Reed v. Reed

• Decision Date: 25 June 1987
• Docket Number: CA-CIV,No. 1,1
• Citation: 154 Ariz. 101,740 P.2d 963
• Parties: In re the Marriage of Michael S. REED, Petitioner-Appellant, v. Michele M. REED, Respondent-Appellee. 9116.
• Court: Arizona Court of Appeals

Page 963

740 P.2d 963

154 Ariz. 101

In re the Marriage of Michael S. REED, Petitioner-Appellant, v. Michele M. REED, Respondent-Appellee.

No. 1 CA-CIV 9116.

Court of Appeals of Arizona Division 1, Department B.

June 25, 1987.

Reconsideration Denied Aug. 11, 1987.

[154 Ariz. 102] Craig Mehrens, Phoenix, for petitioner-appellant.

Burch & Cracchiolo by Shari I. Howard, Phoenix, for respondent-appellee.

OPINION

EUBANK, Judge.

In this appeal petitioner, Michael S. Reed, contests the trial court's order modifying the dissolution decree by increasing the amount of his monthly obligation to support his two children from $800.00 to $1900.00.

I. ISSUES

Petitioner raises the following issues: (1) whether the trial court erred in denying petitioner's request that it make findings of fact and conclusions of law pursuant to Rule 52, Arizona Rules of Civil Procedure, in connection with the hearing on respondent Michele M. Reed's petition for modification; (2) whether the trial court abused its discretion in increasing petitioner's child support obligations; (3) whether the trial court abused its discretion in denying petitioner's request for a postponement of the modification hearing due to respondent's mid-hearing production of previously-subpoenaed documents; and (4) whether the trial court erred in precluding petitioner from contesting the accuracy and reasonableness of an affidavit of respondent's counsel in support of respondent's claim for attorney's fees. Our jurisdiction is founded on A.R.S. § 12-2101(E).

II. FACTS

Petitioner and respondent were married on April 9, 1972. Their daughters Ivy and Heather were born April 6, 1973 and March 3, 1975, respectively. On December 26, 1980, petitioner filed a petition for dissolution of marriage.

A decree of dissolution of marriage was entered on March 4, 1982. The decree awarded respondent custody of Ivy and Heather. It further obligated petitioner to pay respondent spousal maintenance of $400.00 per month for eighteen months and child support of $400.00 per month for each child.

On December 18, 1985, respondent petitioned to modify the decree of dissolution. Her petition alleged that respondent's and the children's financial circumstances had worsened substantially since the decree of dissolution because of increases in living costs, and that during the same time petitioner's income had substantially increased. The petition alleged that because of petitioner's greatly improved financial circumstances and the children's increased needs, petitioner should be ordered to pay a sum greatly in excess of $800 per month as child support.

On February 12, 1986, petitioner filed a request for findings of fact and conclusions of law pursuant to Rule 52(a), Arizona Rules of Civil Procedure. Respondent's petition for modification was heard on April 28 and 29, 1986. At the hearing Judge de Leon expressed his opinion that Rule 52(a) applied only to trials and denied petitioner's request for findings of fact and conclusions of law. The trial court also stated: "I will, however, be recording the opinion by minute entry. So that's all you need is my decision on record."

The trial court took the petition for modification under advisement on April 29, 1986. The next day it issued a minute entry in which it ordered an increase in petitioner's support obligation from $400 per month per child to $950 per month per child and discussed its reasons for doing so.

On May 15, 1986, the respondent lodged a form of order corresponding to the minute entry of April 30, 1986. On May 20, 1986, petitioner filed objections thereto. On June 10, 1986, following oral argument, the trial court overruled petitioner's objections and approved and signed the formal order respondent had lodged previously. The order was entered June 11, 1986. This appeal followed.

III. RULE 52(a) REQUEST

Petitioner first contends the trial court erred in denying his timely request for findings of fact and conclusions of law pursuant to Rule 52(a), Arizona Rules of Civil Procedure. He argues that the word "trial" in Rule 52(a) should be interpreted to include all adversarial hearings which affect the parties' rights, including the hearing below on respondent's motion to modify child support. In response, respondent urges that we need not address that argument because the formal modification order contains specific findings of fact and conclusions of law sufficient to comply with Rule 52(a). She reasons that the trial court's order made findings on all the "ultimate facts" and need not have been more specific. In reply, petitioner urges that the trial court's order made no findings concerning the ultimate facts of the case, but instead did nothing more than state and restate its ultimate conclusion.

