Potter v. Potter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

BETSY JO POTTER, Petitioner/Appellee,

v.

PHILLIP TERRY POTTER, Respondent/Appellant.

No. 1 CA-CV 19-0779 FC
FILED 12-3-2020

Appeal from the Superior Court in Maricopa County
No. FC2015-050659
The Honorable John Christian Rea, Judge
The Honorable Roy C. Whitehead, Judge

AFFIRMED IN PART; VACATED IN PART, AND REMANDED

COUNSEL

Joseph M. Huey, PLC, Scottsdale
By Joseph M. Huey
Counsel for Petitioner/Appellee

Phillip Terry Potter, Scottsdale
Respondent/Appellant
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MEMORANDUM DECISION

Acting Presiding Judge Lawrence F. Winthrop delivered the decision of the
Court, in which Chief Judge Peter B. Swann and Judge Maurice Portley1
joined.

W I N T H R O P, Judge:

¶1 Phillip Terry Potter (“Father”) appeals a superior court
judgment that “terminally disposed of”: (1) Father’s July 31, 2018 “Petition
to Modify Child Support ‘Simplified Process’ Pursuant to ARFLP Rule
91(B)(2)(b), A.R.S. § 25-320, and the Arizona Child Support Guidelines”
(hereinafter, “Petition to Modify Child Support” or “Petition”); (2) Father’s
subsequent “Motion for Leave to Amend Petition for Child Support
Modification” (hereinafter, “Motion to Amend”); (3) the superior court’s
July 23, 2018 “Order Regarding Special Master,” appointing a special
master to oversee matters regarding the parties’ child’s health insurance;
and (4) a “Motion for New Trial or Amended Judgment Pursuant to Rule
83(A)(2) and (6), ARFLP” (hereinafter, “Motion for New Trial”) filed by
Betsy Jo Potter (“Mother”).2

¶2 The record below is chaotic. Delegation of judicial duties, a
calendar rotation, plus indiscriminate filings by the parties below and on
appeal, have created what can only be characterized as a confusing record.
It appears that the superior court issued a final judgment declaring various
issues “terminally disposed of” without any indication in the record that
the underlying merits of certain of those issues, including Father’s Petition
to Modify Child Support and his subsequent Motion to Amend, were ever
addressed. We therefore vacate the termination or dismissal of Father’s
Petition to Modify Child Support and remand that Petition and Father’s
Motion to Amend for consideration on the merits. Because she did not
cross-appeal, we affirm the effective denial of Mother’s Motion for New

1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2 The superior court’s use of the term “terminally disposed of” is
confusing at best. We presume the court intended by such phrase to signify
dismissal of the pending petition or denial of the motion, as appropriate.

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Trial. Finally, we vacate the portion of the superior court’s judgment that
terminated or vacated the July 23, 2018 Order Regarding Special Master
because the record does not reflect this Order was ever set aside.

FACTS AND PROCEDURAL HISTORY

¶3 The parties married in October 2005 and have one minor
child. In February 2015, Mother petitioned for dissolution of the marriage.

¶4 In January 2017, the parties entered a consent decree of
dissolution that, among other things, obligated Father to pay child support
and health insurance for the child. The decree also provided that disputes
regarding the child’s health insurance “will immediately be submitted to a
Special Master for binding arbitration.”

¶5 On July 23, 2018, at Father’s request and pursuant to the terms
of the consent decree, the superior court issued the Order Regarding Special
Master, ordering the appointment of a special master to oversee health
insurance disputes, and assessing costs associated with the special master
to Mother. Mother subsequently filed her Motion for New Trial, contesting
in part the court’s order that she pay costs associated with the special
master.

¶6 Meanwhile, on July 31, 2018, Father filed his Petition to
Modify Child Support, alleging that a substantial change in the parties’
incomes and an increase in health insurance costs justified modification of
his existing child support obligation. Mother requested a hearing on that
petition, and the parties received notice that a conference and evidentiary
hearing before Commissioner Richard F. Albrecht had been scheduled for
November 15, 2018.

¶7 During a September 10, 2018 status conference, the superior
court (Judge Roy C. Whitehead) affirmed the November 15, 2018 conference
and evidentiary hearing regarding the Petition to Modify Child Support.
The court also scheduled a separate evidentiary hearing regarding Mother’s
Motion for New Trial for January 31, 2019.

¶8 In a minute entry filed November 13, 2018, however,
Commissioner Albrecht vacated the scheduled November 15, 2018
proceedings and referred the Petition to Modify Child Support to Judge
Whitehead for consideration and a ruling.3 In that same minute entry,

3 In referring the Petition to Modify Child Support to Judge
Whitehead, Commissioner Albrecht noted “that there are multiple issues

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Commissioner Albrecht separately affirmed the January 31, 2019
evidentiary hearing on Mother’s Motion for New Trial before Judge
Whitehead.

