Mayberry v. Stambaugh

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DION MAYBERRY, Petitioner/Appellee,

v.

CONNIE LYNN STAMBAUGH, Respondent/Appellant.

No. 1 CA-CV 23-0289 FC
FILED 03-26-2024

Appeal from the Superior Court in Maricopa County
No. FC2022-053109
The Honorable Gregg Clarke Gibbons, Judge Pro Tempore

VACATED

COUNSEL

Burns Nickerson & Taylor PLC, Phoenix
By Darius M. Nickerson
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge Michael S. Catlett joined. Judge
Morse also delivered a separate special concurrence.

M O R S E, Judge:

¶1 In November 2022, Dion Mayberry ("Father") sought an order
of protection against Connie L. Stambaugh ("Grandmother") on behalf of
his children. Father claimed Grandmother made false reports to the
Department of Child Safety ("DCS") and the children's school of abuse and
neglect by Father and the children needed protection from Grandmother's
"mental manipulation, mental damage and emotional damage." After the
superior court granted the order of protection ex parte, Grandmother
requested a hearing. At the hearing, Grandmother denied the allegations
were false and claimed she was just trying to get help for the children. The
court affirmed the order of protection, offering the following reasoning:

Given the state of the law, the Court really sees no reason --
legal reason for the order of protection because the parent can
deny visitation as the Court has stated, as the parents see fit.
However, the Court is concerned that if the Court dismisses
the order of protection on the basis of it being moot or
unnecessary, it runs the risk of there being contact within the
parties -- between the parties which may be detrimental to the
children.

¶2 Grandmother appealed and argues the court erred in
continuing the order of protection because there was not reasonable cause
to believe she had committed or would commit an act of domestic violence.
See A.R.S. § 13-3602(e)(1)–(2) (requiring a finding that the defendant has
committed or may commit an act of domestic violence to continue an order
of protection). Father did not file an answering brief.

¶3 In light of the superior court's statement that it saw "no reason
-- legal reason for the order of protection . . ." and our own review of the
record, it is at least debatable whether Father established that Grandmother
"may commit an act of domestic violence" or "has committed an act of
domestic violence within the past year." A.R.S. § 13-3602(e)(1)–(2). When

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such "debatable issues exist and an appellee fails to file an answering brief,
we may consider such failure a confession of reversible error." Savord v.
Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014).

¶4 We exercise our discretion, accept the implied confession of
reversible error, reverse the court's order, and vacate the order of
protection.

M O R S E, Judge, specially concurring:

¶5 In Savord, we stated that when there are "debatable" issues,
we "may" consider a failure to respond as a confession of error but "we are
not required to do so." Savord, 235 Ariz. at 259, ¶ 9. In civil cases that do
not involve a child's best interests, see infra ¶¶ 19–20, I no longer think
Savord is consistent with our supreme court's precedent. Instead, when an
appeal raises debatable issues, and a child's best interests are not at issue,
we must treat an appellee's failure to respond as a confession of reversible
error.

¶6 In 1915, our supreme court decided Merrill v. Wheeler, 17 Ariz.
348 (1915). In that case, the appellee filed a response that was limited "to an
objection to the jurisdiction of the court to entertain the appeal, and [he
neither] filed a brief nor made any argument on the merits of the case." Id.
at 350. The supreme court concluded that "so far as the merits of the case
are concerned," appellee's response was "a confession of the error assigned
by the appellant." Id.

¶7 Five years later, our supreme court described Wheeler as
"notif[ying] the bar of this state that, upon a failure on the part of the
appellee to file with the court a brief to sustain his side of the case, we would
conclude 'that his attitude is a confession of the error assigned by [the]
appellant.'" Childs v. Frederickson, 21 Ariz. 248, 249 (1920) (quoting Wheeler,
17 Ariz. at 350). In 1927, our supreme court described the
Wheeler/Frederickson rule as a holding: "This court has held previously in
several cases that a failure to file an answering brief is equivalent to a
confession of error by appellee." Navarro v. State, 32 Ariz. 119, 120 (1927).
But the Navarro court added a caveat – a failure to respond triggers
mandatory reversal only when an appeal presents "a debatable question":

While we do not lay down as a rigid rule that in all such cases
the judgment of the lower court will be reversed, yet, when
on examination of the pleadings and the assignments of error
it appears a debatable question is raised by the appeal, and no
reasonable excuse for appellee's failure to file a brief is shown,

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we assume the latter confesses error, and will reverse the case
and remand it for new trial.

Id. at 120–21.

