                                                                  FILED BY CLERK
                             IN THE COURT OF APPEALS                DEC -7 2006
                                 STATE OF ARIZONA                    COURT OF APPEALS
                                   DIVISION TWO                        DIVISION TWO


RHONDA DENISE SMITH,                          )
                                              )
                                Petitioner,   )
                                              )
                      v.                      )
                                              )       2 CA-SA 2006-0075
THE HON. DOUGLAS P. MITCHELL,                 )       DEPARTMENT B
Commissioner of the Superior Court of         )
the State of Arizona, in and for the          )       OPINION
County of Pima; and THE HON. JOHN S.          )
LEONARDO, Presiding Judge of the              )
Superior Court of the State of Arizona, in    )
and for the County of Pima,                   )
                                              )
                             Respondents,     )
                                              )
                     and                      )
                                              )
HOWARD EDWARD SMITH,                          )
                                              )
        Respondent/Real Party in Interest.    )
                                              )


                           SPECIAL ACTION PROCEEDING

                           Pima County Cause No. D 2004-0862

             JURISDICTION ACCEPTED; RELIEF GRANTED IN PART
Schwanbeck & Present, P.L.L.C.
 by Victor R. Schwanbeck                                                              Tucson
                                                                      Attorneys for Petitioner

Everlove & Cossitt
 By Erika L. Cossitt                                                                  Tucson
                                                              Attorneys for Respondent/Real
                                                                             Party in Interest




E S P I N O S A, Judge.


¶1            In this special action, petitioner Rhonda Smith challenges both the respondent

judge’s and respondent commissioner’s denials of her requests for a change of judge, arguing

that each applied an incorrect legal standard in ruling on her requests. We accept jurisdiction

of the special action and grant relief.

                                          Jurisdiction

¶2            It is appropriate that we accept jurisdiction of this special action because the

denial of a peremptory request for a change of judge is properly reviewed only by special

action. Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23 (1996). It is also

appropriate because the issue here is solely a question of law. ChartOne, Inc. v. Bernini, 207

Ariz. 162, ¶ 8, 83 P.3d 1103, 1106-07 (App. 2004). And, because we conclude the

respondent commissioner abused his discretion by committing an error of law in entering a

discretionary ruling, we grant relief. See Ariz. R. P. Spec. Actions 3, 17B A.R.S.; Twin City

Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 284-85 (2003).


                                               2
                          Factual and Procedural Background

¶3            Rhonda filed a petition for dissolution of her marriage to real party in interest

Howard Smith. After a trial, the respondent commissioner, who had been assigned to the

case, signed a decree disposing of, inter alia, the parties’ ownership interests in several

parcels of real property. Rhonda appealed that decree and this court vacated the portion

relating to the marital residence of the parties because the commissioner had applied the

wrong legal presumption to determine the parties’ respective interests. Smith v. Smith, 2 CA-

CV 2005-0054 (memorandum decision filed Nov. 30, 2005). We remanded the case for

redetermination of the ownership interests in the property, which required application of the

correct presumption, a determination of whether Howard had rebutted the presumption, and

a redetermination of payments necessary to provide an equitable distribution of the marital

assets.

¶4            On remand, Rhonda filed a notice of change of judge pursuant to Rule

42(f)(1)(E), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, claiming her right to a peremptory change of

judge had revived when the case was remanded.1 The respondent commissioner denied the

request, stating the case had not been remanded for a new trial. Rhonda then sought to




          1
       Rule 42(f)(1)(A) provides each side with a change of one judge and of one
commissioner as a matter of right. The rule further provides that a party “shall file a ‘Notice
of Change of Judge’” to exercise their rights. Ariz. R. Civ. P. 42(f)(1)(A). Accordingly,
although Rhonda sought a change of the commissioner assigned to her case, we use the term
“change of judge” for simplicity.

                                              3
remove the respondent commissioner through a change of judge for cause under Rule

42(f)(2), which the respondent judge denied.

                                         Discussion

¶5             Rule 42(f), Ariz. R. Civ. P., governs changes of judge in civil cases. Each side

is entitled to one change of judge and one change of commissioner as a matter of right,

provided the change is timely requested. Ariz. R. Civ. P. 42(f)(1)(A). This right may be

waived either by agreement or by failing to exercise it before the challenged judge has heard

any contested matter in the case. Ariz. R. Civ. P. 42(f)(1)(C), (D). We review the denial of

a change of judge as of right for an abuse of discretion, but review the court’s interpretation

of Rule 42(f)(1)(E) de novo. Anderson v. Contes, 212 Ariz. 122, ¶ 5, 128 P.3d 239, 241

(App. 2006).

