Lemay v. Lemay
1 CA-CV 20-0425-FC
Ariz. Ct. App.Sep 21, 2021Background
- Andrew and Ruxandra LeMay married in 2003 and have three children; in 2016 they signed a post-marital agreement that limited divorce and custody rights (later amended).
- In June 2019 Father left the couple’s eight-year-old (who has ADHD) on the side of the road after a tantrum; Father pled guilty in municipal court to disorderly conduct and completed conditions, and the charge was later dismissed without prejudice after a release.
- Mother filed for dissolution in November 2019; the parties tried in June 2020 and the court entered a decree finding Father had not engaged in domestic violence, awarding equal parenting time, joint legal decision-making (Mother with final say), monthly child support to Father, and two years of mortgage payments and spousal maintenance from Mother.
- After entry of the decree Father, proceeding pro se at first, moved to vacate claiming Judge Lori Bustamante had a conflict because she is married to Manny Bustamante of the firm that represented the City prosecutor in Father’s municipal matter; Father did not notify the court of any conflict before trial, did not move for change of judge, and produced no trial transcript.
- Post-decree motions raising bias, due process, newly discovered evidence, and application of the “fruit of the poisonous tree” doctrine were denied; the superior court’s rulings were incorporated into a February 2021 minute entry.
- On appeal the court affirmed: Father waived or failed to preserve the bias claim, submitted no evidence of actual prejudice, his due-process claim failed, the exclusionary doctrine did not apply to the family case, and his fee request was denied.
Issues
| Issue | Plaintiff's Argument (LeMay) | Defendant's Argument (Mother / Court) | Held |
|---|---|---|---|
| Judicial bias / recusal because judge’s spouse was partner in firm that represented Avondale prosecutor | Judge Bustamante should have sua sponte recused for conflict; failure renders decree void and warrants sanctions | Father never informed court before trial, never moved for change of judge, produced no evidence of actual conflict or prejudice; presumption of impartiality | Affirmed — no waiver, but no showing judge knew of conflict, no prejudice, presumption of impartiality upheld |
| Due process denial at trial | Father’s rights to fair process were violated by the allegedly conflicted judge | Father received notice, appeared with counsel, testified, had exhibits admitted and entered a binding agreement; no deprivation shown | Affirmed — due process not violated; no transcript to support reweighing evidence |
| Application of “fruit of the poisonous tree” doctrine | Criminal-case taint requires suppression/voiding of divorce proceedings | Exclusionary rule is a Fourth Amendment criminal remedy and inapplicable to family-court proceedings | Affirmed — doctrine does not apply to dissolution proceedings |
| Attorneys’ fees and costs on appeal | Father requested fees and costs | Father is pro se and not the prevailing party | Denied |
Key Cases Cited
- Yee v. Yee, 251 Ariz. 71 (App. 2021) (jurisdictional/appeal context)
- Baker v. Baker, 183 Ariz. 70 (App. 1995) (missing transcript presumed to support trial court’s findings)
- Kohler v. Kohler, 211 Ariz. 106 (App. 2005) (appellate presumption in absence of transcript)
- Romero v. Sw. Ambulance & Rural/Metro Corp., 211 Ariz. 200 (App. 2005) (cannot reweigh evidence on appeal without transcript)
- Wong Sun v. United States, 371 U.S. 471 (1963) (origination of “fruit of the poisonous tree” exclusionary doctrine)
- Jones v. Burk, 164 Ariz. 595 (App. 1990) (issues not clearly raised on appeal are waived)