¶9 On January 24, 2019, the superior court (Judge Whitehead)
vacated the Motion for New Trial evidentiary hearing and placed the matter
on the inactive calendar, set to expire on March 29, 2019.4

¶10 On March 31, 2019, Father filed a Motion to Amend the
pending Petition to Modify Child Support, citing changed circumstances
due to the birth of his second child. Commissioner Albrecht referred the
Motion to Amend to Judge Whitehead for consideration and a ruling.

¶11 On May 15, 2019, while awaiting a ruling from Judge
Whitehead on both the Petition to Modify Child Support and the Motion to
Amend, Father moved for a hearing on the Petition. After briefing by the
parties, which included Mother’s incorrect representation5 that the Petition
to Modify Child Support should “be denied as this matter was placed on
this Court’s Inactive Calendar March 29, 2019 for dismissal,” the superior
court (Judge Whitehead) summarily denied Father’s request that a hearing
be scheduled on his Petition to Modify Child Support, making no comment
as to the merits of Father’s underlying Petition nor as to the pending Motion
to Amend.

¶12 After a judicial rotation, Judge Rea assumed responsibility for
the parties’ case. At a July 16, 2019 status conference, Judge Rea notified

pending at this time, therefore this case is no longer appropriate for the
Specialty Court Calendar.”

4 The court’s action was apparently taken under the authority of Rule
46(b)(2)(B), Arizona Rules of Family Law Procedure, which then triggers an
obligation on the part of the affected party to file a motion to set or request
a hearing or conference.

5 The record refutes and we reject Mother’s argument that Father’s
Petition to Modify Child Support was also placed on the inactive calendar
for dismissal on or after March 29, 2019. Judge Whitehead’s January 24,
2019 minute entry clearly vacated the January 31, 2019 evidentiary hearing
and placed only the issues scheduled for that date—the Motion for New
Trial and a dispute regarding the terms to be included in a court order
incorporating a Rule 69 Agreement reached between the parties at a
settlement conference—on the inactive calendar.

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the parties he would “review the file and issue a minute entry with tentative
conclusions as to what mat[t]ers remain pending and why.”

¶13 Judge Rea tentatively concluded6 that Judge Whitehead’s
refusal to schedule a hearing eliminated the need to consider the merits of
Father’s Petition to Modify Child Support and his Motion to Amend, and
that Mother’s Motion for New Trial was effectively dismissed when it was
placed on the inactive calendar and no additional action was taken:

[A]s of September 10, 2018, the only pending matters were the
child support modification and the matter of a special master.

. . . Based on the arguments in the memoranda, this
court finds the court’s denial of hearing [acted] to terminate
the petition to modify child support, filed July 2018. Nothing
remains pending on that petition.

The evidentiary hearing on the special master issue
and the related motion for new trial was vacated in the minute
entry of January 23, 2019, and “the matter” was placed on the
inactive calendar for dismissal on March 29, 2019. No further
action was taken. The court considers the special master issue
terminated.

¶14 In a signed minute entry dated October 21, 2019, Judge Rea
affirmed his previous tentative conclusions. Later, in February 2020, Judge
Rea issued a final judgment declaring that the October 21, 2019 entry
“disposed of” both Father’s Petition to Modify Child Support and all claims
and issues related to appointment of the special master regarding the
child’s health insurance (including Mother’s Motion for New Trial).

¶15 Father timely appealed the February 2020 judgment, and we
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections

6 Judge Rea first observed—and we completely agree—that “[i]t is
almost impossible to review this file and come to a confident conclusion on
what may be pending.” Since the consent decree was filed in January 2017
as docket item 81, the file in this case has increased enormously. As such,
it is not surprising that Judge Rea was led astray by Mother’s representation
that prior rulings by Judge Whitehead and Commissioner Albrecht
disposed of Father’s pending issues. Currently, the case file contains more
than 550 docket items.

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12-120.21(A)(1) and 12-2101(A)(1). Mother did not cross-appeal the
denial/dismissal of her Motion for New Trial.

ANALYSIS

I. The Court’s Ruling Terminating Father’s Petition

¶16 Father argues the superior court abused its discretion in
denying his request to set a hearing on the Motion to Amend and
underlying Petition to Modify Child Support and in interpreting that denial
as a dismissal on the merits of the Petition.

¶17 In general, either party is entitled to request a modification of
child support upon a showing of substantial and continuing changed
circumstances. A.R.S. §§ 25-320(24), -327(A). If the modification is
contested, any party may timely request a hearing and “the court shall
conduct such hearing.” A.R.S. § 25-320(24)(B). Where no hearing is timely
requested, “the court will review the request and enter an appropriate order
or set the matter for hearing.” Id.

