D.T. v. C.L ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
In re the matter of:
D.T., Petitioner/Appellee,
v.
C.L., Respondent/Appellant.1
No. 1 CA-CV 19-0826 FC
FILED 5-6-2021
Appeal from the Superior Court in Maricopa County
No. FC2018-053899
The Honorable Dawn M. Bergin, Judge Retired
REMANDED
COUNSEL
Burggraff Tash Levy PLC, Scottsdale
By Michael Dinn
Counsel for Petitioner/Appellee
Alongi Law Firm PLLC, Phoenix
By Thomas P. Alongi
Counsel for Respondent/Appellant
1 To safeguard the identities of the minor children, it is ordered that
the clerk of this court shall amend the caption of this appeal as shown
above. It is further ordered that the caption shown herein shall be used on
all future documents filed in this matter.
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Decision of the Court
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.
S W A N N, Chief Judge:
¶1 This is a contested case regarding legal decision-making and
parenting time for the three minor children of C.L. (“Mother”) and D.T.
(“Father”). C.L. failed to appear at trial and the superior court proceeded
in her absence, awarding D.T. sole legal decision-making and severely
restricting C.L.’s parenting time. Though C.L. thereafter immediately and
repeatedly requested an opportunity to participate, the superior court did
not permit her to do so. We remand for an evidentiary hearing under Hays
v. Gama, 205 Ariz. 99 (2003), because on this record, the court precluded
evidence that was potentially significant to its duty to consider the
children’s best interests.
FACTS AND PROCEDURAL HISTORY
¶2 In July 2018, Father filed a petition to establish and modify2
legal decision-making and parenting time regarding the children. He asked
for joint legal decision-making and equal parenting time. He indicated that
“[d]omestic violence has occurred but it was committed by both parties or
it is otherwise still in the best interests of the minor child(ren) to grant joint
or sole legal decision-making . . . to a parent who has committed domestic
violence because . . . the domestic violence did not involve the children.”
Mother, who was self-represented during most of the proceedings,
responded that “[t]here has been domestic violence . . . and neither joint nor
sole legal decision-making . . . should be awarded to” Father. Mother asked
for sole legal decision-making and majority parenting time.
¶3 In December 2018, and then again in March 2019, the parties
reached—and the court approved—temporary agreements providing that
2 Though Father styled his petition as one to establish legal decision-
making and parenting time, a paternity order had previously granted
Mother custody of the parties’ oldest child. Accordingly, the superior court
properly construed the petition as seeking modification with respect to the
oldest child.
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the oldest child would reside mostly with Father and the younger children
would reside mostly with Mother. The court then set the matter for a June
2019 trial.
¶4 In March 2019, Mother filed a motion to reset the trial date. In
filing the motion, Mother used an address different than the PO-box
address she had previously provided to the court via a change of address
form. In an April 2019 minute entry addressed to Mother at the PO-box
address, the court granted Mother’s motion, vacated the June trial, and reset
trial to September 3, 2019.
¶5 Father filed a pretrial statement in August, indicating on the
form that “each party has received a copy of the Pretrial Statement and . . .
each party has exchanged true and correct copies of all exhibits.” He
reiterated that he was seeking joint legal decision-making, and he asked for
“50/50 parenting time with [the younger children] and full parenting time
with [the oldest child] with visitation time with [Mother].”
¶6 Mother, who was still self-represented, neither filed a pretrial
statement nor appeared at the September 3 trial. When Father informed the
court that he did not know why Mother was not there, the court found that
Mother had failed to appear without good cause and proceeded to receive
evidence in her absence.
¶7 With respect to domestic violence, Father testified that “[o]f
course” it existed in his relationship with Mother—“we fought like cats and
dogs”—but nothing physical had occurred for ten years. He stated that he
“may have once” been charged or arrested for domestic violence but was
not convicted, and that Mother had been arrested and convicted for
domestic violence in Washington. He provided exhibits including a
certificate showing his completion of an anger management program in
2012; documents detailing reports that Mother had struck one of the
children and had left another in a store; contentious text-message
exchanges; and an order of protection that he obtained against Mother early
in the case based on allegations that she appeared at his house three times,
each time screaming at him in front of the children, twice attempting to
forcibly remove them, and once destroying his property. Father also
testified that Mother had undiagnosed mental health issues; that she used
marijuana in front of the children and left paraphernalia in plain view in
her bedroom; that she sent the children to an unacceptable childcare center
in a bad neighborhood; and that she had only seen the oldest child six times
since the last hearing and each time it was a “disaster.”
