                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                               In re the Matter of:

                   JULIO C. PACHECO, Petitioner/Appellee,

                                         v.

             TERRA MICHELE MILLER, Respondent/Appellant.

                            No. 1 CA-CV 18-0299 FC
                                 FILED 3-12-2019


            Appeal from the Superior Court in Maricopa County
                           No. FC2017-054721
              The Honorable Jennifer C. Ryan-Touhill, Judge

       AFFIRMED IN PART; VACATED IN PART; REMANDED


                                    COUNSEL

Garnice Law, P.L.L.C., Scottsdale
By Victor A. Garnice
Counsel for Petitioner/Appellee

Canterbury Law Group, L.L.P., Scottsdale
By Craig Peter Cherney, Jonathan P. Ibsen,
Counsel for Respondent/Appellant
                            PACHECO v. MILLER
                             Decision of the Court


                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1           Terra Miller (Mother) appeals the family court’s orders
sanctioning her and awarding Julio Pacheco (Father) sole legal decision-
making, primary residential parenting time, and child support. For the
following reasons, we affirm the determination of paternity, vacate
sanctions against Mother, and remand the issues of legal decision-making,
parenting time, and child support for a new trial.

                 FACTS AND PROCEDURAL HISTORY

¶2            In October 2017, Father filed a petition related to the parties’
then-seven-year-old son (Child).1 Father, who resides in Indiana, sought a
determination of paternity, sole legal decision-making, primary residential
parenting time, and child support. At a resolution management conference
in November 2017, the family court set trial for April 2018, and ordered the
parties to meet face-to-face at least ten days before trial to discuss settlement
and prepare pretrial statements. The court ordered the parties to file the
pretrial statements, current affidavits of financial information (AFI), and all
proposed exhibits no later than five days before trial. The court warned the
parties that failure to comply with the court’s orders could result in “the
imposition of any and all available sanctions pursuant to [the] Arizona
Rules of Family Law Procedure, including proceeding to hear th[e] matter
by default.”

¶3            The parties did not meet face-to-face as ordered. Father
timely filed a separate pretrial statement, his AFI, and proposed exhibits.
Father’s pretrial statement noted Mother had not provided any disclosure.
The day before trial, Mother filed a separate pretrial statement that was




1      “We view the facts in the light most favorable to sustaining the
family court’s ruling.” Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 522, ¶ 1
n.1 (App. 2007) (citing Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)).



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                           Decision of the Court

almost entirely blank and did not include an AFI. Father immediately
moved to sanction Mother’s non-compliance with the pretrial order.

¶4            Before the trial started, Mother explained she thought the
parties were supposed to prepare the pretrial statements together and did
not start preparing her own statement until she saw Father had filed his
own. The family court found no good cause for Mother’s non-compliance,
granted Father’s motion for sanctions, and, without further explanation or
findings, determined it would “not hear[] from Mother” on any issue. As a
result, Mother was prohibited from offering evidence or argument, cross-
examining witnesses, and contesting Father’s evidence.

¶5           At trial, the Court Appointed Advisor (CAA) testified Mother
was largely unresponsive to both the CAA and personnel at Child’s school
and had difficulty providing Child with consistency, structure, and
appropriate medical care. The CAA believed Father was the more stable
parent but expressed concerns about the effect an abrupt move to another
state would have on Child.         The CAA did not make a specific
recommendation regarding parenting time but did express some support
for an arrangement whereby Child would spend the summer with Mother
and the school year with Father.

¶6           After noting two other professionals had counseled against
moving Child from Arizona, the family court granted Father’s request for
primary residential parenting time and sole legal decision-making. The
court then went off the record to allow the parties to discuss the details of
Child’s transition to Father’s home in Indiana. After the parties had
reached a partial agreement, Mother disputed that the parenting-time
arrangement was in Child’s best interests. Noting Mother’s objection, the
court ordered Child move to Indiana with Father immediately, awarded
Father sole legal decision-making, awarded Mother child support
arrearages, ordered Mother to pay future monthly child support, and
awarded Father attorneys’ fees as an additional sanction for Mother’s non-
compliance with the pretrial order.