¶8 By the 1950s, the supreme court routinely applied this rule,
i.e., mandatory implied confession of error on debatable issues. See Mower
v. Street, 79 Ariz. 282, 283 (1955) (stating that when appellant raised
debatable issues and no excuse is provided for a failure to file an answering
brief, the supreme court was "committed to the proposition that we will
assume such failure to file an answering brief is a confession on the part of
appellees of reversible error" (emphasis added)); Dowding v. Smithers, 82
Ariz. 261, 262 (1957) (same); Stover v. Kesmar, 84 Ariz. 387, 388 (1958) (same).

¶9 By the 1960s, our supreme court referred to it as the "rule of
the Stover and Dowding cases." Nelson v. Nelson, 91 Ariz. 215, 218 (1962)
("[W]e take the appellee's failure to file answering briefs to be a confession
of reversible error in the trial court . . . ."); see also Siemers v. Randall, 94 Ariz.
302, 302 (1963) ("We have recently held that . . . 'where debatable issues were
raised by the appeal, we will assume failure to file an answering brief is a
confession on the part of the appellees of reversible error.'" (emphasis
added) (quoting Nelson, 91 Ariz. at 217)); Barrett v. Hiney, 94 Ariz. 133, 134
(1963) ("As there are debatable issues this Court will assume the failure to
file an answering brief is confession of reversible error on the part of
appellee." (citing Nelson, 91 Ariz. at 217)); Tom v. Baca, 93 Ariz. 96, 97 (1963)
(citing Nelson, in reversing and remanding where the appellee "has not
favored us with a brief"). And in the last supreme court case to directly
address this issue, the court stated that because "there are debatable
issues[,] this Court will assume that the failure to file an answering brief is
a confession of reversible error on the part of the appellee." Tiller v. Tiller, 98 Ariz. 156, 157 (1965) (emphasis added).

¶10 I could not find any subsequent Arizona Supreme Court
decisions disavowing the confession-of-error rule established and repeated
from 1915 to 1965. And the procedural rules have not changed in any way
that would suggest that the approach to implied confession of error should
change. Compare Ariz. R. Sup. Ct. 8(1) (1921) ("If the appellee shall not file
his brief within the time allowed therefor, the cause may be submitted for
decision upon the motion of appellant, on notice thereof to the appellee."),
and Ariz. R. Sup. Ct. 7(a)(1) (1956) ("If the appellee shall not file his
answering brief within the time prescribed by these Rules . . . the appeal
may be submitted for decision on the motion of appellant upon notice to
the appellee, or on the court's own motion."), and Ariz. R. Sup. Ct. 7(a)(2)

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(1966) ("If the appellee does not file an answering brief within the time
prescribed by these rules . . . the appeal may be submitted for decision on
the motion of appellant upon notice to appellee, or on the court's own
motion."), with ARCAP 15(c) (1983) ("If the appellee does not timely file his
brief, the appeal may be submitted for decision on motion."), and ARCAP
15(a)(2) (2023) ("If the appellee does not timely file an answering brief, the
appellate court may deem the appeal submitted for decision based on the
opening brief and the record.").

¶11 Despite the above-cited precedent and the constancy of the
rules, our Court has varied in its approach to a failure to respond. At times,
we have adhered to the supreme court's approach. See, e.g., Turf Irrigation
& Waterworks Supply v. Mountain States Tel. & Tel. Co., 24 Ariz. App. 537, 540
(1975) ("The appellate courts of this state have many times held that where
debatable issues are raised, the failure of an appellee to file an answering
brief constitutes a confession of reversible error."); Liberty Mut. Ins. Co. v.
MacLeod, 17 Ariz. App. 449, 450 (1972) ("When a debatable issue is raised it
will be taken as a confession of error if no response or answer is filed."
(emphasis added)); Air E., Inc. v. Wheatley, 14 Ariz. App. 290, 292 (1971)
("We will assume that the failure to file an answering brief constitutes a
confession of reversible error [] if the reasons presented for reversal are
'debatable.'" (citing Tiller, 98 Ariz. at 157; Siemers, 94 Ariz. at 302) (emphasis
added)).

¶12 But, beginning in the mid-1960s, we also carved out an
exception to the Stover/Dowding/Nelson mandatory-confession-of-error
rule. Our first step along this path came in Hoffman v. Hoffman, 4 Ariz. App.
83 (1966). Hoffman involved a child-custody and child-support dispute in
which the wife did not file an answering brief. We first acknowledged that
our supreme court "has stated that where there are debatable issues and the
appellee fails to file an answering brief, that such failure is a confession . . .
of reversible error." Id. at 85 (citing Siemers, 94 Ariz. at 302). But we then
said that if minor children are involved, a mandatory-confession-of-error
rule would not "serve the ends of justice and we do not believe that . . . the
decisions of the Arizona Supreme Court require that we do so." Id. Instead,
we reviewed the evidence, found "no breach of discretion by the trial court;
either in the matter as to custody or to child support payments," and
affirmed. Id.

