By: The Hon. Rebecca Berch (Ret.) & Mark Meltzer
Originally published in Arizona Attorney, January 2019 at 20.
During the past several years, the Arizona Supreme Court has adopted restyled Rules of Evidence, Civil Appellate Producer, Protective Order Procedures, Civil Procedure, and Criminal Procedure. In December 2016, Chief Justice Scott Bales directed a Task Force to review the current family law rules, to identify possible changes that would confirm those rules to modern usage, and to adopt a new set of family law rules.
On August 30, 2018, the Supreme Court approved revisions to the Arizona Rules of Family Law Procedure. The new rules apply to all cases filed on or after January 1, 2019, and to all cases pending on that date unless their application would be inequitable or unjust.
The new rules are (completely) re-styled, (modestly) rearranged, and (occasionally) changed substantively. Almost all comments have been eliminated.
Rather than provide you an exhaustive compilation of every rule change and their implications, we asked members of the Task Force that proposed these rules what brief insights or tips they would share with a colleague about them. Here are their responses.
I would like to commend those involved, starting with Chief Justice Bales, who established the Task Force and set an ambitious deadline. The Task Force was guided by great leaders, Justice Berch and Judge Armstrong, and it outstanding support from AOC staff, Mark Meltzer and Angela Pennington. would like to thank the Task Force members for the sacrifices they made to get the project done and for all their contributions. It was a difficult task, but they were effective and successful. It was humbling to be around such great professionals.
I hope you enjoy the new Family Law Rules. we attempted to make them reasonable and readable for those that use them, including self-represented parties.
– Michael Aaron
Rule 41 (m)
Service Within and Outside Arizona/Service by Publication; Rule 44.1: Default Decree or Judgment by Motion and Without a Hearing; and Rule 91: Modification or Enforcement of a Judgement
Rule users pay close attention to changes to the service-by-publication requirement. The parties must now obtain court approval before they can proceed via publication. There are due process implication. (See below for additional discussion of Rule 41(m). Another major change occurs in Rule 91. There is no longer a waiting period after filing a petition to modify. If the petition to modify. If the petition satisfies A.R.S. $ 25-11, depending upon what is requested, a court date and an order to appear may be provided by the court. Default procedures have changed, as well. Parties also should pay close attention to the new Form 6 and the ability to not have a hearing.
– Hon. Suzanne Cohen
Applicability of the Arizona Rules of Evidence
The time to a file a Rule 2(a) notice remains unchanged. Rule 2(b) addresses, with simplified language, the effect of not filing a notice. Rule 2(c) still provides that records of regularly conducted activity and report from Conciliation Services or Family Law Conference Officers are admissible, regardless of whether a notice is filed (and subject to disclosure and relevance). But there is a big change to Rule 2 (c). The prior language that “any report, document, or standardized from required to be submitted to the court … may be considered as evidence only if offered into evidence and admitted by the court.
– Annette Burns
Simultaneous Dependency and Legal Decision-making/Parenting Time Proceedings
DO you have a case that straddles Family and Juvenile Court?
Revised Rule 5.1 eliminates the guesswork by clearly assigning jurisdiction to the juvenile court. Under old Rule 5.1, cases could linger for months with neither the family nor the juvenile division taking ownership of decision-making and preventing time orders. Now the juvenile division clearly has the authority and obligation either to enter order or unequivocally defer to family court. The rule also no longer allows the family court to juvenile division.
Practice Tip: The rule requires the parties to notify the family court when a dependency is filed so the court is aware of the supervening custody matter and does not inadvertently interfere with the juvenile division’s jurisdiction.
Change of Judge as a Matter of Right
Before re-styling, Rule 6 consisted of only two sentences, which provided that parties’ rights to a change of judge were governed by Rule 42(f) of the Civil Rules. After reviewing the 2017 restyling of Civil Rules. 42(f), the Task Force decided to adopt a rule specific to family law matters. The Task Force felt that the narrow time limits in the restyled civil rule would tend to harm parties who try to reach agreement early in their case, thereby discouraging early dispute resolution. The restyled rule mirrors the provisions of Civil Rule 42(f) before the 2016 restyling.
