Opinion
No. 2 CA-CV 2017-0024-FC
04-06-2018
IN RE THE MARRIAGE OF KIERSTEN JOY AMADO-YORK, Petitioner/Appellee, and JARED ISAIAH GONZALES, Respondent/Appellant, and THE STATE OF ARIZONA, EX REL. THE DEPARTMENT OF ECONOMIC SECURITY, Intervenor/Appellee.
COUNSEL Richard M. Martinez, Tucson Counsel for Respondent/Appellant Bradley D. Beauchamp, Gila County Attorney By Travis Shields, Globe Counsel for Intervenor/Appellee State of Arizona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Gila County
Nos. DO201600089 and DO201600216 (Consolidated)
The Honorable Gary V. Scales, Judge Pro Tempore
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL Richard M. Martinez, Tucson
Counsel for Respondent/Appellant Bradley D. Beauchamp, Gila County Attorney
By Travis Shields, Globe
Counsel for Intervenor/Appellee State of Arizona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 In this consolidated action, the trial court entered an order establishing child support against Jared Gonzales based on a petition filed by the State of Arizona, following a hearing at which Gonzales did not appear. The court also entered a separate default judgment against Gonzales on Kiersten Amado-York's petition to establish parenting time and legal decision-making. Gonzales appeals from the court's subsequent denial of his motions to vacate entry of default and all subsequent orders brought pursuant to Rule 85, Ariz. R. Fam. Law P. For the reasons that follow, we vacate the default judgment and remand for redetermination of Amado-York's claims, but affirm the ruling as it relates to the order establishing child support.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the trial court's decision, and accord deference to the court's factual findings as required by Rule 82(A), Ariz. R. Fam. Law P. Alvarado v. Thomson, 240 Ariz. 12, n.1 (App. 2016). The parties have one child in common who resides primarily with Amado-York. In March 2016, the state filed a petition to establish child support. Gonzales was personally served with the petition at the home of a relative, and filed a response requesting a hearing. Gonzales's response indicated his address was a post office box in Hayden, Arizona. In June, the court scheduled a hearing for August 23 and mailed the notice to Gonzales at the address he had provided. Gonzales later asserted he did not receive the hearing notice.
¶3 In July, Amado-York initiated a separate action seeking orders regarding legal decision-making, parenting time, and child support, and moved to consolidate the action she initiated with the child support case brought by the state. Gonzales was personally served with Amado-York's petition and motion to consolidate during an exchange of the child. The trial court ordered consolidation, and mailed the order to Gonzales at an address on Hillside Drive in Hayden, Arizona, which Amado-York's filings represented as Gonzales's address. Amado-York's representation was inaccurate; Gonzales has never resided at the Hillside address. Moreover, in Hayden, the United States Postal Service delivers only to the post office. Accordingly, on July 30, the postal service returned the envelope addressed to the Hillside address, marked as follows:
In the past, the postal service in Hayden attempted to determine residents' postal addresses to deliver incorrectly addressed mail, but it stopped doing so in June 2016.
RETURN TO SENDER
NO MAIL RECEPTACLE
UNABLE TO FORWARD.
¶4 Meanwhile, Gonzales did not file a response to Amado-York's petition, and, on July 29, she mailed an application for default to him at the Hillside address. The trial court proceeded with the August 23 hearing, at which Gonzales did not appear, and signed a default order in Amado-York's favor adopting her proposed parenting plan and granting her sole legal decision-making authority. The record does not indicate that the August 23 default order was ever mailed to Gonzales at any address. The minute entry for the hearing was filed sixteen days later on September 8, and was mailed to Gonzales at the Hillside address. That envelope was returned to the court bearing the same non-delivery notice placed on the envelope returned in July. On September 13, the court issued a judgment awarding Amado-York child support arrears and establishing a monthly child support amount.
Rule 44(B)(4), Ariz. R. Fam. Law P., requires certification that the party obtaining a default judgment will mail a copy of it to the last known address of the defaulted party within three judicial days of receiving it, but also indicates that noncompliance does not affect the validity of the judgment.
The same day, Gonzales filed a notice indicating he had a new post office box number in Hayden. His later filings acknowledged that he received mail at both postal boxes, so the timing of his change of address could not have resulted in any failure to receive notice, as the state has argued.
¶5 On October 11, 2016, Gonzales filed a motion to vacate the entry of default and all subsequent orders, arguing he was entitled to relief based on excusable neglect and other provisions of Rule 85(C), Ariz. R. Fam. Law P., because counsel for Amado-York mailed the required notice of default to an incorrect address and failed to inform the trial court when it was returned marked as undeliverable. He also argued that the support awards exceeded the amounts requested in the pleadings, in violation of Rule 44(G), Ariz. R. Fam. Law P. Gonzales filed a supplemental motion arguing the entry of default was void for failure to comply with the notice requirements of Rule 44(A)(1)(a), and the trial court thus had no discretion to deny his motion to vacate the subsequent judgments. The court denied both motions, finding Gonzales was personally served with the petitions, the notice of default was mailed to his "address of record," and that he was "appropriately defaulted." The court made no findings about whether Gonzales had received the hearing notice or otherwise demonstrated excusable neglect, and did not address his argument that the order exceeded the amounts requested in violation of Rule 44(G).
¶6 Gonzales filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2). See Bateman v. McDonald, 94 Ariz. 327, 329 (1963); Hanen v. Willis, 8 Ariz. App. 175, 178 (1968).
