What happens during a divorce if a community home is about to be foreclosed or has already been foreclosed?

February 28, 2008 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court

With Arizona’s (and the rest of the country’s) current depressed real estate market, many people are facing foreclosures. A few things to keep in mind:

1. The foreclosure is going to continue on in most divorce circumstances unless the home’s mortgage is brought current, along with the reasonable costs associated with the foreclosure, such as attorney fees.

2. Arizona has an anti-deficiency statute that is going to apply in the majority of cases involving standard mortgages. Thus, Arizona law offers protection to homeowners whose home has been foreclosed. This statute, A.R.S. §33-729, states as follows:

33-729. Purchase money mortgage; limitation on liability

A. Except as provided in subsection B, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.
B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.

Interpreted, this statute means that for the average homeowner, a lender cannot seek to recover from the homeowner any shortages when the foreclosing bank sells the house for less than the outstanding mortgage amount. The second part of the statute is interesting, but reasonable, in that it references voluntary waste –if, for example, a homeowner angry at the foreclosing bank wrecks his/her home intentionally, the homeowner may be responsible for the effect the damage has on the home’s value.

So what options does a homeowner have in a divorce situation or otherwise? Here are a few:

1. Let the bank foreclose on the property. The foreclosure in most circumstances will absolve the homeowner from most or all further financial responsibilities but will not reflect well on the homeowner’s credit report. Consult an attorney regarding your specific situation prior to assuming that there will be minor or no financial repercussions as there are exceptions to the anti-deficiency provisions of A.R.S. § 33-729. If there are negative financial repercussions, community property principles apply and if a divorce situation exists, then the parties or court will decide the parties responsibility for the financial obligations. Of course, any divorce rulings define the rights and obligations as between the parties only and are not binding on third party creditors, such as mortgage holders, meaning that banks are free to go after both parties if community property/obligations are involved.

2. Bring the mortgage current and retain the property. The homeowner will have to pay additional fees/costs to do so but then will continue to own the property.

3. Consider a “short sale” which is an effort to sell the property at a reduced price so that the bank will not have to bother with the time and expense of foreclosure. The bank then accepts the buy-out, basically, with less negative effects on the homeowner. It’s more complex than that but that’s the gist. I recommend that a lawyer guide both the seller and buyer of anyone participating in a short sale situation; as well, a good real estate agent familiar with short sales is recommended. Of course, when the real estate market is better than it is at the time of this writing, selling a house and paying off the mortgage in full is easier than it is now. In addition, some lenders will not agree to short sales because they believe it sets a bad precedent that too many other borrowers will attempt to use. Another piece of the short sale puzzle is the possibility the IRS will consider any amounts forgiven as income (consult an attorney regarding the Mortgage Forgiveness Debt Relief Act of 2007 for specifics on that new law and related consequences).

Real estate issues are complex and real property is often the largest asset involved in a divorce. It’s a good idea to consult with a competent attorney prior to making decisions about real estate!

Wilcox Legal Group, P.C.
Carrie M. Wilcox, Esq.
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Court Rules on Statute of Limitations issue Under Arizona Rules of Civil Procedure

December 31, 2006 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court

By Carrie Wilcox, Esq.

The Arizona Supreme Court recently interpreted Rule 15(c) of the Arizona Rules of Civil Procedure. In so interpreting, the Supreme Court intended to end the disparate conclusions to which lower courts were coming as they ruled on issues of amended complaints and relating back certain filings to previous filing dates.

In this case, Tyman v. Hintz Concrete et al, CV-06-0008-PR, the plaintiff was injured at a construction site. Tyman v. Hintz Concrete et al 2. The plaintiff’s attorney, unfortunately, had difficulty determining who was responsible for the construction site and initially provided notice to the City of Surprise of the intent to sue. Id. Upon discovering that the City of Surprise was not responsible for the site, the plaintiff searched for the appropriate party to sue. Id. at 2-3. With incorrect parties listed on her complaint, the plaintiff was forced to file suit immediately before the statute of limitations ran. Id. 3.

After filing her initial complaint in the Maricopa County Superior Court and subsequent to Arizona’s two-year statute of limitations, the plaintiff discovered and added the defendants actually responsible for the construction site where she was injured. Id. The defendants moved for summary judgment based on the statute of limitations, which the Maricopa County Superior Court granted and the Arizona Court of Appeals affirmed. Id. Plaintiff appealed to the Arizona Supreme Court who upheld the lower courts’ decisions. Id.

In agreeing with the lower courts’ ultimate rulings, the Arizona Supreme Court determined that the Maricopa County Superior Court judge’s reasoning was most in line with the Supreme Court’s thinking. Id. at 6-9, 11. Although the Court of Appeals also ruled for the defendants, the Supreme Court found fault with its logic. Id. at 7-9. Thus, the Arizona Supreme Court’s more closely approximates the Maricopa County Superior Court’s holding, although the Supreme Court also found some of the trial court’s reasoning faulty. Id. 7.

Specifically, the Arizona Supreme Court’s ruled that the type of mistake Arizona Rule of Civil Procedure 15(c) anticipates had not occurred in Ms. Tyman’s case. Rule 15’s mistake provision extends to certain types of identification errors but not to situations where a party absolutely does not know who the proper defendant might be. Id. at 10-15.

Thus, Ms. Tyman’s amended complaint was filed too late, her case remained dismissed and she was denied a chance at redress against the defendants.
__________________

*Attorney Carrie M. Wilcox is the sole shareholder of Wilcox Legal Group, P.C. She is a graduate of Arizona State College of Law where she was a Note and Comment Editor for the Arizona State University Law Journal and former intern for the Honorable Rudolph Gerber, Arizona Court of Appeals. Ms. Wilcox is admitted to practice in the Arizona state courts and federal district court. Ms. Wilcox practices in the areas of business formation and creditor rights/debt collection. She also has wide-ranging experience in civil litigation, including employment law, family law, personal injury and business representation. Please contact Attorney Carrie Wilcox at 602.631.9555 for further information.

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: http://www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota
.

ARIZONA SUPREME COURT RULES IN TWO AUTOMOBILE WARRANTY CASES

October 9, 2006 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court

Although not related to family law, the following article may be interesting to anyone who has bought or leased a car that didn't turn out to work so well.... The script got a little fussy so you'll see some bold, some normal text.

____________________________________________________________________

ARIZONA SUPREME COURT RULES IN TWO
AUTOMOBILE WARRANTY CASES

By Carrie Wilcox, Esq.*

Summary: The Arizona Supreme Court deals with automobile warranties, service contracts and lemon law issues in recent legal decisions.

The Arizona Supreme Court recently decided two cases involving motor vehicle warranty issues. In the first, Parrot v. DaimlerChrysler Corporation, 130 P.3d 530; 473 Ariz. Adv. Rep. 32, the questions revolved around an automobile lease situation, the Arizona Lemon law and the Magnuson-Moss Warranty Act. The second case, Johnson v. Earnhardt's Gilbert Dodge, Inc., 132 P.3d 825; 476 Ariz. Adv. Rep. 33, also involved the Magnuson-Moss Warranty Act as well as a service contract issue.

A. Parrot v. DaimlerChrysler (full text of case available at http://www.wilcoxlegal.com)

In denying Mr. Parrot relief under both the Magnuson-Moss Warranty Act (hereinafter the “Warranty Act”) and the Arizona Motor Vehicle Warranties Act (commonly referred to as Arizona’s Lemon Law), the Arizona Supreme Court wrestled with two primary issues, including whether Mr. Parrot was a consumer as defined by the Warranty Act and whether the limited relief available to consumers under Arizona’s Lemon Law was available to him. In overturning the Arizona Court of Appeals decision that favored Mr. Parrot, the Arizona Supreme Court ruled that neither the federal Warranty Act nor the state Lemon Law allowed Mr. Parrot the relief he sought.

1. Magnuson-Moss Warranty Act ((15 U.S.C. §§ 2301-2312)

Unfortunately for Mr. Parrot, the Arizona Supreme Court found that Mr. Parrot was not a consumer under the Warranty Act because Mr. Parrot’s lessee status prevented him from qualifying as a consumer for purposes of applying the Warranty Act to his vehicle dispute. No qualifying sale to him was made and that meant the Warranty Act did not provide him relief. Upon disposing of the Warranty Act claims brought by Mr. Parrot, the court turned to the Arizona Lemon Law.

