Vargas v. Vargas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CESAR VARGAS, Petitioner/Appellee,

v.

KRISTI VARGAS, Respondent/Appellant.

No. 1 CA-CV 24-0287 FC

FILED 11-12-2024

Appeal from the Superior Court in Maricopa County
No. FC2023-093296
The Honorable Lisa Stelly Wahlin, Judge

AFFIRMED

COUNSEL

Cesar Vargas, Chandler
Petitioner/Appellee

Kristi Vargas, Chandler
Respondent/Appellant

Arizona Family Law Solutions, Mesa
By Melissa Weiss-Riner
Limited Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Michael S. Catlett and Judge Jennifer M. Perkins
joined.

H O W E, Judge:

¶1 Kristi Vargas appeals from the denial of her Arizona Rule of
Family Law Procedure (“Rule”) 83 motion. For the following reasons, we
affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Kristi Vargas (“Mother”) and Cesar Vargas (“Father”) share
three children. In 2023, Father filed for divorce.

¶3 On December 8, 2023, the court held an early resolution
conference. Mother did not appear at the conference. After the conference,
the court in a December 14, 2023 minute entry “affirm[ed] the in-person
Trial on . . . February 24, 2024 at 9:00 a.m.” The court ordered the parties to
exchange their list of witnesses and a copy of all exhibits that they intended
to use at trial by January 24, 2024.

¶4 On January 17, 2024, the court issued a minute entry,
“not[ing] that this matter is set for a Trial/Evidentiary Hearing on February
21, 2024 at 9:00 a.m.” The minute entry “affirm[ed] all orders contained in
the Minute Entry dated December 14, 2023,” but did not explain the
discrepancy in the trial date. The court also ordered the parties to submit
all exhibits to the court by February 14, 2024.

¶5 On February 20, 2024, the day before the hearing, Mother
contacted the court to continue the hearing. The court told her she needed
to either move to continue or appear and request a continuance at the
hearing. On February 21, 2024, the court held the evidentiary hearing, but
Mother did not appear. Because she neither moved to continue nor
appeared at the hearing, the court proceeded in her absence.

¶6 At the hearing, Father testified that although Mother has been
a stay-at-home mom, he often acted as the primary caregiver because she
was overwhelmed with the children’s care. Father testified that in 2017,

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Mother jumped on him and hit him in a parking lot. He also testified that
both parties had struck each other in two other altercations. He further
testified that Mother has an opioid addiction and takes medication.

¶7 Based on Father’s testimony, the court found that both parties
had committed domestic violence. The court found further that Father had
established a rebuttable presumption under A.R.S. § 25-403.04(A) that
Mother’s sole or joint legal-decision making was not in the children’s best
interests. Because the court found no evidence of recent drug testing or
screening showing that Mother was not using drugs, the court found she
had failed to rebut the presumption. Consequently, the court awarded
Father sole decision-making authority but ordered a week-on/week-off
parenting schedule.

¶8 Mother moved to vacate the dissolution decree and set a new
trial, titling her motion as “RULE 83 MOTION FOR RELIEF FROM
JUDGMENT AND MOTION FOR NEW TRIAL.” She argued that she
“received the order setting trial on 2/24/24 . . . and received no further
communication from the court indicating the date of the trial had been
rescheduled to 2/21/24.” She argued that by being absent from the hearing,
“she was denied the ability to present her side of the case and thereby was
deprived of a fair trial.” Specifically, she argued she “was not given an
opportunity to provide her exhibits, information and testimony regarding
her positi[]ons. In particular, Mother lost legal decision-making authority
and her spousal maintenance claim was denied. Additionally, she was not
able to refute Husband’s testimony.”

¶9 The court denied Mother’s motion. She timely appealed from
both the decree of dissolution and the denial of her Rule 83 motion. We
have jurisdiction. A.R.S. § 12–2101(A)(1).

DISCUSSION

¶10 On appeal, Mother argues her inability to be heard at the
evidentiary hearing violated her due process rights. She argues her absence
from the hearing constituted excusable neglect because she lacked notice
that the date of the hearing had been changed from February 24 to February
21, 2024. She argues that had she attended the hearing, she would have
testified about the domestic violence allegations and “very concerning
issues about exposing the minor children to situations.” She argues the
court abused its discretion by denying her Rule 83 motion because the
court’s issuance of orders with conflicting hearing dates was an inadvertent
mistake.

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¶11 We review the denial of Mother’s Rule 83 motion for abuse of
discretion. Wisniewski v. Dolecka, 251 Ariz. 240, 241 ¶ 5 (App. 2021). A court
abuses its discretion if it applies an incorrect rule of law. Id. But we review
an alleged due process violation de novo. Griffin Found. v. Ariz. State Ret.
Sys., 244 Ariz. 508, 517 ¶ 25 (App. 2018) (as amended).