Discussion
¶7 On appeal, Gonzales argues the trial court erred in denying his motions because Amado-York's failure to provide notice of the entry of default and the default hearing, as required by Rule 44(A)(1)(a) and (B)(2), rendered the entry of default and the subsequent judgments void. We review a ruling on a Rule 85 motion for an abuse of discretion. Alvarado, 240 Ariz. 12, ¶ 11. Abuse of discretion includes committing a substantial error of law in making a discretionary decision. Duckstein v. Wolf, 230 Ariz. 227, ¶¶ 8, 19 (App. 2012). A claim that a judgment is void is reviewed de novo. Id. ¶ 8.
¶8 As a preliminary matter, we acknowledge that consolidation does not merge separate causes of actions or alter the rights or claims of the parties. Brummond v. Lucio, 243 Ariz. 360, ¶ 20 (App. 2017). There are thus two separate components to the Rule 85 motion in this case: the entry of default and subsequent default judgment on Amado-York's petition, and the non-default order establishing child support following the hearing Gonzales did not attend.
Because the establishment order was not entered by default, Rule 44(G) does not apply. Accordingly, we need not discuss Gonzales's argument that the trial court erred by awarding support greater than the amount requested in the pleadings.
Improper Default
¶9 Failure to comply with default notice requirements renders entry of default ineffective, and any related default judgment must be vacated upon request. Ruiz v. Lopez, 225 Ariz. 217, ¶¶ 17, 21 & n.3 (App. 2010). Although the Ruiz court referred to such a judgment as "void," id. ¶ 21, a later opinion clarified that where a party was properly served with a petition but improperly defaulted, the resulting judgment is voidable, not "void ab initio," Smith v. Smith, 235 Ariz. 181, ¶¶ 12-14 (App. 2014). A trial court nevertheless lacks discretion to deny a request to vacate a voidable judgment. Ruiz, 225 Ariz. 217, ¶ 21.
The language of Rule 85 is based on Rule 60, Ariz. R. Civ. P. See Ariz. R. Fam. Law P. 85 committee cmt. Case law interpreting Rule 60 is therefore applicable here. Ariz. R. Fam. Law P. 1 committee cmt.
¶10 Here, the entry of default and subsequent judgment on Amado-York's claims were improper because notice of default was mailed to an address where Gonzales had never lived and could not have received mail. The failure to provide notice of default alone made the default judgment voidable, leaving the court no discretion to refuse to vacate the entry of default and the subsequent default order. See Ruiz, 225 Ariz. 217, ¶ 21.
Moreover, the trial court adopted Amado-York's misrepresentation of Gonzales's address, and subsequently mailed two items to him there. Those items were returned to the court as undeliverable in July and September. Thus, the court was, or should have been, aware that the Hillside address was not correct before the August hearing, as well as its consideration of Gonzales's Rule 85 motions.
Establishment Order
¶11 A non-default judgment entered against a party who appeared in an action but failed to appear at a scheduled hearing is neither void nor voidable, but may be set aside based on multiple grounds, including "mistake, inadvertence, surprise, or excusable neglect." Ariz. R. Fam. Law P. 85(C)(1)(a)-(f). A motion premised on excusable neglect must be filed "within a reasonable time," but not more than six months after entry of the order being challenged. Ariz. R. Fam. Law P. 85(C)(1)(a), (2). A party seeking to set aside a judgment based on excusable neglect must establish both excusable neglect and the existence of a meritorious defense. Gillette v. Lanier, 2 Ariz. App. 66, 68 (1965).
¶12 Here, the trial court said very little about the establishment order, and did not make any findings about whether Gonzales received the hearing notice, established excusable neglect or other grounds for relief, or filed his motions "within a reasonable time" as required by Rule 85(C)(2). Gonzales, however, has argued only that the judgments were void pursuant to Rule 85(C)(1)(d), which is categorically not true of the establishment order. Accordingly, we consider his alternative grounds for relief abandoned and waived on appeal, and we therefore affirm the establishment order. See Ariz. R. Civ. App. P. 13(a)(7)(A) (appellate brief must contain argument with citation to authority); FIA Card Servs., N.A. v. Levy, 219 Ariz. 523, n.1 (App. 2008) (failure to develop argument on appeal constitutes abandonment).
Thus, we decline to decide to what extent the improper default on Amado-York's petition and misdirected notices may have contributed to Gonzales's failure to appear at the August hearing and the court's decision to proceed despite his absence, or whether the establishment order must therefore be set aside based on excusable neglect or other grounds. --------
Attorney Fees
¶13 Gonzales requests an award of attorney fees on appeal pursuant to A.R.S. § 25-324. See Ariz. R. Civ. App. P. 21(a). However, we lack sufficient information to permit us to consider "the financial resources of both parties" as contemplated by § 25-324(A). See Countryman v. Countryman, 135 Ariz. 110, 111-12 (App. 1983) (appellate court may award fees under § 25-324 when record is sufficient to consider parties' financial resources). Accordingly, we deny Gonzales's request for attorney fees on appeal. Gonzales is, however, entitled to his costs on appeal pursuant to A.R.S. § 12-341, subject to compliance with Rule 21(b), Ariz. R. Civ. App. P.
Disposition
¶14 For the reasons discussed above, we affirm the trial court's ruling on Gonzales's Rule 85 motion as it relates to the order establishing child support, but vacate the default judgment, and remand for redetermination of Amado-York's claims and other proceedings consistent with this decision.