
No. 1 CA-SA 17-0119
FILED 5-16-17
Petition for Special Action from the Superior Court in Maricopa County
No. FC2010-050562
The Honorable Steven K. Holding, Judge Pro Tempore
JURISDICTION GRANTED, RELIEF DENIED
COUNSEL
Jennings, Haug & Cunningham, L.L.P., Phoenix
By Blake E. Whiteman and Ryan B. Johnson
Counsel for Petitioner
Katz & Bloom, P.L.C., Phoenix
By Norman M. Katz
Counsel for Real Party in Interest
DELLARIPA v. HON. HOLDING/DELLARIPA
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
B R O W N, Chief Judge:
¶1 In this special action, James Dellaripa (“Father”) argues he
was denied procedural due process when the trial court found him in
contempt for failing to comply with a parenting time order. Father also
argues the court erred in ordering him to pay attorneys’ fees. For the
following reasons, we accept jurisdiction but deny relief.
BACKGROUND
¶2 Father and Julie Dellaripa (“Mother”) divorced in 2011, and
are the parents of two minor children. The parenting time order provided
in relevant part that during the school year, the children would reside
primarily with Father, with Mother having parenting time from Thursday
after school until Monday morning, every other weekend. The parents
were directed to divide their parenting time equally during the summer.
¶3 In August 2016, Mother filed a petition for enforcement of
parenting time, alleging that (1) Father had repeatedly violated the court’s
existing orders by failing to present the children to Mother for her parenting
time; (2) Father allowed the older child (age 14) to decide whether she
wished to have parenting time with Mother, and Mother had not seen the
older child for more than two months; (3) Mother’s efforts to resolve the
parenting time disputes without court involvement were unsuccessful, as
Father did not respond to Mother’s request that the parties agree to
counseling between Mother and the oldest child; and (4) Father had not
filed a petition to modify the parenting time orders. Mother requested, inter
alia, immediate enforcement and imposition of “any and all available
sanctions pursuant . . . to [Arizona Revised Statutes (“A.R.S.”) section] 25-
414” as well as attorneys’ fees and costs pursuant to A.R.S. §§ 25-414 and
25-324.
¶4 In October 2016, Mother filed a petition for contempt for
denial of her parenting time, but the petition was merely mailed to counsel
for Father and thus not properly served. The trial court denied Mother’s
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DELLARIPA v. HON. HOLDING/DELLARIPA
Decision of the Court
motion to consolidate the two petitions; however, the court noted that it
would address both Mother’s petition to enforce parenting time and her
petition for contempt at a conference and hearing set for November 7.
Counsel for Father and Mother then jointly moved to continue the
November 7 hearing on the petitions, and the hearing was reset to January
27, 2017.
¶5 At the outset of the January 27 hearing, Mother’s counsel
alerted the court to an unresolved issue whether proper service of the
contempt petition had been accomplished, but Father did not directly
address the matter. Instead, the hearing proceeded, and counsel and the
court discussed various options to resolve the disputes. Father and Mother
affirmatively stated under oath that they agreed with the avowals made by
their respective attorneys.
¶6 After taking the matter under advisement, the trial court
found Father in contempt for violating the existing parenting plan as to both
children, and gave Father until February 8, 2017, to fully comply with the
parenting plan. Father moved to set aside the court’s ruling, arguing that
he could not be held in contempt because he was not properly served with
the contempt petition and that he waived service only on the enforcement
petition. The court denied the motion, noting that “after review of the file
and FTR [recording] in this matter that Father had notice of these
proceedings.”
¶7 Mother filed an application and affidavit for attorneys’ fees
and costs pursuant to A.R.S. §§ 25-325 and -414. Father objected, asserting
that Mother failed to comply with Arizona Rule of Family Law Procedure
(“Rule”) 91(S), which requires parties in a post-decree proceeding to file an
affidavit of financial information when attorneys’ fees are at issue. The trial
court granted Mother’s request for $4,490 in attorneys’ fees and $84 in costs.
Father then petitioned for special action relief.
DISCUSSION
¶8 Special action jurisdiction is appropriate for review of a
contempt order, which is not otherwise appealable. Munari v. Hotham, 217
Ariz. 599, 601, ¶ 7 (App. 2008). In our discretion, we accept jurisdiction.
