Laura Cruz v. Robert Garcia

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

LAURA CRUZ,

Appellant,

v.

ROBERT GARCIA JR.,

Appellee.

No. 2 CA-CV 2015-0174

Filed June 17, 2016

Appeal from the Superior Court in Pima County

No. SP20060213

The Honorable Ken Sanders, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Solyn & Lieberman, PLLC, Tucson

By Melissa Solyn and Scott Lieberman

Counsel for Appellant

Thrush Law Group, Tucson

By Brian K. Kimminau

Counsel for Appellee

CRUZ v. GARCIA

Opinion of the Court

OPINION

Judge Miller authored the opinion of the Court, in which Presiding

Judge Vásquez and Chief Judge Eckerstrom concurred.

M I L L E R, Judge:

¶1 Laura Cruz appeals the family court’s order suspending

her parenting time with her minor child, L.G., and granting L.G.’s

father, Robert Garcia Jr., permanent legal decision-making authority

for L.G. She argues the court abused its discretion when it made a

final ruling on legal decision-making and parenting time without

adequate notice and an evidentiary hearing on the issues. Because

we agree Cruz was denied due process, we vacate the order and

remand the case for such a hearing.

Factual and Procedural Background

¶2 L.G. was born in August 2001. The case began as a

special paternity action brought by the state of Arizona to establish

child support obligations. In the 2006 judgment, legal custody was

placed with Cruz under A.R.S. § 25-803 because L.G. had resided

with Cruz for the greater part of the prior six months. In 2007, the

family court granted Garcia six hours of parenting time every other

weekend and in 2008 the court increased Garcia’s parenting time to

one overnight visit every other weekend.

¶3 In May 2013, Garcia filed a petition requesting joint

legal decision-making and equal parenting time. Later that month,

the Pima County Sheriff’s Department executed a search warrant on

Cruz’s home and seized cocaine.1 Garcia amended his petition to

modify custody in June 2013, requesting sole legal decision-making

authority and suspension of Cruz’s parenting time.

1 AlthoughCruz was arrested on suspicion of possession of

narcotics and drug paraphernalia, the charges against her were

apparently dropped.

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CRUZ v. GARCIA

Opinion of the Court

¶4 The family court set a hearing on the issues of legal

decision-making and parenting time for February 2014. But at a

settlement conference in January 2014, pursuant to Ariz. R. Fam.

Law P. 69, the court accepted the parties’ stipulation granting

temporary sole legal decision-making to Garcia and making him

L.G.’s primary residential parent.

¶5 In January 2015, Cruz filed a petition to vacate the Rule

69 agreement and restore her legal decision-making and

unsupervised parenting time. She expressly requested an

evidentiary hearing. The family court construed her petition as a

“notification to the Court and parties that this case shall proceed to

Court Trial,” setting a trial date in August 2015.

¶6 On June 2, 2015, Garcia also petitioned the family court

to modify one aspect of the Rule 69 agreement. He alleged that

Cruz’s most recent supervised parenting time with L.G. had

deteriorated so severely that the staff of the supervising organization

had called the police. Arguing Cruz’s supervised parenting time

had become “extremely detrimental to the emotional health of the

minor child,” Garcia requested its immediate halt. Cruz answered,

arguing that Garcia was controlling L.G. and had deliberately

alienated her from Cruz, and attaching an unsworn letter from the

therapeutic interventionist (Dr. Pellegrin) who had been supervising

Cruz’s parenting time. In the letter Dr. Pellegrin wrote:

In . . . 20 years doing work with high

conflict families, I have never seen a child

so averse to even considering a gradual re-

unification with a parent [as L.G. is with

Cruz]. . . . I am extremely concerned about

the well-being of this child. I am not able

to continue with my work in this case since

I believe the situation is far too serious for

weekly outpatient sessions to have any

impact and, in fact, am concerned that this

approach is making things worse.

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CRUZ v. GARCIA

Opinion of the Court

I am recommending a full custody

evaluation in this case . . . . I believe that

this must be done immediately since too

much time has already elapsed . . . .

¶7 The family court set a hearing on Garcia’s petition for

June 24, 2015. Cruz and Garcia were both present and represented

at the hearing. A court-appointed advisor (CAA) and L.G.’s

attorney were also present. The CAA argued Dr. Pellegrin’s letter

made clear that “this [was] one of those extreme cases” in which an

immediate halt to supervised parenting time was appropriate. Both

Garcia and L.G. requested through counsel that all supervised

parenting time with Cruz be suspended until further order. Cruz’s

counsel, in contrast, requested an increase in Cruz’s parenting time.

