                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:

                   JACQUELIN FITCH, Petitioner/Appellee,

                                         v.

            JAMES CHARLES FITCH, JR., Respondent/Appellant.

                            No. 1 CA-CV 15-0202 FC
                                FILED 1-21-2016


            Appeal from the Superior Court in Maricopa County
                           No. FC2014-004303
               The Honorable Timothy J. Thomason, Judge

                       VACATED AND REMANDED


                                    COUNSEL

The Murray Law Offices PC, Scottsdale
By Stanley D. Murray
Counsel for Petitioner/Appellee

Michael J. Shew Ltd., Phoenix
By Michael J. Shew
Counsel for Respondent/Appellant
                             FITCH v. FITCH
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Margaret H. Downie joined.


G O U L D, Judge:

¶1            James Charles Fitch, Jr. (“Husband”) appeals the family
court’s order denying his motion to set aside a default decree. Husband
argues the court erred by failing to conduct an evidentiary hearing before
entering the default decree. We agree, and therefore we vacate the decree
and remand this case to the family court to conduct an evidentiary
hearing.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In September 2014, Jacquelin Fitch (“Wife”) filed a Petition
for Dissolution of Non-Covenant Marriage Without Children. Husband,
representing himself, filed a timely response. Wife filed a request to set a
Resolution Management Conference (“RMC”). The family court granted
the request and issued an Order to Appear (“RMC Order”) requiring the
parties to appear in person for an RMC on January 5, 2014. Wife
personally served Husband with the RMC Order on November 26, 2014.

¶3            The RMC Order included the following language in capital
letters and boldface type:

      Both parties, together with their counsel, if represented,
      shall appear in person, and be prepared to discuss the final
      resolution and, if necessary, pre-hearing management of all
      pending petitions in this case. IF ONLY ONE PARTY
      APPEARS, THE COURT MAY ENTER A DEFAULT
      AGAINST THE ABSENT PARTY, AND ALLOW THE
      PARTY THAT APPEARS TO PROCEED BY DEFAULT. IF
      BOTH PARTIES FAIL TO APPEAR, THE ACTION MAY
      BE DISMISSED.

The order also warned, in boldface type and underlined, that:




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                          Decision of the Court

      Failure to obey this order in all respects may subject the
      offending party or counsel to all sanctions provided and
      allowed by court rule, statute or other law.

¶4           The RMC occurred as scheduled on January 5, 2015. Wife
appeared in person; her attorney appeared by telephone. Husband,
however, failed to appear at the RMC. In determining whether to proceed
in Husband’s absence, the family court noted the RMC Order directed
Husband to appear in person and that Wife had served Husband with the
RMC Order. As a result, the court stated its intent to enter a default
decree against Husband, and directed Wife’s counsel to lodge a
dissolution decree with the court. The court also stated a default might
not be entered if Husband appeared and explained his absence prior to
Wife’s submission of the default decree.

¶5           On January 9, 2015, the court filed a minute entry stating a
default had been entered against husband for his failure to appear at the
RMC. The court signed and entered a default decree submitted by Wife
on January 16, 2015.1

¶6           The day before entry of the default decree, Husband filed a
Motion to Set Aside Default Ruling and to Re-Set Resolution Management
Conference. In his motion, Husband stated he had mis-calendared the
RMC, which he claimed constituted excusable neglect. He also asserted
he had “meritorious defenses” for his claims of spousal maintenance,
waste of community assets, and fair and equitable division of property
and debts.

¶7             In a minute entry dated January 28, 2015, and filed February
2, 2015, the court denied Husband’s motion to set aside the default decree.
This ruling preceded the time allotted for Husband to file a reply to
Mother’s response had expired.2 In its ruling, the family court found
Husband “had more than adequate notice” of the proceedings, the entry


1     The decree was signed by the court on January 15, 2015; the record
does not reflect the actual date the decree was submitted by Wife’s
counsel to the court.

2     Wife filed her response to Husband’s Motion to Set Aside on
January 22, and served Husband with the response by mail. As a result,
the deadline for Husband to file his reply was February 5. See AZ ST
RFLP Rule 4(A); 35(A)(4).



