(CONTINUED)
                             DISCUSSION
      Husband argues that his February 24th notice of change of judge was
timely and was not waived; therefore, he argues, Judge Rogers was without
jurisdiction to proceed and EVERY ruling and order by Judge Rogers after
February 24th should be "reversed and declared void."
      Rule 42(f)(1) provides that each side in an action is entitled as a
matter of right to one change of judge, if the notice of change of judge is
filed within the time constraints set forth in subsection (C). (NOTE 3)
Rule 42(f)(1)(D) provides, in part:
      (D) Waiver. A party waives the right to change of judge as a matter
      of right when, after a judge is assigned to preside at trial or is
      otherwise permanently assigned to the action, the party agrees to the
      assignment OR PARTICIPATES BEFORE THAT JUDGE in:
          (i) Any scheduled contested matter in the case.....
 
      (Emphasis added.) Because the parties did not agree to the
assignment, there are two elements to the determination of waiver under
subsection (D)(i); whether husband (1) participated before the noticed
judge (2) in a scheduled contested matter.
      In denying husband's Rule 42(f) notice of change of judge in this
case, Judge Rogers found that he had heard a "scheduled contested matter" -
- the February 12th hearing requested by wife to respond to the order of
protection issued against her. See generally SARCHETT V. SUPERIOR COURT,
168 Ariz. 321, 812 P.2d 1139 (App. 1991) (order to show cause hearing was
not "contested matter" because parties entered into stipulation); LEWIS V.
KELLIHER, 171 Ariz. 228, 829 P.2d 1274 (App.1992) (no "contested matter"
because no dispute litigated at hearing). Judge Rogers did not, however,
make any finding with regard to whether husband "participated" in that
hearing. We find that husband did not.
      According to the court's own minute entry, husband was neither
present nor represented by counsel at the February 12th hearing. In
addition, the court's minute entry reflects that husband "showed up and
then left before the hearing commenced." In so doing, husband essentially
waived his right to participate in the hearing on February 12th -- the very
antithesis of participation itself. In our opinion, it would all but
eliminate the participation element from Rule 42(f)(1)(D) if we were to
construe husband's "non-appearance" to be "participation" at that hearing.
      Wife contends that husband cannot now raise this issue for the first
time on appeal. We disagree. Although a number of notice of change of judge
issues come to this court by way of special action, see Rules 1 and 3,
Arizona Rules of Procedure for Special Actions, and although that might be
the expedient method by which to raise the issue before this court in most
cases, we have never held that Rule 42(f) issues CANNOT be raised on direct
appeal from the final judgment. Cf. TASH V. SAUNDERS, 153 Ariz. 322, 325,
736 P.2d 805, 808 (App. 1987) (no error found in judge's refusal to honor
notice of change of judge; issue raised on appeal). When a proper notice of
change of judge is timely filed, the noticed judge "HAS NO JURISDICTION to
do more than order the cause transferred to another judge." HUCK V.
HARALAMBIE, 122 Ariz. 63, 593 P.2d 286, 287 (1979) (emphasis added); HORDYK
V. FARLEY, 94 Ariz. 189, 382 P.2d 668 (1963); MURRAY V. THOMAS, 80 Ariz.
378, 298 P.2d 795 (1956); see also Rule 42(f)(3) (noticed judge "shall
proceed no further in the action). Thus, we conclude that this issue was
properly raised on appeal. See MATTER OF MARICOPA COUNTY JUVENILE ACTION
NO. JD-05401, 173 Ariz. 634, 640, 845 P.2d 1129 (App. 1993) (lack of
subject matter jurisdiction may be raised for the first time on appeal).
(NOTE 4)
(CONTINUED)
--- DB 1.58/004910
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