                             IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                           LAURA CRUZ,
                            Appellant,

                               v.

                       ROBERT GARCIA JR.,
                           Appellee.

                     No. 2 CA-CV 2015-0174
                       Filed June 17, 2016

         Appeal from the Superior Court in Pima County
                        No. SP20060213
         The Honorable Ken Sanders, Judge Pro Tempore

                 VACATED AND REMANDED


                           COUNSEL

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

Thrush Law Group, Tucson
By Brian K. Kimminau
Counsel for Appellee
                        CRUZ v. GARCIA
                       Opinion of the Court


                             OPINION

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


M I L L E R, 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.


      1 AlthoughCruz was arrested on suspicion of possession of
narcotics and drug paraphernalia, the charges against her were
apparently dropped.


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                        Opinion of the Court

¶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 re-
            unification 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.




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                        Opinion of the Court

            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).



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                          CRUZ v. GARCIA
                         Opinion of the Court

¶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 (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


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                          CRUZ v. GARCIA
                         Opinion of the Court

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 as to the issue of child support. See id. ¶¶ 3, 15.

¶14          We agree with Cruz that the family court’s judgment in
this case was rendered without procedural due process, as in Cook
and Heidbreder. First, the parties did not have notice that legal
decision-making was at issue at the June 24, 2015 hearing. See
Heidbreder, 230 Ariz. 377, ¶¶ 13-16, 284 P.3d at 892-93; Cook, 228 Ariz.
202, ¶¶ 17-19, 265 P.3d at 387-88; Evans, 116 Ariz. at 306-07, 569 P.2d
at 248-49; see also Solomon v. Solomon, 5 Ariz. App. 352, 355-56, 427
P.2d 156, 159-60 (1967) (trial court abused its discretion when, one

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                          CRUZ v. GARCIA
                         Opinion of the Court

day before hearing, it expanded scope of hearing to include custody
of both children, not just one; wife had no reason to believe husband
would seek custody of both children and had no time to prepare
proper defense).

¶15          As late as June 16, 2015, eight days before the hearing in
question, the family court had reaffirmed the August 2015 date for a
“Court Trial regarding Legal Decision-Making and Parenting Time.”
The parties prepared for the June 24, 2015 hearing with the
understanding that the family court planned to address Garcia’s
motion to suspend Cruz’s supervised parenting time. Importantly,
the motion did not request a change in legal decision-making
authority. The court reiterated twice at the hearing that the motion
before it was Garcia’s petition to suspend Cruz’s parenting time.
Garcia’s counsel said at the hearing that he “would oppose any
expansion of the purpose of this hearing” to include other then-
pending motions, adding he preferred to “keep it limited to
addressing the on-going supervised visitations.” The parties did not
present any argument or evidence on legal decision-making at the
hearing. The transcript contains but one passing reference to the
topic. The parties had no reason to anticipate that the court would
finally adjudicate legal decision-making in an in-chambers ruling
two days after the hearing.

¶16          Second, the family court did not give the parties an
opportunity to be heard at a meaningful time and in a meaningful
manner on the issue of legal decision-making. Due process requires
that when there are disputed issues of fact as to a child’s best
interests, “the court must allow the parties to present evidence
before it makes its finding.” Murray v. Murray, 239 Ariz. 174, ¶ 18,
367 P.3d 78, 83 (App. 2016); see Heidbreder, 230 Ariz. 377, ¶ 15, 284
P.3d at 892 (directing parties to file financial affidavits after hearing
at which court raised issue of child support sua sponte “was not a
proper substitute for providing the parties a full opportunity to be
meaningfully heard” on the issue); cf. DePasquale v. Superior Court,
181 Ariz. 333, 336, 890 P.2d 628, 631 (App. 1995) (trial court errs by
“changing custody without a hearing and without the aggrieved
parent’s consent”).