¶7            Mother appealed the order. However, pursuant to our duty
to independently determine whether we have jurisdiction to hear the
appeal, we determined the family court’s order was not a final, appealable
order, see Ariz. R. Fam. Law Proc. 78(c), because the court did not enter an




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                            Decision of the Court

order establishing paternity.2 Pursuant to Eaton Fruit Co. v. Cal. Spray-
Chemical Corp., 102 Ariz. 129 (1967), we suspended this appeal and revested
jurisdiction with the family court to enter a “written order that resolves all
the issues contained in Father’s petition.” The parties stipulated to Father’s
paternity and the court entered an order establishing paternity. However,
the order prepared by counsel and signed by the court failed to “recite[]
that no further matters remain pending and that the judgment is entered
under Rule 78(c).” Ariz. R. Fam. Law Proc. 78(c). Rather than suspend the
appeal again to obtain the correct order, this Court, in its discretion, treats
this appeal as a special action and accepts jurisdiction of the same.3 See
Monique B. v. Duncan, 245 Ariz. 371, 374, ¶ 9 (App. 2018) (“Although ‘highly
discretionary,’ accepting special action jurisdiction is particularly
appropriate where the welfare of children is involved.”) (quoting Dep’t of
Child Safety v. Beene, 235 Ariz. 300, 303, ¶ 6 (App. 2014)).

                               DISCUSSION

¶8            Mother argues she was denied due process when the family
court modified legal decision-making and parenting time through the
equivalent of a default judgment. Mother argues the court should have
held a hearing to determine whether a lesser sanction would be
appropriate. Although we generally review an order imposing a sanction
for discovery violations for an abuse of discretion, a court’s discretion is
more limited when it enters a default judgment than when it employs a
lesser sanction. Seidman v. Seidman, 222 Ariz. 408, 411, ¶ 18 (App. 2009)
(citing Lenze v. Synthes, Ltd., 160 Ariz. 302, 305 (App. 1989)). A court’s
“power to employ the ultimate sanction[] of . . . entry of default judgment
is circumscribed by due process considerations,” id., which entitle a party
to “notice and an opportunity to be heard at a meaningful time and in a
meaningful manner,” Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 18 (App. 2011)
(quoting Curtis v. Richardson, 212 Ariz. 308, 312, ¶ 16 (App. 2006)). See also
Smart v. Cantor, 117 Ariz. 539, 542 (1977) (“[A] parent is entitled to due
process whenever his or her custodial rights to a child will be determined
by a proceeding.”) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). We

2     At the November 2017 resolution management conference, the court
found Father had established paternity, however, no final order was ever
entered establishing paternity.

3      Absent material changes from the relevant date, we cite the current
version of rules and statutes.




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                            Decision of the Court

review due process claims de novo. Savord v. Morton, 235 Ariz. 256, 260, ¶ 16
(App. 2014) (quoting Mack v. Cruikshank, 196 Ariz. 541, 544 (App. 1999)).

¶9            If a party fails to comply with pretrial orders, Arizona Rule of
Family Law Procedure 76.2(b) authorizes the family court to enter an order
“prohibiting the disobedient party from supporting or opposing
designated arguments, or from introducing designated matters in
evidence.”4 However, before a court can completely deny the errant party
from participating in the matter, thereby effectively imposing a default
judgment, it must make an express finding that lesser sanctions were
considered but inappropriate. Seidman, 222 Ariz. at 413, ¶ 30 (quoting
Wayne Cook Enters., Inc. v. Fain Props. Ltd. P’ship, 196 Ariz. 146, 149, ¶ 12
(App. 1999), and citing Montgomery Ward & Co. v. Superior Court, 176 Ariz.
619, 622 (App. 1993), and Nesmith v. Superior Court, 164 Ariz. 70, 72 (App.
1990)). Moreover, before imposing any sanction in a custody matter, the
family court must consider the effect of the sanction on the court’s ability to
determine the best interests of the child at issue. Hays v. Gama, 205 Ariz. 99,
103-04, ¶¶ 22-23 (2003).