“We review a trial court’s contempt finding and imposition of sanctions for
an abuse of discretion.” Henderson v. Henderson, 241 Ariz. 580, ____, ¶ 16
(App. 2017). We will uphold the court’s decision if it is correct for any
reason. Id. at ____, n. 11, ¶ 23.
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DELLARIPA v. HON. HOLDING/DELLARIPA
Decision of the Court
A. Enforcement of Parenting Time Order
¶9 Father argues the trial court violated his right to procedural
due process by failing to assure adequate service of Mother’s petition for
contempt and failing to issue an order to appear for the same as required
by Rule 92(B), (C). Father contends indirect contempt proceedings must be
conducted according to “regularly established rules of procedure,” and
because the “procedural safeguards were ignored in violation of Father’s
procedural due process rights,” the court’s contempt finding should be
reversed.
¶10 Under A.R.S. § 25-414,
A. If the court, based on a verified petition and after it gives
reasonable notice to an alleged violating parent and an
opportunity for that person to be heard, finds that a parent
has refused without good cause to comply with a visitation or
parenting time order, the court shall do at least one of the
following:
1. Find the violating parent in contempt of court.
2. Order visitation or parenting time to make up for the
missed sessions.
3. Order parent education at the violating parent’s expense.
4. Order family counseling at the violating parent’s expense.
5. Order civil penalties of not to exceed one hundred dollars
for each violation . . . .
6. Order both parents to participate in mediation or some
other appropriate form of alternative dispute resolution at the
violating parent’s expense.
7. Make any other order that may promote the best interests
of the child or children involved.
(Emphasis added.)
¶11 Here, the narrow record before us indicates that the trial
court’s orders are consistent with these statutory provisions, which govern
parenting time violations. It is undisputed that Father waived service of
the petition for enforcement and was given the opportunity to be heard on
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DELLARIPA v. HON. HOLDING/DELLARIPA
Decision of the Court
the matters raised in the petition by Mother. At the January 27 hearing,
counsel agreed to forego the evidentiary hearing and work toward a
resolution with the Commissioner serving as both mediator and factfinder.
Mother and Father also had an opportunity to testify, but both concurred
with the arguments and avowals of counsel. Upon agreement of the parties,
the matter was taken under advisement for one week, to allow the parties
to work toward a resolution and/or permit Father to file an expedited
motion for change in parenting time.
¶12 Because the parties did not resolve the parenting time
dispute, the trial court issued its ruling, finding that “Father is in contempt
of Court for allowing a 14-year-old to make decisions as it relates to
[parenting time with] Mother . . . [and] for allowing the youngest child to
only visit . . . with Mother on some of the days ordered by the Court.” The
court then ordered compliance with the existing orders for parenting time,
and noted, “if . . . Father has not complied with the court-ordered [parenting
time] Mother may request any and all sanctions the Court is empowered to
issue.”
¶13 Father does not challenge the trial court’s factual findings;
rather, he simply contends that the contempt order was erroneous due to
improper service of the contempt petition. Because Father received actual
notice of the contempt petition and he has not identified any prejudice he
suffered from Mother’s lack of compliance with Rule 92, we find no abuse
of discretion. See Rule 86 (“The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.”).
¶14 As relevant to issuance of a contempt order, Rule 92(B) states,
“[n]o civil contempt may be imposed without notice to the alleged
contemnor and without providing the alleged contemnor with an
opportunity to be heard,” and the civil contempt petition “must be
personally served upon the alleged contemnor in the manner required by
Rules 40(C), (E) or (F) and 41 (C)(1).” It is undisputed that Mother did not
serve the contempt petition as required; however, Rule 40(F), in pertinent
part, states:
A person upon whom service is required may, in person or by
attorney or by an authorized agent, enter an appearance in
open court, and the appearance shall be noted by the clerk
upon the docket and entered in the minutes. Such waiver,
acceptance or appearance shall have the same force and effect
as if a summons had been issued and served.
