Blech v. Blech, 1

• Decision Date: 27 July 1967
• Docket Number: No. 1,CA-CIV,1
• Parties: Gerald J. BLECH, Appellant, v. Marjorie N. BLECH, Appellee. 514.
• Court: Arizona Court of Appeals

Page 710

430 P.2d 710

6 Ariz.App. 131

Gerald J. BLECH, Appellant, v. Marjorie N. BLECH, Appellee.

No. 1 CA-CIV 514.

Court of Appeals of Arizona.

July 27, 1967.

W. Roy Tribble, Chandler, for appellant.

Tupper, Skeens, Rapp & Morris, by Max Valentine, Phoenix, for appellee.

DONOFRIO, Judge.

This is an appeal by the defendant, Gerald J. Blech, from a judgment of the trial court in a separate maintenance action brought by the plaintiff, Marjorie N. Blech, in which the Court awarded custody of the minor children to plaintiff, made provisions for their support and ordered that certain payments be made by defendant on arrearages of child support and medical expenses, and for attorney's fees.

Appellant-defendant has perfected the appeal and has filed his opening brief. Appellee-plaintiff has failed after due notice to file her answering brief and we have ordered the matter submitted in accordance with Rule 7(a)(2), Rules of the Supreme Court, 17 A.R.S., which states:

'If the appellee does not file an answering brief within the time prescribed by these Rules or within such additional time as allowed by the court * * * the appeal may be submitted for decision on the motion of appellant upon notice to appellee, or on the court's own motion.'

We are mindful of the well established authority in this state that an appellee's failure to file an answering brief where there are debatable issues constitutes a confession of reversible error. Nevertheless, we have held that we do not read Rule 7(a)(2), supra, or the cases cited thereunder as making it mandatory that we reverse when the appellee fails to file a brief. Hoffman v. Hoffman 4 Ariz.App. 83, 417 P.2d 717 (1966). Equally applicable to the instant case is the following language found in Hoffman:

'* * * We do not read Rule 7(a)(2), Rules of the Supreme Court as making it mandatory that we reverse when the appellee fails to file a brief. This is particularly so when as here, the persons most interested in the proceedings (the two minor girls) are not individually represented in the action. We do not know why the mother failed to file an answering brief, be it neglect, financial inability or otherwise, but to reverse the decision of the trial court concerning the custody and well being of two minor children because their mother failed or was unable to file an answering brief would not, we believe, serve the ends of justice and we do not believe that Rule 7(a)(2), Rules of the Supreme Court, 17 A.R.S., or the decisions of the Arizona Supreme Court require that we do so.'

We shall consider the merits of this appeal and chronologically set forth the pertinent facts.

Plaintiff and defendant were married in Chicago in 1959. On May 6, 1963 plaintiff filed in the Superior Court of Maricopa County her complaint for separate maintenance, praying for a restraining order against defendant, custody of the minor child, support for herself and the minor child, and for attorney's fees. At that time both parties and their child were in Arizona. Defendant made an appearance and filed an answer on May 9. On May 13 defendant was ordered on stipulation to pay $50 a month for child support. On June 21 a second child was born to plaintiff and defendant in Arizona. After the birth of this child plaintiff with her two children returned to Illinois to live, defendant having deserted them.

On May 19, 1964 plaintiff's separate maintenance action was by minute entry ordered placed on the inactive calendar for dismissal without further notice since certificate of readiness had not been filed or judgment taken.

On December 7, 1964 plaintiff obtained a decree of divorce, based on substituted service by publication, in the Circuit Court of Cook County, Illinois. In this action, care, control, custody and education of the minor child was awarded to the plaintiff. The same decree ordered child support, alimony and attorney's fees to be paid by the defendant, but reserved the determination of the amounts until the Court had personal jurisdiction over the defendant.

On November 19, 1965 the instant matter was permanently assigned to Hon. Kenneth C. Chatwin for pretrial and trial. On January 5, 1966 a pretrial conference was held, showing appearances of counsel for both sides and a pretrial order was entered. Pursuant to stipulation the Court set the cause for trial and fixed a trial date.

On February 11, 1966 the defendant filed a motion to dismiss the complaint, urging the Illinois decree as a bar to the action. The plaintiff filed objections in response. On February 24 counsel for both sides appeared and argued, and defendant's motion to dismiss was denied, with a new trial date being set. On May 13 the cause was tried before the Court, the plaintiff being present and both parties represented by counsel. At the conclusion, ...