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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LUIS ALEXIS SOLORZANO, Petitioner/Appellant,

v.

JESSICA JENSEN, Respondent/Appellee.

No. 1 CA-CV 19-0772 FC

Appeal from the Superior Court in Maricopa County

No. FC2014-051778

The Honorable John Christian Rea, Judge

VACATED AND REMANDED

COUNSEL

The Murray Law Offices, P.C., Scottsdale

By Stanley D. Murray

Counsel for Petitioner/Appellant

Berkshire Law Office, PLLC, Tempe

By Keith Berkshire, Kristi A. Reardon, Alexandra Sandlin

Counsel for Respondent/Appellee

FILED 9-29-2020
SOLORZANO v. JENSEN

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann 

joined.

W I N T H R O P, Judge:

¶1 Appellant Luis Alexis Solorzano (“Father”) challenges the 

superior court’s modification of his child support obligation and award of 

attorneys’ fees in favor of Appellee, Jessica Jensen (“Mother”), contending 

the court denied him due process by assessing his credibility without 

hearing any in-person testimony. We agree and therefore vacate and 

remand for an evidentiary hearing.

FACTS AND PROCEDURAL HISTORY

¶2 In 2014, Father petitioned to determine paternity, legal 

decision-making authority, parenting time, and child support for the 

parties’ minor child. The parties, who lived together and did not need a 

child support order at the time, stipulated to a parenting plan.

¶3 In 2017, Father petitioned to modify legal decision-making 

authority, parenting time, and child support, and both parties filed 

emergency motions for temporary orders without notice. The superior 

court declined to rule on an emergency basis and set the matter for trial. 

The parties stipulated to convert the trial into a settlement conference, 

where they reached agreement on all outstanding issues except child 

support.1

¶4 The court set an evidentiary hearing to resolve child support

and attorneys’ fees. At the hearing, the court spoke to both parties’ counsel

and proposed that they submit the matter on briefs. The parties agreed to 

file simultaneous briefs with party affidavits and supporting documents in 

lieu of live testimony.

¶5 After considering the briefs and submitted materials, the 

court found Father “did not provide . . . any documentation to substantiate” 

1 In February 2018, the parties also stipulated to the entry of a 

temporary child support order, requiring Father to pay $450 per month.
SOLORZANO v. JENSEN

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3

his claimed payments for childcare, extra educational expenses, or 

healthcare for the minor child. The court also found Father to be “not 

credible,” determined that he was “attempting to hide his actual income,”

and ordered him to pay $815 in monthly child support. The court also 

awarded Mother attorneys’ fees, finding a substantial financial disparity 

and that Father had acted unreasonably by “failing to disclose pertinent 

information prior to the preceding Trial in this matter” and failing “to 

provide an updated and complete [Affidavit of Financial Information].”2

¶6 Father sought post-trial relief, arguing that the court “failed 

to allow testimony to resolve the issue of credibility.” He timely appealed 

after the court denied his post-trial motions. We have jurisdiction pursuant 

to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2).

ANALYSIS

I. The Court Deprived Father of Due Process by Assessing His

Credibility Without Hearing In-Person Testimony.

¶7 Father concedes he agreed to limit his presentation to briefs, 

affidavits, and documentary evidence, but contends the court deprived him 

of due process by finding him not credible based on those documents alone. 

Generally, due process entitles a party to notice and an opportunity to be 

heard at a meaningful time and in a meaningful manner, as well as a chance 

to offer evidence and confront adverse witnesses. Cook v. Losnegard, 228 

Ariz. 202, 206, ¶ 18 (App. 2011). We generally review a child support 

modification for an abuse of discretion. State ex rel. Dep’t of Econ. Sec. v. 

Burton, 205 Ariz. 27, 30, ¶ 14 (App. 2003). But due process challenges 

present questions of law, which we review de novo. Wassef v. Ariz. State Bd.

of Dental Exam’rs, 242 Ariz. 90, 93, ¶ 11 (App. 2017); Mack v. Cruikshank, 196 

Ariz. 541, 544, ¶ 6 (App. 1999).

2 The court certified the decree as final under Arizona Rule of Family 

Law Procedure (“Rule”) 78(b), (c). Rule 78(c) certification was improper 

because Mother’s attorneys’ fees and costs claim remained pending. See

Rule 78(c) (applies to a “judgment as to all claims, issues, and parties”). But 

Rule 78(b) certification was proper because that claim was the only issue 

left to be resolved. See Bollermann v. Nowlis, 234 Ariz. 340, 342, ¶ 12 (2014) 

(“[F]amily courts can avoid unwarranted delay by requiring parties to 

submit fee applications within a defined time period . . . or by including 

Rule 78(B) language in rulings on the merits.” (internal citation omitted)); 

see also Rule 78(e)(1).
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¶8 Father contends that when a court assesses credibility, it must 

give parties an opportunity to present sworn oral testimony, citing Volk v. 

