Opinion
No. 1 CA-CV 11-0480A
06-07-2012
In re the Matter of: SABRINA SOYOUNG HUR, Petitioner/Appellee, v. CESARE TIMA DE CHAVEZ, Respondent/Appellant,
Charles A. Kellers PLLC By Charles A. Kellers Attorneys for Petitioner/Appellee The Murray Law Offices PC By Stanley D. Murray Attorneys for Respondent/Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County
Cause No. FC2010-052117
The Honorable Michael D. Gordon, Judge
AFFIRMED
Charles A. Kellers PLLC
By Charles A. Kellers
Attorneys for Petitioner/Appellee
Scottsdale
The Murray Law Offices PC
By Stanley D. Murray
Attorneys for Respondent/Appellant
Scottsdale TIMMER, Presiding Judge
¶1 Cesare Tima De Chavez ("Father") appeals the family court's judgment awarding sole legal and physical custody of his child to Sabrina Soyoung Hur ("Mother") and imposing child support obligations on him. For the reasons that follow, we affirm.
BACKGROUND
¶2 Father and Mother are the parents of a child ("Child") born out of wedlock in 2009. On June 17, 2010, Mother filed a complaint seeking to establish paternity and asking the court to award her sole custody of Child while granting Father limited parenting time and ordering him to pay child support. Father filed a response on July 8 admitting paternity and seeking joint custody. Mother then mailed Father's attorney interrogatories and a request for documents with an August 21 due date. Without responding to the discovery requests, and after the parties had engaged in unsuccessful attempts to settle the matter, Father's attorney moved to withdraw from the case on September 27 due to a disagreement with Father. The attorney also stated he had lost contact with Father but provided his last known address and telephone number. The court granted the motion on November 2.
¶3 On December 2, after Mother's letter requesting compliance with outstanding discovery requests went unanswered, Mother moved to compel Father to respond to the interrogatories and the request for documents and provide signed releases of records documenting his reported education at various institutions. Father never responded to the motion, and the family court granted it on January 26, 2011, ordering Father to immediately comply with the discovery requests and pay attorney's fees and costs associated with the motion. The court warned Father in the minute entry that further sanctions would be imposed if he failed to comply with the Arizona Rules of Family Law Procedure.
Father asserts he did not receive Mother's motion or the court's order because he no longer resided at the address on file with the court. Although Father was obligated by Arizona Rule of Family Law Procedure 23 to inform the court and Mother of the address change within ten days of moving, he set forth his new address in his motion for temporary orders filed December 22, 2010. Father never filed a separate change of address form, and the court did not use the new address until it issued a minute entry on March 11, 2011. But Mother immediately used the new address in her filings after December 22, including her initial motion for contempt. On February 15, 2011, however, she informed the court that although she had sent Father the court's January 24, 2011 order granting the motion to compel by certified and regular mail to the new address, both were returned "not deliverable as addressed, unable to forward." We need not consider the ramifications of Father's address changes and purported lack of notice of the order compelling his discovery responses as our decision rests on events that occurred on and after March 11, 2011 when Father clearly had notice of court filings and orders.
¶4 Father failed to respond to the discovery requests. As a result, Mother filed a motion for contempt on February 28, and the court immediately scheduled a telephonic hearing for March 10, which Father did not attend. The court did not notify the parties of the hearing by minute entry but instead called the parties to appear. The court noted at the hearing that it had attempted to contact Father at "all . . . contact numbers" and left a message; the court elected to proceed with the hearing finding that Father had voluntarily failed to appear. The court then granted the motion and ordered that Father could purge his contempt by responding to the discovery requests by March 18. The court warned Father in the order that if he failed to purge his contempt, the court would strike his answer and proceed with a default hearing on the complaint on April 11. The court also sanctioned Father by ordering him to pay Mother's attorney's fees associated with filing the motion. Finally, the court ordered it would reconsider its contempt and sanction rulings de novo if Father could demonstrate good cause for failing to appear at the hearing.
