IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE
) ) ) KRISTI OLSEN, ) Petitioner/Appellee, ) ) ) v. ) ) MARCO SANDOVAL, ) Respondent/Appellant. ) ) In re the Matter of:
1 CA-CV 07-0351 DEPARTMENT D MEMORANDUM DECISION (Not for Publication – Rule 28, ARCAP) FILED 2-5-08
Appeal from the Superior Court in Maricopa County Cause No. DR2000-000110 The Honorable Rosa Mroz, Judge AFFIRMED IN PART; VACATED IN PART AND REMANDED
Law Offices of Stone & Davis, P.C. By Lisa Johnson Stone Attorneys for Petitioner/Appellee John L. Popilek, P.C. By John L. Popilek Attorneys for Respondent/Appellant
Scottsdale
Scottsdale
W I N T H R O P, Presiding Judge ¶1 Marco Sandoval (“Father”) appeals from the trial
court’s denial of his motion to set aside the entry of default and default judgment. For the following reasons, we affirm the
entry of default, vacate the default judgment, and remand for further proceedings consistent with this decision. FACTS AND PROCEDURAL HISTORY ¶2 On January 4, 2000, Kristi Olsen (“Mother”) filed a
complaint for paternity, child custody, visitation, and child support against Father regarding their children Mariah and
Zachary (the “children”).
On August 14, 2001, the family court
approved the stipulation entered between Father and Mother that they would both share joint legal custody of the children and have an equal access schedule.1 ¶3 After several years of contentious litigation over
custody, access, and child support, on January 20, 2006, Mother filed a petition for order to show cause regarding contempt for failure to pay child support and court-ordered payments on
judgment.
The child support enforcement hearing was initially
set for March 13, 2006, but it was vacated several times and finally rescheduled for November 22, 2006. Father was present
at the scheduled child custody enforcement hearing, in which the parties agreed to vacate the enforcement hearing and schedule a modification hearing for December 20, 2006, where an agreement was ultimately reached on the child support amount.
1
Several post-stipulation petitions, motions, and hearings followed that are not relevant to this decision. 2
¶4
Meanwhile, on June 29, 2006, Mother filed a separate
petition to modify custody, access, and child support, which eventually gave rise to this appeal. modification disciplining alleged the that Father and/or Mother’s petition for was abusing “inappropriately the children,
children
emotionally abusing the children and neglecting the children’s needs while the children are in his care.” Mother also alleged
that Father has a “history of involvement” with Child Protective Services (“CPS”). her sole custody Mother requested that the trial court award of the children, reduce Father’s parenting compel
time,
order
Father
to
attend
alcohol
abuse
programs,
Father to enroll in a batterer’s intervention program, order Father to attend parenting classes, and allow the children to attend schools in the Paradise Valley School District. In
regard to the school issue, Mother filed an emergency petition to change the children’s schools, which was granted. Father did
not respond to any of the aforementioned pleadings filed by Mother. ¶5 entry, On set October a 20, 2006, the family court, by minute for
resolution
management
conference
(“RMC”)
November 21, 2006, regarding Mother’s petition for modification. Father, who was acting in propria persona at the time,2 did not
2
Father has had several attorneys since 2000 when Mother filed her complaint for paternity, child custody, visitation, 3
appear at the scheduled RMC.
After finding that Father had
notice of the hearing through the mailing of the October 20 minute entry, from the the court proceeded and in Father’s into absence, took
testimony detailing granted
Mother,
received
evidence The in the its
documents then
children’s petition Mother
medical for sole
expenses.
court
Mother’s giving
modification custody of
entirety,3 and
including
children
reducing Father’s parenting time.4 ¶6 Father, through newly-retained counsel, filed a motion
to set aside the entry of default and default judgment, arguing that Father had not received notification of the hearing. In
response, Mother argued that Father had “considerable direct and indirect knowledge” of the November 21 hearing because Father was mailed a copy of the October 20 minute entry, was sent written correspondence from Mother’s attorney requesting a preconference settlement meeting, was mailed a copy of Mother’s RMC and child support. 2006.
3
Father’s last attorney withdrew on April 24,
Although the court did not use the terminology “default” or “default judgment,” the court essentially entered a default and a default judgment against Father. Thus, we analyze the court’s rulings as such. The family court also found Father in contempt and awarded Mother her attorneys’ fees. In her answering brief, Mother presented arguments concerning the issues of contempt and attorneys’ fees even though she acknowledged that Father did not raise either issue on appeal. We agree with Mother that these two issues have not been raised by Father on appeal; therefore, we do not consider them here. 4
4
statement,
and
had
access
to
the
Maricopa
County
Superior
Court’s website, all of which identified the date and time for the hearing. Father’s reply memorandum noted that Father had
surgery the month prior to the November 21 hearing and was thus, “under the influence of several powerful physician-prescribed narcotic medications.” hearing on The March family 20, court and conducted after an
evidentiary
2007,
hearing
testimony from Father, the court denied Father’s motion. ¶7 Father filed a timely notice of appeal. We have
jurisdiction pursuant to the Arizona Revised Statutes (“A.R.S.”) section 12-2101(C) (2003). ANALYSIS I. ¶8 Judgment Against Father As stated above, the family court granted Mother’s
petition for modification essentially through the equivalent of a default judgment against Father. Father argues on appeal that
imposition of this “sanction” interfered with the family court’s duty to consider the best interests of the children. ¶9 Rule 76(D) of the Arizona Rules of Family Law
Procedure (“ARFLP”) provides that if a party fails to appear at a RMC, the court, upon motion or its own initiative, shall, except for a showing of good cause, impose sanctions. The
nonexclusive list of sanctions include:
5
1.