¶6             Rule 42(f)(1)(E) provides that a party’s right to a change of judge is renewed

after a case has been remanded to the trial court for “a new trial on one or more issues.” But,

if this right to a change of judge was previously exercised, it is not renewed upon remand.

See Brush Wellman, Inc. v. Lee, 196 Ariz. 344, ¶ 14, 996 P.2d 1248, 1252-53 (App. 2000).

Rhonda had not previously exercised her right to a change of judge in this case. In

Valenzuela v. Brown, 186 Ariz. 105, 107, 919 P.2d 1376, 1378 (App. 1996), this court

determined that a party was entitled to a peremptory change of judge following the reversal

of a grant of partial summary judgment, because “the reason for the rule [is] avoiding the

possibility of judicial bias after reversal and remand.” Id. at 108, 919 P.2d at 1379. The



                                               4
Valenzuela court explained that “[w]here, as here, the judge has made a decision on the

merits of the case, he has shown unequivocally what he believes the proper outcome of the

case to be . . . . The judgment now having been reversed, the policy reasons for permitting

a change of judge as a matter of right on remand are all the more apparent.” Id. at 109, 919

P.2d at 1380.

¶7              This rationale first appeared in King v. Superior Court, 108 Ariz. 492, 502 P.2d

529 (1972), where our supreme court explained the importance of the right to a change of

judge after remand.

                In the case of an appeal, reversal and a remand for a new trial,
                it is always possible that the trial judge may subconsciously
                resent the lawyer or defendant who got the judgment reversed.
                The mere possibility of such a thought in the back of a trial
                judge’s mind means that a new judge should be found.

Id. at 493, 502 P.2d at 530.

¶8              In Evans v. Evans, 117 Ariz. 561, 561, 574 P.2d 49, 49 (App. 1977), this court

had remanded a case to the trial court, finding it “error to modify custody without affording

both parents an opportunity to present evidence of all the circumstances which might affect

the court’s determination of the primary question.” Although the case was specifically

remanded for further proceedings in the custody matter, we held that “petitioner’s timely

request for a change of judge should have been honored.” Id. at 562, 574 P.2d at 50. The

Evans decision did suggest the result might have been different if the judge assigned to the

case after remand had heard the earlier case, as in Hofstra v. Mahoney, 108 Ariz. 498, 502



                                                5
P.2d 1317 (1972). However, Hofstra addressed newly initiated post-decree proceedings to

enforce or modify an existing final decree, not a remand following the appeal of the initial

decree. Id. at 498, 502 P.2d at 1317; see Ross v. Superior Court, 109 Ariz. 414, 414, 510

P.2d 386, 386 (1973).

¶9            In contrast, Anderson was a special action following the appeal of post-decree

proceedings that had apparently been resolved without an independent hearing. In the

appeal, Division One of this court had remanded the case “‘for further proceedings’ on

Father’s claims that the trial court failed to award him interest on the BMW debt and that the

award of attorneys’ fees was improper.” Anderson, 212 Ariz. 122, ¶ 3, 128 P.3d at 240. On

remand, Father requested a change of judge, which the trial court denied by “limiting the

remanded issues to oral argument based ‘on the evidence presented at the time of trial in

2003.’” Id. ¶ 4. Division One determined that because the “further proceedings” it had

referred to in the appeal were “a continuation of the proceedings already held rather than a

de novo redetermination of the remanded issues,” it was not a new trial as contemplated by

Rule 42(f)(1)(E). Id. ¶ 9.

¶10           The issues on remand in Anderson were limited—why the trial court had

assessed interest on unpaid debts against one spouse but not the other and for clarification

of which of the father’s positions the trial court had considered unreasonable to justify

awarding the mother attorney fees. Id. ¶ 13. Thus, the case had been remanded based on

“the insufficiency of the trial court’s explanations, and not the insufficiency of the evidence.”



                                               6
Id. ¶ 14. No part of the decree had been vacated and the trial court was not required to make

any new determinations of who was to receive certain property. In essence, Division One

asked the trial court to explain why it had entered particular orders, not to enter new and

potentially different ones.

¶11           The language of Rule 42(f)(1)(E)—a “new trial on one or more

issues”— appears to be conclusive of the issue here. The court in Anderson emphasized the

difference between an issue requiring a “de novo redetermination” and one requiring only

“further proceedings.” 212 Ariz. 122, ¶ 9, 128 P.3d at 242. Here, in contrast, we vacated the

underlying judgment awarding the real property and remanded the case for a new

determination of fact and law.2     Because the judgment on that issue was vacated, it

“restor[ed] the parties to the same position as if the [issue] had never been tried.” Tucson

Gas & Elec. Co. v. Superior Court, 9 Ariz. App. 210, 213, 450 P.2d 722, 725 (1969), quoting

Markel v. Transamerica Title Ins. Co., 103 Ariz. 353, 362, 442 P.2d 97, 106 (1968),

overruled on other grounds, Burch & Cracchiolo, P.A. v. Pugliani, 144 Ariz. 281, 283, 697

P.2d 674, 676 (1985).