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¶8 The court-appointed advisor testified that, according to the
children, Mother made upsetting comments to them about Father and
Father’s fiancée, did not keep the oldest child’s room clean, and did not
provide beds for the younger children. The advisor expressed concern that
anything less than an award of sole legal decision-making to Father would
prove unworkable.
¶9 The court immediately entered temporary orders awarding
Father sole legal decision-making authority with respect to all the children,
suspending Mother’s parenting time with respect to the oldest child, and
limiting Mother to four hours of supervised parenting time with the
younger children.
¶10 Later that day, Mother filed a “petition[ ]” asking for the trial
to be re-done. Mother stated that though she had received other notices at
her address (which was not the same as the PO-box address on file with the
court), she had not received notice of the trial date, and had learned of it
only after Father removed the children from school after the trial under the
temporary orders. She stated that she “never would have missed [the trial]”
had she known it was taking place. She further described evidence that she
would have offered implicating the best interests of the children: text
messages showing that Father had denied her parenting time with the
oldest child; testimony that Father had told the child about the court
proceedings; testimony that Father had told the child that Mother did not
want her; testimony that the foregoing distressed the child; police reports
regarding Father’s domestic violence; evidence that Father acted
aggressively toward staff at the children’s school and childcare facility;
evidence that Father disparaged Mother in front of the oldest child and staff
at the child’s counseling facility; and evidence that Father continually
contacted Mother’s housing authority to try to obtain information about
her.
¶11 Two days later, on September 5, Mother filed an updated
address form and a “proof of mail error” in which she again asked for the
opportunity to offer evidence at a new hearing. She attached documents
showing that she had ceased using the PO-box in February 2019 and that
she had notified the Postal Service of her new address. She also provided
an unsworn statement from a “USPS lead clerk” to the effect that an item of
mail from “City of Phoenix, Municipal Court, Financial Services” was not
properly processed and therefore was not retrieved from the PO-box until
September 5.
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¶12 The superior court ruled on September 11 that it would take
no action on Mother’s September 3 and September 5 filings because they
were related and she had failed to copy Father on at least one of them.
¶13 On September 17, Mother filed “proof” whereby she re-
submitted copies of the Postal Service documents and again asked for relief
from the temporary orders. The superior court ruled on October 24 that, to
the extent the “proof” was intended to be a motion for reconsideration,
motion to alter or amend judgment, or motion for new trial, it was denied
because Mother had failed to timely apprise the court of her new address
consistent with ARFLP (“Rule”) 9(a). The court then entered a final
judgment awarding Father sole legal decision-making with respect to all
the children; suspending Mother’s parenting time with the oldest child
until Mother participated in therapeutic intervention with the child or the
child reached a point in her counseling where she, her therapist, and Father
agreed to contact with Mother on such terms determined by Father on the
therapist’s advice; and permitting Mother supervised parenting time with
the younger children for eight hours per week, with the possibility of
unsupervised parenting time every other weekend if Mother provided
evidence to Father that each child had their own bed, completed a
substance-abuse assessment and followed all recommendations, completed
at least sixteen sessions of individual therapy, and completed an in-person
anger management class.
¶14 Mother appealed the judgment, and then obtained a stay for
the purpose of filing a motion for relief under Rule 85. By that motion, she
sought relief under Rule 85(b)(1), (3), and (4): she contended that her failure
to appear was the product of excusable neglect; that Father committed
fraud and misrepresentation by minimizing his domestic-violence history;
that Father committed misconduct by not timely or properly providing her
a copy of the pretrial statement and by introducing unanticipated,
improperly disclosed evidence at trial; and that she was deprived of due
process because she was given no notice of the grounds on which the
judgment was premised. She attached exhibits including police reports
detailing an incident where Father kicked her and closed a door on her
during her 2010 pregnancy.
¶15 The superior court denied the Rule 85 motion. The court
concluded that Mother’s reliance on Postal-Service forwarding to receive
notice of court proceedings was unreasonable; that Mother could have
challenged any disclosure issues had she appeared; that Mother could have
anticipated Father’s evidence; that the court was not constrained by the
party’s filings in determining the children’s best interests; and that in view
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of Father’s evidence of Mother’s domestic violence, Mother’s statements
and evidence regarding Father’s domestic violence “would not have had an
effect, much less an ‘especially significant effect,’ on the Court’s ability to
determine the children’s best interest[s]” under Hays v. Gama.
¶16 Mother filed an amended notice of appeal seeking review of
the court’s denial of Rule 85 relief.
DISCUSSION
¶17 We review the denial of Rule 85 relief for abuse of discretion.