2. Arizona Motor Vehicle Warranties Act

As it did with its analysis under the Warranty Act, the Arizona Supreme Court decided against Mr. Parrot essentially because of his status as a lessee and not an owner. Although the court noted that the definition of consumer under the Lemon Law was different than under the Warranty Act, the court decided against Mr. Parrot on other grounds.

Under the Arizona Lemon Law, two remedies are available: (a) a consumer may return the vehicle to the manufacturer, or (b) the consumer may have the vehicle replaced. However, the court noted that these remedies only apply if the consumer is the owner of the vehicle. Mr. Parrot leased the vehicle and did not own it; therefore, the Lemon Law provided him no relief.

B. Johnson v. Earnhardt’s Gilbert Dodge (full text of case available at http://www.wilcoxlegal.com)

One month after the Parrot case, above, the Arizona Supreme Court ruled on another case involving the Magnuson-Moss Warranty Act, DaimlerChrysler and an allegedly malfunctioning automobile. However, in this case, the car was purchased, not leased, as it was in Parrot. In addition, although the vehicle purchased was a Kia, Ms. Johnson purchased a service contract from DaimlerChrysler for the vehicle through the Chrysler dealership from which she bought the car. The Arizona Supreme Court reviewed the case after the trial court granted Earnhardt’s Motion for Summary Judgment and the Arizona Court of Appeals reversed the trial court in favor of Johnson. Two key issues were presented to the Arizona Supreme Court.

1. Service Contract

The Arizona Supreme Court examined the issue of whether Earnhardt had entered into a service contract with Ms. Johnson or if the service contract was only with DaimlerChrysler since they were the entity that provided the service contract.

The court found that the circumstances surrounding the service contract were ambiguous and that a grant of summary judgment was inappropriate on that basis. Some of the ambiguous facts included that Earnhardt, the dealer, had sold the contract and was to provide repair services under the contract as signed by the dealership. In addition, simply put, the language of the contract itself was confusing and conflicting as were the statements of the witnesses. For example, the language of the contract variously states that DaimlerChrysler is the responsible party but also that Earnhardt had responsibility under the contract, too, while Ms. Johnson stated in her affidavit that she was told it was a joint warranty agreement with the dealership and DaimlerChrysler being responsible. The dealership, on the other hand, denied it was a party to the service contract. The conflict facts meant that the case had to be remanded to the trial court to determine whether Earnhardt was a party to the service contract.

2. Magnuson-Moss Warranty Act (15 U.S.C. §§ 2301-2312)

After concluding that the evidence surrounding the service contract created a question of fact allowing that issue to survive summary judgment, the Arizona Supreme Court next turned to the issue of whether the service contract was a warranty as defined by the Warranty Act. Although the Arizona Court of Appeals concluded that the service contract was such a warranty, the Supreme Court disagreed reasoning that the separate consideration paid for the service contract means that the service contract cannot also be a written warranty under the definition contained within the Warranty Act.

Thus, the Arizona Supreme Court remanded the Johnson case back to the trial court for further proceedings consistent with its reasoning.

------------------------

*Attorney Carrie M. Wilcox is the sole shareholder of Wilcox Legal Group, P.C., a multi-dimensional law firm with offices in Arizona and California. She is a graduate of Arizona State College of Law where she was a Note and Comment Editor for the Arizona State University Law Journal and former intern for the Honorable Rudolph Gerber, Arizona Court of Appeals. Ms. Wilcox is admitted to practice in the Arizona state courts and federal district court. Ms. Wilcox practices in the areas of business formation and creditor rights/debt collection. She also has wide-ranging experience in civil litigation, including employment law, family law, personal injury and business representation.

Ms. Wilcox is a member of the Association of Trial Lawyers of America (ATLA), the Maricopa County Bar Associations, State Bar of Arizona, Arizona Women Lawyers and American Bar Association.

Ms. Wilcox is also a former instructor at the Arizona Paralegal Training Institute, where she lectured on various subjects including business formation and litigation, employment law and dissolution of marriage. She has also co-chaired seminars for other attorneys on divorce procedure on behalf of the Lorman Institute.

APPENDIX

1. Arizona Statutes

A.R.S. §44-1261. Definitions; exemptions

A. In this article, unless the context otherwise requires:

1. "Consumer" means the purchaser, other than for purposes of resale, of a motor vehicle, any person to whom the motor vehicle is transferred during the duration of an express warranty applicable to the motor vehicle or any other person entitled by the terms of the warranty to enforce the obligations of the warranty.

2. "Motor vehicle" means a self-propelled vehicle designated primarily for the transportation of persons or property over the public highways.

3. "Used motor vehicle" means a motor vehicle that has been sold, bargained, exchanged or given away or the title to which has been transferred from the person who first acquired the vehicle from the manufacturer, importer or dealer or agent of the manufacturer or importer and that has been placed in bona fide consumer use.

4. "Used motor vehicle dealer" means a person or business that sells or offers for sale a used motor vehicle after selling or offering for sale four or more used motor vehicles in the previous twelve months but does not include a bank or financial institution, an insurance company, a business selling a used motor vehicle to an employee of that business, a lessor selling a leased vehicle by or to the lessee of that vehicle or to an employee of the lessee of that vehicle or a person who buys, sells, exchanges or offers or attempts to negotiate a sale of or exchange an interest in a classic car as defined in section 28-2483 or a historic vehicle as defined in section 28-2484.

B. If the motor vehicle is a motor home, the provisions of this article shall apply to the self-propelled vehicle and chassis but not to those portions of the vehicle designed, used or maintained primarily as a mobile dwelling, office or commercial space.

C. The provisions of this article do not apply to a sale of a motor vehicle to a purchaser for the purpose of resale for profit or to a motor vehicle with a declared gross weight over ten thousand pounds or that is sold at a public auction.

A.R.S. §44-1262. New motor vehicle; repair during express warranty or two years or twenty-four thousand miles

A. If a new motor vehicle does not conform to all applicable express warranties:

1. A consumer shall report the nonconformity to the manufacturer, its agent or its authorized dealer or issuer of a warranty during the shorter of the following:

(a) The term of the express warranty.

(b) The period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier.

2. The manufacturer, its agent or its authorized dealer or the issuer of a warranty shall make those repairs that are necessary to conform the motor vehicle to such express warranties, even if the repairs are made after the expiration of the term or two year period or twenty-four thousand mile limit.

B. This section does not limit in any way the remedies available to a consumer under a new motor vehicle warranty that extends beyond the limits prescribed in this section.

A.R.S. §44-1263. Inability to conform motor vehicle to express warranty; replacement of vehicle or refund of monies; affirmative defenses; tax refund

A. If the manufacturer, its agents or its authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use and value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle or accept return of the motor vehicle from the consumer and refund to the consumer the full purchase price, including all collateral charges, less a reasonable allowance for the consumer's use of the vehicle. The manufacturer shall make refunds to the consumer and lienholder, if any, as their interests appear. A reasonable allowance for use is that amount directly attributable to use by the consumer before his first written report of the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is not out of service by reason of repair.

B. It is an affirmative defense to any claim under this article that either:

1. An alleged nonconformity does not substantially impair the use and market value of the motor vehicle.

2. A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle.

C. In the case of taxes paid pursuant to title 42, chapter 5, if the manufacturer:

1. Accepts return of a motor vehicle from a consumer without replacing the motor vehicle, the manufacturer shall refund the amount of tax attributed to the sale of the vehicle to that consumer.

2. Replaces a motor vehicle with a new motor vehicle of lesser value, the manufacturer shall refund the difference between the original amount of tax attributed to the sale of that vehicle and the amount of tax attributed to the sale of the replacement vehicle, excluding the value of the motor vehicle being replaced.

3. Replaces a motor vehicle with a new motor vehicle of greater value, the manufacturer shall calculate the gross proceeds of sales pursuant to section 42-5001, paragraph 6.

D. Pursuant to section 42-1118, subsection F, the manufacturer may apply to the department of revenue for a refund for the amount of tax that the manufacturer properly refunds to the consumer.