       2
        We note the determination of whether a proceeding is a “trial” is not necessarily
whether new evidence must be received. “A trial is ‘the judicial examination of the issues
between the parties, whether they be issues of law or fact.’” Valenzuela v. Brown, 186 Ariz.
105, 108, 919 P.2d 1376, 1379 (App. 1996). On the record before us, however, it is likely
that new evidence would be required to comply with this court’s directive to determine
whether Howard can rebut a presumption that was not applied during the trial and to
determine a corollary question left “open” in our prior decision. We do not suggest that a
remand directing a trial court to merely reverse a legal conclusion and reconsider previously
established facts would be a “new trial” for purposes of Rule 42(f)(1)(E).

                                             7
¶12            On remand, the commissioner will have to determine anew the ownership of

the property and the amount, if any, of compensation required to effect an equitable

distribution of the assets. Thus, this would appear to be “a de novo redetermination of the

remanded issue” which revives Rhonda’s previously unexercised right to a peremptory

change of judge. See Muchesko v. Muchesko, 191 Ariz. 265, 274, 955 P.2d 21, 30 (App.

1997) (vacating portions of a divorce decree and remanding to trial court with instructions:

“[a]mong other issues to be retried, the trial court shall reconsider the award of the Schwab

account and attribution of income to Husband based on that account”) (emphasis added).

¶13            Howard’s response, although focused on the change of judge for cause issue,

relies heavily on criminal cases interpreting Rule 10.2, Ariz. R. Crim. P., 16A A.R.S. That

rule, however, has no language corresponding to Rule 42(f)(1) (E) or specifically applying

to post-remand proceedings applicable to a trial of “one or more issues.” Ariz. R. Civ. P.

42(f)(1)(E). We note, too, that although Howard asserts the respondent commissioner’s

decree “specifically addresses [the correct] legal ‘presumption’ three (3) different times in

paragraph six,” and concludes this established “that the presumptions and evidence regarding

the ownership of the Sierra Nevada property is not a ‘new issue,’” a review of the decree

shows the correct presumption was mentioned only to show it was not being applied. There

was no indication that the presumption had been considered by the commissioner or was even

an issue at the trial.




                                             8
¶14           Howard additionally asserts that “[p]ublic policy concerns for judicial economy

and tradition” support the same judge “rehear[ing] a case that has been remanded, reversed

or ended in a mistrial.” He relies on King, 108 Ariz. 492, 502 P.2d 529, claiming that case

sets identical standards for a case that is mistried and a case that is remanded after appeal.

In fact, King, as quoted above in ¶ 7, emphasized that remands are different from mistrials

and should be treated differently. Id. at 493, 502 P.2d at 530. Moreover, this court directly

addressed the issue in Valenzuela, stating “judicial economy is not a basis for denying a party

the right to an automatic change of judge.” 186 Ariz. at 109, 919 P.2d at 1380. The

language of Rule 42(f)(1)(E) itself, with its provision for a new judge after a case has been

reversed and remanded, undercuts this claim.

¶15           Rhonda also challenges the respondent judge’s denial of her request for a

change of judge for cause, but we see no error in that ruling. Although the respondent

commissioner erred by not granting the initial request for a peremptory change of judge, the

respondent judge’s ruling was correct because a ruling in a case, without more, cannot be the

basis of a request for a change of that judge for cause. See Smith v. Smith, 115 Ariz. 299,

303, 564 P.2d 1266, 1270 (App. 1977) (“It is generally conceded that the bias and prejudice

necessary to disqualify a judge must arise from an extra-judicial source and not from what

the judge has done in his participation in the case.”).




                                              9
                                          Disposition

¶16           Accordingly, we accept jurisdiction, grant relief on the denial of the

peremptory change of judge, and remand this matter to the trial court for proceedings

consistent with this decision. In our discretion, Rhonda’s request for attorney fees pursuant

to A.R.S. § 25-324, consistent with our previous determination under that statute of the

relative financial positions of the parties, is denied.




                                                PHILIP G. ESPINOSA, Judge

CONCURRING:




PETER J. ECKERSTROM, Presiding Judge




GARYE L. VÁSQUEZ, Judge




                                               10