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                          CRUZ v. GARCIA
                         Opinion of the Court

¶17           The family court’s factual findings issued on June 26,
2015, pursuant to § 25-403, were based in large part on documents
not admitted in evidence or subjected to adversary testing. For
instance, the court relied on Dr. Pellegrin’s letter, which, although it
was attached to Cruz’s answer to Garcia’s petition to modify
parenting time and discussed at the hearing, was never admitted as
an exhibit. Other findings were based on hearsay statements from a
summary of L.G.’s interview with Child Advocacy Services and a
psychological evaluation of L.G. by Dr. Ralph Wetmore, both from
2013. These documents cannot substitute for admissible exhibits
and testimony subjected to adversary testing. See Murray, 239 Ariz.
174, ¶ 18, 367 P.3d at 83 (pleadings and argument of counsel not
sufficient to sustain finding of fact, because argument is not
evidence); Solomon, 5 Ariz. App. at 356, 427 P.2d at 160 (as relevant
to determine custody, best interests of child “‘shall be determined
after a proper and orderly hearing of the issue of custody with all
interested parties having a right and opportunity to be present and
produce evidence’”), quoting Tuttle v. Tuttle, 343 P.2d 838, 840 (N.M.
1959); cf. Pridgeon v. Superior Court, 134 Ariz. 177, 180-82, 655 P.2d 1,
4-6 (1982) (rejecting “‘trial by affidavit’” and requiring hearing when
pleadings are in “direct[] . . . opposition upon any substantial and
crucial fact relevant to the grounds for modification” of custody
order). Nor are we persuaded by Garcia’s argument that earlier
hearings from 2013 to 2015 on other issues provided Cruz a
meaningful opportunity to be heard on the issue of legal decision-
making. Because the parties had no notice that the court would be
determining legal decision-making authority at the hearing and no
meaningful opportunity to be heard on that issue, the court’s ruling
did not comport with due process. See Heidbreder, 230 Ariz. 377,
¶¶ 13-15, 284 P.3d at 892.

¶18          The family court cited A.R.S. § 25-411(J) and Hart v.
Hart, 220 Ariz. 183, ¶ 16, 204 P.3d 441, 445 (App. 2009), for the
proposition that a family court may “sua sponte restrict a parent’s
parenting time rights” upon finding that such parenting time would
endanger the physical, mental, moral, or emotional health of the
minor. We do not read these authorities so broadly. Contrary to
Garcia’s argument in the answering brief, § 25-411(J) does not permit
the court to revoke a party’s parenting time sua sponte without notice


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                        Opinion of the Court

and an opportunity to be heard. See, e.g., Murray, 239 Ariz. 174, ¶ 18,
367 P.3d at 83; see also DePasquale, 181 Ariz. at 336, 890 P.2d at 631
(acknowledging court may face emergency situation requiring
temporary change in custody without notice and hearing, but
emphasizing that in such case court must follow “strict procedural
limits” of rules governing temporary orders2). The court’s authority
to impose “restrict[ions]” on parenting time sua sponte under § 25-
411(J) is limited to placing conditions on the exercise of parenting
time, such as supervision or geographical restrictions. See Hart, 220
Ariz. 183, ¶ 16, 204 P.3d at 445.

                            Attorney Fees

¶19          Cruz requests attorney fees and costs on appeal, citing
A.R.S. §§ 25-324, 12-341, and 12-341.01. In our discretion, we deny
her request pursuant to § 25-324(A). She has not shown a basis for
mandatory fees pursuant to § 25-324(B), so we also deny that
request. We deny her request for fees pursuant to § 12-341.01
because this action does not arise out of a contract. As the successful
party on appeal, however, we award her costs on appeal pursuant to
§ 12-341, upon her compliance with Rule 21, Ariz. R. Civ. App. P.

¶20          Garcia too requests attorney fees and costs pursuant to
§ 25-324(A) and (B). In our discretion, we deny his request pursuant
to subsection (A), and because he has not established a basis for an
award under subsection (B) we deny that request as well.




      2DePasquale cited Rule 65(d), Ariz. R. Civ. P., governing
temporary restraining orders. 181 Ariz. at 336, 890 P.2d at 631. The
principle is the same under the new equivalent family law rule,
promulgated after DePasquale was decided. See Ariz. R. Fam. Law P.
48 & committee cmt.


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                        CRUZ v. GARCIA
                       Opinion of the Court



                           Disposition

¶21         For the foregoing reasons, we vacate the family court’s
June 24, 2015 minute entry and its June 26, 2015 in-chambers
findings and orders. 3 We remand the case for an evidentiary
hearing on the issues of parenting time and legal decision-making.




      3 This disposition makes it unnecessary to address Cruz’s
argument that the family court abused its discretion by denying her
petition to appoint a family law master and a new therapeutic
interventionist.


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