A.R.S. §44-1264. Reasonable number of attempts to conform motor vehicle to express warranty; presumption

A. It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if either:

1. The same nonconformity has been subject to repair four or more times by the manufacturer or its agents or authorized dealers during the shorter of the express warranty term or the period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier, but the nonconformity continues to exist.

2. The motor vehicle is out of service by reason of repair for a cumulative total of thirty or more calendar days during the shorter of the express warranty term or the two year period or twenty-four thousand miles, whichever is earlier.

B. The term of an express warranty, the two year period and the thirty day period are extended by any period of time during which repair services are not available to the consumer because of any war, invasion, strike, fire, flood or other natural disaster.

C. The presumption prescribed in this section does not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer of the alleged defect and has had an opportunity to cure the alleged defect.

A.R.S. §44-1265. Nonlimitation of rights; refund or replacement not required if certain procedures not followed; attorney fees

A. If a manufacturer has established or participates in an informal dispute settlement procedure which complies in all respects with 16 code of federal regulations part 703, section 44-1263 relating to refunds or replacement does not apply to any consumer who has not first resorted to such a procedure.

B. A consumer shall begin an action under this article within six months following the earlier of expiration of the express warranty term or two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier. If a consumer prevails in an action under this article, the court shall award the consumer reasonable costs and attorney fees.

A.R.S. §44-1266. Notice to dealers and prospective purchasers

A. A manufacturer who has been ordered by judgment or decree to replace or repurchase or who has replaced or repurchased a motor vehicle pursuant to this article or the repair or replace laws of another state shall, before offering the motor vehicle for resale, attach to the motor vehicle written notification indicating the motor vehicle has been replaced or repurchased. A consumer has a cause of action against any person who removes the written notification from the motor vehicle, except as provided in subsection B of this section.

B. A motor vehicle dealer, broker, wholesale motor vehicle dealer or wholesale motor vehicle auction dealer as defined in section 28-4301 who offers for sale a motor vehicle that has been replaced or repurchased pursuant to this article or the repair or replace laws of another state shall provide the purchaser with the manufacturer's written notification indicating that the motor vehicle has been replaced or repurchased before completion of the sale.

C. It shall constitute an affirmative defense in an action brought pursuant to subsection A of this section against a motor vehicle dealer or an agent of a motor vehicle dealer that the notification described in subsection A of this section was removed by someone other than the dealer or agent without the knowledge of the dealer or agent.

A.R.S. §44-1267. Used motor vehicles; title; implied warranty of merchantability disclaimer; waiver; burden of proof; remedies

A. Before the seller attempts to sell a used motor vehicle the seller shall possess the title to the used motor vehicle and the title shall be in the seller's name.

B. Except as provided in subsection I of this section and in addition to the requirements of section 28-4412, a used motor vehicle dealer shall not exclude, modify or disclaim the implied warranty of merchantability prescribed in section 47-2314 or limit the remedies for a breach of that warranty, except as otherwise provided in this section, before midnight of the fifteenth calendar day after delivery of a used motor vehicle or until a used motor vehicle is driven five hundred miles after delivery, whichever is earlier. In calculating time under this subsection, a day on which the warranty is breached is excluded and all subsequent days in which the motor vehicle fails to conform with the implied warranty of merchantability are also excluded. In calculating distance under this subsection, the miles driven to obtain or in connection with the repair, servicing or testing of the motor vehicle that fails to conform with the implied warranty of merchantability are excluded. An attempt to exclude, modify or disclaim the implied warranty of merchantability or to limit the remedies for a breach of that warranty, except as otherwise provided in this section, in violation of this subsection renders a purchase agreement voidable at the option of the purchaser.

C. For the purposes of this section, the implied warranty of merchantability is met if the motor vehicle functions in a safe condition as provided in title 28, chapter 3, article 16 and is substantially free of any defect that significantly limits the use of the motor vehicle for the ordinary purpose of transportation on any public highway. The implied warranty of merchantability expires at midnight of the fifteenth calendar day after delivery of a used motor vehicle or when a used motor vehicle has been driven five hundred miles after delivery, whichever is earlier. In calculating time under this subsection, a day on which the warranty is breached is excluded and all subsequent days in which the motor vehicle fails to conform with the implied warranty of merchantability are also excluded. In calculating distance under this subsection, the miles driven to obtain or in connection with the repair, servicing or testing of the motor vehicle that fails to conform with the implied warranty of merchantability are excluded.

D. The implied warranty of merchantability described in this section does not extend to damage that occurs after the sale of the motor vehicle and that is the result of any abuse, misuse, neglect, failure to perform regular maintenance or to maintain adequate oil, coolant or other required fluid or lubricant or off road use, racing or towing.

E. If the implied warranty of merchantability described in this section is breached, the purchaser shall give reasonable notice to the seller. Before the purchaser exercises any other remedies under title 47, chapter 2, the seller shall have a reasonable opportunity to repair the vehicle. The purchaser shall pay one-half of the cost of the first two repairs necessary to bring the vehicle in compliance with the warranty. The purchaser's payments are limited to a maximum payment of twenty-five dollars for each repair.

2. Magnuson-Moss Warranty Act (15 U.S.C. 15 U.S.C. §§ 2301-2312)

§ 2301. Definitions

For the purposes of this chapter:

(1) The term “consumer product” means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed).

(2) The term “Commission” means the Federal Trade Commission.

(3) The term “consumer” means a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).

(4) The term “supplier” means any person engaged in the business of making a consumer product directly or indirectly available to consumers.

(5) The term “warrantor” means any supplier or other person who gives or offers to give a written warranty or who is or may be obligated under an implied warranty.

(6) The term “written warranty” means—

(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or

(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking,

which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.

(7) The term “implied warranty” means an implied warranty arising under State law (as modified by sections 2308 and 2304 (a) of this title) in connection with the sale by a supplier of a consumer product.

(8) The term “service contract” means a contract in writing to perform, over a fixed period of time or for a specified duration, services relating to the maintenance or repair (or both) of a consumer product.

(9) The term “reasonable and necessary maintenance” consists of those operations

(A) which the consumer reasonably can be expected to perform or have performed and

(B) which are necessary to keep any consumer product performing its intended function and operating at a reasonable level of performance.

(10) The term “remedy” means whichever of the following actions the warrantor elects:

(A) repair,

(B) replacement, or

(C) refund;

except that the warrantor may not elect refund unless (i) the warrantor is unable to provide replacement and repair is not commercially practicable or cannot be timely made, or (ii) the consumer is willing to accept such refund.

(11) The term “replacement” means furnishing a new consumer product which is identical or reasonably equivalent to the warranted consumer product.

(12) The term “refund” means refunding the actual purchase price (less reasonable depreciation based on actual use where permitted by rules of the Commission).

(13) The term “distributed in commerce” means sold in commerce, introduced or delivered for introduction into commerce, or held for sale or distribution after introduction into commerce.

(14) The term “commerce” means trade, traffic, commerce, or transportation—

(A) between a place in a State and any place outside thereof, or

(B) which affects trade, traffic, commerce, or transportation described in subparagraph (A).

(15) The term “State” means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Canal Zone, or American Samoa. The term “State law” includes a law of the United States applicable only to the District of Columbia or only to a territory or possession of the United States; and the term “Federal law” excludes any State law.

§ 2302. Rules governing contents of warranties

(a) Full and conspicuous disclosure of terms and conditions; additional requirements for contents

In order to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products, any warrantor warranting a consumer product to a consumer by means of a written warranty shall, to the extent required by rules of the Commission, fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty. Such rules may require inclusion in the written warranty of any of the following items among others:

(1) The clear identification of the names and addresses of the warrantors.

(2) The identity of the party or parties to whom the warranty is extended.

(3) The products or parts covered.

(4) A statement of what the warrantor will do in the event of a defect, malfunction, or failure to conform with such written warranty—at whose expense—and for what period of time.

(5) A statement of what the consumer must do and expenses he must bear.

(6) Exceptions and exclusions from the terms of the warranty.

(7) The step-by-step procedure which the consumer should take in order to obtain performance of any obligation under the warranty, including the identification of any person or class of persons authorized to perform the obligations set forth in the warranty.

