Solorzano v. Jensen ( 2020 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
LUIS ALEXIS SOLORZANO, Petitioner/Appellant,
v.
JESSICA JENSEN, Respondent/Appellee.
No. 1 CA-CV 19-0772 FC
FILED 12-29-2020
Appeal from the Superior Court in Maricopa County
No. FC2014-051778
The Honorable John Christian Rea, Judge
VACATED AND REMANDED
COUNSEL
The Murray Law Offices, P.C., Scottsdale
By Stanley D. Murray
Counsel for Petitioner/Appellant
Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Kristi A. Reardon, Alexandra Sandlin
Counsel for Respondent/Appellee
SOLORZANO v. JENSEN
Opinion of the Court
OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.
W I N T H R O P, Judge:
¶1 Appellant Luis Alexis Solorzano (“Father”) challenges the
superior court’s modification of his child support obligation and award of
attorneys’ fees in favor of Appellee Jessica Jensen (“Mother”), contending
the court denied him due process by assessing his credibility without
hearing any in-person1 testimony. We agree and therefore vacate the
court’s ruling and remand for an evidentiary hearing.
FACTS AND PROCEDURAL HISTORY
¶2 In 2017, Father petitioned to modify legal decision-making
authority, parenting time, and child support, and both parties filed
emergency motions for temporary orders without notice. At a settlement
conference that followed, the parties reached agreement on all outstanding
issues except child support.2
¶3 The court then set an evidentiary hearing to resolve child
support and attorneys’ fees. At the hearing, the court spoke to both parties’
counsel and proposed that they submit the matter on briefs.3 The parties
1 Although we use the phrase “in-person” testimony throughout, we
simply mean sworn oral testimony that is seen and heard live, whether it
be presented physically or virtually.
2 In February 2018, the parties also stipulated to the entry of a
temporary child support order, requiring Father to pay $450 per month.
3 Although the court noted at the hearing that there had been
significant conflict between the parties, it is unclear whether the court was,
at this point, aware that the issue of child support would turn on disputed
testimony or aware that the parties’ briefs would likely allege vastly
different truths.
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Opinion of the Court
agreed to file simultaneous briefs with party affidavits and supporting
documents in lieu of live testimony.
¶4 After considering the briefs and submitted materials, the
court found Father “did not provide . . . any documentation to substantiate”
his claimed payments for childcare, extra educational expenses, or
healthcare for the parties’ child. The court also found Father “not credible,”
determined that he was “attempting to hide his actual income,” and
ordered him to pay $815 in monthly child support. The court also awarded
Mother attorneys’ fees, finding a substantial financial disparity and that
Father had acted unreasonably by “failing to disclose pertinent information
prior to the preceding Trial in this matter” and failing “to provide an
updated and complete [Affidavit of Financial Information].”4
¶5 Father sought post-trial relief, arguing that the court “failed
to allow testimony to resolve the issue of credibility.” After the court
denied his post-trial motions, Father timely appealed. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2).
ANALYSIS
I. Father Did Not Waive His Due Process Argument.
¶6 Father concedes he agreed to limit his presentation to briefs,
affidavits, and documentary evidence, but contends the court deprived him
of due process by finding him not credible based on those documents alone.
Mother contends Father waived his due process arguments by agreeing to
proceed without in-person testimony. She cites Pearson v. Pearson, 190 Ariz.
231, 234 (App. 1997), where we held a party who had agreed to proceed “by
avowal” could not later challenge the sufficiency of the evidence on appeal.
The issue here, however, is not the sufficiency of the evidence, but rather,
the court’s credibility assessments. See Volk v. Brame, 235 Ariz. 462, 467, ¶ 16
4 The court certified the decree as final under Arizona Rule of Family
Law Procedure (“Rule”) 78(b) and (c). Rule 78(c) certification was improper
because Mother’s claim for attorneys’ fees and costs remained pending. See
Rule 78(c) (applies to a “judgment as to all claims, issues, and parties”). But
Rule 78(b) certification was proper because that claim was the only issue
left to be resolved. See Bollermann v. Nowlis, 234 Ariz. 340, 342, ¶ 12 (2014)
(“[F]amily courts can avoid unwarranted delay by requiring parties to
submit fee applications within a defined time period . . . or by including
Rule 78(B) language in rulings on the merits.” (internal citation omitted));
see also Rule 78(e)(1).
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SOLORZANO v. JENSEN
Opinion of the Court
(App. 2014) (stating that courts may not conduct a “trial by affidavit” if the
“affidavits are directly in opposition upon any substantial and crucial fact
relevant to the grounds for modification” (quoting Pridgeon v. Superior
Court, 134 Ariz. 177, 181 (1982))). Indeed, we stated in Pearson that
“[p]roceeding by avowal does not allow the court to evaluate the demeanor
and credibility of the witnesses,” which the court necessarily did in this
case. See Pearson, 190 Ariz. at 234.
¶7 Mother also cites Shacknai v. Shacknai, 1 CA-CV 13-0555 FC,
2015 WL 3767157 (Ariz. App. June 16, 2015) (mem. decision). See also Ariz.
R. Sup. Ct. 111(c)(1)(C) (explaining when a memorandum decision may be
cited for persuasive value). There, the husband challenged a significant
attorneys’ fees award entered in a dispute over a property settlement
agreement, arguing the court deprived him of due process and any chance
to respond to the wife’s fee application by not conducting an evidentiary
hearing. Id. at *2, ¶¶ 8-9. We affirmed the award, concluding the husband
had “clearly stipulated to have the question of attorneys’ fees decided by
the court based on the information provided . . . without an additional
evidentiary hearing.” Id. at *4, *7, ¶¶ 18, 34. But we also expressly
distinguished Volk and acknowledged that due process requires an
opportunity to present sworn testimony if the court addresses “a disputed
issue requiring an assessment of credibility.” Id. at *4, ¶¶ 19-20.