We agree that the trial court erred in holding that Rule 52(a) applies only in connection with the "trial" of a civil action. Rule 52(a) provides in part:

In all actions tried upon the facts without a jury or with an advisory jury, the court, if requested before trial, shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.... It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or minute entry or memorandum of decision filed by the court.

The purpose of requiring the trial court to make findings of fact and conclusions of law, when requested to do so, is to enable the appellate court to examine the basis on which the trial court reached its ultimate judgment. Ellingson v. Fuller, 20 Ariz.App. 456, 513 P.2d 1339 (1973); SMITH, Arizona Practice § 421 (1986). In our opinion the need for that kind of illumination arises not only from the actual "trial" of a civil action, but from any adversarial hearing or proceeding at which the trial court hears evidence and resolves disputed factual issues. We have previously recognized that Rule 52(a) applies to hearings tried on the facts as well as to trials. Maryland National Insurance Co. v. Ozzie Young Drilling Co., 22 Ariz.App. 195, 197, 526 P.2d 402, 404 (1974). The language of Rule 52(a) is not inherently so inflexible as to mandate the strictly limited interpretation the trial court placed upon it in this case.

Decisions which have interpreted procedural rules similar to Rule 52(a) have come to the same conclusion. The court in Becker v. Becker, 262 N.W.2d 478 (N.D.1978), considered an Idaho rule similar to Rule 52(a), Federal Rules of Civil Procedure. ¹ In Becker the appellee moved to increase the appellant's child support obligations, and the trial court granted the requested modification after an evidentiary hearing. In discussing the appellant's challenge on appeal, the North Dakota court stated:

At first blush, Rule 52(a) appears to except decisions on motions, other than certain motions to dismiss not here relevant, from the preparation of findings of fact and conclusions of law. The reason for this is simple: most motions are not tried upon the facts. Motions to modify divorce decrees are exceptions. A fact-finding process is necessary before it can be determined that the requisite material change in conditions has occurred. See Voskuil v. Voskuil, 256 N.W.2d 526, 530 (N.D.1977).

262 N.W.2d 478, 481 (Footnotes omitted). ² The Becker Court went on to hold that the trial court had formulated the required findings of fact and conclusions of law in its oral opinion at the conclusion of the evidentiary hearing. In Tennyson v. Tennyson, 381 A.2d 264 (D.C.Cir.1977) the United States Court of Appeals reversed an order eliminating a former husband's alimony obligation and increasing his child support obligation because the trial court had failed to make findings of fact and conclusions of law required under a rule similar to Rule 52(a), Federal Rules of Civil Procedure. Noting that the trial court had made no findings concerning the amount by which the child's financial needs had increased since the original decree, the court stated:

The proceedings in this case illustrate the necessity of compliance with the requirement that the court "make written findings of fact ... which constitute the grounds of its action." Super.Ct.Dom.Rel. R. 52(a). One of the purposes of this rule is to ensure that litigated facts and issues are sufficiently detailed to bring into effect the doctrines of finality. See Advisory Committee Note to 1948 Amendment of Fed.R.Civ.P. 52(a), 5 F.R.D. 433, 471 (1946). Since the grounds for modification must be a change in circumstances, those changes must be detailed, not only to support the modification but to prevent the relitigation of facts and issues in the future. See Sheridan v. Sheridan, D.C.App., 267 A.2d 343, 346 (1970).

381 A.2d 264, 267. Cf. King v. Wall & Beaver Street Corp., 79 U.S.App.D.C. 234, 145 F.2d 377 (D.C.Cir.1944) (trial court properly made findings of fact and conclusions of law in connection with evidentiary hearing on motion to dismiss for lack of personal jurisdiction and improper service of process). See generally Williamson v. Tucker, 645 F.2d 404, 58 A.L.R. Fed. 371 (5th Cir.1981); 5A Moore's Federal Practice, 2d Ed., p 52.08 at 52-183 and 52-184 (1986).

We next consider whether, in any event, the trial court's order increasing petitioner's child support obligation effectively complied with Rule 52(a). The trial court reasoned:

THE COURT FINDS that at the Order to Show Cause hearing the mother proved that since the dissolution the father has substantially and continuously improved his financial circumstances. The father, as a chiropractor, has enjoyed a significant and continuing increase in both his personal income, mainly by way of fringe benefits and his wholly-owned medical provider corporate income, as well as overall substantial and continuing increase in his personal and corporate financial holdings. On the other side, since...