(8) Information respecting the availability of any informal dispute settlement procedure offered by the warrantor and a recital, where the warranty so provides, that the purchaser may be required to resort to such procedure before pursuing any legal remedies in the courts.

(9) A brief, general description of the legal remedies available to the consumer.

(10) The time at which the warrantor will perform any obligations under the warranty.

(11) The period of time within which, after notice of a defect, malfunction, or failure to conform with the warranty, the warrantor will perform any obligations under the warranty.

(12) The characteristics or properties of the products, or parts thereof, that are not covered by the warranty.

(13) The elements of the warranty in words or phrases which would not mislead a reasonable, average consumer as to the nature or scope of the warranty.

(b) Availability of terms to consumer; manner and form for presentation and display of information; duration; extension of period for written warranty or service contract

(1)

(A) The Commission shall prescribe rules requiring that the terms of any written warranty on a consumer product be made available to the consumer (or prospective consumer) prior to the sale of the product to him.

(B) The Commission may prescribe rules for determining the manner and form in which information with respect to any written warranty of a consumer product shall be clearly and conspicuously presented or displayed so as not to mislead the reasonable, average consumer, when such information is contained in advertising, labeling, point-of-sale material, or other representations in writing.

(2) Nothing in this chapter (other than paragraph (3) of this subsection) shall be deemed to authorize the Commission to prescribe the duration of written warranties given or to require that a consumer product or any of its components be warranted.

(3) The Commission may prescribe rules for extending the period of time a written warranty or service contract is in effect to correspond with any period of time in excess of a reasonable period (not less than 10 days) during which the consumer is deprived of the use of such consumer product by reason of failure of the product to conform with the written warranty or by reason of the failure of the warrantor (or service contractor) to carry out such warranty (or service contract) within the period specified in the warranty (or service contract).

(c) Prohibition on conditions for written or implied warranty; waiver by Commission

No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer’s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission if—

(1) the warrantor satisfies the Commission that the warranted product will function properly only if the article or service so identified is used in connection with the warranted product, and

(2) the Commission finds that such a waiver is in the public interest.

The Commission shall identify in the Federal Register, and permit public comment on, all applications for waiver of the prohibition of this subsection, and shall publish in the Federal Register its disposition of any such application, including the reasons therefor.

(d) Incorporation by reference of detailed substantive warranty provisions

The Commission may by rule devise detailed substantive warranty provisions which warrantors may incorporate by reference in their warranties.

(e) Applicability to consumer products costing more than $5

The provisions of this section apply only to warranties which pertain to consumer products actually costing the consumer more than $5.

§ 2303. Designation of written warranties

(a) Full (statement of duration) or limited warranty

Any warrantor warranting a consumer product by means of a written warranty shall clearly and conspicuously designate such warranty in the following manner, unless exempted from doing so by the Commission pursuant to subsection (c) of this section:

(1) If the written warranty meets the Federal minimum standards for warranty set forth in section 2304 of this title, then it shall be conspicuously designated a “full (statement of duration) warranty”.

(2) If the written warranty does not meet the Federal minimum standards for warranty set forth in section 2304 of this title, then it shall be conspicuously designated a “limited warranty”.

(b) Applicability of requirements, standards, etc., to representations or statements of customer satisfaction

This section and sections 2302 and 2304 of this title shall not apply to statements or representations which are similar to expressions of general policy concerning customer satisfaction and which are not subject to any specific limitations.

(c) Exemptions by Commission

In addition to exercising the authority pertaining to disclosure granted in section 2302 of this title, the Commission may by rule determine when a written warranty does not have to be designated either “full (statement of duration)” or “limited” in accordance with this section.

(d) Applicability to consumer products costing more than $10 and not designated as full warranties

The provisions of subsections (a) and (c) of this section apply only to warranties which pertain to consumer products actually costing the consumer more than $10 and which are not designated “full (statement of duration) warranties”.

§ 2304. Federal minimum standards for warranties

(a) Remedies under written warranty; duration of implied warranty; exclusion or limitation on consequential damages for breach of written or implied warranty; election of refund or replacement

In order for a warrantor warranting a consumer product by means of a written warranty to meet the Federal minimum standards for warranty—

(1) such warrantor must as a minimum remedy such consumer product within a reasonable time and without charge, in the case of a defect, malfunction, or failure to conform with such written warranty;

(2) notwithstanding section 2308 (b) of this title, such warrantor may not impose any limitation on the duration of any implied warranty on the product;

(3) such warrantor may not exclude or limit consequential damages for breach of any written or implied warranty on such product, unless such exclusion or limitation conspicuously appears on the face of the warranty; and

(4) if the product (or a component part thereof) contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either a refund for, or replacement without charge of, such product or part (as the case may be). The Commission may by rule specify for purposes of this paragraph, what constitutes a reasonable number of attempts to remedy particular kinds of defects or malfunctions under different circumstances. If the warrantor replaces a component part of a consumer product, such replacement shall include installing the part in the product without charge.

(b) Duties and conditions imposed on consumer by warrantor

(1) In fulfilling the duties under subsection (a) of this section respecting a written warranty, the warrantor shall not impose any duty other than notification upon any consumer as a condition of securing remedy of any consumer product which malfunctions, is defective, or does not conform to the written warranty, unless the warrantor has demonstrated in a rulemaking proceeding, or can demonstrate in an administrative or judicial enforcement proceeding (including private enforcement), or in an informal dispute settlement proceeding, that such a duty is reasonable.

(2) Notwithstanding paragraph (1), a warrantor may require, as a condition to replacement of, or refund for, any consumer product under subsection (a) of this section, that such consumer product shall be made available to the warrantor free and clear of liens and other encumbrances, except as otherwise provided by rule or order of the Commission in cases in which such a requirement would not be practicable.

(3) The Commission may, by rule define in detail the duties set forth in subsection (a) of this section and the applicability of such duties to warrantors of different categories of consumer products with “full (statement of duration)” warranties.

(4) The duties under subsection (a) of this section extend from the warrantor to each person who is a consumer with respect to the consumer product.

(c) Waiver of standards

The performance of the duties under subsection (a) of this section shall not be required of the warrantor if he can show that the defect, malfunction, or failure of any warranted consumer product to conform with a written warranty, was caused by damage (not resulting from defect or malfunction) while in the possession of the consumer, or unreasonable use (including failure to provide reasonable and necessary maintenance).

(d) Remedy without charge

For purposes of this section and of section 2302 (c) of this title, the term “without charge” means that the warrantor may not assess the consumer for any costs the warrantor or his representatives incur in connection with the required remedy of a warranted consumer product. An obligation under subsection (a)(1)(A) of this section to remedy without charge does not necessarily require the warrantor to compensate the consumer for incidental expenses; however, if any incidental expenses are incurred because the remedy is not made within a reasonable time or because the warrantor imposed an unreasonable duty upon the consumer as a condition of securing remedy, then the consumer shall be entitled to recover reasonable incidental expenses which are so incurred in any action against the warrantor.

(e) Incorporation of standards to products designated with full warranty for purposes of judicial actions

If a supplier designates a warranty applicable to a consumer product as a “full (statement of duration)” warranty, then the warranty on such product shall, for purposes of any action under section 2310 (d) of this title or under any State law, be deemed to incorporate at least the minimum requirements of this section and rules prescribed under this section.

§ 2305. Full and limited warranting of a consumer product

Nothing in this chapter shall prohibit the selling of a consumer product which has both full and limited warranties if such warranties are clearly and conspicuously differentiated.

§ 2306. Service contracts; rules for full, clear and conspicuous disclosure of terms and conditions; addition to or in lieu of written warranty

(a) The Commission may prescribe by rule the manner and form in which the terms and conditions of service contracts shall be fully, clearly, and conspicuously disclosed.

(b) Nothing in this chapter shall be construed to prevent a supplier or warrantor from entering into a service contract with the consumer in addition to or in lieu of a written warranty if such contract fully, clearly, and conspicuously discloses its terms and conditions in simple and readily understood language.

§ 2307. Designation of representatives by warrantor to perform duties under written or implied warranty

Nothing in this chapter shall be construed to prevent any warrantor from designating representatives to perform duties under the written or implied warranty: Provided, That such warrantor shall make reasonable arrangements for compensation of such designated representatives, but no such designation shall relieve the warrantor of his direct responsibilities to the consumer or make the representative a cowarrantor.

