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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

D.T., Petitioner/Appellee,

v.

C.L., Respondent/Appellant.

1

No. 1 CA-CV 19-0826 FC

Appeal from the Superior Court in Maricopa County

No. FC2018-053899

The Honorable Dawn M. Bergin, Judge Retired

REMANDED

COUNSEL

Burggraff Tash Levy PLC, Scottsdale

By Michael Dinn

Counsel for Petitioner/Appellee

Alongi Law Firm PLLC, Phoenix

By Thomas P. Alongi

Counsel for Respondent/Appellant

1 To safeguard the identities of the minor children, it is ordered that 

the clerk of this court shall amend the caption of this appeal as shown 

above. It is further ordered that the caption shown herein shall be used on 

all future documents filed in this matter.

FILED 5-6-2021
THAYER v. LIPPERT

Decision of the Court

2

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which 

Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

S W A N N, Chief Judge:

¶1 This is a contested case regarding legal decision-making and 

parenting time for the three minor children of C.L. (“Mother”) and D.T. 

(“Father”). C.L. failed to appear at trial and the superior court proceeded 

in her absence, awarding D.T. sole legal decision-making and severely 

restricting C.L.’s parenting time. Though C.L. thereafter immediately and 

repeatedly requested an opportunity to participate, the superior court did 

not permit her to do so. We remand for an evidentiary hearing under Hays 

v. Gama, 205 Ariz. 99 (2003), because on this record, the court precluded

evidence that was potentially significant to its duty to consider the 

children’s best interests.

FACTS AND PROCEDURAL HISTORY

¶2 In July 2018, Father filed a petition to establish and modify2

legal decision-making and parenting time regarding the children. He asked 

for joint legal decision-making and equal parenting time. He indicated that 

“[d]omestic violence has occurred but it was committed by both parties or 

it is otherwise still in the best interests of the minor child(ren) to grant joint

or sole legal decision-making . . . to a parent who has committed domestic 

violence because . . . the domestic violence did not involve the children.” 

Mother, who was self-represented during most of the proceedings,

responded that “[t]here has been domestic violence . . . and neither joint nor 

sole legal decision-making . . . should be awarded to” Father. Mother asked 

for sole legal decision-making and majority parenting time.

¶3 In December 2018, and then again in March 2019, the parties 

reached—and the court approved—temporary agreements providing that 

2 Though Father styled his petition as one to establish legal decisionmaking and parenting time, a paternity order had previously granted 

Mother custody of the parties’ oldest child. Accordingly, the superior court 

properly construed the petition as seeking modification with respect to the 

oldest child.
THAYER v. LIPPERT

Decision of the Court

3

the oldest child would reside mostly with Father and the younger children 

would reside mostly with Mother. The court then set the matter for a June 

2019 trial.

¶4 In March 2019, Mother filed a motion to reset the trial date. In 

filing the motion, Mother used an address different than the PO-box 

address she had previously provided to the court via a change of address 

form. In an April 2019 minute entry addressed to Mother at the PO-box 

address, the court granted Mother’s motion, vacated the June trial, and reset 

trial to September 3, 2019.

¶5 Father filed a pretrial statement in August, indicating on the 

form that “each party has received a copy of the Pretrial Statement and . . .

each party has exchanged true and correct copies of all exhibits.” He 

reiterated that he was seeking joint legal decision-making, and he asked for 

“50/50 parenting time with [the younger children] and full parenting time 

with [the oldest child] with visitation time with [Mother].”

¶6 Mother, who was still self-represented, neither filed a pretrial 

statement nor appeared at the September 3 trial. When Father informed the 

court that he did not know why Mother was not there, the court found that 

Mother had failed to appear without good cause and proceeded to receive 

evidence in her absence.

¶7 With respect to domestic violence, Father testified that “[o]f 

course” it existed in his relationship with Mother—“we fought like cats and 

dogs”—but nothing physical had occurred for ten years. He stated that he 

“may have once” been charged or arrested for domestic violence but was 

not convicted, and that Mother had been arrested and convicted for 

domestic violence in Washington. He provided exhibits including a 

certificate showing his completion of an anger management program in 

2012; documents detailing reports that Mother had struck one of the 

children and had left another in a store; contentious text-message 

exchanges; and an order of protection that he obtained against Mother early 

in the case based on allegations that she appeared at his house three times, 

each time screaming at him in front of the children, twice attempting to 

forcibly remove them, and once destroying his property. Father also 

testified that Mother had undiagnosed mental health issues; that she used 

marijuana in front of the children and left paraphernalia in plain view in 

her bedroom; that she sent the children to an unacceptable childcare center

in a bad neighborhood; and that she had only seen the oldest child six times 

since the last hearing and each time it was a “disaster.”
THAYER v. LIPPERT

Decision of the Court

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¶8 The court-appointed advisor testified that, according to the 

children, Mother made upsetting comments to them about Father and 

Father’s fiancée, did not keep the oldest child’s room clean, and did not 

provide beds for the younger children. The advisor expressed concern that 

anything less than an award of sole legal decision-making to Father would 

prove unworkable.