¶13 Subsequently, we applied the Hoffman approach—
considering the child's best interests in deciding whether to accept an
implied confession of error—in cases involving child custody or support,
Blech v. Blech, 6 Ariz. App. 131, 132 (1967), but we also expanded the

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exception to general divorce matters, see Counterman v. Counterman, 6 Ariz.
App. 454, 457 (1967) (citing Hoffman in a divorce appeal that did not involve
children).

¶14 By the end of the 1960s, we sometimes reiterated that Hoffman
presented an exception to the mandatory-confession-of-error rule on
debatable issues: "Although we have recognized exceptions to this
'confession or error' rule, these cases are clearly distinguishable in that
either custody of children or marital status were involved." In re O'Neil, 10
Ariz. App. 423, 424 (1969) (internal citations to Hoffman, Blech, and
Counterman omitted); see also State ex rel. Flickinger v. Harris, 11 Ariz. App.
362, 363 (1970) (discussing the "well-established authority in this State that
an appellee's failure to file an answering brief where there are debatable
issues constitutes a confession of reversible error," and finding that none of
"the exceptions to the rule here apply" (citing Hoffman, 4 Ariz. App. at 83)).
But we had already ignored the limits on the exception and applied Hoffman
to cases that did not involve marriage or a child's best interests. See United
Bonding Ins. Co. v. Thomas J. Grosso Inv., Inc., 4 Ariz. App. 285, 285 (1966)
(citing Hoffman's non-mandatory language in an insurance dispute); City of
Phoenix v. Schooley, 5 Ariz. App. 149, 150 (1967) (citing Hoffman for the
proposition that we "may" accept the implied confession of error when the
appeal presents debatable issues in a zoning dispute).

¶15 And even after we explained in In re O'Neil and Flickinger that
Hoffman was a limited exception to the mandatory-confession-of-error rule,
we continued to apply Hoffman in non-family contexts. See, e.g., Ariz. Tank
Lines, Inc. v. Ariz. Corp. Comm'n, 13 Ariz. App. 19, 21 (1970) ("Although this
Court views this as a permissive rather than a mandatory rule, we will
normally take a failure to file an answering brief as a confession of error
unless there are circumstances indicating that we should not." (internal
citations omitted)).

¶16 In Bugh v. Bugh, 125 Ariz. 190, 191 (App. 1980), a divorce case
involving division of property, we noted that failure to file an answering
brief "constitutes a confession of reversible error," but cited Hoffman, et. al,
for the proposition that reversal is not "mandatory even though there is a
debatable issue and no answering brief is filed." Then, in Pima County
Juvenile Action No. J-65812-1, 144 Ariz. 428, 430 (App. 1985), we found no
debatable issues in an unanswered appeal of a juvenile-transfer order and
affirmed. In discussing the difference between criminal and civil
proceedings, we stated that "in a civil case in which an appellant raises a
debatable issue and the appellee makes no reply, we may, in our discretion,
treat the lack of a response as a confession of error and reverse on that

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basis." Id. at 429 (emphasis added) (citing Turf Irrigation, 24 Ariz. App. at
540). Interestingly, we cited Turf Irrigation to support this proposition even
though Turf Irrigation stated that the "appellate courts of this state have
many times held that where debatable issues are raised, the failure of an
appellee to file an answering brief constitutes a confession of reversible
error." 24 Ariz. App. at 540.

¶17 One year later, we repeated that discretionary framework in
the face of debatable issues in a guardianship and termination case. Pinal
Cnty. Juv. Action No. S-389, 151 Ariz. 564, 565 (App. 1986). But we also noted
a different standard applies for juvenile-delinquency cases1 before finding
"that the issues raised are not debatable, and therefore the order of the
juvenile court is affirmed." Id.

¶18 Thus, by the mid-1980s, we no longer cited the original
mandatory-confession-of-error rule in debatable cases and repeatedly cited
the reformulated doctrine in which we had discretion, even when debatable
issues are present. This continued into the 1990s. In Nydam v. Crawford, a
case involving an unpaid promissory note, we cited Pinal County Juvenile
Action No. S-389 for the proposition that treating the failure to file an
answering brief as a confession of reversible error is a "discretionary"
doctrine. 181 Ariz. 101, 101 (App. 1994) (citing No. S-389, 151 Ariz. at 564).
Even though the appellees did not file an answering brief, we affirmed
because we were "reluctant to reverse based on an implied confession of
error when, as here, the trial court has correctly applied the law." Id. Our
Court has cited Nydam for this proposition approximately 120 times.2 And