§ 2308. Implied warranties

(a) Restrictions on disclaimers or modifications

No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if

(1) such supplier makes any written warranty to the consumer with respect to such consumer Product, or

(2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product.

(b) Limitation on duration

For purposes of this chapter (other than section 2304 (a)(2) of this title), implied warranties may be limited in duration to the duration of a written warranty of reasonable duration, if such limitation is conscionable and is set forth in clear and unmistakable language and prominently displayed on the face of the warranty.

(c) Effectiveness of disclaimers, modifications, or limitations

A disclaimer, modification, or limitation made in violation of this section shall be ineffective for purposes of this chapter and State law.

§ 2309. Procedures applicable to promulgation of rules by Commission

(a) Oral presentation

Any rule prescribed under this chapter shall be prescribed in accordance with section 553 of title 5; except that the Commission shall give interested persons an opportunity for oral presentations of data, views, and arguments, in addition to written submissions. A transcript shall be kept of any oral presentation. Any such rule shall be subject to judicial review under section 57a (e) of this title in the same manner as rules prescribed under section 57a (a)(1)(B) of this title, except that section 57a (e)(3)(B) of this title shall not apply.

(b) Warranties and warranty practices involved in sale of used motor vehicles

The Commission shall initiate within one year after January 4, 1975, a rulemaking proceeding dealing with warranties and warranty practices in connection with the sale of used motor vehicles; and, to the extent necessary to supplement the protections offered the consumer by this chapter, shall prescribe rules dealing with such warranties and practices. In prescribing rules under this subsection, the Commission may exercise any authority it may have under this chapter, or other law, and in addition it may require disclosure that a used motor vehicle is sold without any warranty and specify the form and content of such disclosure.

§ 2310. Remedies in consumer disputes

(a) Informal dispute settlement procedures; establishment; rules setting forth minimum requirements; effect of compliance by warrantor; review of informal procedures or implementation by Commission; application to existing informal procedures

(1) Congress hereby declares it to be its policy to encourage warrantors to establish procedures whereby consumer disputes are fairly and expeditiously settled through informal dispute settlement mechanisms.

(2) The Commission shall prescribe rules setting forth minimum requirements for any informal dispute settlement procedure which is incorporated into the terms of a written warranty to which any provision of this chapter applies. Such rules shall provide for participation in such procedure by independent or governmental entities.

(3) One or more warrantors may establish an informal dispute settlement procedure which meets the requirements of the Commission’s rules under paragraph (2). If—

(A) a warrantor establishes such a procedure,

(B) such procedure, and its implementation, meets the requirements of such rules, and

(C) he incorporates in a written warranty a requirement that the consumer resort to such procedure before pursuing any legal remedy under this section respecting such warranty,

then

(i) the consumer may not commence a civil action (other than a class action) under subsection (d) of this section unless he initially resorts to such procedure; and

(ii) a class of consumers may not proceed in a class action under subsection (d) of this section except to the extent the court determines necessary to establish the representative capacity of the named plaintiffs, unless the named plaintiffs (upon notifying the defendant that they are named plaintiffs in a class action with respect to a warranty obligation) initially resort to such procedure. In the case of such a class action which is brought in a district court of the United States, the representative capacity of the named plaintiffs shall be established in the application of rule 23 of the Federal Rules of Civil Procedure. In any civil action arising out of a warranty obligation and relating to a matter considered in such a procedure, any decision in such procedure shall be admissible in evidence.

(4) The Commission on its own initiative may, or upon written complaint filed by any interested person shall, review the bona fide operation of any dispute settlement procedure resort to which is stated in a written warranty to be a prerequisite to pursuing a legal remedy under this section. If the Commission finds that such procedure or its implementation fails to comply with the requirements of the rules under paragraph (2), the Commission may take appropriate remedial action under any authority it may have under this chapter or any other provision of law.

(5) Until rules under paragraph (2) take effect, this subsection shall not affect the validity of any informal dispute settlement procedure respecting consumer warranties, but in any action under subsection (d) of this section, the court may invalidate any such procedure if it finds that such procedure is unfair.

(b) Prohibited acts

It shall be a violation of section 45 (a)(1) of this title for any person to fail to comply with any requirement imposed on such person by this chapter (or a rule thereunder) or to violate any prohibition contained in this chapter (or a rule thereunder).

(c) Injunction proceedings by Attorney General or Commission for deceptive warranty, noncompliance with requirements, or violating prohibitions; procedures; definitions

(1) The district courts of the United States shall have jurisdiction of any action brought by the Attorney General (in his capacity as such), or by the Commission by any of its attorneys designated by it for such purpose, to restrain

(A) any warrantor from making a deceptive warranty with respect to a consumer product, or

(B) any person from failing to comply with any requirement imposed on such person by or pursuant to this chapter or from violating any prohibition contained in this chapter. Upon proper showing that, weighing the equities and considering the Commission’s or Attorney General’s likelihood of ultimate success, such action would be in the public interest and after notice to the defendant, a temporary restraining order or preliminary injunction may be granted without bond. In the case of an action brought by the Commission, if a complaint under section 45 of this title is not filed within such period (not exceeding 10 days) as may be specified by the court after the issuance of the temporary restraining order or preliminary injunction, the order or injunction shall be dissolved by the court and be of no further force and effect. Any suit shall be brought in the district in which such person resides or transacts business. Whenever it appears to the court that the ends of justice require that other persons should be parties in the action, the court may cause them to be summoned whether or not they reside in the district in which the court is held, and to that end process may be served in any district.

(2) For the purposes of this subsection, the term “deceptive warranty” means

(A) a written warranty which

(i) contains an affirmation, promise, description, or representation which is either false or fraudulent, or which, in light of all of the circumstances, would mislead a reasonable individual exercising due care; or

(ii) fails to contain information which is necessary in light of all of the circumstances, to make the warranty not misleading to a reasonable individual exercising due care; or

(B) a written warranty created by the use of such terms as “guaranty” or “warranty”, if the terms and conditions of such warranty so limit its scope and application as to deceive a reasonable individual.

(d) Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims

(1) Subject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief—

(A) in any court of competent jurisdiction in any State or the District of Columbia; or

(B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection.

(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.

(3) No claim shall be cognizable in a suit brought under paragraph (1)(B) of this subsection—

(A) if the amount in controversy of any individual claim is less than the sum or value of $25;

(B) if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit; or

(C) if the action is brought as a class action, and the number of named plaintiffs is less than one hundred.

(e) Class actions; conditions; procedures applicable

No action (other than a class action or an action respecting a warranty to which subsection (a)(3) of this section applies) may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty or service contract, and a class of consumers may not proceed in a class action under such subsection with respect to such a failure except to the extent the court determines necessary to establish the representative capacity of the named plaintiffs, unless the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure to comply. In the case of such a class action (other than a class action respecting a warranty to which subsection (a)(3) of this section applies) brought under subsection (d) of this section for breach of any written or implied warranty or service contract, such reasonable opportunity will be afforded by the named plaintiffs and they shall at that time notify the defendant that they are acting on behalf of the class. In the case of such a class action which is brought in a district court of the United States, the representative capacity of the named plaintiffs shall be established in the application of rule 23 of the Federal Rules of Civil Procedure.

(f) Warrantors subject to enforcement of remedies

For purposes of this section, only the warrantor actually making a written affirmation of fact, promise, or undertaking shall be deemed to have created a written warranty, and any rights arising thereunder may be enforced under this section only against such warrantor and no other person.

§ 2311. Applicability to other laws

(a) Federal Trade Commission Act and Federal Seed Act

(1) Nothing contained in this chapter shall be construed to repeal, invalidate, or supersede the Federal Trade Commission Act [15 U.S.C. 41 et seq.] or any statute defined therein as an Antitrust Act.

(2) Nothing in this chapter shall be construed to repeal, invalidate, or supersede the Federal Seed Act [7 U.S.C. 1551 et seq.] and nothing in this chapter shall apply to seed for planting.

(b) Rights, remedies, and liabilities

(1) Nothing in this chapter shall invalidate or restrict any right or remedy of any consumer under State law or any other Federal law.