an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting that party from introducing designated matters in evidence; an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any party thereof, or rendering a judgment or temporary order; in lieu of any of addition thereto, an of court the failure order to submit examination. the foregoing orders or in order treating as a contempt to obey any orders, except an to a physical or mental
2.
3.
Ariz. R. Fam. Law. P. 76(D) (emphasis added). sanctions imposed should not “unnecessarily
However, the with
interfere[]
[the trial court’s]
duty to consider the child’s best interests
in determining custody” as required under A.R.S. § 25-403(A) (2007).5 Hays v. Gama, 205 Ariz. 99, 101, 103-04, ¶¶ 8-10, 18,
24, 67 P.3d 695, 697, 699-700 (2003) (holding that the testimony and notes of the child’s therapist could not be excluded from consideration both at trial and by the custody evaluator as a sanction for the mother’s failure to comply with a court order appointing a specific therapist in a child custody dispute).
5
A.R.S. § 25-403(A) requires the family court, when determining a petition to modify custody, to consider the child’s best interests and all relevant factors, including “[t]he interaction and interrelationship of the child with the child’s parent or parents,” “[t]he child’s adjustment to home, school and community,” and “[t]he mental and physical health of all individuals involved.” In addition, “the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.” Id. § 25-403(B). 6
¶10
Here,
the
family
court
sanctioned
Father
for
his
failure to appear at the November 21 RMC by proceeding with an evidentiary hearing and by entering a judgment against him in his absence, which, Father argues, precluded him from presenting evidence of the children’s best interests. Under ARFLP 76(D),
the family court was within its discretion to sanction Father for his failure to attend the RMC, provided that the court
considered the best interests of the children in deciding to modify custody as required by A.R.S. § 25-403(A) and Hays.
However, notwithstanding the discretionary authority provided in ARFLP 76(D) to preclude Father from affirmatively presenting
evidence, the court, based on the clear mandate of Hays, should have not only considered all of the available evidence in
determining the best interests of the children but also made appropriate findings concerning the relevant factors enumerated in A.R.S. § 25-403(A). ¶11 The parties did not provide this court with a
transcript of the November 21 hearing.
The November 21 minute
entry neither contains the specific findings required by A.R.S. § 25-403(B) nor does it indicate that the court considered those factors as required by A.R.S. § 25-403(A).6 indicated that: Rather, the court
6
“[A]n appellant must provide the appellate court with all the evidence admitted in the trial court if the appeal is based 7
Based on the testimony [of Mother] and evidence presented, the Court is very concerned with Father’s behavior and mental health issues as set forth in CPS’ Report and Dr. Brennan’s therapy notes. While the mental health of a parent is one of the relevant factor in deciding custody, this “finding” alone is insufficient to support a modification of custody pursuant to A.R.S. § 25403. Because we are unable to determine that the family court
considered the children's best interests and all of the relevant factors enumerated in A.R.S. § 25-403(A), the court's order is deficient as a matter of law, and the trial court abused its discretion in granting Mother’s petition for modification. See
In re Marriage of Diezsi, 201 Ariz. 524, 526, ¶ 5, 38 P.3d 1189, 1191 (App. 2002); Downs v. Scheffler, 206 Ariz. 496, 499-500, ¶¶ 9-11, 80 P.3d 775, 778-79 (App. 2003). Therefore, we vacate the
judgment and remand the matter to the family court to make such findings.7
upon the contention that there was insufficient evidence to support the judgment of the trial court.” Hunt v. Hunt, 22 Ariz. App. 554, 557, 529 P.2d 708, 711 (1974). Although we do not have the transcript from the November 21 hearing, the minute entry, where the court would have most likely documented its explicit findings, clearly does not have a finding regarding the children’s best interests.
7
We note that on remand, notwithstanding Father’s failure to appear at the RMC, the family court, under the clear dictates of Hays, must allow Father to participate and present evidence at the adjudication hearing on the issue of whether modification of child custody is in the best interests of the children. See Hays, 205 Ariz. at 102, ¶ 18, 67 P.3d at 698 (holding that the children’s “best interest is paramount in custody 8
II. ¶12
Motion to Set Aside Entry of Default Because we find that the judgment was deficient, we
further address Father’s motion to set aside only as it pertains to the entry of default. ¶13 ARFLP 44(C), which is based on Rule 55(c) of the
Arizona Rules of Civil Procedure, provides that a court may set aside an entry of default “[f]or good cause shown.” “The test
of good cause is the same for an entry or judgment of default.” Webb v. Erickson, 134 Ariz. 182, 185-86, 655 P.2d 6, 9-10
(1982).