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DELLARIPA v. HON. HOLDING/DELLARIPA
Decision of the Court
See also Montano v. Scottsdale Baptist Hosp., Inc., 119 Ariz. 448, 452 (1978) (“It
is a rule of ancient and universal application that a general appearance by
a party who has not been properly served has exactly the same effect as a
proper, timely and valid service of process.”).
¶15 In Arizona, a party “[makes] a general appearance when he
has taken any action, other than objecting to personal jurisdiction, that
recognizes the case is pending in court.” Kline v. Kline, 221 Ariz. 564, 569, ¶
18 (App. 2009). Father does not explain why the joint motion to continue
and subsequent appearance at the enforcement hearing do not constitute a
general appearance sufficient to effectuate proper, timely, and valid service
of process for the contempt petition—a matter previously identified for
discussion at the pending hearing. Further,
[I]f service is not achieved according to the requirements of
the applicable procedural rule, it is technically defective and
the pleading may be ineffective for some purposes. But strict
technical compliance with rules governing service may be
excused when the court has already acquired jurisdiction over
the receiving party and that party receives actual, timely
notice of an amended pleading and its contents.
Kline, 221 Ariz. at 570, ¶ 21.
¶16 Here, Father indisputably received actual, timely notice of the
contempt petition containing similar allegations as the enforcement
petition, and therefore was not prejudiced by the technical defect in service.
See id. at 571, ¶¶ 21, 23 (noting procedural rules as to service “intended to
serve as a shield for those prejudiced by a lack of notice, not as a sword”).
At the hearing, Father did not raise any challenge or concern that the court
was considering whether he had violated the parenting time order; nor did
he contest any of the allegations made in the petition for enforcement or the
avowals made by Mother’s counsel. Moreover, in this special action, Father
neither asserts that he was prejudiced by the court’s order nor does he
challenge the court’s factual finding that he was in violation of the existing
parenting time order. On this record, Father has failed to show the court
abused its discretion under A.R.S. § 25–414(A)(1), (C) in finding Father was
in contempt for violating the parenting time order.
B. Attorneys’ Fees
¶17 Father also argues the trial court erred in directing him to pay
Mother’s attorneys’ fees and costs even though she failed to submit a
financial affidavit as required by Rule 91(S). That rule provides in pertinent
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DELLARIPA v. HON. HOLDING/DELLARIPA
Decision of the Court
part as follows: “In any post-decree/post-judgment proceeding in which
an award of attorneys’ fees, costs, and expenses is an issue, both parties
shall file a completed Affidavit of Financial Information.” We review an
award of attorneys’ fees for an abuse of discretion. See In re Marriage of
Robinson & Thiel, 201 Ariz. 328, 335, ¶ 20 (App. 2001).
¶18 The trial court acted within its discretion in awarding fees and
costs to Mother notwithstanding her failure to file an updated affidavit of
financial information. Rule 91(S) plainly requires “both parties” to file
affidavits of financial information and yet nothing in this record indicates
Father complied with the rule. Thus, Father cannot reasonably complain of
Mother’s failure to submit an affidavit when he failed to do so himself. In
addition, Mother sought attorneys’ fees under A.R.S. § 25–414, which
mandates that fees be awarded to the nonviolating parent upon a “find[ing]
that a parent has refused without good cause to comply with a visitation or
parenting time order.” Nothing in § 25–414 requires that a trial court
consider the parties’ financial resources in evaluating a request for fees
made under that statute. Instead, the only question is whether the violating
parent refused to comply with the parenting time order without good
cause. The court’s contempt finding necessarily implies that Father refused
to comply with the parenting time order without good cause, and Father
makes no argument to the contrary. Thus, Father suffered no prejudice by
Mother’s failure to submit an affidavit of financial information because
nothing in the affidavit would have been relevant to a fee request under
§ 25–414.
CONCLUSION
¶19 Because we conclude that Father has failed to establish that
the trial court committed reversible error when it found he was in contempt
for violating the parenting time order, we affirm both the court’s finding
and the resulting attorneys’ fees award. Given the absence of any current
information regarding the parties’ financial resources, we deny the parties’
requests (made pursuant to A.R.S. § 25–324) for attorneys’ fees and costs
incurred in this special action.
AMY M. WOOD • Clerk of the Court
FILED: JT
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