(2) Nothing in this chapter (other than sections 2308 and 2304 (a)(2) and (4) of this title) shall

(A) affect the liability of, or impose liability on, any person for personal injury, or

(B) supersede any provision of State law regarding consequential damages for injury to the person or other injury.

(c) State warranty laws

(1) Except as provided in subsection (b) of this section and in paragraph (2) of this subsection, a State requirement—

(A) which relates to labeling or disclosure with respect to written warranties or performance thereunder;

(B) which is within the scope of an applicable requirement of sections 2302, 2303, and 2304 of this title (and rules implementing such sections), and

(C) which is not identical to a requirement of section 2302, 2303, or 2304 of this title (or a rule thereunder),

shall not be applicable to written warranties complying with such sections (or rules thereunder).

(2) If, upon application of an appropriate State agency, the Commission determines (pursuant to rules issued in accordance with section 2309 of this title) that any requirement of such State covering any transaction to which this chapter applies

(A) affords protection to consumers greater than the requirements of this chapter and

(B) does not unduly burden interstate commerce, then such State requirement shall be applicable (notwithstanding the provisions of paragraph (1) of this subsection) to the extent specified in such determination for so long as the State administers and enforces effectively any such greater requirement.

(d) Other Federal warranty laws

This chapter (other than section 2302 (c) of this title) shall be inapplicable to any written warranty the making or content of which is otherwise governed by Federal law. If only a portion of a written warranty is so governed by Federal law, the remaining portion shall be subject to this chapter.

§ 2312. Effective dates

(a) Effective date of chapter

Except as provided in subsection (b) of this section, this chapter shall take effect 6 months after January 4, 1975, but shall not apply to consumer products manufactured prior to such date.

(b) Effective date of section 2302 (a)

Section 2302 (a) of this title shall take effect 6 months after the final publication of rules respecting such section; except that the Commission, for good cause shown, may postpone the applicability of such sections until one year after such final publication in order to permit any designated classes of suppliers to bring their written warranties into compliance with rules promulgated pursuant to this chapter.

(c) Promulgation of rules

The Commission shall promulgate rules for initial implementation of this chapter as soon as possible after January 4, 1975, but in no event later than one year after such date.
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Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox Legal Group, P.C. attorneys are licensed in Arizona and a limited number of other states.

Custody and Access Rights of Grandparent and Non-Biologically Related Persons in Arizona: An Analysis of Current Law

Custody and access rights of grandparents and other non-parents is a hot button topic in the family courts. Following the U.S. Supreme Court's Troxel decision, Arizona courts are forced to reevaluate the legal role and rights of non-parents when it comes to custody and access to children. Attorney Carrie Wilcox analyzes the impact of recent decsions.

A. Overview

Recent decisions in both federal and state courts affect custody and access rights of persons who are not the biological parents of children but with whom they have developed relationships. Affected persons include grandparents, stepparents and others who may have acted in the place of parents (in loco parentis).

In Arizona, grandparents’ rights are codified in Arizona Revised Statute §25-409[i] while A.R.S. §25-415[ii] covers anyone who may have acted as a parent to a child. A.R.S. §25-415 could affect those grandparents who have actually raised a child and are seeking more than the visitation the grandparent rights statute provides. While the statutes themselves provide a starting point from which to assess the custody and access rights of any given person, appellate court interpretations of the statutes provide more insight. Most often, the appellate court analyzes statutes within a constitutional framework. While there have not been a tremendous number of cases decided that analyze the Arizona grandparent and in loco parentis cases, the few decisions that have been made are very important. The U.S. Supreme Court case of Troxel v. Granville remains the key controlling case on the non-parent issue and provides the backdrop against which non-parent cases are decided.

B. Troxel v. Granville: The U.S. Supreme Court Weighs In

The single most important case in recent years on the non-parent rights issue involves Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000). The Troxel case originated in Washington state as a grandparent visitation dispute. In that case, the deceased biological father’s parents sought visitation under a Washington statute that allowed anyone to petition for visitation, whether biologically related or not. Although the biological mother agreed to visitation, she disputed the amount sought by the paternal grandparents and the dispute went before the Washington trial court. The trial court sided with the grandparents and the mother appealed through the Washington appellate system where the Washington Court of Appeals overturned the trial court’s visitation order and dismissed the grandparents’ visitation petition, a ruling affirmed by the Washington Supreme Court.

Following the Washington Supreme Court’s decision against them, the grandparents appealed to the U.S. Supreme Court where they found an unfriendly audience. The U.S. Supreme Court analyzed both the Washington statute and the particular factual circumstances surrounding Troxel, ultimately finding that the U.S. Constitution provided more protection for parental decision-making rights than the Washington statute and trial court provided. The Court upheld the dismissal of the grandparents’ visitation petition and the visitation awarded by the trial court was not allowed.

So, as one looks at the U.S. Supreme Court’s decision in Troxel, there are two key factors that the Court considered:

1. Fourteenth Amendment Due Process
The Constitutional issue was the key issue of the appeal to the U.S. Supreme Court. Ultimately, the Court concluded that the Washington visitation statute that allowed anyone to petition for visitation and for the Washington trial courts to award visitation in the best interests of children who may be subject of a petition was simply overbroad and impermissibly infringed on parents’ fundamental right to raise their children as they see fit.

2. Circumstances of the Case
The U.S. Supreme Court also reviewed the circumstances of the case; in other words the particular facts present in Troxel. For example, the mother in the case had actually offered visitation, just not to the extent sought by the grandparents. The Court concluded that the mother’s determination of what amounted to appropriate visitation was entitled to more weight than the trial court gave. In addition, there was no allegation that mother was an unfit parent, thus there was no apparent reason to second-guess the mother’s decisions.

In summary, the Troxel case at its simplest stands for the principle that courts are to provide a fit parent’s decisions special weight.

C. The Dodge Cases: Arizona’s Theory on Non-Parent Rights

Arizona’s best-known case on the rights of non-parents is Dodge v. Graville. This highly contested litigation resulted in four appellate reviews and even made its way to the U.S. Supreme Court. Importantly, the Dodge cases were occurring at or near the time Troxel v. Granville was progressing through the courts. It is important, therefore, to maintain clarity within the various cases and proceedings in Dodge and thus, they are herein referred to in the order in which they were decided at the various appellate court levels. Courts and lawyers refer to Dodge I and Dodge II to keep them straight; two official published opinions resulted from the litigation that, at the end of the day, left a number of questions regarding Arizona law unanswered.

1. Dodge I. (Kathryn Lucille Graville and Donald Graville, 195 Ariz. 119; 985 P.2d 604; 287 Ariz. Adv. Rep. 68 (Ariz. Ct. App. 1999)).

In this case, the mother of the children at issue was deceased and the maternal grandparents sought visitation. After the trial court awarded the grandparents the equivalent of nine days of annual visitation, the children’s father appealed on a number of bases.

On appeal, the father argued that the 14th Amendment to the U.S. Constitution provides parents a fundamental right to raise their children as they wish and that Arizona’s grandparent visitation statute interferes with that right. Although the Arizona Court of Appeals agreed with the father that parents do have the fundamental right to raise their children as they see fit, the court felt that the statute was written and applied in such a way that the intrusion upon parental rights was not unconstitutional.

The father also appealed the amount of time awarded to the grandparents. The court disposed of the father’s arguments by pointing out that the total amount of visitation time was relatively minor. The court did, however, agree with the father that the trial court’s orders that he encourage weekly telephone calls with the grandparents, consider using the grandparents as caregivers when possible and that he not discuss custody issues with the children went too far. Thus, those orders were stricken.

2. Dodge II. (Kathryn Lucille and Donald Graville v. Douglas Paul Dodge, 197 Ariz. 591; 5 P.3d 925; 322 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 2000)).
In the continuing litigation regarding the Graville’s visitation, the grandparents sought to have the father found in contempt for not following the trial court’s original visitation orders. The Arizona Court of Appeals examined the issue of whether the trial court overstepped its authority by appointing a supervisor to monitor the visitation, determining that the addition of the supervisor was not an improper modification of the original order. However, this Court of Appeals decision occurred right before the U.S. Supreme Court decided Troxel. When the Arizona Supreme Court refused to review the case, the U.S. Supreme Court eventually vacated the Arizona Court of Appeals decision and sent the case back for review in light of the Troxel decision. See Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000).