City of Phoenix v. Geyler, 144 Ariz. 323, 328 (1985).3 We reject as unfounded
Father’s contention that Mother waived or abandoned her challenge to the
Rule 85 order by virtue of deficiencies in her opening brief.
¶18 Mother has shown no abuse of discretion in the superior
court’s determinations under the Rule 85(b)(1), (3), and (4) rubric that she
identified in her motion. First, the court did not abuse its discretion by
determining that Mother’s failure to appear was not occasioned by
excusable neglect. The court reasonably concluded that Mother, who had
demonstrated knowledge of the process of updating her address with the
court, did not act with reasonable prudence by relying solely on a Postal
Service forwarding process to receive notice of court proceedings. See
Geyler, 144 Ariz. at 331 (“The standard for determining whether conduct is
‘excusable’ is whether the neglect or inadvertence is such as might be the
act of a reasonably prudent person under the same circumstances.” (citation
omitted)). Second, the court did not abuse its discretion by holding that
Father’s conduct did not constitute fraud, misrepresentation, or
misconduct, or render the judgment void. To be sure, Father’s testimony
regarding his domestic-violence history was vague—but it was not wholly
inconsistent with her evidence and did not rise to the level of fraud or
misrepresentation.4 Cf. Sloan v. Florida-Vanderbilt Dev. Corp., 22 Ariz. App.
572, 575 (App. 1974) (“[I]n a default hearing pursuant to [civil] Rule 55(b),
there is no duty on the part of a party either to present all of its evidence in
support of his claim for damages or to offer evidence in his possession with
3 We apply case law interpreting the civil rules when the language of
those rules is substantially the same as the language of the family law rules.
Rule 1(c).
4 We note, however, that the sparseness of Father’s testimony
underscores our conclusion, infra, that the court should have received more
evidence to determine the children’s best interests.
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his contradictory to either liability or damages. Of course, a party cannot
present false evidence to establish a default judgment, for such would be a
fraud on the court . . . .”). Third, Mother provided insufficient evidence to
show that Father untimely or improperly provided her the pretrial
statement and exhibits. And finally, the court’s order was not void simply
because it did not track Father’s requests—in determining legal decision-
making and parenting time, the court must act in accordance with the
children’s best interests and is not limited by the parents’ positions. See
Sundstrom v. Flatt, 244 Ariz. 136, 138, ¶ 7 (App. 2017) (holding that when
only one party petitions to modify legal decision-making, the court is not
precluded from awarding sole legal decision-making to the non-petitioning
party); cf. Solomon v. Solomon, 5 Ariz. App. 352, 355–56 (1967) (holding that
the court abused its discretion by deciding custody when a party sought
custody on only one day’s notice).
¶19 But though the court did not abuse its discretion by denying
relief under Rule 85(b)(1), (3), and (4), consideration of the children’s best
interests required the court to address the merits of the evidence Mother
provided. It is true that Mother failed to act with sufficient diligence to
afford her a right to automatic relief from the judgment. Yet Mother’s
vigorous (if untimely) efforts to introduce evidence critical to the court’s
mission supported her requests to be heard, and to have the judgment
modified if necessary. On this record, it was an abuse of discretion not to
afford Mother the opportunity for a hearing. See Rule 85(b)(6) (providing
that the court may order relief from judgment for “any other reason
justifying relief”); Skydive Ariz., Inc. v. Hogue, 238 Ariz. 357, 364, ¶ 25 (App.
2015) (providing that relief under a catch-all provision of the analogous civil
rule is available when other provisions do not apply and, under the totality
of the facts, “extraordinary circumstances of hardship or injustice justifying
relief” exist (citation omitted)); Quijada v. Quijada, 246 Ariz. 217, 220, ¶ 6 n.3
(App. 2019) (holding that a party need not a file specific motion to invoke
Rule 85).
¶20 Children’s best interests are “paramount” when determining
legal decision-making and parenting time. Hays, 205 Ariz. at 102, ¶ 18; see
also Sundstrom, 244 Ariz. at 138. Accordingly, as our supreme court made
clear in Hays, “[w]hen custody of children is involved in a court proceeding,
it [is] the duty of the court to hear all competent evidence which may be
offered.” 205 Ariz. at 103, ¶ 21 (citation omitted). Indeed, A.R.S. § 25-
403(A) expressly commands that “[t]he court shall determine legal decision-
making and parenting time, either originally or on petition for
modification, in accordance with the best interests of the child[, and t]he
court shall consider all factors that are relevant to the child’s physical and
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emotional well-being.” (Emphases added.) Hays therefore explained that
“excluding evidence in a child custody dispute necessarily conflicts with
these overriding principles.” 205 Ariz. at 103, ¶ 21.
