Nicaise v. Hon Bernick

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROBERT JOHN NICAISE JR., Petitioner,

v.

THE HONORABLE HARRIET BERNICK, Commissioner of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
of MARICOPA, Respondent Commissioner,

APARNA SUNDARAM; ARIZONA DEPARTMENT OF ECONOMIC
SECURITY, Real Parties in Interest.

No. 1 CA-SA 23-0186
FILED 01-02-2024

Appeal from the Superior Court in Maricopa County
No. FC2014-095056
The Honorable Harriet Bernick, Judge Pro Tempore

VACATED

COUNSEL

Robert J. Nicaise, Jr., Tempe
Petitioner

Taylor Young Appeals PLLC, Phoenix
By Taylor Young
Counsel for Real Party in Interest Sundaram

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Real Party in Interest Department of Economic Security
 NICAISE v. HON BERNICK et al.
Opinion of the Court

OPINION

Presiding Judge Jennifer M. Perkins delivered the opinion of the Court, in
which Chief Judge David B. Gass and Judge D. Steven Williams joined.

P E R K I N S, Judge:

¶1 We confront here the extent of the superior court’s ongoing
jurisdiction while an appeal is pending from a judgment on issues
impacting the best interests of children. Consistent with our legislature’s
statutory direction, we hold that the superior court retains jurisdiction to
consider requests seeking prospective child support, parenting time, or
legal decision-making modifications filed while an appeal from a
previously entered judgment is pending.

FACTS AND PROCEDURAL HISTORY

¶2 Robert J. Nicaise, Jr., and Aparna Sundaram have been
battling over legal decision-making, parenting time, and child support
since 2014. See, e.g., In re Nicaise v. Sundaram, 1 CA-CV 21-0319 FC, 2023 WL
4198070 (Ariz. Ct. App. June 27, 2023) (mem. decision); Nicaise v. Sundaram, 244 Ariz. 272 (App. 2018), opinion vacated in part, 245 Ariz. 566 (2019). As
relevant here, Sundaram appealed the superior court’s 2021 legal decision-
making order (“2021 Order”). Nicaise, 1 CA-CV 21-0319 FC. That appellate
process was extended by a stay to allow counsel to resolve an ethical
question. Two years after the superior court issued the 2021 Order, Nicaise
prevailed in his appeal. Id. Sundaram has since filed a petition for review,
which remains pending before the Arizona Supreme Court.

¶3 While the appeal of the 2021 Order was pending, Nicaise filed
a petition to modify child support in superior court in September 2022
(“2022 Petition”). In a January 2023 minute entry, the assigned superior
court commissioner questioned her jurisdiction because of “a stay imposed
in the Court of Appeals matter.” Her premise was incorrect; the stay had
been lifted on July 6, 2022. But she asked the parties to brief the jurisdiction
issue. Sundaram argued that filing the Notice of Appeal from the 2021
Order ended the superior court’s jurisdiction, preventing it from
considering the 2022 Petition. The commissioner agreed and dismissed the
petition without prejudice in January 2022 (“Dismissal Order”).

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Opinion of the Court

¶4 Nicaise moved for reconsideration of the Dismissal Order in
February 2023. Four days later, while that motion remained pending, he
filed a Notice of Appeal from the Dismissal Order. This court dismissed the
appeal because the superior court’s dismissal was without prejudice. And
after requesting additional briefing, the superior court denied the motion
to reconsider concluding that because Nicaise had filed a Notice of Appeal
from the Dismissal Order, it lacked jurisdiction to address the
reconsideration motion related to that order.

¶5 In August 2023, Nicaise asked this court to either clarify that
the superior court has jurisdiction to address his 2022 Petition or revest
jurisdiction on a limited basis allowing the court to address that petition.
We ordered the clerk of this court to re-file the clarification motion as a
special action petition challenging the Dismissal Order. The real parties in
interest, Sundaram and the Department of Economic Security (“the
Department”), responded addressing the superior court’s jurisdiction to
consider the 2022 Petition, to which Nicaise replied.

JURISDICTION

¶6 “Accepting special action jurisdiction is discretionary and
appropriate when a party lacks an equally plain, speedy, and adequate
remedy by appeal.” Jennings v. Agne, 254 Ariz. 174, 176, ¶ 4 (App. 2022)
(cleaned up); Ariz. R.P. Spec. Act. 1(a). Nicaise raises a pure legal question
that is not otherwise subject to appellate jurisdiction and is of statewide
importance. It is therefore particularly appropriate for special action
review. See Deal v. Deal, 252 Ariz. 387, 389–90, ¶¶ 9–10 (App. 2021).

¶7 The Department and Sundaram contend we should not accept
special action jurisdiction because Nicaise “will have an opportunity to
refile his claim when the superior court is revested with jurisdiction.” But
neither acknowledges that, should Nicaise prevail on his modification
request, the child support relief he seeks will be calculated based on the
petition filing date. See A.R.S. § 25-327(A). Because of the prospective nature
of changes to legal decision-making and parenting time orders, the effective
date for those changes is necessarily tied to the date of the modification
request. See A.R.S. § 25-411(A). In other words, Nicaise faces potentially
years of lost child support to which the superior court could determine he
is entitled. Nicaise therefore has no other plain, speedy, and adequate
remedy by appeal. Ariz. R.P. Spec. Act. 1(a).