¶5 On April 1, Mother notified the court that Father had not provided discovery responses as ordered by the court. On April 11, the scheduled trial date, the court discussed discovery issues with Mother and Father, who appeared representing himself. Father insisted he had complied with the discovery requests by March 18, but Mother's counsel responded he had not received any discovery documents from Father. Father stated he had filed a "pretrial statement," but the statement did not contain answers to the interrogatories or signed record releases, and had apparently only been delivered that day. The court nevertheless gave Father another chance by continuing the trial to May 17 and ordering the parties to exchange discovery and file a certificate of compliance with Arizona Rule of Family Law Procedure ("Rule") 49, which requires disclosure of specified information, by April 25. The court also ordered Father to appear for his deposition on May 6 at 10:00 a.m. at Mother's counsel's office in Scottsdale.
¶6 Father signed the record releases provided by Mother in the court's presence at the April 11 hearing, but Father took the releases from the courtroom after the hearing concluded. Mother's attorney pursued him and asked for the releases, but Father refused the request and walked away. Upon learning what had occurred, the court asked security to detain Father, but Father had already left the courthouse. Consequently, the court entered an order directing Father to immediately provide the executed releases to Mother's counsel within twenty-four hours.
¶7 Father failed to comply with the court's April 11 order, and Mother filed a second motion for contempt on April 29, asking the court to proceed by default against Father and impose monetary sanctions. Mother asserted Father had failed to provide the signed record releases or exchange discovery by April 25 or file a Rule 49 certificate.
¶8 On May 4, Mother's counsel received a package from Father containing (1) signed record releases that had been retyped to delete student identifying information, likely making the releases ineffective, (2) eleven notices scheduling depositions to take place two days later in Tucson over the course of the same day the court had ordered Father to appear for his deposition in Scottsdale, (3) a response to Mother's disclosure statement and motion to set aside the contempt finding, (4) an undated letter to the court, and (5) a motion to dismiss contempt of court and/or sanctions. Apparently unknown to Mother, none of these documents or motions was filed with the court. Mother immediately responded to the motions to dismiss and set aside the contempt and sanctions order, sought a protective order regarding the eleven depositions, requested a pre-trial hearing to address Father's actions, and asked the court to impose monetary sanctions.
¶9 Father failed to attend his May 6 deposition as ordered by the court. Accordingly, Mother filed a third motion for contempt on May 9, stating Father had called twenty minutes before his scheduled deposition to say his flight was delayed and represented he would call and reset the deposition by the end of the day. He never called, according to Mother's counsel. Mother again asked the court to proceed by default and impose monetary sanctions on Father.
¶10 On May 12, the court ruled that Father remained in contempt for failing to comply with the court's discovery and disclosure orders. Consequently, the court struck Father's response to the complaint, prohibited Father from offering any evidence concerning contested issues at trial, and awarded attorney's fees to Mother. The court stated it would review its rulings de novo if Father requested it to do so at the May 17 trial.
The order states the court's rulings are made "[p]ursuant to [Mother's] Motion," but does not specify whether "motion" refers to the second or third motion for contempt. At the subsequent May 17 trial, the court clarified that the ruling concerned the second motion for contempt.
The court "reaffirm[ed] its prior Order striking" the response. But although the court's March 10 order stated the court would strike the response if Father failed to purge his contempt, it never did so. Indeed, the court's April 11 order gave Father an additional chance to respond to the discovery requests. We therefore view the May 12 order as striking the response in the first instance.
¶11 At the May 17 trial, a new attorney appeared for Father, who attended telephonically. After permitting Father to respond to Mother's allegations concerning his compliance with discovery requests, the court found that Father's record releases were invalid and that Father had intentionally evaded the court's orders and frustrated its attempts to hold a meaningful hearing on the complaint. Therefore, the court reaffirmed its May 12 order and proceeded by default, although it permitted Father's counsel to interject objections.