I. Due Process.

¶12 “Due process is flexible and calls for such procedural
protections as the particular situation demands, and the fundamental
requirement of due process is the opportunity to be heard at a meaningful
time and in a meaningful manner.” Samiuddin v. Nothwehr, 243 Ariz. 204,
211 ¶ 20 (internal quotation marks and citations omitted). The family court
enjoys broad discretion to “impose reasonable time limits appropriate to
the proceedings.” Ariz. R. Fam. Law P. 22(a); see also Ariz. R. Evid. 611, cmt.
to 2012 amendment; Findlay v. Lewis, 172 Ariz. 343, 346 (1992) (“A trial court
has broad discretion over the management of its docket. Appellate courts
do not substitute their judgment for that of the trial court in the day-to-day
management of cases.”). “But the court’s discretion is not limitless and
cannot be exercised unreasonably.” Volk v. Brame, 235 Ariz. 462, 468 ¶ 20
(App. 2014).

¶13 When a court determines legal decision-making and
parenting time, due process requires the parent be afforded notice of an
opportunity to be heard and confront witnesses. Cruz v. Garcia, 240 Ariz.
233, 236 ¶ 11 (App. 2016). Mother argues that she did not see the January 17
minute entry and lacked notice that the hearing date had been changed to
February 21.

¶14 The record does not support Mother’s argument that she
lacked notice. On January 17, 2024, the court issued a minute entry stating
that the evidentiary hearing was set for February 21, 2024. Mother does not
argue that she did not receive this order, nor does she explain how she
received all other court orders but not this one. Even if she did not “see” the
January 17 order, we presume properly mailed documents are delivered to
the recipient. See Lee v. State, 218 Ariz. 235, 239 ¶ 19 (2008). Although
Mother’s confusion between the conflicting hearing dates is
understandable, she had over a month to move for clarification. When she
finally contacted the court the day before the hearing, staff told her that she
needed to either move to continue or appear and then request a
continuance. She did neither. Whatever the reason Mother failed to see the
January 17 order, she had notice of the February 21, 2024, hearing. Because
she had notice of the hearing, her due process rights were not violated.

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¶15 Even if Mother’s due process rights were violated, “[d]ue
process errors require reversal only if a party is thereby prejudiced.” Volk,
235 Ariz. at 470 ¶ 26. On appeal, Mother asserts that she would have
testified about the domestic violence allegations, but the court did not apply
against her the presumption against legal decision making under A.R.S.
§ 25-403.03(C). Rather, the court applied against Mother the presumption
against legal decision making under A.R.S. § 25-403.04 because the court
found she has abused drugs. She does not dispute this finding or present
any argument of how she would have rebutted it. She likewise does not
present any argument or evidence challenging the court’s domestic
violence finding. Mother cannot demonstrate prejudice.

II. Rule 83 Motion.

¶16 Mother argues the court either should have granted a new
trial because issuing conflicting minute entries was “an evident and
inadvertent error.” See Ariz. R. Fam. Law P. 85(b)(1) (providing as grounds
“mistake, inadvertence, surprise, or excusable neglect”). Alternatively, she
argues the court should have altered its judgment because either an
“irregularity” in the proceedings deprived her of a fair trial, see Ariz. R.
Fam. Law P. 83(a)(1)(B), or an “accident or surprise” occurred that could
not reasonably have been prevented, see Ariz. R. Fam. Law P. 83(a)(1)(D).
Mother argues that proceeding with the hearing in her absence deprived
her of a fair trial and that the December and January orders with conflicting
hearing dates constituted a “genuine error.”

¶17 In her opening brief, Mother first discusses the grounds for
setting aside a judgment and for new trial under Rule 85. Mother, however,
did not file a Rule 85 motion but instead filed a Rule 83 motion. Her motion
before the superior court was titled, “RULE 83 MOTION FOR RELIEF
FROM JUDGMENT AND MOTION FOR NEW TRIAL.” Although the
relief from judgment and new trial language borrow from Rule 85, she does
not cite Rule 85 in her motion, instead block-quoting most of Rule 83.

¶18 Whether we treat Mother’s motion as a Rule 85 motion for
new trial or Rule 83 motion to amend judgment, the court did not abuse its
discretion because none of the grounds she cites apply. See Hegel v. O’Malley
Ins. Co., Agents & Brokers, 117 Ariz. 411, 412 (1977) (holding that
“irrespective of the title of a motion, if its substance shows clearly that it
seeks relief under Rule 59(a) . . . the motion must be treated as a motion for
new trial under Rule 59(a)”). She does not argue an irregularity occurred
apart from the purported due process violation. As discussed, supra

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¶¶ 12–15, Mother had notice of the hearing date, no due process violation
occurred, and Mother suffered no prejudice.

¶19 Further, because Mother had over a month’s notice of the
hearing, neither a “mistake,” “surprise,” nor “excusable neglect” occurred.
See Ariz. R. Fam. Law P. 85(b)(1). “Pure carelessness is not sufficient reason
to set aside a [] judgment. Rather, the test of what is excusable is whether
the neglect or inadvertence is such as might be the act of a reasonable
person under similar circumstances.” Goglia v. Bodnar, 156 Ariz. 12, 20 (App.
1987). Although the December 8 order setting the hearing to February 24,
2024, appears to have been a mistake, once the court issued the January 17
order setting the correct February 21, 2024 date, Mother had over a month
to move for clarification. She therefore should not have been surprised by
the February 21 date. Waiting until the day before to call the court is not
reasonable. Mother has failed to adequately argue either the Rule 83 or 85
grounds.

CONCLUSION

¶20 We affirm.

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

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