The court found that “any further parenting time by [Cruz] with

[L.G.] would seriously endanger [L.G.’s] mental and emotional

health,” and suspended Cruz’s parenting time. The court clarified at

the hearing that its parenting time order was final and appealable,

denied all other pending motions, and vacated the August 2015 trial

date.

¶8 Two days later, in chambers, the family court made

factual findings on the record required under A.R.S. § 25-403(B). In

the same ruling, the court ordered that Garcia would have sole legal

decision-making authority and be L.G.’s primary residential parent.

Cruz appealed, and we have jurisdiction pursuant to A.R.S.

§12-2101(A)(1).

Due Process

¶9 Cruz argues the family court denied her due process by

issuing a final ruling granting Garcia sole legal decision-making

authority and suspending her parenting time without notice and an

evidentiary hearing on those issues. Garcia argues waiver and,

alternatively, contends that evidence admitted at prior hearings on

other issues from 2013 to 2015 is sufficient to support the court’s

ruling. We review an order modifying parenting time for an abuse

of discretion. Baker v. Meyer, 237 Ariz. 112, ¶ 10, 346 P.3d 998, 1002

(App. 2015).

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CRUZ v. GARCIA

Opinion of the Court

¶10 Garcia contends Cruz waived her due process claim

because she did not object on this basis below. The general principle

that this court will not consider an issue not raised below is

jurisprudential, not substantive, Jimenez v. Sears, Roebuck & Co., 183

Ariz. 399, 406 n.9, 904 P.2d 861, 868 n.9 (1995); further, in our

discretion, we may consider constitutional arguments not properly

raised before the trial court, Ramsey v. Yavapai Family Advocacy Ctr.,

225 Ariz. 132, ¶ 19, 235 P.3d 285, 291 (App. 2010). We do so here in

part because it was not until two days after the June 24, 2015

hearing, when the court released its § 25-403(B) findings, that Cruz

was put on notice that the court intended to make Garcia’s

temporary legal decision-making authority permanent; thus, she

had no real opportunity to raise a due process objection at the

hearing. Garcia’s waiver argument relies on Trantor v. Fredrikson,

179 Ariz. 299, 300, 878 P.2d 657, 658 (1994), but that case, which deals

with a party’s duty to request findings of fact and conclusions of

law, provides no support for the proposition that a party has a duty

to object to a final, appealable order in order to preserve error

therein. Cf. State v. Vermuele, 226 Ariz. 399, ¶ 6, 249 P.3d 1099, 1101

(App. 2011) (criminal defendant could not be expected to object to

error arising during final imposition of sentence; he had no

procedural opportunity to do so). We conclude that Cruz’s due

process claim is properly before us.

¶11 The Due Process Clause of the Fourteenth Amendment

safeguards parents’ fundamental liberty interest in their children’s

“‘care, custody, and management.’” Ruben M. v. Ariz. Dep’t of Econ.

Sec., 230 Ariz. 236, ¶ 12, 282 P.3d 437, 439-40 (App. 2012), quoting

Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also Smart v. Cantor,

117 Ariz. 539, 542, 574 P.2d 27, 30 (1977) (“[A] parent is entitled to

due process whenever his or her custodial rights to a child will be

determined by a proceeding.”). “‘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, ¶ 18,

265 P.3d 384, 388 (App. 2011), quoting Curtis v. Richardson, 212 Ariz.

308, ¶ 16, 131 P.3d 480, 484 (App. 2006). Because determinations of

legal decision-making and parenting time rest upon the best

interests of the child, it is “necessary that the parties have time to

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Opinion of the Court

prepare and present all relevant evidence to the court” before such

orders are modified. Evans v. Evans, 116 Ariz. 302, 306-07, 569 P.2d

244, 248-49 (App. 1977).

¶12 A family law judgment rendered without notice and a

meaningful opportunity to be heard cannot stand. For example, in

Cook, the family court conducted a trial on the father’s petition,

which was limited to custody. 228 Ariz. 202, ¶¶ 16-17, 265 P.3d at

387-88. The court stated at the beginning of trial that it would not be

considering child support, and thus, it was “‘not inclined to listen to

any evidence that would deal with the modification of the support

obligation.’” Id. ¶ 17 (emphasis deleted). No evidence relevant to

certain child support factors was presented at trial. Id.

