What is ARFLP Rule 44

View previous topic View next topic Go down

What is ARFLP Rule 44

Post  Admin on Wed Apr 12, 2017 10:31 am

Rule 44 ARFLP (Arizona Rules of Family Proceedure)


A. Application and Entry. When a party against whom a judgment for affirmative relief is sought has failed to respond or otherwise defend as provided by these rules, the clerk shall enter that party’s default in accordance with the procedures set forth below. All requests for entry of default shall be by written application to the clerk of the court in which the matter is pending.

1. Notice.

a. To the Party. When the whereabouts of the party claimed to be in default are known by the party requesting the entry of default, a copy of the application for entry of default shall be mailed to the party claimed to be in default.

b. Represented Party. When a party claimed to be in default is known by the party requesting the entry of default to be represented by an attorney, whether or not that attorney has formally appeared, a copy of the application shall also be sent to the attorney for the party claimed to be in default. Nothing herein shall be construed to create any obligation to undertake any affirmative effort to determine the existence or identity of counsel representing the party claimed to be in default.

c. Whereabouts of Unrepresented Party Unknown. If the whereabouts of a party claimed to be in default are unknown to the party requesting the entry of default and the identity of counsel for that party is also not known to the requesting party, the application for entry of default shall so state and shall be mailed to the unrepresented party’s last known address.

2. Entry of Default. The acceptance by the clerk of the filing of the application for entry of default constitutes the entry of default.

3. Effective Date of Default. A default entered by the clerk shall be effective ten (10) days after the filing of the application for entry of default.

4. Effect of Responsive Pleading. A default shall not become effective if the party claimed to be in default pleads or otherwise defends as provided by these rules prior to the expiration of ten (10) days from the filing of the application for entry of default.

5. Applicability. The provisions of this rule requiring notice prior to the entry of default shall apply only to a default sought and entered pursuant to this rule.

B. Judgment by Default. Judgment by default may be entered as follows:

1. By Motion without Hearing.

a. When the petitioner’s claim against a respondent is for a sum certain or for a sum that can by computation be made certain, the court upon motion of the petitioner and upon affidavit of the amount due shall enter judgment for that amount and costs against the respondent, if the respondent has been defaulted for failure to appear and is not a minor or incompetent person. If the claim states a specific sum of attorneys’ fees that will be sought in the event judgment is rendered by default, and if such award is allowed by law and is supported by the affidavit, the judgment may include an award of reasonable attorneys’ fees not to exceed the amount of the demand therefore. If the claim requests an award of attorneys’ fees, but fails to specify the amount of such fees that will be sought in the event judgment is rendered by default, the judgment may include an award of attorneys’ fees, if such an award is allowed by law and the reasonable amount therefor is established by affidavit, where the respondent has not entered an appearance in the action.

b. When a petition for legal separation, dissolution, or annulment of marriage has been filed, a decree may be entered upon motion supported by the affidavit of either or both parties to the marriage, provided that:

1) there are no minor children of the relationship of the parties born before or during the marriage or adopted by the parties during the marriage, and the wife, to affiant’s knowledge, is not pregnant; and

2) neither party requests spousal maintenance.

The supporting affidavit shall set forth facts showing that jurisdictional requirements have been met and that the provisions of A.R.S. § 25-381.09 have been met or do not apply. The affidavit shall also set forth factual statements supporting the relief requested in the proceeding, including an award of attorneys’ fees, if applicable. A default decree under this rule is not available if the adverse party is a minor or incompetent person, or if the adverse party has otherwise appeared and default has not been entered for failure to appear unless the parties have agreed that the matter may proceed as if by default.

c. When a petition to establish maternity or paternity has been filed and an order of custody or parenting time is not requested, a judgment may be entered upon motion supported by an affidavit or affidavits of the state or the mother or the father. In cases where the default judgment is requested by the state, the factual basis for the finding of paternity shall be established by the affidavit of a parent. The supporting affidavit(s) shall set forth facts showing that jurisdictional requirements have been met and that a default order is appropriate pursuant to A.R.S. § 25-813. If entry of an order for current and past support is requested, the motion shall be accompanied by a child support worksheet to support the amounts requested and the supporting affidavit shall state the basis for the determination of the gross income of the defaulting parent. The affidavit shall also set forth facts supporting any other relief requested.

2. By Hearing. In all other cases the party entitled to a judgment shall apply to the court therefore, but no judgment by default shall be entered against a minor or an incompetent person unless represented in the action by a guardian, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, that party or, if appearing by representative, that party’s representative shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the relief to be granted, or to establish the truth of any statement by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper. The defaulted party is in the position of having admitted each and every material allegation of the petition.

Once a defaulted respondent has made a motion under the provisions of this rule, the trial court shall allow respondent to participate in the hearing to determine what, if any, is appropriate relief to be awarded petitioner pursuant to the Petition, or to establish the truth of any statement.

3. Past Support Judgments. No judgment by default under this rule shall be entered for any amount of child support accruing for periods of time prior to the date of filing of the petition to establish the first order for child support unless, in the petition or in the notice required pursuant to paragraph A, the party seeking support has notified the party from whom support is sought of the time period for which such past support is sought and that it will be calculated by retroactive application of the Arizona Child Support Guidelines. No judgment by default for any amounts of past child support owed for periods of time prior to the filing of a petition for order to appear pursuant to Rule 26(C) shall be entered for failure to appear at such hearing unless, in the petition or in a separate written notice filed and served upon the responding party at least ten (10) judicial days prior to the hearing, the party filing the petition has notified the responding party of the specific time period for which such past support is sought and that it will be calculated by retroactive application of the Arizona Child Support Guidelines.

4. Informing Defaulted Party. When a decree or judgment is entered by default, except in those cases resulting in default after service by publication, the party obtaining the decree or judgment shall certify on the decree or judgment, that, within three (3) judicial days of the party’s receipt of the decree or judgment, the party obtaining the decree or judgment will mail a copy of the decree or judgment to the party in default at that party’s last known address. Failure to comply with this rule shall not affect the validity of the decree or judgment entered or the time to appeal, or relieve a party from any obligations set forth in the decree or judgment.

C. Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 85(C).

D. Petitioners, Counterclaimants. The provisions of this rule apply whether the party entitled to the judgment by default is a petitioner, a third-party petitioner, or a party who has pleaded a counterclaim.

E. Judgment against the State. No judgment by default shall be entered against the state or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.

F. Judgment When Service by Publication; Statement of Evidence. Where service of process has been made by publication and no answer has been filed within the time prescribed by law, judgment shall be rendered as in other cases, but a record of the proceedings, in a form approved by the court, shall be maintained by the clerk of the court unless designated otherwise by the court.

G. Request for Judgment. A judgment by default shall not be different in kind from or exceed the amount requested in the pleadings. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, consistent with the best interests of the child(ren), even if the party has not requested such relief in the party’s pleadings, except that awards of spousal maintenance and for attorneys’ fees must be specifically pled for such relief to be granted through a default judgment.

Admin
Admin

Posts : 139
Join date : 2009-09-14

View user profile http://discountdivorce.forumotion.com

Back to top Go down

View previous topic View next topic Back to top


 
Permissions in this forum:
You cannot reply to topics in this forum