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Smith v. Smith - 12/7/2006

Arizona Court of Appeals Division Two Holds That a Remand for Redetermination of Ownership Interests in Property in a Divorce Proceeding Revives a Litigant’s Right to Notice a Peremptory Change of Judge.


In a divorce proceeding, Petitioner had previously appealed the Commissioner’s decree disposing of the parties’ ownership interests in several parcels of real property. The Court of Appeals vacated the portion of the decree relating to the marital residence and remanded because the Commissioner had applied an improper legal presumption. On remand, Petitioner filed a notice of change of judge, claiming that her right to a peremptory change of judge under Ariz. R. Civ. P. 42(f)(1)(E) had been revived by the remand. The Commissioner denied the request for change of judge and Petitioner brought a special action to the court of appeals.

Pursuant to Rule 42(f)(1)(E) a party’s right to a peremptory change of judge revives upon a remand to the trial court for “a new trial on one or more issues.” The Court of Appeals accepted jurisdiction and held that its prior remand for redetermination in this matter constituted a “new trial” on one or more issues because the Commissioner would be required to apply the proper legal presumption and to provide the respondent with an opportunity to present evidence rebutting that presumption. In so holding, the Court distinguished cases where an appellate court remands for “further proceedings,” as opposed to a remand for “de novo redetermination.” A remand for “further proceedings” does not qualify as a “new trial” and therefore will not revive a party’s right to notice a change of judge under the rules.

Judge Espinosa authored the unanimous opinion joined by Presiding Judge Eckerstrom and Judge Vasquez.

Posted On: 12/19/2006