Upon receiving the case back with instructions from the U.S. Supreme Court to apply the Troxel holding, the Arizona Court of Appeals chose to make both sides unhappy. The court did away with the grandparents’ requested contempt ruling, essentially, and the father’s constitutional issues went unresolved. Thus, important issues are left unclarified.

D. Other Arizona Cases

To make the length of this article workable, not every pertinent Arizona or national case is included or mentioned, however, the following cases are briefly addressed to provide more information on the subject of grandparent and non-parent visitation rights in Arizona.

1. Jackson v. Tangreen, 199 Ariz. 306; 18 P.3d 100 (2000).

The facts of this case were slightly different than most of the grandparent cases. Here, the biological father had voluntarily terminated his rights following his divorce from the mother so that the mother’s new husband could adopt the child. Following the adoption, the biological father’s mother petitioned to continue her visitation rights she had attained following the divorce but before the proceedings related to the adoption.

The Court of Appeals ruled as follows:

a. Upholding the grandparent visitation statute as constitutional, and
b. Finding that the grandparent visitation statute does not unconstitutionally distinguish between two-parent adoptions and stepparent adoptions by permitting grandparent visitation when a stepparent adopts a child.

Note that the U.S. Supreme Court refused to review this case. 534 U.S. 953; 122 S. Ct. 351; (2001).

2. Riepe v. Riepe, 208 Ariz. 90; 91 P.3d 312 (2004).

The Riepe case involves a sad set of facts. The biological mother and father were divorced and eventually the father met, moved in with, and married the stepmother. The stepmother appears to have been very involved all aspects of the child’s life during the time she was with the father. In 2001, the father died in a traffic accident. Biological mother then denied visitation to the stepmother who petitioned for visitation under Arizona’s in loco parentis statute, A.R.S. §25-415. The trial court denied the stepmother’s petition for visitation and an appeal followed.

The Arizona Court of Appeals overturned the trial court, finding that the trial court improperly required the stepmother to show that her relationship with the child was equal or superior to that of the natural parents. The appellate decision also contains a lengthy dissent and response to the dissent that takes up most of the decision.

3. McGovern v. McGovern, 201 Ariz. 172; 33 P.3d 506 (2001).

In this case, the child at issue was born out of wedlock and the biological father’s parental rights were terminated. The mother and child lived with the mother’s parents for approximately four and one-half years commencing soon after the child’s birth and it appeared from the evidence presented that a significant bond developed between the child and the maternal grandparents. Mother eventually moved the child and herself out of her parents’ home and, as in the Troxel case, offered visitation to the grandparents that was less than the grandparents preferred, prompting the grandparents to file a petition for visitation.

Following the grandparents’ petition, a stipulated order was reached that provided the grandparents with visitation. Nevertheless, following the U.S. Supreme Court’s Troxel decision, the mother sought reconsideration and a declaratory judgment based on the Troxel ruling. The trial court then vacated the stipulated order for visitation and ordered that the mother would have complete discretion on all visitation matters. The grandparents then applied to the Arizona Court of Appeals for relief.

On appeal, the court noted similarities between the McGovern’s case and Troxel. For example, the mother’s fitness was not challenged and she had offered some visitation. The Court of Appeals agreed in part and disagreed in part with the trial court’s rulings. Specifically, the Court of Appeals agreed that the trial court properly vacated the stipulated visitation order but disagreed that the mother should have 100% discretion on visitation, finding that the mother’s offer of limited visitation was only one factor to consider. The Court of Appeals remanded the case so that the trial court could hold additional proceedings on the visitation issue.


E. Conclusion

The Troxel case is a landmark decision that has created waves of litigation in the states, even prompting a movement to have grandparent and in loco parentis statutes declared unconstitutional in many states. While Troxel has modified the way that Arizona trial and appellate courts view non-parent rights and how A.R.S. §§25-409 and 25-415 are interpreted, both statutes have withstood Constitutional challenges thus far and it appears that barring legislative action to the contrary, they are likely to remain in effect. Therefore, non-parents still enjoy certain rights in Arizona, although seemingly not to the extent that they did before the U.S. Supreme Court decided Troxel.

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*Attorney Carrie M. Wilcox is the sole shareholder of Wilcox Legal Group, P.C., a multi-dimensional law firm with offices in Arizona and California. She is a graduate of Arizona State College of Law where she was a Note and Comment Editor for the Arizona State University Law Journal and former intern for the Honorable Rudolph Gerber, Arizona Court of Appeals. Ms. Wilcox is admitted to practice in the Arizona state courts and federal district court. Ms. Wilcox practices in the areas of business formation and creditor rights/debt collection. She also has wide-ranging experience in civil litigation, including employment law, family law, personal injury and business representation. Ms. Wilcox is a member of the Association of Trial Lawyers of America (ATLA),the Maricopa County Bar Associations, State Bar of Arizona, Arizona Women Lawyers and American Bar Association. Ms. Wilcox is also a former instructor at the Arizona Paralegal Training Institute, where she lectured on various subjects including business formation and litigation, employment law and dissolution of marriage. She has also co-chaired seminars for other attorneys on divorce procedure on behalf of the Lorman Institute.

___________


APPENDIX OF CASES

(full text of cases available at www.wilcoxlegal.com)


a. Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000).

b. Kathryn Lucille Graville and Donald Graville, 195 Ariz. 119; 985 P.2d 604; 287 Ariz. Adv. Rep. 68 (Ariz. Ct. App. 1999)

c. Kathryn Lucille and Donald Graville v. Douglas Paul Dodge, 197 Ariz. 591; 5 P.3d 925; 322 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 2000).

d. Jackson v. Tangreen, 199 Ariz. 306; 18 P.3d 100 (2000).

e. Riepe v. Riepe, 208 Ariz. 90; 91 P.3d 312 (2004).

f. McGovern v. McGovern, 201 Ariz. 172; 33 P.3d 506 (2001).
_____________
ENDNOTES

[i] 25-409. Visitation rights of grandparents and great-grandparents

A. The superior court may grant the grandparents of the child reasonable visitation rights to the child during the child's minority on a finding that the visitation rights would be in the best interests of the child and any of the following is true:
1. The marriage of the parents of the child has been dissolved for at least three months.
2. A parent of the child has been deceased or has been missing for at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.
3. The child was born out of wedlock.
B. The superior court may grant the great-grandparents of the child reasonable visitation rights on a finding that the great-grandparents would be entitled to such rights under subsection A if the great-grandparents were grandparents of the child.
C. In determining the child's best interests the court shall consider all relevant factors, including:
1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party in seeking visitation.
3. The motivation of the person denying visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.
5. If one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.
D. If logistically possible and appropriate the court shall order visitation by a grandparent or great-grandparent to occur when the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child. If a parent is unable to have the child reside or spend time with that parent, the court shall order visitation by a grandparent or great-grandparent to occur when that parent would have had that opportunity.
E. A grandparent or great-grandparent seeking to obtain visitation rights under this section shall petition for these rights in the same action in which the parents had their marriage dissolved or in which the court determined paternity or maternity, or by a separate action in the county where the child resides if no action has been filed or the court entering the decree of dissolution or determination of paternity or maternity no longer has jurisdiction.
F. All visitation rights granted under this section automatically terminate if the child has been adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights. This subsection does not apply to the adoption of the child by the spouse of a natural parent if the natural parent remarries.

[ii] 25-415. Custody by nonparent; presumption; grounds; definitions

A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner's right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true:
1. The person filing the petition stands in loco parentis to the child.
2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody.
3. A court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.
4. One of the following applies:
(a) One of the legal parents is deceased.
(b) The child's legal parents are not married to each other at the time the petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
B. If a person other than a child's legal parent is seeking custody there is a rebuttable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.
C. The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:
1. One of the legal parents is deceased or has been missing at least three months.
2. The child's legal parents are not married to each other at the time the petition is filed.
3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
D. A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.
E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:
1. The child's parents.
2. A person who has court ordered custody or visitation rights.
3. The child's guardian or guardian ad litem.
4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
5. Any other person or agency that has previously appeared in the action.
F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.
G. For the purposes of this chapter:
1. "In loco parentis" means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
2. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated.


