Seidman v. Seidman

• Decision Date: 25 August 2009
• Docket Number: No. 1 CA-CV 08-0281.,1 CA-CV 08-0281.
• Citation: Seidman v. Seidman, 215 P.3d 382, 222 Ariz. 408 (Ariz. App. 2009)
• Parties: In re the Marriage of Lawrence T. SEIDMAN, Petitioner/Appellee, v. Barbara A. Meale Rogers SEIDMAN, Respondent/Appellant.
• Court: Arizona Court of Appeals

215 P.3d 382

222 Ariz. 408

In re the Marriage of Lawrence T. SEIDMAN, Petitioner/Appellee, v. Barbara A. Meale Rogers SEIDMAN, Respondent/Appellant.

No. 1 CA-CV 08-0281.

Court of Appeals of Arizona, Division 1, Department D.

August 25, 2009.

Stanley David Murray, Attorney at Law, by Stanley D. Murray, Scottsdale, Attorneys for Petitioner/Appellee.

Jones, Skelton & Hochuli, P.L.C. by Eileen Dennis GilBride and Lori L. Voepel, Phoenix, Attorneys for Respondent/Appellant.

OPINION

SWANN, Judge.

¶ 1 In this dissolution proceeding, Barbara A. Meale Rogers Seidman ("Wife") appeals from a default judgment stemming from her failure to attend her deposition. For the following reasons, we reverse and remand.¹

I. FACTS AND PROCEDURAL HISTORY

¶ 2 On April 11, 2006, Lawrence T. Seidman ("Husband") commenced this dissolution proceeding. On September 7, Wife's counsel wrote to Husband's counsel concerning Wife's scheduled September 13 deposition, demanding that Husband provide "full and complete responses" to her discovery requests by the next day. It is undisputed that Wife did not attend her September 13 deposition.

¶ 3 On September 14, 2006, Husband filed a motion for protective order regarding the scope of Wife's uniform interrogatories and request for production of documents. In response, Wife filed a motion to compel Husband to (1) fully respond to the uniform interrogatories; (2) provide a complete Affidavit of Financial Information; and (3) comply with the request for production of documents. Wife also requested sanctions against Husband in the form of attorneys' fees incurred in bringing the motion to compel.

¶ 4 At a return hearing on September 19, the court set an evidentiary hearing on temporary orders to be spread over four sessions on November 27-30. The court also set a trial date of January 17, 2007, and ordered both parties to complete disclosure at least 30 days before trial.

¶ 5 On November 13, 2006, the court held an emergency telephonic hearing at which counsel for Husband and Wife were present without their clients. Wife's counsel indicated that his client had a letter from her doctor stating that, due to medical reasons, she was unable to participate in her deposition, which had been rescheduled for November 14, 2006. The court ordered "that absent a detailed, signed letter from her doctor, stating that Wife's health is in imminent danger by appearing for the deposition, the Court will not grant a continuance of Wife's deposition." The order further provided that "[i]f Wife fails to appear for the scheduled deposition without a physician's note specifying the health risks involved, detailed enough to satisfy Husband's counsel that her appearance would be detrimental to her health, counsel shall contact this Court for an enforcement determination."

¶ 6 On November 14, 2006, Wife's counsel sent a second doctor's letter. In that letter, the doctor explained that he had been treating Wife for the past four months for depression, anxiety, hypertension, postmenopausal symptoms, and polyarthralgia. Further, the doctor opined that Wife's "depression and anxiety has deteriorated and she should not be placed in any undue stressful situations at this time. There is concern that she may be at risk for her life if she is exposed to a stressful situation, acutely or sub-acutely."

¶ 7 Husband did not contact the family court for an enforcement determination upon receipt of the second letter, and Wife did not attend her November 14, 2006 deposition. On November 17, 2006, Husband filed a motion for sanctions for Wife's failure to attend her deposition, seeking several remedies, including default.²

¶ 8 During a conference on November 22, 2006, the court set a telephonic oral argument on Husband's motion for sanctions for December 1, 2006. In the corresponding minute entry, the court set the matter for a fifteen-minute "Return Hearing." Wife stipulated and requested that the December 1 hearing be vacated.

¶ 9 Upon review of Husband's motion for sanctions, the court found Wife's failure to "appear for her November deposition was not justified by medical or legal excuse, especially after [sic] given notice of the extra scrutiny that the Court would take of her alleged medical condition. The doctor's letters were generalized and inadequate." Further, the court did "not fault [Wife's] counsel, but . . . conclude[d] that [Wife] has not been forthcoming to her attorneys." The family court granted Husband's motions for entry of default as a sanction, awarded attorneys' fees and vacated the trial.