¶12 At the conclusion of the evidence presented by Mother, the court awarded her sole legal and physical custody of Child, provided Father with the possibility of seeing Child after working with a Therapeutic Interventionist, and ordered Father to provide child support. The court additionally found Father in contempt by failing to attend his deposition as previously ordered by the court, although it did not order additional sanctions as a result. Finally, the court awarded Mother her attorney's fees. After the court denied Father's motion for new trial, this appeal followed.
An order holding a party in contempt for refusing to obey a court order is not appealable ordinarily and is usually reviewed through a special action. Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 7, 228 P.3d 144, 146 (App. 2010). Because the contempt orders resulted in a default judgment, however, we have appellate jurisdiction to review them. Green v. Lisa Frank, Inc., 221 Ariz. 138, 146-47, ¶¶ 15-16, 211 P.3d 16, 24-25 (App. 2009).
DISCUSSION
I. Denial of due process
¶13 Father first argues the family court committed reversible error by denying him procedural due process in two ways, which we address in turn.
A. Evidentiary hearing
¶14 Father contends the court erred by failing to hold an evidentiary hearing on the purported discovery violations before entering a default judgment and imposing monetary sanctions. He asserts the error is not harmless as a hearing would have revealed he never received the interrogatories and the request for production from his prior attorney, he had further explanation for failing to attend his deposition, and he had provided personal identifying information for the record releases that did not appear in the releases introduced as an exhibit at trial. Because Father failed to raise this issue to the family court, he has waived it absent fundamental error, which we apply sparingly in non-criminal cases "and may be limited to situations . . . [that] deprive[] a party of a constitutional right." Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 420, 758 P.2d 1313, 1322 (1988). Fundamental error is error "which 'goes to the very foundation' of a case." Data Sales Co. v. Diamond Z Mfg., 205 Ariz. 594, 601, ¶ 31, 74 P.3d 268, 275 (App. 2003) (quoting State Consol. Publ'g Co. v. Hill, 39 Ariz. 163, 167, 4 P.2d 668, 669 (1931)).
We note that the court did not enter a default judgment as a result of Father's failure to attend his deposition. Rather, the court found him in contempt at the conclusion of the May 17 trial and noted the finding would serve as additional support for monetary sanctions already imposed.
¶15 Arizona Rule of Family Law Procedure ("Rule") 65(B)(2)(c) authorizes the family court to render a default judgment when a party fails to comply with an order compelling disclosure or discovery responses. To satisfy due process, however, the court must hold an evidentiary hearing to determine whether fault for a discovery violation lies with the party or his counsel. Seidman v. Seidman, 222 Ariz. 408, 411, ¶ 20, 215 P.3d 382, 385 (App. 2009); Zimmerman v. Shakman, 204 Ariz. 231, 237, ¶ 23, 62 P.3d 976, 982 (App. 2003); see also Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 18, 265 P.3d 384, 388 (App. 2011) ("Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner.") (citation and internal quotation marks omitted).
¶16 We reject Father's challenge for two reasons. First, Father was representing himself, and after March 10 was personally involved in the discovery-related motions, when the court ordered him to respond to the outstanding discovery requests, comply with Arizona Rule of Family Law Procedure ("Rule") 49, and attend his deposition. See supra ¶¶ 2-5. Thus, the court did not need to conduct a hearing to determine who bore fault for violating the court's orders compelling discovery and disclosure. See Hammoudeh v. Jada, 222 Ariz. 570, 572, ¶ 7, 218 P.3d 1027, 1029 (App. 2009) (holding evidentiary hearing unnecessary to determine whether attorney or client responsible for discovery violation when facts are apparent from the record).
¶17 Second, the record reflects that the court provided Father with notice and an opportunity to be heard regarding the discovery violations. The court informed Father it would proceed by default if he failed to follow the court's orders concerning discovery without good cause. See transcript of proceedings April 11, 2011, at pp. 21-22; minute entry order March 11, 2011; order May 12, 2011. At the May 17 trial, the court reiterated that its prior rulings finding Father in contempt were subject to de novo reconsideration and then asked the parties to state their positions regarding compliance with the discovery orders. After Mother stated her position, the court allowed Father to respond and offer his version of events. The court then found that Father had intentionally evaded its orders and announced it would proceed by default.
