Read Fischer v. Hon. Douglas Gerlach text version

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

DIVISION ONE FILED: 03/08/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH

ANGELA FISCHER,

) ) Petitioner, ) ) v. ) ) THE HONORABLE DOUGLAS GERLACH, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) JACQUELINE FISCHER; ANNE WITHEY, ) ) Real Parties in Interest. ) __________________________________)

No. 1 CA-SA 11-0049 DEPARTMENT C Maricopa County Superior Court No. FC2010-050681

DECISION ORDER

The Margaret

court, H.

Presiding and

Judge J.

Daniel Brown,

A. has

Barker,

Judges the

Downie

Michael

considered

special action petition filed by Angela Fischer. has been received. For the following reasons,

No response we accept

jurisdiction and grant relief. We assume, in an without in loco deciding, parentis that temporary orders are (as

available

visitation

proceeding

opposed to a custody proceeding).

The family court signed a

temporary order without notice on October 28, 2010 on motion of real party in interest Jacqueline Fischer. That order suspended

petitioner's parenting time with the minor child at issue in

these proceedings.

Despite requests by petitioner, no hearing

has been held regarding the temporary order without notice. Rule 48(B), Rules of Family Law Procedure, states: A temporary order granted without notice shall define the injury, loss, or damage and state why it is irreparable, and shall state why the order was granted without notice. Such order shall expire by its terms at the date and time set for hearing on the motion for temporary orders without notice unless extended by the court for good cause shown. A hearing shall be set on the motion for temporary orders without notice within ten (10) days from the entry of the order, unless extended by the court for good cause shown. The order and notice of hearing shall be served upon the other party as soon as possible after issuance of the order or as otherwise ordered by the court. Nothing herein shall prevent the party against whom a temporary order without notice has been issued from requesting an earlier hearing upon reasonable notice as directed by the court. The injury, temporary loss, or or order without state the notice why order did any was not "define would the be

damage," "why

injury

irreparable, notice."

recite

granted

without

More fundamentally, no hearing has been held, although

the order without notice was entered over four months ago. Rule 48(B) is modeled on Rule 65(d), Arizona Rules of Civil Procedure. Rule 65(d) states that a temporary restraining order

entered without notice "shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes." Although the wording of Rule 48(B) is somewhat different, the

2

rules

appear

to

share

the

same

intent

and

operative

effect.

We accept jurisdiction and grant relief.

Because no timely

hearing was held, the temporary order without notice filed on October 28, 2010 has expired and is no longer in effect.

/s/ MARGARET H. DOWNIE, Judge CONCURRING:

/s/ DANIEL A. BARKER, Presiding Judge

/s/ MICHAEL J. BROWN, Judge

3

Information

Fischer v. Hon. Douglas Gerlach

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