Father, to demonstrate good cause, had to establish
that (1) mistake, inadvertence, surprise or excusable neglect exists and (2) a meritorious defense to the claims exists.
Addison v. Cienega, Ltd., 146 Ariz. 322, 323, 705 P.2d 1373, 1374 (App. 1985); see Ariz. R. Civ. P. 60(c). Whether excusable
neglect exists depends on if the neglect or inadvertence “is such as might be the act of a reasonably prudent person in the same circumstances.” Ulibarri v. Gerstenberger, 178 Ariz. 151, “A meritorious defense must be established through
163, 871 P.2d 698, 710 (App. 1993). be established by facts and
cannot
conclusions, assumptions[,] or affidavits based on other than
determinations”). However, if Father fails to appear at the adjudication hearing, the court is within its discretion to proceed in his absence and make appropriate findings after considering the best interests of the children and the factors enumerated in A.R.S. § 25-403(A). 9
personal knowledge.”
Richas v. Superior Court, 133 Ariz. 512,
517, 652 P.2d 1035, 1040 (1982). ¶14 hearing In this case, the family court held an evidentiary on Father’s motion to set aside, where it received
testimony from Father and heard arguments from counsel of both parties. On the issue of excusable neglect, Father argued that
he never received notice of the November 21 RMC and that he has never missed a hearing. Upon specific questioning by the court,
Father testified that he never received (1) the minute entry dated October 20, 2006, (2) the letter dated October 23, 2006 from Mother’s counsel, or (3) the RMC statement dated November 14, 2006. Father admitted that his address was the same as the
one listed on those three documents and he had not had any problems with receiving his mail. Alternatively, Father also
testified that he had surgery on October 5 and was on medication for a week until October 12, which, Father argued, may have explained why he did not realize that he had to appear on
November 21.8
8
Although the court did not address whether Father had a meritorious defense in its ruling, we note that, in support of his claim of a meritorious defense, Father argued that the allegations in Mother’s petition for modification regarding his mental health occurred prior to the 2001 stipulation giving Father and Mother joint legal custody, the children’s grades and behavior have been adversely affected “since this [change to sole custody with Mother] happened,” Father has been involved with the children’s school activities, and Father “had issues that he could have presented to the Court . . . which are in the 10
¶15
At the conclusion of the hearing, the court denied
Father’s motion on the basis that Father could not establish excusable neglect for his failure to appear on November 21: Well, I unfortunately am going to deny your Motion to Set Aside. I don’t find [Father’s] testimony credible. It, it goes beyond credulity to, for the Court to believe that not only did my Minute Entry which was sent to the address that he testified to, but [Mother’s counsel’s] October 23rd, 2006 letter as well as her November 14th, 2006 RMC Statement were all sent to the same address. And all of them happened to be lost in the mail? The fact that he was using prescription drugs also doesn’t hold any weight in this Court. He testified that his surgery was October 5th, 2007 [sic]. He was on medication for a week. That took, took it, took it up to October 12, 2007 [sic]. The hearing wasn’t set until after that. Also, I’ve reviewed the case history and he has shown a pattern of not responding to the Court. The school issue was so critical that I, I can’t believe that somebody had to file an emergency motion and the school had already, was going to start already before, well actually it did start already; before we could do anything. If he had simply agreed to the school, then why didn’t he call his ex-wife to say hey, no problem. You don’t need to file this emergency petition. And that would be it. If he had done that, I’m sure [Mother’s counsel] would have come into Court and withdrawn her Emergency Petition. I’ve dealt with [Mother’s counsel] before. She’s not an unreasonable person. And so I don’t believe him. So, therefore, the Motion is denied. ¶16 Determining the credibility of witnesses is usually
left to the sound discretion of the trial court, see Haas v. Morrow, 54 Ariz. 455, 456, 97 P.2d 204, 205 (1939), and the
children’s[] best interests.” Further, Father argued that he had “a lot of information” that would provide a meritorious defense, but he did not present any testimony or documentary evidence indicating what that information was. 11
family
court
in
this
case
did
not
find
Father’s
testimony
credible.
Therefore, we are unable to say that the family court
abused its discretion in finding that Father failed to establish excusable neglect, see Richas, 133 Ariz. at 514, 652 P.2d at 1037 (reviewing a trial court’s denial of a motion to set aside an entry of default for an abuse of discretion), and we affirm the entry of default. CONCLUSION ¶17 Therefore, we affirm the entry of default but vacate
the judgment and remand this matter to the family court for further proceedings consistent with this decision. Mother has
requested attorneys’ fees and costs incurred in this appeal; however, as neither Mother nor Father has prevailed on all
issues, we decline to award attorneys’ fees and costs to either party.
_____________________________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING:
__________________________ JON W. THOMPSON, Judge
__________________________ SHELDON H. WEISBERG, Judge
12