Opinion
1 CA-CV 24-0230 FC
12-19-2024
In re the Matter of: MAX MIRANDA LOPEZ, Petitioner/Appellee, v. CECILY WILLIAMS, Respondent/Appellant.
Max Miranda Lopez, Mesa Petitioner/Appellee KRG Law, PLLC, Tucson By Katherine Gillard Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2022-091008 The Honorable Lisa S. Wahlin, Judge.
Max Miranda Lopez, Mesa
Petitioner/Appellee
KRG Law, PLLC, Tucson
By Katherine Gillard
Counsel for Respondent/Appellant
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Anni Hill Foster and Judge Angela K. Paton joined.
MEMORANDUM DECISION
BAILEY, JUDGE.
¶1 Cecily Williams ("Mother") appeals the superior court's order granting Max Miranda Lopez ("Father") final legal decision-making authority and designating him as the primary residential parent for the parties' minor child. For the following reasons, we vacate the superior court's order and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2022, Father filed a "Petition to Establish Legal Decision-Making, Parenting Time, and Child Support." Father amended the petition in May 2022 to request sole legal decision-making authority and to be designated the child's primary residential parent. A Resolution Management Conference ("RMC") was held on September 19, 2023, to discuss deadlines for discovery, mediation, and to set trial. Mother attended the RMC. Neither Father nor his attorney appeared. At the RMC, the superior court twice stated the trial would be held on April 15, 2024, at 9:00 a.m., and Mother confirmed, "I will see you April 15th." In the court's subsequent minute entry, however, trial was set for January 31, 2024, at 9:00 a.m. On November 29, 2023, the court received notice that the mailed minute entry had been returned as undeliverable from Mother's address.
¶3 Trial was held on January 31, 2024. Mother did not appear, and the court proceeded, hearing testimony from Father. Following trial, the court entered an order designating Father as the primary residential parent and awarding the parties joint legal decision-making with Father having final decision-making authority. In its order, the court also stated that "[d]uring the [RMC] the Court set the matter for trial on January 31, 2024[,] at 9:00 a.m. [And] Mother had notice of the date and time of the trial as she was present when the Court set the in-person trial."
¶4 Mother filed a motion to set aside the order, which the court denied after finding that the court's minute entry setting trial for January was sent to Mother's correct address. The court also found that because the minute entry was mailed to the proper address, Mother would have received it.
¶5 Mother timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes section 12-2101(A)(1).
DISCUSSION
¶6 On appeal, Mother argues the superior court deprived her of her right to due process because she did not have notice that trial had been moved to January 31, 2024, and it erred by denying her motion to set aside the judgment. Because we find Mother did not have notice of the January 31 trial date, we need not address whether the superior court also erred in denying Mother's motion to set aside.
¶7 Father did not file an answering brief. "When debatable issues exist and an appellee fails to file an answering brief, we may consider such failure a confession of reversible error." Savord v. Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014) (citation omitted). While we may accept Father's failure to file an answering brief as an admission of reversible error, we decline to do so here and address Mother's due process claim.
¶8 "The Due Process Clause of the Fourteenth Amendment safeguards parents' fundamental liberty interest in their children's care, custody, and management." Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11 (App. 2016) (citations and internal quotations omitted). "Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 18 (App. 2011) (citation omitted). "Due process errors require reversal only if a party is thereby prejudiced." Volke v. Brame, 235 Ariz. 462, 470, ¶ 26 (App. 2014). Lack of notification and meaningful opportunity to be heard violates due process when dealing with fundamental parenting rights such as legal decision-making. See Cook at 236, ¶ 11-12. We review constitutional claims de novo. In re Estate of Snure, 234 Ariz. 203, 204, ¶ 5 (App. 2014); see Wassef v. Ariz. State Bd. of Dental Exam'rs, 242 Ariz. 90, 93, ¶ 11 (App. 2017) (alleged due process violations are reviewed de novo).
¶9 Here, Mother did not receive due process. The record supports Mother's argument that she did not know that the trial date had changed from April 15-the date she was told at the RMC-to January 31. In addition to the superior court telling Mother that trial would be held on April 15, 2024, Mother orally confirmed the April 15, 2024, trial date with the court at the end of the RMC. The court also told Mother at the RMC, "that will all be in the minute entries, so you don't have to worry about trying to-trying to get that down." But, the superior court's minute entry scheduled trial for January 31, 2024, not April as Mother was repeatedly told.
¶10 The superior court's own records support that Mother did not receive the mailed minute entry notification of the changed date. Although Mother provided her updated address to the court clerk, the mailing certificate shows that the minute entry was returned as undeliverable. Further, between the RMC and January 31 trial date, neither the court nor Father communicated with Mother or otherwise notified her that the trial date was different from what she was told during the RMC. And Father's pretrial statement, which could have notified Mother of the new January trial date, did not list Mother's complete address, meaning that she likely never received any notification of the January 31 trial date.
¶11 The superior court then held trial without Mother and awarded Father final decision-making authority and designated him as the primary residential parent. In Mother's response to Father's petition, she asserted that it was in the child's best interest that she remain primary residential parent and have sole legal decision-making authority. Mother was prejudiced because she could not present evidence to support her arguments or to contest Father's claims. Because Mother only learned of the new trial date when she received the superior court's post-hearing order, her due process rights were violated.
CONCLUSION
¶12 We vacate the superior court's order and remand for a new trial.