NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JAMES SNYDER DELLARIPA, Petitioner

v.

THE HONORABLE STEVEN K. HOLDING, COMMISSIONER

OF THE SUPERIOR COURT OF THE

STATE OF ARIZONA, IN AND FOR THE

COUNTY OF MARICOPA, Respondent Commissioner

v.

JULIE DELLARIPA, Real Party in Interest

No. 1 CA-SA 17-0119

Petition for Special Action from the Superior Court in Maricopa County

No. FC2010-050562

The Honorable Steven K. Holding, Judge Pro Tempore

JURISDICTION GRANTED, RELIEF DENIED

COUNSEL

Jennings, Haug & Cunningham, L.L.P., Phoenix

By Blake E. Whiteman and Ryan B. Johnson

Counsel for Petitioner

Katz & Bloom, P.L.C., Phoenix

By Norman M. Katz

Counsel for Real Party in Interest
DELLARIPA v. HON. HOLDING/DELLARIPA

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.

B R O W N, Chief Judge:

¶1 In this special action, James Dellaripa (“Father”) argues he 

was denied procedural due process when the trial court found him in 

contempt for failing to comply with a parenting time order. Father also 

argues the court erred in ordering him to pay attorneys’ fees. For the 

following reasons, we accept jurisdiction but deny relief. 

BACKGROUND

¶2 Father and Julie Dellaripa (“Mother”) divorced in 2011, and 

are the parents of two minor children. The parenting time order provided

in relevant part that during the school year, the children would reside 

primarily with Father, with Mother having parenting time from Thursday 

after school until Monday morning, every other weekend. The parents 

were directed to divide their parenting time equally during the summer.

¶3 In August 2016, Mother filed a petition for enforcement of 

parenting time, alleging that (1) Father had repeatedly violated the court’s 

existing orders by failing to present the children to Mother for her parenting 

time; (2) Father allowed the older child (age 14) to decide whether she 

wished to have parenting time with Mother, and Mother had not seen the 

older child for more than two months; (3) Mother’s efforts to resolve the 

parenting time disputes without court involvement were unsuccessful, as 

Father did not respond to Mother’s request that the parties agree to 

counseling between Mother and the oldest child; and (4) Father had not 

filed a petition to modify the parenting time orders. Mother requested, inter 

alia, immediate enforcement and imposition of “any and all available 

sanctions pursuant . . . to [Arizona Revised Statutes (“A.R.S.”) section] 25-

414” as well as attorneys’ fees and costs pursuant to A.R.S. §§ 25-414 and 

25-324. 

¶4 In October 2016, Mother filed a petition for contempt for 

denial of her parenting time, but the petition was merely mailed to counsel 

for Father and thus not properly served. The trial court denied Mother’s 
DELLARIPA v. HON. HOLDING/DELLARIPA

Decision of the Court

3

motion to consolidate the two petitions; however, the court noted that it 

would address both Mother’s petition to enforce parenting time and her 

petition for contempt at a conference and hearing set for November 7. 

Counsel for Father and Mother then jointly moved to continue the 

November 7 hearing on the petitions, and the hearing was reset to January 

27, 2017. 

¶5 At the outset of the January 27 hearing, Mother’s counsel

alerted the court to an unresolved issue whether proper service of the 

contempt petition had been accomplished, but Father did not directly 

address the matter. Instead, the hearing proceeded, and counsel and the 

court discussed various options to resolve the disputes. Father and Mother 

affirmatively stated under oath that they agreed with the avowals made by 

their respective attorneys. 

¶6 After taking the matter under advisement, the trial court 

found Father in contempt for violating the existing parenting plan as to both 

children, and gave Father until February 8, 2017, to fully comply with the 

parenting plan. Father moved to set aside the court’s ruling, arguing that 

he could not be held in contempt because he was not properly served with

the contempt petition and that he waived service only on the enforcement 

petition. The court denied the motion, noting that “after review of the file 

and FTR [recording] in this matter that Father had notice of these 

proceedings.” 

¶7 Mother filed an application and affidavit for attorneys’ fees 

and costs pursuant to A.R.S. §§ 25-325 and -414. Father objected, asserting 

that Mother failed to comply with Arizona Rule of Family Law Procedure 

(“Rule”) 91(S), which requires parties in a post-decree proceeding to file an 

affidavit of financial information when attorneys’ fees are at issue. The trial 

court granted Mother’s request for $4,490 in attorneys’ fees and $84 in costs. 