¶18 Here, Father was deprived of a meaningful opportunity to be
heard, see generally Heidbreder v. Heidbreder, 230 Ariz. 377, 381, ¶ 13 (App.
2012), because the court denied his request for a hearing and never reached
the merits of the Petition to Modify Child Support. The superior court set
an evidentiary hearing on the Petition, which was later vacated and the
issue referred to Judge Whitehead for consideration and an ultimate ruling.
The record, however, does not reflect that Judge Whitehead either reset the
matter for an evidentiary hearing or made any ruling on the merits of the
Petition. Further, while that Petition was pending, Father filed the Motion
to Amend, which Commissioner Albrecht also referred to Judge Whitehead
for consideration and a ruling. Thereafter, Father renewed the request
previously made by Mother for an evidentiary hearing on the child support
issues, which Judge Whitehead inexplicably denied.

¶19 Judge Whitehead’s summary denial addressed neither
Father’s Motion to Amend nor the merits of the underlying Petition to
Modify Child Support.7 Absent something more, the superior court’s
interpretation of Judge Whitehead’s denial as a decision on the substantive
merits of Father’s claims was error. Father was entitled to a definitive

7 Moreover, the summary denial of Father’s request for an evidentiary
hearing did not explain why an evidentiary hearing previously granted was
no longer necessary, especially given Father’s allegation of changed
circumstances made in the Motion to Amend the underlying Petition.

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resolution of the merits of his Motion to Amend and the underlying Petition
to Modify Child Support. Accordingly, we vacate that portion of the
superior court’s February 2020 judgment concluding that Father’s Petition
to Modify Child Support has been “terminally disposed of,” and we
remand for consideration of both Father’s Motion to Amend and his
Petition to Modify Child Support.

II. The Court’s Ruling Terminating All Claims and Issues Related to
Appointment of the Special Master, Including Mother’s Motion

¶20 Father also argues the superior court erred when it “disposed
of all claims and issues” related to the appointment of the special master,
and included in the dismissal order the court’s prior July 23, 2018 Order
Regarding Special Master and Mother’s pending Motion for New Trial.

¶21 Following the court’s issuance of the July 23, 2018 order
appointing a special master to resolve the health insurance disputes and
assigning the cost of same, Mother filed a Motion for New Trial challenging
the ruling. The court set an evidentiary hearing on that motion for January
31, 2019. Before the evidentiary hearing could be held, however, Judge
Whitehead placed Mother’s Motion for New Trial on the inactive calendar
with that issue to be summarily dismissed if Mother did not request a
hearing or conference on the matter by March 29, 2019. Mother did not,
however, renew her request for a hearing. Mother also did not cross-appeal
the court’s “terminal disposition” of her Motion for New Trial; accordingly,
we affirm that dismissal. See Bills v. Ariz. State Bd. of Educ., 169 Ariz. 366,
369-70 (App. 1991) (recognizing that a party may waive substantive issues
by failing to file a cross-appeal).

¶22 However, the dismissal of Mother’s Motion for New Trial did
not alter the finality of the court’s previous Order Regarding Special
Master. Between the time the court issued its order appointing a special
master in July 2018 and the time the court issued the February 2020
judgment allegedly “disposing of” the special master issues, there is
nothing in the record that indicates the superior court vacated, revised,
terminated, disposed of, or otherwise suspended the operation of the July
23, 2018 order. Cf. Ariz. R. Fam. Law P. 46(d) (“The entry of an order
dismissing a case serves to dismiss all pending, unresolved petitions and
issues, but the order does not dismiss, vacate, or set aside any final decree,
judgment or order previously entered in the case, unless the order specifies
otherwise.”).

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¶23 In short, there is nothing in the record to support the superior
court’s conclusion that Father’s “Motion to Appoint Special Master on
Insurance, filed June 8, 2018, had been terminally disposed of in prior
orders.” We therefore vacate the portion of the February 2020 judgment
that purported to “dispose of” the Order Regarding Special Master.

CONCLUSION

¶24 For the foregoing reasons, we vacate the superior court’s
unsupported terminal disposition of Father’s July 31, 2018 Petition to
Modify Child Support and remand for the court to consider Father’s Motion
to Amend and the merits of Father’s underlying Petition.8 We affirm the
superior court’s dismissal of Mother’s Motion for New Trial. Finally, we
vacate the apparent sua sponte vacating of the court’s July 23, 2018 Order
appointing a special master to resolve pending and future insurance
coverage disputes, and assessing the cost of same to Mother.

¶25 Both sides request an award of attorneys’ fees and costs on
appeal. Father is self-represented and thus is not entitled to attorneys’ fees.
Also, neither side has provided this court updated information on which to
consider the parties’ financial resources. See A.R.S. § 25-324(A). More
importantly here, much of the confusion in this case resulted from Mother’s
incorrect representations to the superior court and the unreasonableness of
her continued reliance on those representations on appeal; accordingly, we
deny her request for attorneys’ fees as well, while reminding Mother’s
counsel of his duty of candor to the court. See Ariz. R. Sup. Ct. 42, ER
3.3(a)(1). As the prevailing party on appeal, Father is entitled to
reimbursement of his taxable costs upon compliance with Rule 21, ARCAP.

AMY M. WOOD • Clerk of the Court
FILED: AA

8 We make no comment on the merits of Father’s Motion to Amend or
the underlying Petition.

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