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                            Decision of the Court

of judgment by default was appropriate, the decree was fair and
reasonable, Husband’s motion did not show how setting aside the default
Decree would have resulted in any different orders, and Husband had
failed to show any meritorious defense.

¶8           On February 2, the same day the family court entered its
ruling, Husband filed his reply. In his reply, Husband alleged he had
been the victim of a severe beating on December 15, and may have
suffered a concussion. As a result, Husband claimed he experienced
physical and mental problems that impaired his ability to comply with the
RMC Order. The court, however, did not consider these assertions in
denying Husband’s motion to set aside the default decree.

¶9            Husband timely filed an appeal from the family court’s
order.

                                 Discussion

¶10             Husband argues the family court was required to conduct an
evidentiary hearing before it entered the default decree. Based on the
facts of this case, we agree.

¶11            We review a court’s denial of a motion to set aside a default
judgment for an abuse of discretion. Christy A. v. Ariz. Dep’t. of Econ Sec.,
217 Ariz. 299, 305, ¶ 19 (App. 2007), citing Richas v. Super. Ct. of Ariz. In &
For Maricopa Cty., 133 Ariz. 512, 514 (1982). Generally, a court has broad
discretion in imposing sanctions for violations of its orders. Estate of Lewis
v. Lewis, 229 Ariz. 316, 323, ¶ 18 (App. 2012). However, when a court
imposes severe sanctions such as dismissal or entry of default, its
discretion “is more limited than when it employs lesser sanctions.”
Seidman v. Seidman, 222 Ariz. 408, 411, ¶ 18 (App. 2009).

¶12           A “court’s power to employ the ultimate sanctions of
dismissal or entry of default judgment is circumscribed by due process
considerations.” Lenze v. Synthes, Ltd., 160 Ariz. 302, 305 (App. 1989).
“[D]ue process requires adherence to the procedural safeguards of notice
and hearing.” Poleo v. Grandview Equities, Ltd., 143 Ariz. 130, 134 (App.
1984).3 Therefore, before entering a default judgment the court must hold

3      Arizona Rule of Family Law Procedure 44(B)(2) is consistent with
this case law. It states “[i]f the party against whom judgment by default is
sought has appeared in the action, that party or, if appearing by
representative, that party's representative shall be served with written



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an evidentiary hearing and make “findings as to (1) whether the fault for
the violation lies with the client or counsel; (2) whether the violation was
committed willfully or in bad faith; and (3) whether the egregiousness of
the violation warrants the ultimate sanction of dismissal or some lesser
sanction.” Seidman, 222 Ariz. at 411, ¶¶ 19–20. However, if the facts
relevant to each of these issues are “apparent from the record,” a hearing
is not required. Hammoudeh v. Jada, 222 Ariz. 570, 572, ¶ 7 (App. 2009).

¶13           Here, it is apparent from the record that Husband, as a pro
per litigant, is solely responsible for his failure to attend the RMC.
However, whether Husband acted willfully or in bad faith is not readily
apparent from the limited record in this case. In particular, Husband
raised an issue about his physical and mental condition that may have had
a bearing on his failure to appear at the RMC. The family court, however,
denied Husband’s motion to set aside the default decree without
considering this possible explanation for Husband’s nonappearance.
Husband had the due process right to be heard on this issue. Poleo, 143
Ariz. at 134. Additionally, the family court’s findings, as well as the
record, do not indicate whether the family court considered imposing
lesser sanctions than entry of default for Husband’s single failure to
appear.

¶14           Accordingly, we conclude the family court erred in failing to
conduct an evidentiary hearing before entering the subject default decree.
As a result, we vacate the default decree and remand this case to the
family court to conduct an evidentiary hearing.




notice of the application for judgment at least three (3) days prior to the
hearing on such application.” RFLP Rule 44.



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                           Decision of the Court

                              CONCLUSION

¶15           For the reasons stated above, we vacate the decree entered in
this case and remand to the family court for an evidentiary hearing. In the
exercise of our discretion, we deny both parties’ request for attorneys’ fees
under A.R.S. § 25-324.




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