Father then petitioned for special action relief. 

DISCUSSION

¶8 Special action jurisdiction is appropriate for review of a 

contempt order, which is not otherwise appealable. Munari v. Hotham, 217 

Ariz. 599, 601, ¶ 7 (App. 2008). In our discretion, we accept jurisdiction. 

“We review a trial court’s contempt finding and imposition of sanctions for 

an abuse of discretion.” Henderson v. Henderson, 241 Ariz. 580, ____, ¶ 16 

(App. 2017). We will uphold the court’s decision if it is correct for any 

reason. Id. at ____, n. 11, ¶ 23. 
DELLARIPA v. HON. HOLDING/DELLARIPA

Decision of the Court

4

A. Enforcement of Parenting Time Order

¶9 Father argues the trial court violated his right to procedural 

due process by failing to assure adequate service of Mother’s petition for 

contempt and failing to issue an order to appear for the same as required 

by Rule 92(B), (C). Father contends indirect contempt proceedings must be 

conducted according to “regularly established rules of procedure,” and 

because the “procedural safeguards were ignored in violation of Father’s 

procedural due process rights,” the court’s contempt finding should be 

reversed. 

¶10 Under A.R.S. § 25-414,

A. If the court, based on a verified petition and after it gives 

reasonable notice to an alleged violating parent and an 

opportunity for that person to be heard, finds that a parent 

has refused without good cause to comply with a visitation or 

parenting time order, the court shall do at least one of the 

following:

1. Find the violating parent in contempt of court.

2. Order visitation or parenting time to make up for the 

missed sessions.

3. Order parent education at the violating parent’s expense.

4. Order family counseling at the violating parent’s expense.

5. Order civil penalties of not to exceed one hundred dollars 

for each violation . . . . 

6. Order both parents to participate in mediation or some 

other appropriate form of alternative dispute resolution at the 

violating parent’s expense.

7. Make any other order that may promote the best interests 

of the child or children involved.

(Emphasis added.)

¶11 Here, the narrow record before us indicates that the trial 

court’s orders are consistent with these statutory provisions, which govern 

parenting time violations. It is undisputed that Father waived service of 

the petition for enforcement and was given the opportunity to be heard on 
DELLARIPA v. HON. HOLDING/DELLARIPA

Decision of the Court

5

the matters raised in the petition by Mother. At the January 27 hearing, 

counsel agreed to forego the evidentiary hearing and work toward a 

resolution with the Commissioner serving as both mediator and factfinder. 

Mother and Father also had an opportunity to testify, but both concurred 

with the arguments and avowals of counsel. Upon agreement of the parties, 

the matter was taken under advisement for one week, to allow the parties 

to work toward a resolution and/or permit Father to file an expedited 

motion for change in parenting time. 

¶12 Because the parties did not resolve the parenting time 

dispute, the trial court issued its ruling, finding that “Father is in contempt 

of Court for allowing a 14-year-old to make decisions as it relates to 

[parenting time with] Mother . . . [and] for allowing the youngest child to 

only visit . . . with Mother on some of the days ordered by the Court.” The 

court then ordered compliance with the existing orders for parenting time, 

and noted, “if . . . Father has not complied with the court-ordered [parenting 

time] Mother may request any and all sanctions the Court is empowered to 

issue.” 

¶13 Father does not challenge the trial court’s factual findings;

rather, he simply contends that the contempt order was erroneous due to 

improper service of the contempt petition. Because Father received actual 

notice of the contempt petition and he has not identified any prejudice he 

suffered from Mother’s lack of compliance with Rule 92, we find no abuse 

of discretion. See Rule 86 (“The court at every stage of the proceeding must 

disregard any error or defect in the proceeding which does not affect the 

substantial rights of the parties.”). 

¶14 As relevant to issuance of a contempt order, Rule 92(B) states, 

“[n]o civil contempt may be imposed without notice to the alleged 

contemnor and without providing the alleged contemnor with an 

opportunity to be heard,” and the civil contempt petition “must be 

personally served upon the alleged contemnor in the manner required by 

Rules 40(C), (E) or (F) and 41 (C)(1).” It is undisputed that Mother did not 

serve the contempt petition as required; however, Rule 40(F), in pertinent 

part, states:

A person upon whom service is required may, in person or by 

attorney or by an authorized agent, enter an appearance in 

open court, and the appearance shall be noted by the clerk 

upon the docket and entered in the minutes. Such waiver, 

acceptance or appearance shall have the same force and effect 

as if a summons had been issued and served. 
DELLARIPA v. HON. HOLDING/DELLARIPA

Decision of the Court

6

See also Montano v. Scottsdale Baptist Hosp., Inc., 119 Ariz. 448, 452 (1978) (“It 

is a rule of ancient and universal application that a general appearance by 

a party who has not been properly served has exactly the same effect as a 

proper, timely and valid service of process.”).