¶8 The superior court’s ongoing jurisdiction over modification
requests in a family court matter during the appeal of a judgment is a legal

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Opinion of the Court

issue of statewide importance. We accept special action jurisdiction to
address it.

DISCUSSION

¶9 The Department and Sundaram agree with the superior
court’s conclusion that it lacked jurisdiction over the 2022 Petition because
Sundaram’s appeal of the 2021 Order was (and is) pending. Both rely on the
principle “that an appeal generally divests the trial court of jurisdiction to
proceed except in furtherance of the appeal.” Bank of New York Mellon v.
Dodev, 246 Ariz. 1, 7, ¶ 18 (App. 2018). But neither acknowledges the
unique, ongoing nature of family court proceedings, and our legislature’s
clear direction regarding the availability of modifications in the superior
court.

¶10 We begin, as we must, with the statutory language. See S. Ariz.
Home Builders Ass’n v. Town of Marana, 254 Ariz. 281, 284, ¶ 16 (2023) (“Our
task in statutory construction is to effectuate the text if it is clear and
unambiguous.”) (cleaned up).

¶11 Our legislature explicitly authorizes petitions seeking
modification of maintenance or support on a showing of “changed
circumstances that are substantial and continuing.” A.R.S. § 25-327(A). And
the legislature authorizes motions to modify legal decision-making or
parenting time “one year after the previous order or within a year if the
child’s life or health is at risk.” A.R.S. § 25-411(A). A motion to modify legal
decision-making or parenting time “must be based on new evidence arising
after the entry of the parenting order and be in the child’s best interests.”
Gish v. Greyson, 253 Ariz. 437, 443, ¶ 23 (App. 2022). Though Section 25-
327(A) refers to a “petition” to modify and Section 25-411(A) refers to a
“motion” to modify, that difference is not relevant to our conclusion, so we
collectively refer to them as requests to modify.

¶12 Critically, neither statute precludes modification requests
during an appeal, nor divests the superior court of jurisdiction to consider
such requests. Rather, under both provisions as noted above, the superior
court must regularly consider modifications to parenting and support
orders because of new circumstances and evidence. The Department and
Sundaram’s position would require the superior court to ignore such
changes and new evidence for as long as an appeal is pending.

¶13 Delaying a parent’s statutory right to modify an existing
order potentially leaves a child in a problematic parenting arrangement, or
a parent without appropriate support, simply because one party availed

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itself of the appellate process. See Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003)
(best interest of the child is the paramount concern in family court cases). It
is thus prejudicial—and requires adding to the statutory text—to mandate
that a parent delay filing a modification request until the end of the
appellate process. See Ballesteros v. Am. Standard Ins. Co. of Wisc., 226 Ariz.
345, 349, ¶ 17 (2011) (“[I]t is not our place to rewrite the statute.”). When, as
here, the appellate process is unusually lengthy, the prejudice is even more
acute.

¶14 Our supreme court spoke to this issue in part and concluded
that the superior court retains jurisdiction over requests to modify even
when the case is pending appeal, at least when the subject matter of the
request is not an issue on appeal. O’Hair v. O’Hair, 109 Ariz. 236, 241–42
(1973). O’Hair premised the superior court’s continuing jurisdiction over
modification requests under the 1956 version of Section 25-321, which
permitted the court to “change and alter” spousal support and any
provision respecting the “care, custody and maintenance of the children.”
See id. Current Sections 25-327 and 25-411 now encapsulate the statute at
issue in O’Hair, which therefore remains applicable.

¶15 Here, the child support order was not explicitly an issue on
appeal, which concerned the superior court’s legal decision-making and
parenting time orders. Nicaise, 1 CA-CV 21-0319 FC, at *1, ¶ 1. The
Department somewhat inexplicably contends otherwise. But even if the
Department was correct, given our legislature’s direction, the superior
court’s jurisdiction over modification requests is not contingent on whether
a request strays into matters subject to an ongoing appeal. See Gish, 253 Ariz.
at 443, ¶ 23 (the superior court retains jurisdiction over modification
motions under Section 25-411(A) even when an appeal is pending).

¶16 In summary, a superior court retains jurisdiction while an
appeal is pending to consider requests to modify maintenance or support
under Section 25-327 and to consider requests to modify legal decision-
making or parenting time under Section 25-411 as long as the requests to
modify satisfy the statutory requirements to pursue a modification. The
superior court may rule on these requests even when the subject of the
request is the issue on appeal. Our holding does not suggest any opinion
on the merits of the requests, which the superior court must consider on
remand.

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Opinion of the Court

CONCLUSION

¶17 The superior court retains jurisdiction to consider Nicaise’s
2022 Petition. We thus accept special action jurisdiction and grant relief by
vacating the superior court’s Dismissal Order and reinstating the 2022
Petition.

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

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