¶9 The court immediately entered temporary orders awarding 

Father sole legal decision-making authority with respect to all the children, 

suspending Mother’s parenting time with respect to the oldest child, and 

limiting Mother to four hours of supervised parenting time with the 

younger children.

¶10 Later that day, Mother filed a “petition[ ]” asking for the trial 

to be re-done. Mother stated that though she had received other notices at 

her address (which was not the same as the PO-box address on file with the 

court), she had not received notice of the trial date, and had learned of it 

only after Father removed the children from school after the trial under the 

temporary orders. She stated that she “never would have missed [the trial]” 

had she known it was taking place. She further described evidence that she 

would have offered implicating the best interests of the children: text 

messages showing that Father had denied her parenting time with the 

oldest child; testimony that Father had told the child about the court 

proceedings; testimony that Father had told the child that Mother did not 

want her; testimony that the foregoing distressed the child; police reports 

regarding Father’s domestic violence; evidence that Father acted 

aggressively toward staff at the children’s school and childcare facility;

evidence that Father disparaged Mother in front of the oldest child and staff 

at the child’s counseling facility; and evidence that Father continually 

contacted Mother’s housing authority to try to obtain information about 

her.

¶11 Two days later, on September 5, Mother filed an updated 

address form and a “proof of mail error” in which she again asked for the 

opportunity to offer evidence at a new hearing. She attached documents 

showing that she had ceased using the PO-box in February 2019 and that 

she had notified the Postal Service of her new address. She also provided 

an unsworn statement from a “USPS lead clerk” to the effect that an item of 

mail from “City of Phoenix, Municipal Court, Financial Services” was not 

properly processed and therefore was not retrieved from the PO-box until 

September 5.
THAYER v. LIPPERT

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¶12 The superior court ruled on September 11 that it would take 

no action on Mother’s September 3 and September 5 filings because they 

were related and she had failed to copy Father on at least one of them.

¶13 On September 17, Mother filed “proof” whereby she resubmitted copies of the Postal Service documents and again asked for relief 

from the temporary orders. The superior court ruled on October 24 that, to 

the extent the “proof” was intended to be a motion for reconsideration, 

motion to alter or amend judgment, or motion for new trial, it was denied 

because Mother had failed to timely apprise the court of her new address 

consistent with ARFLP (“Rule”) 9(a). The court then entered a final 

judgment awarding Father sole legal decision-making with respect to all 

the children; suspending Mother’s parenting time with the oldest child 

until Mother participated in therapeutic intervention with the child or the 

child reached a point in her counseling where she, her therapist, and Father 

agreed to contact with Mother on such terms determined by Father on the 

therapist’s advice; and permitting Mother supervised parenting time with 

the younger children for eight hours per week, with the possibility of 

unsupervised parenting time every other weekend if Mother provided 

evidence to Father that each child had their own bed, completed a

substance-abuse assessment and followed all recommendations, completed 

at least sixteen sessions of individual therapy, and completed an in-person 

anger management class.

¶14 Mother appealed the judgment, and then obtained a stay for 

the purpose of filing a motion for relief under Rule 85. By that motion, she 

sought relief under Rule 85(b)(1), (3), and (4): she contended that her failure 

to appear was the product of excusable neglect; that Father committed 

fraud and misrepresentation by minimizing his domestic-violence history; 

that Father committed misconduct by not timely or properly providing her 

a copy of the pretrial statement and by introducing unanticipated, 

improperly disclosed evidence at trial; and that she was deprived of due 

process because she was given no notice of the grounds on which the 

judgment was premised. She attached exhibits including police reports 

detailing an incident where Father kicked her and closed a door on her 

during her 2010 pregnancy.

¶15 The superior court denied the Rule 85 motion. The court 

concluded that Mother’s reliance on Postal-Service forwarding to receive 

notice of court proceedings was unreasonable; that Mother could have 

challenged any disclosure issues had she appeared; that Mother could have 

anticipated Father’s evidence; that the court was not constrained by the 

party’s filings in determining the children’s best interests; and that in view 
THAYER v. LIPPERT

Decision of the Court

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of Father’s evidence of Mother’s domestic violence, Mother’s statements 

and evidence regarding Father’s domestic violence “would not have had an 

effect, much less an ‘especially significant effect,’ on the Court’s ability to 

determine the children’s best interest[s]” under Hays v. Gama.

¶16 Mother filed an amended notice of appeal seeking review of 

the court’s denial of Rule 85 relief.

DISCUSSION

¶17 We review the denial of Rule 85 relief for abuse of discretion. 

