Kitagawa v. Tarin

• Decision Date: 15 November 2022
• Docket Number: 2 CA-CV 2021-0105-FC
• Parties: Alma Kitagawa and Jimmy Kitagawa, Petitioners/Appellees, v. Aleska Tarin, Respondent/Appellant.
• Court: Arizona Court of Appeals

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Alma Kitagawa and Jimmy Kitagawa, Petitioners/Appellees, v. Aleska Tarin, Respondent/Appellant.

No. 2 CA-CV 2021-0105-FC

Court of Appeals of Arizona, Second Division

November 15, 2022

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pinal County No. S1100DO202001050 The Honorable Richard T. Platt, Judge Pro Tempore The Honorable Kelly Neal, III, Judge Pro Tempore

Pangerl Law Firm P.L.L.C., Phoenix By Regina M. Pangerl Counsel for Petitioners/Appellees

Winkley Law Firm PLLC, Maricopa By Katherine A. Winkley Counsel for Respondent/Appellant

Judge Brearcliffe authored the decision of the Court, in which Presiding

Judge Eppich and Vice Chief Judge Staring concurred.

MEMORANDUM DECISION

BREARCLIFFE, Judge:

¶1 Aleska Tarin appeals from the trial court's order granting third-party visitation with her daughter, R.T., to appellees Alma and Jimmy Kitagawa. We affirm.

Factual and Procedural Background

¶2 We view the record in the light most favorable to supporting the trial court's visitation order. In re Marriage of Friedman & Roels, 244 Ariz. 111, ¶ 2 (2018). The Kitagawas are R.T.'s maternal great-grandparents. R.T., who was born out of wedlock, resides with Tarin. The Kitagawas filed a petition for third-party rights over R.T in July 2020, and eventually personally served Tarin in December 2020.

¶3 All parties appeared telephonically at a review hearing in January 2021, and the trial court scheduled another telephonic review hearing for February 2021. The minute entry issued after the January hearing stated:

The Court advises the parties that they shall appear telephonically at the next hearing. However, the parties must contact this Court's Judicial Assistant . . . with a telephone number, not less than two judicial days prior to the hearing.

The Court shall initiate the call as near to the scheduled time as the Court's calendar permits.

Parties are responsible for ensuring that they have a good connection and that they are available for the hearing. If the Court is unable to reach a party at the time of the hearing, or if the connection is inadequate, the Court may proceed with the hearing in the party's absence.

¶4 Tarin filed her response contesting the Kitagawas' petition, claiming that it is not in R.T.'s best interests for the Kitagawas to have any third-party rights. Her response alleged that Alma "always threatened to take [Tarin's] daughter away if [Tarin] didn[']t respond to her," that Tarin did "not feel comfortable" with Alma around her daughter, and that it is "a toxic envi[ro]nment when Alma is always projecting negative comments." No more specific allegations were provided.

¶5 All parties attended the February review hearing telephonically, at which the trial court set an evidentiary hearing for April 2021. The minute entry issued after the February hearing repeated the instructions that the parties must provide a phone number ahead of time, the court will initiate the call, the parties are responsible for ensuring they are available and have a good connection, and the court may proceed without them if the court is unable to reach them. It further warned:

Failure of a party to appear may result in the Court allowing the party who does appear to proceed in the absence of the other party. Failure to present the Pretrial Statement in proper form and in a timely manner, without good cause, shall result in the imposition of any or all sanctions pursuant to [Rule 76.2, Ariz. R. Fam. Law P.], including proceeding to hear this matter by default based upon the evidence presented by the appearing party. Failure of both parties to appear may result in the matter being dismissed.

¶6 The parties filed pre-trial statements with lists of exhibits before the evidentiary hearing. According to the minute entry, the Kitagawas appeared at the hearing telephonically and Tarin did not appear either personally or through counsel. The minute entry for the evidentiary hearing states "the Court attempted to contact [Tarin] via telephone without success." The court proceeded without Tarin, and the Kitagawas offered exhibits and testimony. It also adopted temporary orders granting visitation to the Kitagawas on the third weekend of each month, from 9:00 a.m. on Saturday to 5:00 p.m. on Sunday, and took the matter of final orders under advisement.