Although Father was represented at trial, the court allowed Father to respond directly to Mother's counsel's remarks.
¶18 Father nevertheless argues the May 17 proceedings were insufficient to satisfy due process because he was not provided specific notice that his non-compliance with prior orders would be at issue, thereby depriving him of the ability to call his prior counsel as a witness. Even assuming Father was not given sufficient notice, we do not discern fundamental error. Father neither informed the family court he had additional evidence to present, requested a continuance to gather more evidence, nor made an offer of proof regarding the nature of such evidence. Indeed, at the outset of the discussion of the discovery issues, Father's counsel requested that they "be permitted to go forward with what evidentiary hearing is possible." The family court did not commit fundamental error.
B. Sufficiency of findings
¶19 Father next contends the court erred by failing to expressly find whether the egregiousness of his discovery violations warranted a default judgment or a lesser sanction. Because Father failed to raise this issue to the family court, he has waived it absent fundamental error. Bradshaw, 157 Ariz. at 420, 758 P.2d at 1322.
¶20 At the evidentiary hearing to determine whether counsel or the represented party is responsible for a discovery violation and a default judgment is warranted, the court must "make express findings as to (1) whether the fault for the violation lies with the client or counsel; (2) whether the violation was committed willfully or in bad faith; and (3) whether the egregiousness of the violation warrants the ultimate sanction of dismissal or some lesser sanction." Seidman, 222 Ariz. at 411, ¶ 20, 215 P.2d at 385. Father argues the family court erred by failing to make the third finding. We disagree.
¶21 First, as previously explained, see supra ¶ 16, an evidentiary hearing is only required when the record does not reveal whether the party or his attorney is responsible for the discovery violation, which is not the situation here. Second, even assuming the third finding is required when the record reveals the party is at fault, we do not detect fundamental error in the court's ruling. The court found at trial that Father had "failed to abide by this Court's discovery orders" and had "intentionally evaded this Court's orders and frustrated this Court's attempts to hold a meaningful hearing on [Mother's] petition." It then issued a detailed judgment setting forth findings regarding Father's lack of compliance with discovery orders and the multiple chances and warnings Father was given to avoid entry of a default judgment. These findings reflect that the court had closely monitored Father's discovery compliance during a short period of time and ultimately imposed a default judgment when monetary sanctions failed to induce Father to comply with the court's orders. In sum, we are assured the court considered lesser sanctions as it imposed them before entry of a default judgment. The court did not commit fundamental error by failing to explicitly state its consideration of lesser sanctions before proceeding by default.
II. Improper sanction
¶22 Father next argues the family court erred by entering a default judgment because the record does not justify such a harsh sanction and the court's ruling necessarily interfered with the court's duty to consider Child's best interests. We review the court's decision to enter a default judgment as a sanction for an abuse of discretion. Seidman, 222 Ariz. at 411, ¶ 18, 215 P.2d at 385.
A. Justification for default judgment
¶23 Father contends the default judgment was unjustified because "[a]ll that Father had done wrong was fail to sign a release on the requested form" and the record does not show he ever received Mother's discovery requests. The court did not abuse its discretion. The recitation of events in this case demonstrates Father's pattern of evading Mother's discovery requests, failing to comply with Rule 49, and ignoring the court's repeated orders regarding discovery and disclosure. See supra ¶¶ 4-8. His act in taking the signed releases from the courtroom after the April 11 hearing and then providing re-typed releases that omitted critical personal identifying information reeks of gamesmanship. Finally, even assuming his former counsel never provided him the interrogatories and request for documents, the record supports a finding that Father ultimately received the documents. At the April 11 hearing, the court ordered Mother's counsel to provide a new set of discovery requests within twenty-four hours so Father could respond by April 25. When addressing his compliance with discovery orders at the May 17 trial, Father never said Mother's counsel had failed to send him a new set of documents, which would be expected if that had occurred. Based on the lack of objection by Father, the court did not err by concluding Mother's counsel had complied with the order to provide a new set of discovery requests to Father.
