Morgan v. Ali
1 CA-CV 16-0580-FC
| Ariz. Ct. App. | Jul 25, 2017Background
- Carolyn Morgan (grandmother) filed a grandparent-visitation petition under A.R.S. § 25-409(C)(2) for three children of her son (Father) and Mother; parents were unmarried when the petition was filed.
- After filing, Father and Mother married; Father moved orally to dismiss for lack of jurisdiction, which the family court denied and set the petition for trial.
- Morgan later filed a private dependency petition in juvenile court and asked the family court to vacate trial and stay proceedings; the family court dismissed the visitation petition without prejudice and denied reconsideration.
- Morgan appealed, arguing dismissal without prejudice effectively barred refiling because the parents are now married, and that the dismissal violated her due process rights.
- The court considered whether the dismissal without prejudice was an appealable order under A.R.S. § 12-2101(A)(3) and whether the family court’s action precluded future relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal without prejudice is appealable | Morgan: dismissal is effectively final because parents’ subsequent marriage now bars refiling under § 25-409(C)(2) | Parents: dismissal without prejudice is not a final, appealable order | Dismissal without prejudice is not an appealable order; appellate court lacks jurisdiction |
| Whether family court abused discretion by sua sponte dismissing | Morgan: court abused discretion and denied due process by dismissing without resolving merits | Court/Respondents: dismissal appropriate (e.g., to avoid conflict with juvenile proceedings) | Court assumed dismissal was partly to avoid conflict with juvenile court and found no abuse shown in record; appeal dismissed for lack of jurisdiction |
| Whether marriage of parents eliminates jurisdiction over pending petition | Morgan: parents’ later marriage prevents refiling under § 25-409(C)(2) | Court: jurisdiction to hear a petition filed while parents unmarried exists; marriage may affect substantive entitlement but not necessarily jurisdictional appealability | Court noted Fry allows trial court jurisdiction over petitions filed before parents married, but marriage affects substantive qualification for relief; speculative bar to refiling insufficient to create appealable order |
| Effect of pending juvenile dependency action on visitation petition | Morgan: sought stay pending dependency; claimed due process concerns | Court: juvenile court orders take precedence; dismissal without prejudice avoids conflict | Court inferred dismissal aimed to avoid inconsistent orders with juvenile court; this supported treating dismissal as nonfinal |
Key Cases Cited
- Fry v. Garcia, 213 Ariz. 70, 138 P.3d 1197 (App. 2006) (trial court has jurisdiction to resolve visitation petitions filed when parents were unmarried even if they later wed)
- Canyon Ambulatory Surgery Ctr. v. SCF Ariz., 225 Ariz. 414, 239 P.3d 733 (App. 2010) (dismissal without prejudice is generally not a final, appealable judgment)
- McDowell Mountain Ranch Cmty. Ass’n, Inc. v. Simons, 216 Ariz. 266, 165 P.3d 667 (App. 2007) (court may, in its discretion, decline to treat failure to respond as confession of error)