¶ 10 Husband filed an affidavit in support of the default decree, and Wife objected. On March 29, 2007, the court issued a minute entry in which it held:

There was irresistible evidence against [Wife] as to dishonesty and manipulation of [Husband] and the Court. She was warned specifically and repeatedly of the risk of failing to attend discovery. A simple reading of the Court's ruling would convince anyone that the doctor's excuse was not adequate. The Court concluded that the doctor did not present more evidence of [Wife's] unavailability for the deposition because there was no valid medical basis for avoiding the deposition. A Wayne Cook hearing is not needed because the cause of the default was not the actions of the attorney's [sic] but of the client.

The family court found Husband's application for attorneys' fees deficient and set the matter of damages and entry of decree for a three hour evidentiary hearing on September 10, 2007.

¶ 11 On July 2, 2007, Husband filed a motion for clarification of the orders, arguing that there should be no discovery or disclosure and that Wife should only be permitted to cross-examine Husband without presenting any affirmative evidence on her behalf. Wife argued that she should be allowed to fully present her case. On August 30, 2007, the court held a telephonic conference and granted Husband's request to limit Wife's participation in the hearing on damages to cross-examination.

¶ 12 On September 6, 2007, Wife filed an expedited motion to set aside default and an expedited motion for stay. The family court summarily denied both motions on September 10, 2007.

¶ 13 On March 13, 2008, the court filed a signed decree of dissolution. Wife timely appeals, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") § 12-2101(B) (2003).

II. DISCUSSION

¶ 14 Wife argues that the family court erred when it entered a default judgment against her as a sanction for a discovery violation because (1) the court did not conduct an evidentiary hearing or make specific findings in support of the default; (2) Wife was not allowed to present evidence on her own behalf at the hearing on damages; and (3) there was no legal justification for the entry of default. Husband argues that (1) Wife waived her right to an evidentiary hearing, or in the alternative that a hearing is not required in every case; (2) the family court considered lesser sanctions; (3) limiting Wife to cross-examination of Husband was proper in a default hearing on damages; and (4) an entry of default as a sanction was proper. We consider each issue in turn.

A. Waiver

¶ 15 On appeal, Husband contends Wife waived her right to an evidentiary hearing when she requested that the hearing set for December 1, 2006 on Husband's motion for sanctions be vacated. We disagree.

¶ 16 In its November 22, 2006 minute entry, the family court set the December 1 hearing regarding Husband's motion for sanctions as a fifteen-minute "Return Hearing." Under the Rules of Family Law Procedure, a return hearing is an organizational event in the post-decree setting, analogous to a resolution management conference — it is not an evidentiary hearing. See Ariz. R. Fam. L.P. 91(N); Form 14.

¶ 17 The transcripts of the November 22 telephonic conference provide further confirmation that neither the court nor Husband's counsel intended to conduct an evidentiary hearing on December 1, 2006. During that conference, the court stated that it would not "need a long time for oral argument." Husband's attorney inquired whether the hearing would be "telephonic or in person." The court responded, "[w]hichever you like. Telephonic would be fine." Husband's attorney responded that he would let the court know "the day before whether I'm going to come down or not." Because the court never scheduled an evidentiary hearing, we conclude that Wife did not waive her right to such an evidentiary hearing when she stipulated and requested that the December hearing be vacated.

B. The Need for an Evidentiary Hearing

¶ 18 We review a trial court's sanction for discovery violations for a clear abuse of discretion. See Lenze v. Synthes, Ltd., 160 Ariz. 302, 305, 772 P.2d 1155, 1158 (App. 1989) (striking pleadings reviewed for abuse of discretion); see also Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶ 10, 62 P.3d 976, 980 (App.2003) (exclusion of evidence reviewed for abuse of discretion). But "[t]he trial court's discretion in entering a default for failure to comply with an order compelling discovery is more limited than when it employs lesser sanctions." Lenze, 160 Ariz, at 305, 772 P.2d at 1158 (citation omitted). And the "trial court's power to employ the ultimate sanctions of dismissal or entry of default judgment is circumscribed by due process considerations." Id. (citations omitted).

¶ 19 Before a court may enter a default judgment as a discovery sanction, due process requires that it hold an evidentiary hearing to determine whether the fault of the discovery violation lies with the party or with counsel. Id.; see Zimmerman, 204 Ariz, at 233, ¶ 2, 62 P.3d at 978 (dismissal for nondisclosure must be accompanied by evidentiary hearing to determine whether party or counsel is at fault); Montgomery Ward & Co. v. Superior Court (Garcia), 176 Ariz. 619, 621, 863 P.2d 911, 913 (App.1993) (court may be required to hold evidentiary hearing).

¶ 20 At the evidentiary...