Kline v. Kline (CA1 5/21/09)

Reading cases on law you don’t practice can teach you things. Whether they’re the right things is another question.

This is, just like it sounds, a divorce case, which we don’t usually read. Wife got spousal maintenance based on an Amended Complaint she didn’t serve; the Court of Appeals, after some tendentious meandering, decided that she came close enough.

The interesting part is Footnote 5. It tells us that there is, after all, despite years of people’s thinking and being taught the opposite, a difference between a “general” and a “special” appearance. How did the court conclude that? First, because In re Hindi, 71 Ariz. 17 (1950), which had been cited to the court for the proposition that there was no difference, “predates the effective date of the Arizona Rules of Civil Procedure.” Second, because later cases had used the phrase “general appearance.”

How do courts make mistakes like this? We’ve said it before: footnotes too often contain things that have only been half thought through. In this case, the footnote resulted from something said at oral argument, which may mean that it was an afterthought to an opinion that had already been researched and drafted – and which, perhaps, nobody wanted to have to change too much. (Yes, we know we just asked for a footnote in another case but that was a brief, explanatory footnote, not a footnote attempting substantive legal analysis.)

(Don’t understand why the court was wrong? Here’s the deal:)

In In re Hindi, our Supreme Court took judicial notice that there was no difference under the “new” rules between a general and a special appearance. What rules was it referring to? The tip-off should have been the authority it cited for that conclusion: Moore’s Federal Practice. Moore’s has always been about the federal rules of civil procedure, the rules we adopted and have now, which had been promulgated federally in 1938. In re Hindi, in other words, was referring to our present set of rules, not to some earlier set.

The Rules of Civil Procedure, as rules, were adopted in Arizona in 1949, and in large part had been incorporated as statutes in A.C.A. 1939. If you look in the rule book nowadays – which is apparently all the court did – it does say that the rules were effective in 1956. What happened, though, was that the rules were re-adopted in 1956 when the A.R.S. replaced the A.C.A. 1939. A bit tricky, perhaps, but don’t we expect courts to be able to handle these things?

The court also failed to consider that the present rules,  which it suggests established a difference between types of appearance where none had existed before, do no such thing. No rule defines general versus special appearances (except the very recent Rule 5.2 on “limited” appearances in vulnerable-adult matters).

Why have courts occasionally used the phrase “general appearance?” As Kline itself acknowledges, “general appearance” means the same as “appearance.” Lawyers and judges sloppily interchange phrases like that all the time.  That “general appearance” means the same as “appearance” logically  suggests not that there is a “special” appearance but that there isn’t. If they mean the same then the broader “appearance” subsumes the narrower “general appearance,” not the other way around.

(We deliberately left out one reason the court didn’t think In re Hindi applied: because it “has never been cited for this proposition.” Precedent can’t be cited until its been cited? Don’t get us started . . .)