1 In Navajo County Juvenile Action No. J-3206, 121 Ariz. 407, 408 (App.
1979), we stated that "criminal and quasi-criminal cases . . . require the
application of an analogous, but more restrictive version of the confession
of error doctrine." That more-restrictive version provides that "it is
appropriate to reverse a criminal or quasi-criminal appeal solely on the
basis of the state's failure to respond unless this Court, in its discretion,
believes that justice requires a decision on the merits." Id. (citing People v.
Miller, 330 N.E.2d 262 (Ill. App. Ct. 1975)).
2 In cases that did not involve child-custody or support matters, I have
authored decisions in which we declined to treat a failure to respond as a
confession of error but did not address whether the appeal presented
debatable issues. E.g., Gibbs v. Palm Valley Rehab., 1 CA-CV 22-0544, 2023
WL 4194422, at *1, ¶ 7 (Ariz. App. June 27, 2023) (mem. decision) (stating
"we will not treat the failure to respond as a confession of reversible error");

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we have repeatedly restated the proposition that we have discretion in
deciding whether or not to accept an implied confession of error. E.g.,
Savord, 235 Ariz. at 259, ¶ 9 (citing Nydam, 181 Ariz. at 101; United Bonding
Ins. Co., 4 Ariz. App. at 285); Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 4 n.3
(App. 2014) ("In the exercise of our discretion, we decline to treat her failure
to file an answering brief as a confession of error."); Cardoso v. Soldo, 230
Ariz. 614, 616, ¶ 4 n.1 (App. 2012) (noting we are "not required" to treat
failure to file an answering brief as confession of reversible error); McDowell
Mountain Ranch Cmty. Ass'n, Inc. v. Simons, 216 Ariz. 266, 269, ¶ 13 (App.
2007) (deciding we would not "treat the failure to file an answering brief as
a confession of error . . . in order to clarify a rule of law").

¶19 But as judges, we are "bound" by the decisions of our supreme
court and the supreme court "alone is responsible for modifying that
precedent." Sell v. Gama, 231 Ariz. 323, 330, ¶ 31 (2013). And we have "no
authority to overturn or refuse to follow [the supreme court's] decisions."
State v. McPherson, 228 Ariz. 557, 562, ¶ 13 (App. 2012) (quoting State v. Long, 207 Ariz. 140, 145, ¶ 23 (App. 2004)). Normally, this would require that we
jettison all our precedent that is inconsistent with Navarro, 32 Ariz. at 120,
Dowding, 82 Ariz. at 262, Stover, 84 Ariz. at 388, and Tiller, 98 Ariz. at 157.
But in Hays v. Gama, 205 Ariz. 99, 103–04, ¶¶ 18–23 (2003), our supreme
court held that sanctions that prevented the trial court from considering
relevant evidence in a custody proceeding "unnecessarily interfered with
[the court's] duty to consider the child's best interests in determining
custody." Although the Hays court only addressed sanctions at the
trial-court level, the supreme court emphasized that "the child's best
interest is paramount in custody determinations," and approvingly cited
Hoffman, 4 Ariz. App. at 85 as "refusing to apply a court rule regarding the
effect of a mother's failure to file an answering brief in a child custody
appeal, because doing so would have an adverse effect on the children, who
were unrepresented but most interested in the proceeding." Hays, 205 Ariz.
at 102, ¶ 18. A fair reading of Hays supports and acknowledges Hoffman's

Gutierrez v. Cruz, 1 CA-CV 21-0121 FC, 2021 WL 4437718, at *1, ¶ 1 n.1 (Ariz.
App. Sept. 28, 2021) (mem. decision) (declining "to treat [appellee's] failure
to [file an answering brief] as a confession of reversible error"); Gunderson
v. Gunderson, 1 CA-CV 17-0459 FC, 2018 WL 3153745, at *1, ¶ 3 n.1 (Ariz.
App. June 28, 2018) (mem. decision) ("Although we may regard
Respondent's failure to file an answering brief as a confession of reversible
error in the exercise of our discretion, we choose to address the merits of
the appeal." (cleaned up)).

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narrow child's-best-interest exception to the mandatory-confession-of-error
rule.

¶20 Thus, in cases involving children's best interests, we may
decline to treat a failure to respond as an implied confession of error if
"doing so would have an adverse effect on the children." Id. But, in all other
cases, "when . . . it appears a debatable question is raised by the appeal, and
no reasonable excuse for appellee's failure to file a brief is shown, we
[should] assume the latter confesses error, and [] reverse the case and
remand it for new trial." Navarro, 32 Ariz. at 120–21.

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

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