¶21 To be sure, the family law rules provide that when a party
fails to appear at trial without good cause, the court may restrict that party’s
use of evidence or even render a dismissal or default judgment. See Rule
76.2(a)(2), (b)(5)–(6); Rule 44.2. But such sanctions are available only when
they do not affect the court’s ability to fulfill its duty to determine the
children’s best interests. See Johnson v. Provoyeur, 245 Ariz. 239, 243–45,
¶¶ 16–17, 20–21 (App. 2018) (upholding exclusion of untimely disclosed
supplemental expert report because expert’s testimony regarding original
report, along with other evidence, gave court “sufficient information to
assess the children’s best interests”); see also Rule 76.2(b)(5) (providing that
dismissal is an inappropriate remedy if it “would be contrary to the best
interests of a child”); Rule 44.2(d) (providing that “if a defaulted party
appears, the court must allow that party to participate in the hearing to
determine what relief is appropriate or to establish the truth of any
statement”). As Hays held, preclusion is inappropriate if it prevents
“potentially significant information from being considered in the custody
determination” and thereby has “an especially significant effect on the
ability of the court to determine the child’s best interests.” 205 Ariz. at 103–
04, ¶ 22; see also James A. v. Dep’t of Child Safety, 244 Ariz. 319, 322, ¶ 13 (App.
2018) (holding that court abused its discretion by precluding “potentially
outcome-determinative bonding assessment report” in severance case). In
such circumstances, sanctions are limited to those that “d[o] not in any way
restrict the superior court’s overriding obligation to consider the best
interests of the child.” Hays, 205 at 103, ¶ 20 (upholding monetary contempt
sanctions).
¶22 The superior court concluded that Mother’s Rule 85 motion
and the exhibits attached thereto “would not have had an effect, much less
an ‘especially significant effect,’ on the Court’s ability to determine the
children’s best interest.” But the children’s best interests appear precarious
in this case, and the factors the court was required to consider in
determining best interests necessarily required the court to assess the
parents’ credibility regarding contested issues. See A.R.S. §§ 25-403, -403.01,
-403.03, -403.04, -403.05. And though Mother did not act diligently to
ensure that she received notice of the trial, upon learning that trial had
occurred (and that the trial resulted in relief far more drastic than what
Father had requested) she acted immediately—mere hours after the trial
concluded—to contest the temporary orders and ask for an opportunity to
present her case at a hearing. She also aggressively continued to seek relief
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over the following months, describing the evidence she sought to present.
It therefore was apparent that Mother was immediately available and ready
to participate by offering testimony and cross-examining Father.5 And
because such participation would potentially provide the court with
information highly probative to (at the least) the critical question of the
parties’ credibility, the court erred by not permitting an evidentiary
hearing. See Pridgeon v. Superior Court (LaMarca), 134 Ariz. 177, 181 (1982)
(“[I]f affidavits are directly in opposition upon a substantial and crucial fact
relevant to the grounds for [custody] modification, the court may not
conduct a ‘trial by affidavit,’ attempting to weigh the credibility of the
opposing statements. In such a case, the court must hold a hearing.”); Volk
v. Brame, 235 Ariz. 462, 466–68, ¶¶ 14, 18, 21 (App. 2014) (recognizing that
documentary evidence is inadequate to permit reliable assessment of
credibility, and holding that the court violates due process by disallowing
meaningful direct testimony and adequate cross-examination when
resolution of material contested issue hinges on credibility).
¶23 Hays places trial courts in a difficult position, because rules
designed to ensure that the superior court delivers prompt decisions can be
violated with what may be perceived as impunity. But Hays is a binding
decision of our supreme court, and it is rooted in sound reasoning: the
public policy of Arizona places the best interests of children above other
considerations, and there are times when procedural rules must yield to
that policy. This is one of those times.
5 We note also that this was not a case in which Mother had repeatedly
failed to participate—by contrast, both she and Father were active litigants
in the pretrial phase. Cf. Johnson, 245 Ariz. at 245, ¶ 20 (warning that
“[w]hile a court may generally hear any competent and potentially
significant evidence pertaining to the best interests of a child, a parent may
not rely on Hays as a means to flout multiple disclosure deadlines without
good cause”).
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CONCLUSION
¶24 We conclude that Mother was entitled to an evidentiary
hearing on her motion for relief from the judgment. We remand for that
evidentiary hearing and all additional proceedings that the superior court
may deem necessary. We express no opinion as to the appropriate result of
any future proceedings. We deny both parties’ requests for attorney’s fees
on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
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