Father's position on appeal is belied by his statement during the April 11 hearing that he had responded to the discovery requests by March 18.
B. Child's best interests
¶24 To support his argument that the court necessarily interfered with its duty to act in Child's best interests, Father relies on Arizona cases warning courts to avoid, to the extent possible, harming the interests of children when punishing a parent for contempt. See Hays v. Gama, 205 Ariz. 99, 104, ¶ 23, 67 P.3d 695, 700 (2003) ("[T]he exclusion of evidence in a child custody proceeding as a discovery sanction 'should be resorted to only where lesser sanctions are either impracticable or have been attempted and proven unsuccessful.'") (citation omitted); Stapley v. Stapley, 15 Ariz. App. 64, 70, 485 P.2d 1181, 1187 (1971) (holding custody should not be used as a reward or punishment of parental conduct). We disagree.
¶25 First, no absolute bar to use of default as a sanction in family law cases exists, as Father implicitly argues. The family court was expressly authorized by Rule 65(B)(2)(c) to enter a default judgment as a sanction against Father for violating the court's orders. The lesson from Hays and Stapley is that the court should refrain from using this sanction if other measures would achieve the desired end. Hays, 205 Ariz. at 102, ¶ 17, 67 P.3d at 698 ("[C]ontempt sanctions should generally be limited to 'the least possible power adequate to the end proposed' . . . especially . . . when a contempt sanction impacts an innocent third party.") (citations omitted); Stapley, 15 Ariz. App. at 70-71, 485 P.2d at 1187-88 ("[I]t is not inappropriate to consider [contemptuous] conduct . . . as a factor in determining the child's welfare."). As previously explained, see supra ¶ 21, the family court imposed a default judgment only when lesser monetary sanctions failed to induce Father to comply with the court's orders.
Father's violation of the court's orders distinguishes this case from Hays where the parent did not violate a discovery order and the family court exercised its inherent contempt power. 205 Ariz. at 101-02, ¶¶ 15-16, 67 P.3d at 697-98.
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¶26 Second, Father failed to inform the family court what evidence impacting Child's best interests was excluded as a result of the court's order to preclude Father from introducing evidence and proceed by default. "The rule is that ordinarily a ruling of the court excluding evidence cannot be reviewed on appeal in the absence of an offer of proof showing that the excluded evidence would be admissible and relevant." Peterson v. Sundt, 67 Ariz. 312, 318, 195 P.2d 158, 162 (1948); Ariz. R. Evid. 103 (providing offer of proof necessary to preserve objection to exclusion of evidence unless nature of evidence apparent from record). We therefore cannot conclude that the default judgment prevented the court from considering Child's best interests.
ATTORNEY'S FEES ON APPEAL
¶27 Both parties request an award of attorney's fees and costs on appeal pursuant to Arizona Revised Statutes section 25-324(A) (West 2012), which authorizes this court to award fees after consideration of the parties' financial resources and the reasonableness of the positions taken by each party. Mother has taken more reasonable positions on the issues than Father. Nevertheless, we are unable to rule on the requests for fees because neither party provided us with information concerning the parties' respective financial resources. We direct the parties to simultaneously submit statements concerning their financial resources within ten calendar days this decision is filed. Neither party shall be permitted to respond to a statement without a written order of this court. Thereafter, the court will rule on the parties' requests for fees.
CONCLUSION
¶28 For the foregoing reasons, we affirm.
_________________
Ann A. Scott Timmer
Presiding Judge
CONCURRING:
_________________
Patricia K. Norris, Judge
_________________
Donn Kessler, Judge