The Wilcox Legal Group, P.C.
Carrie Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Identity Theft

December 8, 2005 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court

Paralegal Beth Rees at the firm prepared the following identity theft article for our client newsletter. I thought it could be of interest so I reprint it here.

Identity Theft

It’s beginning to look a lot like . . . well, like the winter holidays, with all the gift-giving and –receiving opportunities that abound. Gift lists grow ever-longer and more specific, and the giver’s thoughts turn to long hours and longer lines at the mall, fighting for this year’s version of the last Furby or Cabbage Patch Doll on the shelf. Wouldn’t it be easier to log onto the Web and shop in your jammies, humming along with your Christmas tapes? But what about identity theft? Could you unwittingly be handing over your life to some scammer?

It is possible—but not as likely as the hype may lead you to believe. In the report prepared for the Federal Trade Commission in 2003 by Synovate
[1], approximately 4.6 percent of the population experienced some form of identity theft in 2002. In the same report, it was determined that in twenty-five percent of all identity thefts reported, the thief obtained the information through theft of a purse or wallet.

So your chances of experiencing any form of identity theft are one chance in twenty. And if you are one of the unlucky ones, you have a one in four chance of having been taken when someone lifted your wallet or purse.

How else does your information get captured? Do you shred your credit card statements, or do you just toss them in the garbage? If you leave them whole, that gives a thief your name, address, and account number. If you put them in a desk drawer, someone could remove them from that drawer. And do you know where the waiter goes with your credit card when he goes to swipe it? Are you sure he’s not making notes on a post-it, just in case he feels your tip is too small? There’s more to identity theft than the Internet.

What do you do when you realize that something’s gone wrong? For most people, the main concern is with misuse of an existing credit card account. With good reason too—according to Synovate’s 2003 report, misuse of an existing card accounts for over half the incidents of reported identity theft.

First and foremost, report the loss or theft of a credit card to the issuer immediately. This can limit your liability dramatically, often to a cap of $50.00 per card. Close any accounts you know were tampered with and open new accounts with new passwords. Don’t choose something obvious like a string of consecutive numbers, your mother’s maiden name, parts of your Social Security Number, or names of children or pets. Then file complaints with your local police and with the Federal Trade Commission. Finally, place a fraud alert on your credit report.

Speaking of credit reports, they are one of the best tools for making sure accounts are not being opened in your name without your knowledge. You are entitled to one free credit report every twelve months—just for asking. Peace of mind makes a nice holiday gift to yourself.

[1] Available at http://www.consumer.gov/idtheft/id_federal.htm

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com


Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What If I Don’t Like a Ruling on My Case?

November 9, 2005 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court


In most cases, neither side in a family law matter gets exactly and entirely what they want from a judge pursuant to a contested hearing or trial. Although all-out victories occur, there is a certain risk in going to court that a judge will not give either side what they want. But if you lose on an issue very important to you, what can you do?

First, evaluate whether or not the judge really ruled wrongly. If the judge did nothing wrong and just believed the other side's case had more merit, there may not be any recourse. Child custody decisions are often made this way because the cases often boil down to "He said, she said," situations. The judge has to make a decision and does, even though one (or both) sides may not like it. However, if you believe the judge abused his discretion, made a mistake in interpreting the law or some other error, you may be able to do something to change the outcome.

Second, be cognizant that there are various deadlines involved in trying to change/correct a judge's ruling. The deadlines vary depending on the type of corrective action one contemplates. Appeals, for example, require that a Notice of Appeal be filed within thirty (30) days of the final order from which an appeal is sought.

Third, evaluate the different legal routes available. For example, there are special action appeals, regular appeals, motions for reconsideration, motions for new trial, motions for relief from judgment and motions to set aside. Perhaps in another post, I will deal with each of these in more detail but for now, parties should be aware that there are alternative methods of trying to undo a court's ruling, different methods work best for certain situations and stages of the proceedings, and there are always various timeframes/deadlines to consider. If you are going to take action, consult an attorney immediately to make sure you act in time!

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com


Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Arizona Divorce & Family Law 2005-10-12 05:31:00

October 12, 2005 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court


An Arizona family law case arose awhile back where two first cousins were married in Virginia but moved to Arizona sometime before ARS § 25-112 was amended in 1996. While legal at the time of marriage in Virginia when it occurred, a dispute arose as to whether the marriage should be considered valid under Arizona law. Current Arizona law would not consider the the marriage valid but the legal question involved timing.

Arizona law is applied when determining validity of a marriage from a state outside Arizona. Since Arizona only enacted its amendments to ARS § 25-112 in1996, marriages contracted in another state prior to enactment of that statute's amendments are not subject to the amendments. In other words, as long as a marriage is valid under the version of the statute prior to the 1996 amendments, Arizona cannot dispute the validity of a marriage even if the issue only comes up after the 1996 amendments. This ruling is from the Arizona domestic relations appellate case Cook v. Cook, 1 CA-CV 03-0727, January 13, 2005.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Legal Separation vs. Divorce

October 11, 2005 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court


Quite a few people seem to believe that a legal separation is a shortcut to ending a marriage in Arizona. Although it is possible that a legal separation could involve slightly, and I mean slightly, less paperwork initially, the practical truth is that legal separations in Arizona can take just as much time, effort and resources as a divorce. That's because they involve pretty much identical issues as divorces --property division, debt division, child custody, visitation, child support, etc. Legal separations can end up going to a full-on trial, not to mention temporary evidentiary hearings prior to trial. Thus, if you're looking for a shortcut, a legal separation may not be the answer.

Besides not being a shortcut to getting rid of a spouse, legal separations end with the parties still being officially married. Although everything has been divided up, the parties remain married, meaning that neither may legally remarry. My experience with legal separations is that one party or both almost always later decide that they want a full divorce with more paperwork that must be submitted to the court to convert the legal separation to a divorce, resulting in more time and expense.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com


Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Application of Payments on Child Support Arrearages

September 28, 2005 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court

When an obligor parent (the parent paying child support) makes payments toward a child support arrearage in Arizona, the court should first apply the payment to interest. This means that the child support arrearage itself will be paid only after the accrued interest is paid. So the Arizona Court of Appeals held on January 11, 2005 in Alley v. Stevens , 1 CA-CV 04-0097.

Wilcox & Wilcox, P.C. Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: http://www.wilcoxlegal.com


Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What Legal Rights Do Step-Parents Have in Arizona Regarding Step-Children?

September 7, 2005 by Trent Wilcox, Arizona Lawyer  
Filed under Family Court



Answer:

Step-parents in Arizona may have legal child custody or visitation rights under certain circumstances. Essentially, Arizona law allows step-parents who have acted in place of a parent to petition the court for child custody and parental access (visitation) rights. In loco parentis is the term adopted in the Arizona statute to describe this situation. Presumably, the step-parent would request child custody or visitation as part of a divorce or legal separation proceeding in the Arizona family court.

Acting in place of a parent is a high burden to meet and really requires more than just a relationship between a step-parent and step-child. In Arizona, a step-parent appears to have two routes to take in maintaining a relationship with a step-child. One such route would be to request visitation rights via an appropriate petition and the other route would be to actually request custody by alleging, among other things, that it would be significantly detrimental for either of the child's legal parents to have custody.

In Arizona, in loco parentis rights are covered by Arizona Revised Statute §25-415, reprinted below:


A.R.S. §25-415. Custody by nonparent; presumption; grounds; definitions

A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner's right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true:
1. The person filing the petition stands in loco parentis to the child.
2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody.
3. A court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.
4. One of the following applies:
(a) One of the legal parents is deceased.
(b) The child's legal parents are not married to each other at the time the petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
B. If a person other than a child's legal parent is seeking custody there is a rebuttable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.
C. The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:
1. One of the legal parents is deceased or has been missing at least three months.
2. The child's legal parents are not married to each other at the time the petition is filed.
3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
D. A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.
E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:
1. The child's parents.
2. A person who has court ordered custody or visitation rights.
3. The child's guardian or guardian ad litem.
4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
5. Any other person or agency that has previously appeared in the action.
F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.
G. For the purposes of this chapter:
1. "In loco parentis" means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
2. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

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