¶15 In Arizona, a party “[makes] a general appearance when he 

has taken any action, other than objecting to personal jurisdiction, that 

recognizes the case is pending in court.” Kline v. Kline, 221 Ariz. 564, 569, ¶ 

18 (App. 2009). Father does not explain why the joint motion to continue 

and subsequent appearance at the enforcement hearing do not constitute a 

general appearance sufficient to effectuate proper, timely, and valid service 

of process for the contempt petition—a matter previously identified for 

discussion at the pending hearing. Further,

[I]f service is not achieved according to the requirements of 

the applicable procedural rule, it is technically defective and 

the pleading may be ineffective for some purposes. But strict 

technical compliance with rules governing service may be 

excused when the court has already acquired jurisdiction over 

the receiving party and that party receives actual, timely 

notice of an amended pleading and its contents.

Kline, 221 Ariz. at 570, ¶ 21. 

¶16 Here, Father indisputably received actual, timely notice of the 

contempt petition containing similar allegations as the enforcement 

petition, and therefore was not prejudiced by the technical defect in service. 

See id. at 571, ¶¶ 21, 23 (noting procedural rules as to service “intended to 

serve as a shield for those prejudiced by a lack of notice, not as a sword”). 

At the hearing, Father did not raise any challenge or concern that the court 

was considering whether he had violated the parenting time order; nor did 

he contest any of the allegations made in the petition for enforcement or the 

avowals made by Mother’s counsel. Moreover, in this special action, Father 

neither asserts that he was prejudiced by the court’s order nor does he 

challenge the court’s factual finding that he was in violation of the existing 

parenting time order. On this record, Father has failed to show the court 

abused its discretion under A.R.S. § 25–414(A)(1), (C) in finding Father was 

in contempt for violating the parenting time order.

B. Attorneys’ Fees

¶17 Father also argues the trial court erred in directing him to pay 

Mother’s attorneys’ fees and costs even though she failed to submit a 

financial affidavit as required by Rule 91(S). That rule provides in pertinent 
DELLARIPA v. HON. HOLDING/DELLARIPA

Decision of the Court

7

part as follows: “In any post-decree/post-judgment proceeding in which 

an award of attorneys’ fees, costs, and expenses is an issue, both parties 

shall file a completed Affidavit of Financial Information.” We review an 

award of attorneys’ fees for an abuse of discretion. See In re Marriage of 

Robinson & Thiel, 201 Ariz. 328, 335, ¶ 20 (App. 2001). 

¶18 The trial court acted within its discretion in awarding fees and 

costs to Mother notwithstanding her failure to file an updated affidavit of 

financial information. Rule 91(S) plainly requires “both parties” to file 

affidavits of financial information and yet nothing in this record indicates 

Father complied with the rule. Thus, Father cannot reasonably complain of 

Mother’s failure to submit an affidavit when he failed to do so himself. In

addition, Mother sought attorneys’ fees under A.R.S. § 25–414, which 

mandates that fees be awarded to the nonviolating parent upon a “find[ing] 

that a parent has refused without good cause to comply with a visitation or 

parenting time order.” Nothing in § 25–414 requires that a trial court 

consider the parties’ financial resources in evaluating a request for fees 

made under that statute. Instead, the only question is whether the violating 

parent refused to comply with the parenting time order without good 

cause. The court’s contempt finding necessarily implies that Father refused 

to comply with the parenting time order without good cause, and Father 

makes no argument to the contrary. Thus, Father suffered no prejudice by 

Mother’s failure to submit an affidavit of financial information because 

nothing in the affidavit would have been relevant to a fee request under 

§ 25–414. 

CONCLUSION

¶19 Because we conclude that Father has failed to establish that 

the trial court committed reversible error when it found he was in contempt 

for violating the parenting time order, we affirm both the court’s finding

and the resulting attorneys’ fees award. Given the absence of any current

information regarding the parties’ financial resources, we deny the parties’ 

requests (made pursuant to A.R.S. § 25–324) for attorneys’ fees and costs 

incurred in this special action.