¶7 The next day, Tarin filed a motion for reconsideration and request for hearing, explaining that she "was not present during the trial . . . due to telephone difficulties," and she "did not rec[ei]ve a call on [her] end." She also stated that she "[did] not feel it is safe for [R.T.] to stay overnight at Alma's house" because R.T. "is not familiar with Alma[']s environment," claimed that there is "speculation of a convicted felon living in [Alma's] house," and alleged that Alma did not want to release R.T. to Tarin during their last visit. Tarin also attached screen shots of her cell phone purporting to show her own attempts to call the trial court during the evidentiary hearing. The court summarily denied the motion.

¶8 In June 2021, the trial court granted the Kitagawas permanent visitation rights in accord with the earlier temporary orders, finding that the ordered visitation is "appropriate and in the child's best interests." Tarin appealed. We suspended the appeal to permit Tarin time to obtain a judgment including finality language required by Rule 78(c), Ariz. R. Civ. P. Final judgment was thereafter entered. We have jurisdiction pursuant to A.R.S. §§ 12-2101(A)(1) and 12-120.21(A)(1).

Analysis

¶9 On appeal, Tarin argues that the trial court violated her "due process right to provide evidence and testimony in opposition to the Petition for Third Party Rights by failing to take additional steps to ensure her appearance or resetting the hearing." Tarin also contends that the court "must hear evidence when the best interest of Minor Children is at issue," and the court's "refusal to allow her to participate fully in this matter" prevented it from properly considering the best interests of the child.

¶10 "We review the interpretation of statutes and constitutional issues de novo." Marriage of Friedman, 244 Ariz. 111, ¶ 11. "[T]he decision to award visitation rests within the family court's discretion upon finding that visitation is in the child's best interests," and "we will not disturb the court's decision absent an abuse of discretion in making the best-interests finding." Id. ¶ 36. We review a court's decision to deny a motion for reconsideration for abuse of discretion. McGovern v. McGovern, 201 Ariz. 172, ¶ 6 (App. 2001). A court abuses its discretion if it "commits an error of law in reaching a discretionary conclusion, it reaches a conclusion without considering the evidence, it commits some other substantial error of law, or the record fails to provide substantial evidence to support the trial court's finding." Duckstein v. Wolf, 230 Ariz. 227, ¶ 8 (App. 2012) (quoting Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, ¶ 27 (App. 2007)).

Due Process

¶11 Due process encompasses a party's right to notice of proceedings and an opportunity to be heard. Mathews v Eldridge, . 424 U.S 319, 348 (1976). Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Id. at 334 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)). Instead, the opportunity to be heard is "tailored to the capacities and circumstances of those who are to be heard," Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970), meaning that, in light of the decision to be made, the trial court's procedures must ensure that a person is given a meaningful opportunity to present his case, Mathews, 424 U.S. at 349. Generally, as in this case, when a court must make factual determinations, it must provide an opportunity for the parties to present testimony and challenge the testimony of their opponent. Volk v. Brame, 235 Ariz. 462, ¶¶ 14-17 (App. 2014) (explaining that Goldberg's holding "goes to the essence of the courts' function and it applies with equal force in all judicial proceedings"); Goldberg, 397 U.S. at 269 ("In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.").

¶12 On appeal, Tarin asserts that she was denied the opportunity to be heard at the evidentiary hearing when the trial court went forward with the hearing in her absence. She relies principally on Volk, 235 Ariz. 462. In Volk, the trial court violated Father's due process rights when it limited an evidentiary hearing to fifteen minutes, would only consider documents Father submitted, and "expressly rejected" Father's efforts to testify. Id. ¶¶ 14, 19-22. There, we explained, "[w]hen the court allows no time to hear testimony, or when the time available for each necessary witness does not allow for meaningful direct testimony and efficient but adequate cross-examination, the court violates the parties' due process rights." Id. ¶ 21.

¶13 Tarin argues, similarly, that "the Court's actions eliminated her opportunity to provide evidence and testimony that would support her position to deny third party rights." She claims that the trial court did not call her and that she attempted to call the court herself because she "became concerned that the Court might be having trouble reaching her." To be sure, if the court excluded Tarin from the evidentiary hearing intentionally or otherwise, Tarin's comparison to Volk would have merit. However, Tarin offers no evidence in the record that the court did any such thing. The minute entry from the evidentiary hearing reflects that "the Court attempted to...