Spero v. Hon. herrod/spero

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN CHRISTOPHER SPERO, Petitioner,

v.

THE HONORABLE MICHAEL HERROD, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,

AMANDA COLLEENE SPERO, Real Party in Interest.

No. 1 CA-SA 15-0150
FILED 9-1-2015

Petition for Special Action from the Superior Court in Maricopa County
No. FC2010-005782
The Honorable Michael J. Herrod, Judge

JURISDICTION ACCEPTED, RELIEF GRANTED IN PART

COUNSEL

The Murray Law Offices, P.C., Scottsdale
By Stanley David Murray

Korbin Steiner & Marquis, Scottsdale
By Rebecca Marquis
Co-Counsel for Petitioner

Weiss-Riner Law, P.C., Scottsdale
By Melissa Weiss-Riner, James E. Riner
Counsel for Real Party in Interest
 SPERO v. HON. HERROD/SPERO
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Margaret H. Downie joined.

P O R T L E Y, Judge:

¶1 Petitioner John Christopher Spero (“Father”) challenges the
May 27, 2015 emergency ruling of the family court that, without notice or
hearing, reinstated Amanda Peterson [fka Spero] (“Mother”) as the primary
residential parent, precluded Father from traveling with the child outside
of the United States without written agreement of both parents or until
further order of the court, and related rulings. For the following reasons,
we accept special action jurisdiction and grant relief in part.

FACTUAL BACKGROUND

¶2 The parties divorced on February 2011 by consent decree, but
they continue to bicker over their son and have had a number of hearings
related to him. After an incident of domestic violence in December 2014,
while the child was residing with Mother, Father filed a successful motion
for temporary orders without notice. The court, however, scheduled and
held an evidentiary hearing the following month and issued its temporary
orders ruling on March 20, 2015.

¶3 Although Father did not mention that he sought to modify the
court’s March 2015 order in May 2015 without notice or hearing, the court
granted the motion, which was filed on May 19, 2015. The order essentially
overturned portions of the March ruling and gave Father the final decision-
making authority, eliminated the summer week on/week off parenting
time, and, as relevant, provided Mother with the parenting time the court
had ordered without notice on January 16, 2015.

¶4 Three days after Larry Waldman, Ph.D., had sent his
completed family study to the lawyers, Mother filed a pleading entitled
“Emergency Motion to Prevent Father from Taking Child to Mexico for
Two Months and Motion for Court Orders Consistent with Dr. Waldman’s
Recommendations” and requested an expedited ruling. The motion noted
that Mother learned that Father and his wife intended to take the child to
Mexico for the summer at or about the time Mother was supposed to begin

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Decision of the Court

having her week on/week off parenting time the court had directed in its
March 2015 order. And having read that the child wanted to live with her
and other information, Mother asked the court to immediately adopt Dr.
Waldman’s recommendations.

¶5 The family court, due to its schedule, granted the motion the
next day and ruled that Father could not take the child to Mexico without
Mother’s written permission or a court order. The court also reinstated
Mother as the primary residential parent, set parenting time once school
started, and started the process to appoint a parenting coordinator. The
court did not, at the time, set an evidentiary hearing or indicate that one
would be set to address Dr. Waldman’s report which led to the primary
residential parenting change.

JURSIDICTION

¶6 Special action jurisdiction is appropriate when there is no
equally plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec.
Act. 1. Because Father does not have the ability to file an appeal to challenge
the family court’s temporary emergency order of May 27, 2015, we accept
special action jurisdiction. See Courtney v. Foster, 235 Ariz. 613, 615, ¶ 4, 334
P.3d 1272, 1274 (App. 2014).

DISCUSSION

¶7 Father challenges the family court’s ruling without notice or
an opportunity to be heard, as well as the court’s reliance on the family
study report contrary to Nold v. Nold, 232 Ariz. 270, 273-74, ¶ 14, 304 P.3d
1093, 1096-97 (App. 2013). Mother, however, contends the court’s ruling is
appropriate given the fact that Father secured the May 19 order without
notice to her, the information that Father wanted to take the child to Mexico
for the summer, thereby depriving her of her parenting time as ordered in
March 2015, and the other information in Dr. Waldman’s report.

¶8 We agree in part with Mother and the family court. Upon
receiving information that Father wanted to take the child to Mexico for the
summer and interrupt Mother’s parenting time schedule that had been set
after the February 2015 evidentiary hearing, the court could not allow
Father, without Mother’s approval or the court’s permission, to take the
child to Mexico and deprive Mother of her parenting time as crafted in the
March 2015 ruling.

¶9 We disagree, however, that there was a real emergency
warranting the issuance of the May 27 order changing the primary

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Decision of the Court

residential parent without setting an evidentiary hearing to allow the court
to determine whether any change is in the child’s best interests. See Hays v.
Gama, 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695, 698 (2003) (noting that the child’s
best interest is paramount in custody and parenting time decisions under
A.R.S. § 25-403(A)); Christopher K. v. Markaa S., 233 Ariz. 297, 301-02, ¶ 21,
311 P.3d 1110, 1114-15 (App. 2013) (noting that the court cannot delegate
the best interests determination to an expert). Consequently, we grant relief
in part by vacating the portion of the May 27, 2015 order “reinstating
Mother as the primary residential parent,” and remand the issue for an
evidentiary hearing.

¶10 Father also requests that we award him his attorneys’ fees
pursuant to Arizona Revised Statutes section 25-324 because of his limited
financial resources as compared to Mother’s. Mother also requests fees and
costs based on Father’s conduct in securing the May 19 order. Because we
do not have any financial information about the parties, we deny both
requests.

CONCLUSION

¶11 We accept and exercise special action jurisdiction over the
family court’s order of May 27, 2015. We grant relief in part by vacating the
ruling reinstating Mother as the primary residential parent and remand the
issue for an evidentiary hearing. We otherwise deny relief as to the
remainder of that ruling.

:ama

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