¶10            The record here does not demonstrate the family court
thoroughly considered any other, less severe, sanctions before resorting to
the most extreme. Without these findings, we cannot conclude that Mother
was afforded due process. See Seidman, 222 Ariz. at 413, ¶ 31. Additionally,
the sanction effectively precluded potentially significant information
regarding Child’s bests interests from being considered. Mother, as Child’s
custodial parent for the past eight years, had valuable information
regarding Child’s current medical and educational needs that was relevant
to determining the best allocation of decision-making authority and
parenting time. The court had other options by which to vindicate its
authority, and thus erred in choosing to punish Mother’s non-compliance
in a way that impacted its ability to consider Child’s best interests. See Hays,
205 Ariz. at 104, ¶ 23.

¶11          The family court’s sanction resulted in two additional errors.
First, the court abused its discretion when it precluded Mother from

4       At the time of the hearing at issue here, the imposition of sanctions
for failing to participate in a family court proceeding were governed by
Arizona Rule of Family Law Procedure 76(D) (2018). This rule was
renumbered as Rule 76.2(b), effective January 1, 2019, and amended to
clarify the conduct subject to sanctions and further delineate the available
penalties. These amendments do not affect the substance of the rule, and,
for clarity, we cite its current version.


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                            Decision of the Court

participating in the trial once default judgment was entered. Even when a
case proceeds by default, “a defaulted party has a right to participate in any
further proceedings that will culminate in a judgment.” Christy A. v. Ariz.
Dep’t of Econ. Sec., 217 Ariz. 299, 306, ¶ 23 (App. 2007) (citing Dungan v.
Superior Court, 20 Ariz. App. 289, 290 (1973), and then Mayhew v. McDougall,
16 Ariz. App. 125, 130 (1971)); see also Ariz. R. Fam. Law P. 44.2(d) (“[I]f a
defaulted party appears, the court must allow that party to participate in
the hearing to determine what relief is appropriate or to establish the truth
of any statement.”) (formerly Ariz. R. Fam. Law P. 44(B)(2) (2018)). Thus,
Mother should not have been precluded from all participation.

¶12            Second, the family court erred in failing to make the best-
interest findings required to be made on the record “[i]n a contested legal
decision-making or parenting time case.” A.R.S. § 25-403(B). The record
suggests the court believed it did not need to make express findings, either
because the case had proceeded by default or because the parties had
ostensibly reached a partial agreement on parenting time, thus rendering
the case uncontested. However, in the course of placing the parties’ partial
agreement on the record, Mother specifically disputed that the change in
the parenting time arrangement was in Child’s best interests. The record
thus reflects that parenting time was contested, and the court was required
to make “specific findings on the record about all relevant factors and the
reasons for which the decision [was] in the best interests of the child.”
A.R.S. § 25-403(B). Should the issue remain contested on remand, the court
must make the required findings on the record. See Reid v. Reid, 222 Ariz.
204, 207, 210, ¶¶ 12, 20 (App. 2009) (concluding the failure to make findings
required by A.R.S. § 25-403(B) constitutes legal error) (citing In re the
Marriage of Diezsi, 201 Ariz. 524, 526, ¶ 5 (App. 2002)).




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                          PACHECO v. MILLER
                           Decision of the Court

                              CONCLUSION

¶13          The order establishing paternity is affirmed.

¶14           Because the family court did not consider less severe
sanctions or the impact of its decision on its ability to assess Child’s best
interests before imposing the ultimate sanction of a default judgment, we
vacate the order imposing sanctions, including the award of attorneys’ fees.
We remand the legal decision-making, parenting time, and child support
orders for a new trial, after which the court shall consider the appropriate
factors and make the findings required by A.R.S. § 25-403(B). However, to
minimize the disruption to Child’s life, the current legal decision-making,
parenting time, and child support orders shall remain in place pending
resolution on remand.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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