Prefatory Comment to the 2019 Amendments
Arizona Revised Statutes AnnotatedRules of Family Law Procedure
17B A.R.S. Rules Fam.Law Proc., Comment
Prefatory Comment to the 2019 Amendments
The 2019 amendments make extensive changes to the Arizona Rules of Family Law Procedure (“FLR”).
These amendments restyle the FLR in a manner similar to the 2017 restyling of the Arizona Rules of Civil Procedure and the 2018 restyling of the Arizona Rules of Criminal Procedure. The 2019 version of the FLR adds informative titles and subheadings, which should make rules and sections easier to locate. To enhance clarity and reflect current usage, some provisions have been abrogated, relocated, consolidated, bifurcated, or presented in a different sequence. The restyled rules attempt to use clearer language, uniform formatting, and consistent terminology.
The amended rules also include some substantive changes, including but not limited to the following.
In Part I. General Administration: Rule 2 (“applicability of the Arizona Rules of Evidence”) incorporates by reference the Evidence Rule 403 standard. It also eliminates former Rule 2(B)(3)(b), which provides for automatic admissibility of court-required reports and forms, but it relaxes the foundation requirements for such documents; and moves the provision on the applicability of the Arizona Rules of Civil Procedure to Rule 1. Rule 5.1 (“simultaneous dependency and legal decision-making/parenting time proceedings”) provides that if pending family law and dependency proceedings concern the same parties, the juvenile division has jurisdiction over the children. The provisions for requesting a change of judge no longer incorporate a civil rule by reference but are instead set out in two new self-contained rules, Rule 6 (“change of judge as a matter of right”) and Rule 6.1 (“change of judge for cause”).
An amendment to Rule 9 adds a new section (c) with requirements for a “good faith consultation certificate.” Rule 10 has been broken down into Rule 10 (“representation of children,” including provisions for best interests attorneys and child's attorneys), and Rule 10.1 (“court-appointed advisor”). An amendment to Rule 12 (“court interviews of children”) requires the recording of judicial interviews of children. A new Rule 17 concerns sealing, redacting, and unsealing court records. Rule 20 (“form of documents”) applies to electronic as well as handwritten filings.
In Part II. Pleadings and Motions: Rules 23 through 35 in Part II (“pleadings and motions”) are reorganized in a more sensible sequence. There are several new rules, including Rule 23(b), which distinguishes petitions requiring a summons from those requiring an order to appear; Rule 24.1, which consolidates in one location the required times for filing and serving a response to a petition; Rule 34, which addresses continuances and scheduling conflicts; and Rule 35.1 concerning motions for reconsideration.
In Part IV. Service: A new Rule 39 (“meaning of service”) differentiates service of a summons and petition from serving documents during a case. Rule 40 permits acceptance of service but abrogates provisions concerning waiver of service. Rule 41 consolidates provisions for service of process within and outside Arizona. Rule 41(m) requires court approval before service by publication. The comment to Rule 41 has been changed to state that the rule now follows the holding in Master Financial, Inc. v. Woodburn, 208 Ariz. 70 (App. 2004). However, service by publication is subject to subsequent challenge if it does not satisfy due process standards of being reasonably calculated to give notice to the party being served and providing the best practicable notice under the circumstances. Former Rule 42 is reserved. New Rule 43.1(g) permits the clerk to treat as confidential any Affidavit of Financial Information or health record.
In Part V. Default Decree and Consent Decree, Judgment, or Order; Dismissal: Rule 44 now governs only the application for default. New Rule 44.1 governs a default decree by motion and without a hearing, and new Rule 44.2 governs a default decree or judgment by hearing. Under these rules, the court may, without a hearing, enter a default decree on all issues in the case, but a petitioner must use a new Form 6 to provide an evidentiary basis for entering a default decree for spousal maintenance. (Former Form 6, a Joint Alternative Dispute Resolution Statement to the Court, has been abrogated.) The rules require a default hearing if the respondent was served by publication.
In Part VI. Temporary Orders: Rule 47 provides for the scheduling of a resolution management conference when a party files a motion for temporary orders.
In Part VII. Disclosure and Discovery: Rule 50 now requires the filing of a motion to obtain a complex case designation. Former Rule 58 concerning depositions by written questions has been abrogated. Rule 65 (“failure to make disclosures or to cooperate in discovery; sanctions”) has been streamlined.
In Part VIII. Settlement and Alternative Dispute Resolution (“ADR”): Rule 66 is now titled “duties to consider and attempt settlement by alternative dispute resolution (‘ADR’).” This is followed by Rule 67 (“types of alternative dispute resolution”) and Rules 67.1 through 67.4 (“collaborative law proceedings,” “uniform family law arbitration rule,” “private mediation,” and “settlement conferences”). Rule 69 now requires that any agreement be in writing and be signed by the parties personally or by counsel on a party's behalf. A family law conference officer under Rule 73 is strictly a facilitator, and no longer has the authority to make recommendations.
In Part IX. Pretrial and Trial Procedures: Revised Rule 76 concerns the resolution management conference. A new separate Rule 76.1 governs scheduling conferences, scheduling conference statements, and pretrial statements.
In Part X. Judgments and Decrees: Rule 78 (“judgment; attorney's fees, costs, and expenses”) includes provisions formerly contained in Rule 81, which is now reserved. To be appealable, a judgment must include language under Rules 78(b) or 78(c). Rule 78(e) addresses concerns raised in Bollerman v. Nowlis, 234 Ariz. 340 (2014), by providing that if a party asserts a claim for attorney fees, costs, and expenses, and a judgment is entered that omits a ruling on the claim, the claim is deemed denied unless the party files a Rule 83 motion within 15 days after the entry of judgment. The time for filing a Rule 82(b) or Rule 83 motion is extended to 25 days. (There are conforming changes to ARCAP 9.) Rule 83, now titled “altering or amending a judgment; supplemental hearings,” no longer contains a reference to “new trial” because in a family case, the granting of a motion under this rule does not result in a new trial. A party's response to a Rule 83 motion must address any issue that might arise if the court grants the motion. Rule 84 concerns a motion for clarification. The rule expressly provides that it does not extend the time for filing a notice of appeal, that it may not be combined with a Rule 83 motion, and that under Rule 84, the court may not open the judgment or accept additional evidence as it can under Rule 83. Rule 85 is similar to Civil Rule 60 because it now requires the court to correct a clerical mistake or a mistake arising from oversight or omission.
In Part XI. Post-Decree/Post Judgment Proceedings: Rule 91 (“modification or enforcement of a judgment”) is a general rule. New Rules 91.1 through 91.6 contain provisions applicable to specific types of modification or enforcement actions.
In Part XII. Civil Contempt and Arrest Warrants: Rule 92 eliminates willfulness as an element of contempt, but states that the absence of willfulness is a defense to contempt. Rule 94 requires that an arrested person be brought before a magistrate within 24 hours, rather than “24 judicial business hours.”
The wording of an amended rule may be very different, or only slightly different, from the rule that it replaces. The intent of these differences is to make the FLR more functional and easier to understand and use. Existing case law continues to be authoritative unless it would be inappropriate because of a new requirement or provision in these amended rules.
The amended rules attempt to incorporate substantive requirements previously contained within comments to the former Family Law Rules. Because of that, these amendments delete most of those comments, along with comments that have outlived their usefulness. Parties may continue to refer to comments to pre-2019 versions of the rules to the extent those comments still apply to these amended rules.
Added Aug. 30, 2018, effective Jan. 1, 2019.
17B A. R. S. Rules Fam. Law Proc., Comment, AZ ST RFLP Comment
Current with amendments received through 02/1/19
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