Volk v. Brame

• Decision Date: 28 August 2014
• Docket Number: No. 1 CA–SA 14–0079.,1 CA–SA 14–0079.
• Citation: 235 Ariz. 462,333 P.3d 789,694 Ariz. Adv. Rep. 26
• Parties: Kenneth A. VOLK, Petitioner, v. The Honorable Veronica W. BRAME, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner, Annalisa Alvrus, State of Arizona ex rel. Arizona Department of Economic Security (Annalisa B. Alvrus), Real Parties in Interest.
• Court: Arizona Court of Appeals

235 Ariz. 462

333 P.3d 789

694 Ariz. Adv. Rep. 26

Kenneth A. VOLK, Petitioner,

v.The Honorable Veronica W. BRAME, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner,Annalisa Alvrus, State of Arizona ex rel. Arizona Department of Economic Security (Annalisa B. Alvrus), Real Parties in Interest.

No. 1 CA–SA 14–0079.

Court of Appeals of Arizona,

Division 1.

Aug. 28, 2014.

Berkshire Law Office, PLLC By Keith Berkshire, Maxwell Mahoney, Phoenix, Counsel for Petitioner.

Arizona Attorney General's Office By Carol A. Salvati, Phoenix, Counsel for Real Party in Interest State of Arizona.

Judge PETER B. SWANN delivered the opinion of the Court, in which Presiding Judge JOHN C. GEMMILL and Judge PATRICIA A. OROZCO joined.

OPINION

SWANN, Judge.

¶ 1 This case requires us to reaffirm the importance of due process in family court. Kenneth A. Volk (“Father”) petitions for special action relief from the family court's order modifying his child support obligation. He contends that the court denied him a meaningful opportunity to be heard and to confront adverse evidence during the hearing from which the order was issued. We agree. We hold that when the resolution of an issue before the court requires an assessment of credibility, the court must afford the parties an opportunity to present sworn oral testimony, and may not rely solely on avowals of counsel. We further hold that a court abuses its discretion when it adheres to rigid time limits that do not permit adequate opportunity for efficient direct testimony and cross-examination. Accordingly, we accept jurisdiction, vacate the order modifying Father's child support obligation, and remand for a new hearing consistent with this opinion.

JURISDICTION

¶ 2 It is fundamental to due process that a court provide a forum for witness testimony, and that it refrain from resolving matters of credibility on documents alone. We accept special action jurisdiction in this case because of the need to correct an error revealing a breakdown of that basic function. See King v. Superior Court (Bauer), 138 Ariz. 147, 149–50, 673 P.2d 787, 789–90 (1983) (“[Special action] jurisdiction is frequently accepted when under no rule of law can a trial court's actions be justified.”); State v. Bernini, 230 Ariz. 223, 225, ¶ 6, 282 P.3d 424, 426 (App.2012) (“Special action relief is appropriate if the respondent judge has abused her discretion by committing an error of law or proceeding in excess of her legal authority.”); Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982 (App.1984) (“Special action jurisdiction may be assumed to correct a plain and obvious error committed by the trial court.”). Failures of due process are inherently of statewide importance. When due process succumbs to the demands of expedience created in high-volume settings such as family court, the risk that the error will recur is real and special action jurisdiction is appropriately exercised.

FACTS AND PROCEDURAL HISTORY

¶ 3 Father filed a Request to Modify Child Support “Simplified Procedure,” seeking a reduction of his monthly child support obligation from $548.89 to $222.09.¹ Annalisa Alvrus (“Mother”) opposed Father's request, arguing that the court should instead increase Father's monthly obligation to $1,796 and requesting a hearing at which she could “present evidence to establish he[r] contentions.”

¶ 4 The court granted Mother's request for a hearing and allotted 15 minutes for the proceeding. The court ordered the parties to exchange financial information before the hearing, including financial affidavits, tax returns, pay stubs, evidence of other income such as trust disbursements, and proof of child-care expenses.² At the time first set for the hearing, Father asked the court to allot more time to present witnesses and exhibits concerning his income from self-employment. The court denied Father's request, but continued the hearing to allow the parties to resolve parenting time issues pending before a different judge.

¶ 5 Mother then filed a Motion to Expand Time for Evidentiary Hearing, contending that the time allotted would not allow for adequate testimony and review of the evidence. Father objected to Mother's motion, arguing that he had been preparing for a hearing within the scheduled timeframe because the court had already denied his request for additional time. Father further argued that his “exhibits [would] be fully sufficient for the court to render an adequate determination of the issues at hand” and that he would “be prepared to testify regarding his exhibits within the time allocated by [the] Court.” Mother's reply then joined in Father's original request for additional time, but the court denied her motion.