City of Phoenix v. Geyler, 144 Ariz. 323, 328 (1985).

3 We reject as unfounded 

Father’s contention that Mother waived or abandoned her challenge to the 

Rule 85 order by virtue of deficiencies in her opening brief.

¶18 Mother has shown no abuse of discretion in the superior 

court’s determinations under the Rule 85(b)(1), (3), and (4) rubric that she 

identified in her motion. First, the court did not abuse its discretion by 

determining that Mother’s failure to appear was not occasioned by 

excusable neglect. The court reasonably concluded that Mother, who had 

demonstrated knowledge of the process of updating her address with the 

court, did not act with reasonable prudence by relying solely on a Postal

Service forwarding process to receive notice of court proceedings. See 

Geyler, 144 Ariz. at 331 (“The standard for determining whether conduct is 

‘excusable’ is whether the neglect or inadvertence is such as might be the 

act of a reasonably prudent person under the same circumstances.” (citation 

omitted)). Second, the court did not abuse its discretion by holding that 

Father’s conduct did not constitute fraud, misrepresentation, or 

misconduct, or render the judgment void. To be sure, Father’s testimony 

regarding his domestic-violence history was vague—but it was not wholly 

inconsistent with her evidence and did not rise to the level of fraud or 

misrepresentation.

4 Cf. Sloan v. Florida-Vanderbilt Dev. Corp., 22 Ariz. App. 

572, 575 (App. 1974) (“[I]n a default hearing pursuant to [civil] Rule 55(b), 

there is no duty on the part of a party either to present all of its evidence in 

support of his claim for damages or to offer evidence in his possession with 

3 We apply case law interpreting the civil rules when the language of 

those rules is substantially the same as the language of the family law rules. 

Rule 1(c).

4 We note, however, that the sparseness of Father’s testimony 

underscores our conclusion, infra, that the court should have received more 

evidence to determine the children’s best interests.
THAYER v. LIPPERT

Decision of the Court

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his contradictory to either liability or damages. Of course, a party cannot 

present false evidence to establish a default judgment, for such would be a 

fraud on the court . . . .”). Third, Mother provided insufficient evidence to 

show that Father untimely or improperly provided her the pretrial 

statement and exhibits. And finally, the court’s order was not void simply 

because it did not track Father’s requests—in determining legal decisionmaking and parenting time, the court must act in accordance with the 

children’s best interests and is not limited by the parents’ positions. See 

Sundstrom v. Flatt, 244 Ariz. 136, 138, ¶ 7 (App. 2017) (holding that when 

only one party petitions to modify legal decision-making, the court is not 

precluded from awarding sole legal decision-making to the non-petitioning 

party); cf. Solomon v. Solomon, 5 Ariz. App. 352, 355–56 (1967) (holding that 

the court abused its discretion by deciding custody when a party sought 

custody on only one day’s notice).

¶19 But though the court did not abuse its discretion by denying 

relief under Rule 85(b)(1), (3), and (4), consideration of the children’s best 

interests required the court to address the merits of the evidence Mother 

provided. It is true that Mother failed to act with sufficient diligence to 

afford her a right to automatic relief from the judgment. Yet Mother’s 

vigorous (if untimely) efforts to introduce evidence critical to the court’s 

mission supported her requests to be heard, and to have the judgment 

modified if necessary. On this record, it was an abuse of discretion not to 

afford Mother the opportunity for a hearing. See Rule 85(b)(6) (providing 

that the court may order relief from judgment for “any other reason 

justifying relief”); Skydive Ariz., Inc. v. Hogue, 238 Ariz. 357, 364, ¶ 25 (App. 

2015) (providing that relief under a catch-all provision of the analogous civil 

rule is available when other provisions do not apply and, under the totality 

of the facts, “extraordinary circumstances of hardship or injustice justifying 

relief” exist (citation omitted)); Quijada v. Quijada, 246 Ariz. 217, 220, ¶ 6 n.3 

(App. 2019) (holding that a party need not a file specific motion to invoke 

Rule 85).

¶20 Children’s best interests are “paramount” when determining 

legal decision-making and parenting time. Hays, 205 Ariz. at 102, ¶ 18; see 

also Sundstrom, 244 Ariz. at 138. Accordingly, as our supreme court made 

clear in Hays, “[w]hen custody of children is involved in a court proceeding, 

it [is] the duty of the court to hear all competent evidence which may be 

offered.” 205 Ariz. at 103, ¶ 21 (citation omitted). Indeed, A.R.S. § 25-

403(A) expressly commands that “[t]he court shall determine legal decisionmaking and parenting time, either originally or on petition for 

modification, in accordance with the best interests of the child[, and t]he 

court shall consider all factors that are relevant to the child’s physical and 
THAYER v. LIPPERT

Decision of the Court

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emotional well-being.” (Emphases added.) Hays therefore explained that 

“excluding evidence in a child custody dispute necessarily conflicts with 

these overriding principles.” 205 Ariz. at 103, ¶ 21.

