New Action, New Judge: Fresh Start for Rule 6
A new case on apportionment from Division 1, and a revised interpretation of Rule 6, renewing the right to file a notice of change of judge when a new action is filed
Opinion: A post-decree petition qualifies as a new “action” under Rule 23(a), renewing the right to file a notice of change of judge under Rule 6(b).
Sobrino v. Fisk, 1 CA-SA 24-0160, 2024 WL 4887123 (App. Nov. 26, 2024).
This case clarifies a significant procedural right for family law practitioners: post-decree petitions initiate new actions, giving parties renewed access to a peremptory change of judge. Practitioners should take note when dealing with enforcement or modification matters to ensure they capitalize on this procedural advantage.
Relevant Facts
Wife and Husband divorced in 2021, and Judge Blanchard presided over post-decree matters until Judge Jackson rotated onto the case in 2023.
In June 2024, Husband filed a new post-decree petition to enforce a provision of the decree and force the sale of Wife’s home.
Wife filed a notice of change of judge as a matter of right, but the presiding family court judge denied it, ruling that Husband’s petition was a continuation of the original case. Wife sought special action relief.
Key Issue and Holding
Key Issue: Whether a post-decree petition constitutes a new “action” under Arizona Rule of Family Law Procedure 6, allowing a party to file a notice of change of judge as a matter of right.
Holding: The court held that a post-decree petition qualifies as a new “action” under Rule 23(a), giving Wife the right to file a notice of change of judge under Family Rule 6(b).
Court’s Analysis and Reasoning
The court rejected the trial court’s reliance on Hofstra v. Mahoney (1972), where a petition to modify was considered a continuation of the original action under the then-existing Civil Rules.
The court clarified that the Family Rules, adopted in 2006 and substantively amended in 2019, are distinct from the Civil Rules.
Under Rule 23(a), a petition is the initial pleading that begins either a new family law case or a post-decree matter.
Specifically, Rule 23(a) allows a post-decree petition for enforcement to begin a new “action.”
Rule 6(b) entitles each party to a change of judge as a matter of right in each action. Since Husband’s post-decree petition began a new action, Wife’s notice was valid, and the denial was erroneous.
Practice Tips and Implications
Post-Decree Petitions: Post-decree petitions constitute a new action under Rule 23. This gives parties a fresh opportunity for a peremptory change of judge under Rule 6.
Avoid Reliance on Civil Rule Precedents: Family law practitioners should rely on the Family Rules and not default to outdated Civil Rule interpretations (e.g., Hofstra). The Civil Rules only apply when expressly incorporated into the Family Rules.
Strategic Considerations: When filing a post-decree petition, attorneys should evaluate the potential benefits of requesting a change of judge under Family Rule 6(b).
Opinion: Profits from a separate-property business must be apportioned between community and separate property before determining the character of assets acquired with those funds.
Kim v. Pak, 1 CA-CV 23-0409 FC, 2024 WL 4886976 (App. Nov. 26, 2024).
This case underscores the importance of clear apportionment and highlights the court’s reluctance to accept broad conclusions of “commingling” without detailed analysis. It’s a great reminder that even in complex tracing scenarios, failing to distinguish separate property can lead to reversible error.
Relevant Facts
Husband (Kiup Kim) owned a medical practice (AMIS) and a property-holding LLC (Endovascular) before marriage, making them his separate property.
During the marriage, AMIS generated ~$4 million in profits, which were used to purchase five commercial properties and pay down Endovascular’s mortgage.
Experts disagreed on how much of AMIS’s profits were attributable to Husband’s “toil” (community property) versus the “inherent qualities of the business” (separate property).
The trial court adopted the joint expert’s conclusion that commingling rendered tracing impossible, classifying the five commercial properties as community property.
Key Issues
Apportionment of Profits: The trial court failed to apportion profits from a separate-property business (AMIS) into separate and community property, as required by Cockrill and Rueschenberg.
Commingling of Funds: The court erred in finding transmutation of separate property to community property without first distinguishing traceable separate funds.
Equitable Lien: The calculation of the equitable lien against Husband’s separate property (Endovascular LLC) was improper as it failed to account for the separate property portion of the funds.
Court’s Analysis & Reasoning
Error in Apportionment: The court should have first apportioned AMIS’s $4M profits between community (reasonable compensation for Husband’s work) and separate property (from AMIS’s inherent value). Only after that could it determine the nature of the funds used to acquire the five properties. The court erred by adopting the joint expert’s analysis, which skipped over the apportionment analysis and determined that the funds had been subsequently commingled.
Tracing and Transmutation: Explicit tracing does not require perfect precision; the court may consider circumstantial evidence. A tracing analysis should not be rejected merely because it relies on assumptions. The joint expert’s failure to apportion profits improperly led the court to conclude transmutation occurred.
Equitable Lien on Endovascular: Because community contributions to Endovascular’s mortgage came from AMIS profits, the court must recalculate the lien after apportioning those profits.
Outcome
Affirmed in Part, Vacated and Remanded in Part: The classification and division of the five commercial properties and the equitable lien on Endovascular were vacated. On remand, the court must apportion AMIS’s profits, trace the funds, and then determine the classification of the five commercial properties.