Nevertheless, in a post-hearing ruling, the court adjudicated child

support despite the limited nature of the hearing and record. Id.

¶ 18. On appeal, we vacated the court’s ruling, concluding the

mother was denied adequate notice and a meaningful opportunity

to be heard on the issue of child support before the court ruled. Id.

¶¶ 19-20.

¶13 We reached a similar result in Heidbreder v. Heidbreder,

230 Ariz. 377, ¶¶ 13-16, 284 P.3d 888, 892-93 (App. 2012). There, too,

the mother was denied due process because she lacked notice that

the family court would address child support at a hearing on her

petition to modify legal decision-making and parenting time. Id.

¶¶ 3-4, 13. We held “[a] trial court errs if it modifies child support

without conducting a hearing or allowing the parties to gather and

present their evidence.” Id. ¶ 14. Although the court in Heidbreder

had conducted a hearing on parenting time and legal custody, that

was not sufficient to give the mother a meaningful opportunity to be

heard as to the issue of child support. See id. ¶¶ 3, 15.

¶14 We agree with Cruz that the family court’s judgment in

this case was rendered without procedural due process, as in Cook

and Heidbreder. First, the parties did not have notice that legal

decision-making was at issue at the June 24, 2015 hearing. See

Heidbreder, 230 Ariz. 377, ¶¶ 13-16, 284 P.3d at 892-93; Cook, 228 Ariz.

202, ¶¶ 17-19, 265 P.3d at 387-88; Evans, 116 Ariz. at 306-07, 569 P.2d

at 248-49; see also Solomon v. Solomon, 5 Ariz. App. 352, 355-56, 427

P.2d 156, 159-60 (1967) (trial court abused its discretion when, one

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Opinion of the Court

day before hearing, it expanded scope of hearing to include custody

of both children, not just one; wife had no reason to believe husband

would seek custody of both children and had no time to prepare

proper defense).

¶15 As late as June 16, 2015, eight days before the hearing in

question, the family court had reaffirmed the August 2015 date for a

“Court Trial regarding Legal Decision-Making and Parenting Time.”

The parties prepared for the June 24, 2015 hearing with the

understanding that the family court planned to address Garcia’s

motion to suspend Cruz’s supervised parenting time. Importantly,

the motion did not request a change in legal decision-making

authority. The court reiterated twice at the hearing that the motion

before it was Garcia’s petition to suspend Cruz’s parenting time.

Garcia’s counsel said at the hearing that he “would oppose any

expansion of the purpose of this hearing” to include other then-

pending motions, adding he preferred to “keep it limited to

addressing the on-going supervised visitations.” The parties did not

present any argument or evidence on legal decision-making at the

hearing. The transcript contains but one passing reference to the

topic. The parties had no reason to anticipate that the court would

finally adjudicate legal decision-making in an in-chambers ruling

two days after the hearing.

¶16 Second, the family court did not give the parties an

opportunity to be heard at a meaningful time and in a meaningful

manner on the issue of legal decision-making. Due process requires

that when there are disputed issues of fact as to a child’s best

interests, “the court must allow the parties to present evidence

before it makes its finding.” Murray v. Murray, 239 Ariz. 174, ¶ 18,

367 P.3d 78, 83 (App. 2016); see Heidbreder, 230 Ariz. 377, ¶ 15, 284

P.3d at 892 (directing parties to file financial affidavits after hearing

at which court raised issue of child support sua sponte “was not a

proper substitute for providing the parties a full opportunity to be

meaningfully heard” on the issue); cf. DePasquale v. Superior Court,

181 Ariz. 333, 336, 890 P.2d 628, 631 (App. 1995) (trial court errs by

“changing custody without a hearing and without the aggrieved

parent’s consent”).

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Opinion of the Court

¶17 The family court’s factual findings issued on June 26,

2015, pursuant to § 25-403, were based in large part on documents

not admitted in evidence or subjected to adversary testing. For

instance, the court relied on Dr. Pellegrin’s letter, which, although it

was attached to Cruz’s answer to Garcia’s petition to modify

parenting time and discussed at the hearing, was never admitted as

an exhibit. Other findings were based on hearsay statements from a

summary of L.G.’s interview with Child Advocacy Services and a

psychological evaluation of L.G. by Dr. Ralph Wetmore, both from

2013. These documents cannot substitute for admissible exhibits

and testimony subjected to adversary testing. See Murray, 239 Ariz.