¶21 To be sure, the family law rules provide that when a party 

fails to appear at trial without good cause, the court may restrict that party’s 

use of evidence or even render a dismissal or default judgment. See Rule

76.2(a)(2), (b)(5)–(6); Rule 44.2. But such sanctions are available only when 

they do not affect the court’s ability to fulfill its duty to determine the 

children’s best interests. See Johnson v. Provoyeur, 245 Ariz. 239, 243–45, 

¶¶ 16–17, 20–21 (App. 2018) (upholding exclusion of untimely disclosed 

supplemental expert report because expert’s testimony regarding original 

report, along with other evidence, gave court “sufficient information to 

assess the children’s best interests”); see also Rule 76.2(b)(5) (providing that 

dismissal is an inappropriate remedy if it “would be contrary to the best 

interests of a child”); Rule 44.2(d) (providing that “if 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”). As Hays held, preclusion is inappropriate if it prevents 

“potentially significant information from being considered in the custody 

determination” and thereby has “an especially significant effect on the 

ability of the court to determine the child’s best interests.” 205 Ariz. at 103–

04, ¶ 22; see also James A. v. Dep’t of Child Safety, 244 Ariz. 319, 322, ¶ 13 (App. 

2018) (holding that court abused its discretion by precluding “potentially 

outcome-determinative bonding assessment report” in severance case). In 

such circumstances, sanctions are limited to those that “d[o] not in any way 

restrict the superior court’s overriding obligation to consider the best 

interests of the child.” Hays, 205 at 103, ¶ 20 (upholding monetary contempt 

sanctions).

¶22 The superior court concluded that Mother’s Rule 85 motion 

and the exhibits attached thereto “would not have had an effect, much less 

an ‘especially significant effect,’ on the Court’s ability to determine the 

children’s best interest.” But the children’s best interests appear precarious 

in this case, and the factors the court was required to consider in 

determining best interests necessarily required the court to assess the 

parents’ credibility regarding contested issues. See A.R.S. §§ 25-403, -403.01, 

-403.03, -403.04, -403.05. And though Mother did not act diligently to 

ensure that she received notice of the trial, upon learning that trial had 

occurred (and that the trial resulted in relief far more drastic than what 

Father had requested) she acted immediately—mere hours after the trial 

concluded—to contest the temporary orders and ask for an opportunity to 

present her case at a hearing. She also aggressively continued to seek relief 
THAYER v. LIPPERT

Decision of the Court

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over the following months, describing the evidence she sought to present. 

It therefore was apparent that Mother was immediately available and ready 

to participate by offering testimony and cross-examining Father.

5 And 

because such participation would potentially provide the court with

information highly probative to (at the least) the critical question of the 

parties’ credibility, the court erred by not permitting an evidentiary 

hearing. See Pridgeon v. Superior Court (LaMarca), 134 Ariz. 177, 181 (1982) 

(“[I]f affidavits are directly in opposition upon a substantial and crucial fact 

relevant to the grounds for [custody] modification, the court may not 

conduct a ‘trial by affidavit,’ attempting to weigh the credibility of the 

opposing statements. In such a case, the court must hold a hearing.”); Volk 

v. Brame, 235 Ariz. 462, 466–68, ¶¶ 14, 18, 21 (App. 2014) (recognizing that 

documentary evidence is inadequate to permit reliable assessment of 

credibility, and holding that the court violates due process by disallowing 

meaningful direct testimony and adequate cross-examination when 

resolution of material contested issue hinges on credibility).

¶23 Hays places trial courts in a difficult position, because rules 

designed to ensure that the superior court delivers prompt decisions can be 

violated with what may be perceived as impunity. But Hays is a binding 

decision of our supreme court, and it is rooted in sound reasoning: the 

public policy of Arizona places the best interests of children above other 

considerations, and there are times when procedural rules must yield to 

that policy. This is one of those times.

5 We note also that this was not a case in which Mother had repeatedly 

failed to participate—by contrast, both she and Father were active litigants 

in the pretrial phase. Cf. Johnson, 245 Ariz. at 245, ¶ 20 (warning that 

“[w]hile a court may generally hear any competent and potentially 

significant evidence pertaining to the best interests of a child, a parent may 

not rely on Hays as a means to flout multiple disclosure deadlines without 

good cause”).
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Decision of the Court

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CONCLUSION

¶24 We conclude that Mother was entitled to an evidentiary 

hearing on her motion for relief from the judgment. We remand for that 

evidentiary hearing and all additional proceedings that the superior court 

may deem necessary. We express no opinion as to the appropriate result of 

any future proceedings. We deny both parties’ requests for attorney’s fees 

on appeal.