¶ 6 At the outset of the continued hearing, Mother's counsel again objected that 15 minutes would be insufficient to review the evidence that Father intended to present, specifically raising procedural due process as a ground. The court overruled the objection, explaining that on matters set on Tuesdays and Wednesdays: “we don't have the opportunity to have a longer hearing. We tell you what documents you have to present to the Court in your order to appear before the Court. Those are the documents that we usually look at.” The remainder of the hearing focused on the court's effort to identify and organize exhibits relevant to the parties' dispute over Father's income and parenting time.

¶ 7 Father's counsel argued that Father's income for child support purposes was $1,432 a month, based on his tax returns “[a]nd all of his paperwork and everything that [he] provided to [the court], ... [including] every single copy of every single bill, of every single debt, of every single charge associated with his self-employment.”

¶ 8 Mother's counsel in turn asserted that Father's income ranged from $8,762 a month “on the low side” to $9,521 “on the high side,” based on his review of recent business account statements and his own determination of allowable deductions for various expenses reflected in receipts, profit-and-loss statements and payroll records obtained through disclosure. Mother's counsel also alleged that Father received income from a trust. The difference between Mother's “high side” and “low side” calculations was never explained.

¶ 9 As the hearing proceeded the court asked the parties to submit the documents that they had relied on for their respective income calculations. Seated at counsel table, Father attempted to dispute the accuracy of the bank account statements on which Mother's counsel based his calculations by suggesting that they did not accurately reflect the course of his business. The court responded: “Okay. I need the bank statements from [Mother], and then anything you want to present on your side about those ... you can present them.” But the court never allowed Father to explain what his business was—much less how it operates or the details of its finances. In fact, he was never allowed to testify at all. Instead, the court repeatedly interrupted Father's attempts to explain his view of the submitted exhibits, and insisted that all the parties could do was to provide the specific documents that the court had requested.

¶ 10 When Father's counsel voiced concern over the accuracy of a demonstrative chart that Mother's counsel offered as evidence of Father's income, the court interrupted: “This is how this is going to work. [Mother's counsel is] going to present ... his information, whether it's accurate or not. You're going to present me your information that says it's not true. I'm going to look at both of them, and then I'm going to make a decision.” The court added: “I just need for you two to give me the documents.... You don't have to tell me what you presented. Just give it to the Clerk, [and] have her ... mark it because I'm going to look at it.”

¶ 11 At the conclusion of the hearing, the court again denied Father an opportunity to clarify the evidence, and indicated that it would assess the parties' credibility based solely on the disputed documents already submitted without taking any sworn testimony or additional evidence:

[FATHER'S COUNSEL]: ... And then one last thing. My client did want to—because if the Court's just going to review, he would like to just inform the Court briefly what documents he's provided to the Court.

THE COURT: No, ma'am. No, ma'am. I have the documents that I've asked for, and I'm not taking any additional documents.

[FATHER]: Your Honor?

THE COURT: No.

[FATHER]: One last statement?

THE COURT: No, sir, no last statement. I'm going to look at the files.

[FATHER'S COUNSEL]: Okay.

THE COURT: I'm going to look at all the paperwork you gave me, and I'm going to make a decision. I'm going to look at what orders are in place, when the orders were dated ... and go forth from that. Okay? I'm going to look at the total picture of this case ... from my paper view and what you have given me. Okay. Because the argument is that, you know, [Mother] said things, and [Father] says no, it's not true. I'm going to look at the paper and make a ruling. This will be done by minute entry under advisement.

(Emphasis added.) The hearing lasted 31 minutes, during which the court admitted 23 of Father's exhibits and 11 of Mother's exhibits, including the demonstrative chart containing the calculation that Mother's counsel prepared and explained at length without supporting testimony.

¶ 12 The court issued a written decision, in which it stated that it had “heard testimony from Father and Mother, the argument of the attorneys, reviewed the legal file, the voluminous exhibits, the documentation submitted regarding Father's Trust account, and A.R.S. § 25–320 and the Child Support Guidelines.” The court issued the following finding:

Despite the voluminous receipts and documents, they do not add up to $1,431.99 for Father's income. The deposits for the business are over $174,000.00; and the...