Cruz v. Garcia

• Decision Date: 17 June 2016
• Docket Number: No. 2 CA–CV 2015–0174,2 CA–CV 2015–0174
• Citation: 240 Ariz. 234,377 P.3d 1028
• Parties: Laura Cruz, Appellant, v. Robert Garcia Jr., Appellee.
• Court: Arizona Court of Appeals

240 Ariz. 234

377 P.3d 1028

Laura Cruz, Appellant

v.Robert Garcia Jr., Appellee.

No. 2 CA–CV 2015–0174

Court of Appeals of Arizona, Division 2.

Filed June 17, 2016

Solyn & Lieberman, PLLC, Tucson, By Melissa Solyn and Scott Lieberman, Counsel for Appellant

Thrush Law Group, Tucson, By Brian K. Kimminau, Counsel for Appellee

Judge Miller authored the opinion of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.

OPINION

MILLER, 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.

¶ 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 reunification 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.

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).

¶ 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, 102 S.Ct. 1388, 71 L.Ed.2d 599 (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 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...