– Mary Boyte Henderson
Sealing Redacting and Unsealing Courts Records
The Task Force had the opportunity to confirm to Civil Rule 5.4 on sealing and unsealing records or to recommend a different approach. The Task Force opted to forge its own path. Civil Rule 5.4 has been difficult to understand or successfully follow and contains a multi-step process for lodging documents with the Clerk’s office pending the court’s decision on how or whether to seal a record. Family Rule 17 takes a briefer and more straightforward approach that should be more effective in family court cases. Stated simply, a party makes its request by motion, awaits a decision, and then files documents in a manner that conforms to the court’s to the court’s order.
– Aaron Nash
Rule 41 (m)
Service by Publication
Possibly the most controversial change to the rules relates to service by publication. Current rules prohibit entry of an order following service by publication on an issue requiring personal jurisdiction. A majority of the Task Force sought to loosen these restrictions. The State Bar’s Family Law Practice and Procedure Committee and the Arizona Division of child Support Services submitted objections to the proposed Task Force rule. Ultimately service-if a party could not be found after diligent efforts, when all other methods, including alternative service, have proved impracticable, and publication is the best means under the circumstances for providing notice.
– Janet Sell
To streamline the process and simplify resolution of uncontested matters, the Task Force created a new Rule 44.1. This rule expands the issues that may be resolved by affidavit without a hearing to now include paternity or maternity, legal decision-making and parenting time, child support, and spousal maintenance. If the correct documents are filed, parties or judgments. Note that the court can still require a hearing, or a party may request one, and this rule does not apply to cases where the petitioner obtained service by publication.
– Hon. Dean Christoffel
New Form 6
Default Information for Spousal Maintenance
A party who uses the procedure in Rule 44.1 and who also requests spousal maintenance must file Form 6 with the notice of default. This new form provides information the court can use to determine whether the requested duration and amount are fair. The requesting party should provide information that support a fair award and explanation of how the paying party’s needs can be met while paying the requested amount. This information also should assist the court if a future modification is requested.
– Hon. Dean Christoffel
Motions for Temporary Orders
The new rule is aimed at discouraging wasteful and unnecessary temporary order hearing, which often result in a case being tried twice-draining the parties’ resources and causing delays in the court’s calendar. Under new Rule 47(c), the court must set a resolution management conference-at which no evidence will be taken-upon a request for temporary orders. This gives the parties the opportunity to agree on temporary orders (subject to reallocation) and achieve a faster permanent results. The new rule also accelerates the proceedings by requiring that the resolution management conference (and any evidentiary proceedings, if absolutely necessary) are scheduled within 30 days after the filling of a motion.
– Hon. Dean Christoffel
Rule 49 & Rule 50
Rule 49: Disclosure; and Rule 50: Complex Case Designation
Practitioners are encouraged to review Rules 49 to 65 on disclosure and discovery for substantive changes. Disclosure under rule 49 is described in a new format and expands the types of documents parties must voluntarily disclose. Moreover, discovery requests cannot be made for documents that are required to be disclosed under Rule 49.
Practitioners are also encouraged to make use of Rule 50- complex case designation. The rule allows the assigned judge to designate as case as complex, thereby giving a case greater judicial attention when it is warranted. The 12 hours provided for trial under Rule 50 is intended as a minimum, not a cap, on trial time.
– Steve Wolfson
Rule 57(b) (3) (A)
Depositions by Oral Examination/Method of Recording/Permitted Methods
The revised rule presumptively permits audio and video recording of depositions, consistent with the civil rules and unlike the prior family-law version, which required agreement of the parties or a court order.
– Jeff Pollitt
The new rule now imposes specific for a binding agreement. Instead of merely requiring a “writing,” the new rule requires that written agreements must be signed by the parties or their counsel. Oral agreements still may be stated on the record before a judicial officer or a court reporter. A new provision allows a mediator or settlement officer to create a binding Rule 69 agreement using an audio recording.