174, ¶ 18, 367 P.3d at 83 (pleadings and argument of counsel not

sufficient to sustain finding of fact, because argument is not

evidence); Solomon, 5 Ariz. App. at 356, 427 P.2d at 160 (as relevant

to determine custody, best interests of child “‘shall be determined

after a proper and orderly hearing of the issue of custody with all

interested parties having a right and opportunity to be present and

produce evidence’”), quoting Tuttle v. Tuttle, 343 P.2d 838, 840 (N.M.

1959); cf. Pridgeon v. Superior Court, 134 Ariz. 177, 180-82, 655 P.2d 1,

4-6 (1982) (rejecting “‘trial by affidavit’” and requiring hearing when

pleadings are in “direct[] . . . opposition upon any substantial and

crucial fact relevant to the grounds for modification” of custody

order). Nor are we persuaded by Garcia’s argument that earlier

hearings from 2013 to 2015 on other issues provided Cruz a

meaningful opportunity to be heard on the issue of legal decision-

making. Because the parties had no notice that the court would be

determining legal decision-making authority at the hearing and no

meaningful opportunity to be heard on that issue, the court’s ruling

did not comport with due process. See Heidbreder, 230 Ariz. 377,

¶¶ 13-15, 284 P.3d at 892.

¶18 The family court cited A.R.S. § 25-411(J) and Hart v.

Hart, 220 Ariz. 183, ¶ 16, 204 P.3d 441, 445 (App. 2009), for the

proposition that a family court may “sua sponte restrict a parent’s

parenting time rights” upon finding that such parenting time would

endanger the physical, mental, moral, or emotional health of the

minor. We do not read these authorities so broadly. Contrary to

Garcia’s argument in the answering brief, § 25-411(J) does not permit

the court to revoke a party’s parenting time sua sponte without notice

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and an opportunity to be heard. See, e.g., Murray, 239 Ariz. 174, ¶ 18,

367 P.3d at 83; see also DePasquale, 181 Ariz. at 336, 890 P.2d at 631

(acknowledging court may face emergency situation requiring

temporary change in custody without notice and hearing, but

emphasizing that in such case court must follow “strict procedural

limits” of rules governing temporary orders2). The court’s authority

to impose “restrict[ions]” on parenting time sua sponte under § 25-

411(J) is limited to placing conditions on the exercise of parenting

time, such as supervision or geographical restrictions. See Hart, 220

Ariz. 183, ¶ 16, 204 P.3d at 445.

Attorney Fees

¶19 Cruz requests attorney fees and costs on appeal, citing

A.R.S. §§ 25-324, 12-341, and 12-341.01. In our discretion, we deny

her request pursuant to § 25-324(A). She has not shown a basis for

mandatory fees pursuant to § 25-324(B), so we also deny that

request. We deny her request for fees pursuant to § 12-341.01

because this action does not arise out of a contract. As the successful

party on appeal, however, we award her costs on appeal pursuant to

§ 12-341, upon her compliance with Rule 21, Ariz. R. Civ. App. P.

¶20 Garcia too requests attorney fees and costs pursuant to

§ 25-324(A) and (B). In our discretion, we deny his request pursuant

to subsection (A), and because he has not established a basis for an

award under subsection (B) we deny that request as well.

2DePasquale cited Rule 65(d), Ariz. R. Civ. P., governing

temporary restraining orders. 181 Ariz. at 336, 890 P.2d at 631. The

principle is the same under the new equivalent family law rule,

promulgated after DePasquale was decided. See Ariz. R. Fam. Law P.

48 & committee cmt.

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Opinion of the Court

Disposition

¶21 For the foregoing reasons, we vacate the family court’s

June 24, 2015 minute entry and its June 26, 2015 in-chambers

findings and orders. 3 We remand the case for an evidentiary

hearing on the issues of parenting time and legal decision-making.

3 This disposition makes it unnecessary to address Cruz’s

argument that the family court abused its discretion by denying her

petition to appoint a family law master and a new therapeutic

interventionist.

10