Solorzano v. Jensen

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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:

LUIS ALEXIS SOLORZANO, Petitioner/Appellant,

v.

JESSICA JENSEN, Respondent/Appellee.

No. 1 CA-CV 19-0772 FC FILED 9-29-2020

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 Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision 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-person testimony. We agree and therefore vacate and remand for an evidentiary hearing.

FACTS AND PROCEDURAL HISTORY

¶2 In 2014, Father petitioned to determine paternity, legal decision-making authority, parenting time, and child support for the parties’ minor child. The parties, who lived together and did not need a child support order at the time, stipulated to a parenting plan.

¶3 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. The superior court declined to rule on an emergency basis and set the matter for trial. The parties stipulated to convert the trial into a settlement conference, where they reached agreement on all outstanding issues except child support.1

¶4 The court 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. The parties agreed to file simultaneous briefs with party affidavits and supporting documents in lieu of live testimony.

¶5 After considering the briefs and submitted materials, the court found Father “did not provide . . . any documentation to substantiate”

1 In February 2018, the parties also stipulated to the entry of a temporary child support order, requiring Father to pay $450 per month.

SOLORZANO v. JENSEN Decision of the Court

his claimed payments for childcare, extra educational expenses, or healthcare for the minor child. The court also found Father to be “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].”2

¶6 Father sought post-trial relief, arguing that the court “failed to allow testimony to resolve the issue of credibility.” He timely appealed after the court denied his post-trial motions. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2).

ANALYSIS

I. The Court Deprived Father of Due Process by Assessing His Credibility Without Hearing In-Person Testimony.

¶7 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. 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 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).

2 The court certified the decree as final under Arizona Rule of Family Law Procedure (“Rule”) 78(b), (c). Rule 78(c) certification was improper because Mother’s attorneys’ fees and costs claim 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).

SOLORZANO v. JENSEN Decision of the Court

¶8 Father contends that when a court assesses credibility, it must give parties an opportunity to present sworn oral testimony, citing Volk v. Brame, 235 Ariz. 462, 464, ¶ 1 (App. 2014). In Volk, the superior court allotted only fifteen minutes for a child support hearing and denied both parties’ requests for more time. Id. at 465, ¶¶ 4-6. The court also denied the father’s request to testify:

This is how this is going to work. [Mother’s counsel is] going to present . . . his information, whether it’s accurate or not. You’re going to present me your information that says it’s not true. I’m going to look at both of them, and then I’m going to make a decision. . . . I just need for you two to give me the documents. . . . You don’t have to tell me what you presented. Just give it to the Clerk, [and] have her . . . mark it because I’m going to look at it.

Id. at 465-66, ¶¶ 9-11 (all alterations except third in original). We determined the court violated due process by “expressly reject[ing] the parties’ efforts to testify” despite recognizing that “credibility was central to the issue before it.” Id. at 466-67, ¶ 14.

¶9 Here, the parties conceded 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 argued “[t]he extent to which [Father] can provide credible testimony is in considerable doubt” because he had not previously disclosed his alleged termination. 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 also argued Father failed to disclose any tax returns; Father contended he had not yet filed for 2017 or 2018.

¶10 As for Mother, she contended she could not work as a cosmetologist despite holding a California license obtained “many years ago.” Father questioned this assertion, arguing Mother could transfer the license to Arizona for a modest fee and that 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

SOLORZANO v. JENSEN Decision of the Court

suggesting the court found Father not credible based on the documents alone.

II. Father Did Not Waive His Due Process Arguments.

¶11 Mother attempts to distinguish Volk, contending 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, 235 Ariz. at 467, ¶ 16 (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 attempted to do in this case. See Pearson, 190 Ariz. at 234.

¶12 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 stemming from 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.

¶13 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 invitation to 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

SOLORZANO v. JENSEN Decision of the Court

support is not binding on the courts and will be enforced only if the child’s interests are not adversely affected.”).

¶14 In summary, there was no adversarial check on the information the court considered to increase Father’s monthly child support obligation from $450 to $815. See Volk, 235 Ariz. at 469, ¶ 24. We therefore conclude Father suffered prejudice, 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.

¶15 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 fees.

CONCLUSION

¶16 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: AA