Of critical importance, a Rule 69 agreement is no longer binding on the court until the court approves it. The rule also includes as presumption of validity, such that the burden of a challenges is borne by the challenger, and the court has discretion to award fees under A.R.S. 25-324 after a challenge.
– Hon. Peter Swann
Judgment, Attorney Fees, Costs and Expenses
I chaired the Supreme Court committee that drafted the family law rules 2006 and believe those rules were working relatively well. However, I think that the Task Force has greatly improved them-by abrogating rarely used rules, eliminating all but sis comments, and restyling the rules to make them simpler and easier to understand. The new rules also include a new family law rule/former family rule/civil rule correlation table that users should find helpful (for the table, see pp. vi-xvii in https://tinyurl.com/familylawruleorder).
Among the most significant substantive changes are (1) clarifying when a summons or order to appear is required in Part II, (2) changing the default process in Part V, and (3) changing the judgment process in Part X. For example, new Rule 78 provides that to be appealable, a judgment must include language under Rules 78(b) or 78(c). Of particular importance to attorneys, Rule 78(e) addresses concerns raised in Bollerman v. Nowlis, 234 Ariz. 340 (2014), by providing that if a party asserts as claim for attorney fees costs and expenses, and a judgment is entered that omits a ruling on the claim, the claim is deemed denied unless the party files a Rule 83 motion within 15 days after the entry of judgment.
– Hon. Mark W. Armstrong (ret.)
Altering or Amending a Judgment/Time to File a Motion
The new rule requires Rule 83 motions to be filed “not later than 25 days after the entry of judgment under Rule 78(b) or (c).” The former time to file was 15 days, which continues to be the civil rule. The new family rule includes modified response times and permits the court to summarily deny the motion or set a deadline for a response, which will be 30 days after the entry of an order requiring a response. The court may limit the scope of the response to specific issues.
– Jeff Pollitt
Motion for Clarification
New Rule 84 eliminates motions for reconsideration. The new rule still allows motions for clarification if a ruling is confusing or is susceptible to more than one reasonable interpretation-the fourth ground listed in the previous rule. Grounds 1, 2 and 3 have been eliminated, so the only relief for those grounds is now by motion under Rule 85. Be aware of appeal deadlines, as Rule 84 motions do not extend the time for filing a notice of appeal.
No response to a Rule 84 motion is allowed unless the court specifically grants that opportunity. As always, the court may summarily deny a Rule 84 motion, but it may not grant the motion without allowing a written response. Practice tip: A joint motion for clarification will likely be well received.
– David Horowitz
Modification or Enforcement of a Judgment
The modifications to Rule 91 include many substantive changes for judges and practitioners. Here are two of the most notable changes.
Rule 91 (d) eliminates the requirement imposed either by local rule or court order that parties must submit to mediation before filing a post-decree petition. Recalcitrant parties used the former requirement for delay or to prevent the other party from filing a petition. Rule 91 (i) requires judges to initially review a petition to determine if it states grounds upon which relief can be generated. If the court rejects the petition, the court must explain why and give the party on opportunity to correct the petition.
– Hon. Paul McMurdie
Prefatory Comment to the 2019 Amendments
A prefatory comment located before Rule 1 is a good starting point for becoming familiar with the changes to the Family Law Rules. It provides an overview of many-but not all-of the substantive revisions.
– Mark Meltzer
The leadership and membership of the Task Force was outstanding. Everyone on the Task Force shared their knowledge and wisdom, which made each discussion and debate a rewarding and educational experience. Because of all the hard work from this great group, the rewriting and reorganization of the family law rules should benefit countless practitioners, judicial officers, and those who are self-represented.
– Hon. Jack Assini
HON. REBECCA W. BERCH (ret.) was formerly the Chief Justice of the Arizona Supreme Court. She is currently serves on the Board of Directors of the U.S. Conference of Chief Justices, where she also is Co-Vice Chair to the Education Committee; and is on the Executive Committee of the ABA Section of Legal Education and Admissions to the Bar.
MARK MELTZER, a court policy analyst with the Administrative Office of the Courts, served as staff for the Task Force on the Rules of Family Law Procedure.