¶8 There is no indication that any of the issues raised in Shacknai
required a credibility assessment. Moreover, unlike Shacknai, this case
involves a minor child’s needs. See id. at *1, ¶¶ 2-5. We typically decline to
find waiver where a child’s best interests are at issue, and we decline
Mother’s request that we do so here. See Nold v. Nold, 232 Ariz. 270, 273,
¶ 10 (App. 2013) (“[I]f the best interests of the child trump the consequences
ordinarily imposed for violations of the rules, then they should not be
ignored under the discretionary doctrine of waiver.”); Mendoza v. Mendoza,
177 Ariz. 603, 605 (App. 1994) (“[E]ven an intentional waiver of child
support is not binding on the courts and will be enforced only if the child’s
interests are not adversely affected.”).
II. The Court Deprived Father of Due Process by Assessing His
Credibility Without Hearing In-Person Testimony.
¶9 Generally, due process entitles a party to notice and an
opportunity to be heard at a meaningful time and in a meaningful manner,
as well as a chance to offer evidence and confront adverse witnesses. Cook
v. Losnegard, 228 Ariz. 202, 206, ¶ 18 (App. 2011). We generally review a
child support modification for an abuse of discretion. State ex rel. Dep’t of
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SOLORZANO v. JENSEN
Opinion of the Court
Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 14 (App. 2003). But due process
challenges present questions of law, which we review de novo. Wassef v.
Ariz. State Bd. of Dental Exam’rs, 242 Ariz. 90, 93, ¶ 11 (App. 2017); Mack v.
Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999).
¶10 Father contends that when a court assesses credibility, it must
give parties an opportunity to present sworn oral testimony. He cites Volk,
235 Ariz. at 464, ¶ 1, where we reversed a child support ruling based on a
due process violation. The superior court in that case allotted only fifteen
minutes for the hearing and denied both parties’ requests for more time. Id.
at 465, ¶¶ 4-6. The court also denied the father’s request to testify; instead,
the court allowed each side’s counsel to present documents supporting
their positions and the court made its decision based on that information
alone. Id. at 465-66, ¶¶ 9-11. We determined the court violated due process
by “expressly reject[ing] the parties’ efforts to testify” even though it
recognized that “credibility was central to the issue before it.” Id. at 466-67,
¶ 14.
¶11 Here, the parties acknowledged during oral argument before
this court that their prehearing briefs and affidavits raised issues of
credibility. For example, Father stated in his affidavit that he lost his job in
July 2018 because his then-employer “could not accommodate [his]
conflicting parenting schedule[].” But Mother asserted Father had not
previously disclosed his termination and argued that “[t]he extent to which
[Father] can provide credible testimony is in considerable doubt.” She also
argued Father’s decision to purchase an insurance agency was “a planned
move, hidden for some unknown reason . . . until Mother requested a child
support hearing.” Mother further argued Father had failed to disclose any
tax returns; Father contended he had not yet filed for 2017 or 2018.
¶12 As for Mother, she contended she could not work as a
cosmetologist even though she was licensed in California “many years
ago.” Father argued Mother could transfer the license to Arizona for a
modest fee and asserted there was “no reason that she would be unable to
find work.” He also presented affidavit testimony that Mother “works
‘under the table’ for cash . . . to prepare people for weddings and other
events.” While Mother admitted she had done a “handful” of weddings
and other events, she stated she had never worked full time as a
cosmetologist and that her skills were “hardly up to par.” The court’s
findings on these issues largely mirror Mother’s affidavit testimony, further
suggesting the court found her credible and Father not credible based on
the documents alone. Accordingly, although there may be limited
situations where credibility determinations can be made based on
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Opinion of the Court
declarations (for example, when a declaration is demonstrably contrary to
a document), the affidavits presented here did not allow for such a
determination absent testimony.
¶13 In summary, the evidence of Father’s and Mother’s respective
financial situations was closely contested. In increasing Father’s monthly
child support obligation to $815 from $450, the superior court found Mother
more credible than Father, yet it did so without seeing and hearing either
testify. The result was that there was no adversarial check on the
information on which the court ruled. See Volk, 235 Ariz. at 469, ¶ 24. We
therefore conclude Father was prejudiced, vacate the child support order
and associated attorneys’ fees award, and remand for an evidentiary
hearing. See id. at 470, ¶ 26 (“Due process errors require reversal only if a
party is thereby prejudiced.”).
III. We Decline to Award Attorneys’ Fees and Costs on Appeal.
¶14 Both parties request their attorneys’ fees and costs incurred
on appeal pursuant to A.R.S. § 25-324(A), under which we must consider
“the financial resources of both parties and the reasonableness of the
positions each party has taken throughout the proceedings.” Neither party
took unreasonable positions in this appeal. Having considered the relevant
financial evidence in the record, we decline to award attorneys’ fees and
costs.
CONCLUSION
¶15 We vacate the child support order and associated attorneys’
fees award and remand for an evidentiary hearing. We do not address the
merits of the dispute and express no opinion as to either party’s position.
AMY M. WOOD • Clerk of the Court
FILED: HB
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