Hermling v. Hermling

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TODD HERMLING, Petitioner/Appellee,

v.

MAITE P. HERMLING, Respondent/Appellant.

No. 1 CA-CV 20-0424 FC
FILED 4-27-2021

Appeal from the Superior Court in Maricopa County
No. FC2014-006516
The Honorable Jacki Ireland, Judge Pro Tempore

REVERSED AND REMANDED

COUNSEL

Morse Law Group, P.C., Phoenix
By Judith A. Morse
Counsel for Petitioner/Appellee

The Rahaman Law Firm PLLC, Scottsdale
By Ashley Blair Rahaman
Counsel for Respondent/Appellant
 HERMLING v. HERMLING
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the Court, in which
Judge Michael J. Brown and Judge David D. Weinzweig joined.

G A S S, Judge:

¶1 Maite Hermling appeals the superior court’s dismissal of her
petition to modify spousal maintenance. Because the superior court did not
comply with the Arizona Rules of Family Law Procedure when it dismissed
the petition, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶2 Todd and Maite Hermling divorced in 2016. Under their
divorce decree, husband was required to pay spousal maintenance to wife
“in the amount of $7000 per month for two years, $5000 per month for
another three years, and $3000 per month for an additional 7 years.” Several
months later, husband was diagnosed with metastatic melanoma. Because
the diagnosis prevented husband from continuing his career as a pilot, he
petitioned to modify the spousal maintenance award. Following an
evidentiary hearing, the superior court granted husband’s request and
reduced his spousal maintenance obligation by approximately one-half.

¶3 In April 2020, wife petitioned to modify the revised spousal
maintenance award, alleging husband’s “medical condition and prognosis
have improved since his terminal diagnosis in December 2016.” Wife also
included summaries of husband’s bank statements, arguing his “actual
income is greater than” determined at the previous evidentiary hearing.
After reviewing wife’s petition, the superior court ordered both parties to
appear at a resolution management conference (RMC).

¶4 At the RMC, the superior court heard brief arguments from
wife’s and husband’s counsel but took no evidence. The superior court then
found, “[b]ased on the information and the pleadings . . . there is not alleged
substantial continuing change of circumstances to justify the petition to
modify” and dismissed wife’s petition, “taking no further action.” Wife
timely appealed. This court has jurisdiction under article VI, section 9, of
the Arizona Constitution and A.R.S. § 12-2101.A.1.

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 HERMLING v. HERMLING
Decision of the Court

ANALYSIS

¶5 Wife argues the superior court erred by dismissing her
petition without “an explanation of the Petition’s deficiencies, and an
opportunity to cure those deficiencies” as required by the Rules of Family
Law Procedure. This court reviews the interpretation of court rules de novo,
applying the methods of statutory interpretation. Goldman v. Sahl, 248 Ariz.
512, 522, ¶ 29 (App. 2020).

¶6 Once a party submits a petition seeking to modify spousal
maintenance,

the court must review the petition and (a) reject the petition
for failure to state grounds upon which relief can be granted,
or (b) issue the Order to Appear. If the court rejects the petition,
the court must provide the applicant with an explanation of the
deficiency and provide an opportunity to correct the deficiency
within 30 days after the date of the rejection notice. In deciding
whether to reject a petition, the court cannot assess credibility
or weigh evidence. If the court issues the Order to Appear, it
must set a resolution management conference or evidentiary
hearing, as appropriate. No evidence may be taken at a
resolution management conference except under emergency
circumstances.

....

At the resolution management conference, the court may take
any action provided in Rule 76(c).

Ariz. R. Fam. Law P. 91(i) (emphasis added).

¶7 Husband argues the dismissal of wife’s petition at the RMC
was within the superior court’s authority to issue “other orders as the court
deems appropriate.” See Ariz. R. Fam. Law P. 76(c)(13). We disagree.

¶8 As the language of Rule 76 makes clear, an RMC “is not
intended to resolve disputed issues but to find points of agreement in order
to shorten or circumvent adversarial proceedings.” Villares v. Pineda, 217
Ariz. 623, 625, ¶ 15 (App. 2008); see also Ariz. R. Fam. Law P. 76(a) (“The
purpose of [an RMC] is to facilitate agreements between the parties.”).
Accordingly, Rule 76 allows the court to identify contested issues and issue
necessary scheduling orders in anticipation of an evidentiary hearing. It

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 HERMLING v. HERMLING
Decision of the Court

does not, however, give the superior court authority to bypass Rule 91(i)
and dismiss outright a petition to modify spousal maintenance.

¶9 To be sure, the superior court retains the authority—even at
an RMC—to “reject the petition for failure to state grounds upon which
relief can be granted.” See Ariz. R. Fam. Law P. 91(i)(1), (i)(3); 76(c)(13). But
the court “must provide the applicant with an explanation of the deficiency
and provide an opportunity to correct the deficiency within 30 days” before
dismissing the petition. See Ariz. R. Fam. Law P. 91(i)(1), (i)(3); 76(c)(6).

¶10 Indeed, husband concedes “the trial court did not strictly
follow Rule 91(i).” Because the superior court did not provide wife an
explanation of her petition’s deficiency and an opportunity to correct, the
dismissal cannot stand.

ATTORNEY FEES ON APPEAL

¶11 Husband requests his attorney fees on appeal under A.R.S.
§ 25-324. After considering the relevant factors, we exercise our discretion
and deny his request. As the non-prevailing party, we also deny husband’s
request for taxable costs.

CONCLUSION

¶12 We reverse the superior court’s order dismissing wife’s
petition to modify spousal maintenance. We remand the matter for further
proceedings consistent with this decision, expressing no opinion on the
merits of wife’s petition.

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

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