Brame, 235 Ariz. 462, 464, ¶ 1 (App. 2014). In Volk, the superior court 

allotted only fifteen minutes for a child support hearing and denied both 

parties’ requests for more time. Id. at 465, ¶¶ 4-6. The court also denied the 

father’s request to testify:

This is how this is going to work. [Mother’s counsel is] going 

to present . . . his information, whether it’s accurate or not. 

You’re going to present me your information that says it’s not 

true. I’m going to look at both of them, and then I’m going to 

make a decision. . . . I just need for you two to give me the 

documents. . . . You don’t have to tell me what you presented.

Just give it to the Clerk, [and] have her . . . mark it because I’m 

going to look at it.

Id. at 465-66, ¶¶ 9-11 (all alterations except third in original). We 

determined the court violated due process by “expressly reject[ing] the 

parties’ efforts to testify” despite recognizing that “credibility was central 

to the issue before it.” Id. at 466-67, ¶ 14.

¶9 Here, the parties conceded during oral argument before this 

court that their prehearing briefs and affidavits raised issues of credibility. 

For example, Father stated in his affidavit that he lost his job in July 2018 

because his then-employer “could not accommodate [his] conflicting 

parenting schedule[].” But Mother argued “[t]he extent to which [Father] 

can provide credible testimony is in considerable doubt” because he had 

not previously disclosed his alleged termination. She also argued Father’s

decision to purchase an insurance agency was “a planned move, hidden for 

some unknown reason . . . until Mother requested a child support hearing.” 

Mother also argued Father failed to disclose any tax returns; Father 

contended he had not yet filed for 2017 or 2018.

¶10 As for Mother, she contended she could not work as a 

cosmetologist despite holding a California license obtained “many years 

ago.” Father questioned this assertion, arguing Mother could transfer the

license to Arizona for a modest fee and that there was “no reason that she 

would be unable to find work.” He also presented affidavit testimony that 

Mother “works ‘under the table’ for cash . . . to prepare people for weddings 

and other events.” While Mother admitted she had done a “handful” of 

weddings and other events, she stated she had never worked full time as a 

cosmetologist and that her skills were “hardly up to par.” The court’s 

findings on these issues largely mirror Mother’s affidavit testimony, further
SOLORZANO v. JENSEN

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suggesting the court found Father not credible based on the documents 

alone.

II. Father Did Not Waive His Due Process Arguments.

¶11 Mother attempts to distinguish Volk, contending Father 

waived his due process arguments by agreeing to proceed without inperson testimony. She cites Pearson v. Pearson, 190 Ariz. 231, 234 (App. 

1997), where we held a party who had agreed to proceed “by avowal” could 

not later challenge the sufficiency of the evidence on appeal. The issue here, 

however, is not the sufficiency of the evidence, but rather, the court’s 

credibility assessments. See Volk, 235 Ariz. at 467, ¶ 16 (stating that courts 

may not conduct a “trial by affidavit” if the “affidavits are directly in 

opposition upon any substantial and crucial fact relevant to the grounds for 

modification” (quoting Pridgeon v. Superior Court, 134 Ariz. 177, 181 (1982))). 

Indeed, we stated in Pearson that “[p]roceeding by avowal does not allow 

the court to evaluate the demeanor and credibility of the witnesses,” which 

the court attempted to do in this case. See Pearson, 190 Ariz. at 234.

¶12 Mother also cites Shacknai v. Shacknai, 1 CA-CV 13-0555 FC, 

2015 WL 3767157 (Ariz. App. June 16, 2015) (mem. decision). See also Ariz. 

R. Sup. Ct. 111(c)(1)(C) (explaining when a memorandum decision may be 

cited for persuasive value). There, the husband challenged a significant

attorneys’ fees award stemming from a dispute over a property settlement 

agreement, arguing the court deprived him of due process and any chance 

to respond to the wife’s fee application by not conducting an evidentiary 

hearing. Id. at *2, ¶¶ 8-9. We affirmed the award, concluding the husband 

had “clearly stipulated to have the question of attorneys’ fees decided by 

the court based on the information provided . . . without an additional 

evidentiary hearing.” Id. at *4, *7, ¶¶ 18, 34. But we also expressly 

distinguished Volk and acknowledged that due process requires an 

opportunity to present sworn testimony if the court addresses “a disputed 

issue requiring an assessment of credibility.” Id. at *4, ¶¶ 19-20.

¶13 There is no indication that any of the issues raised in Shacknai 

required a credibility assessment. Moreover, unlike Shacknai, this case 

involves a minor child’s needs. See id. at *1, ¶¶ 2-5. We typically decline to 

find waiver where a child’s best interests are at issue, and we decline 

Mother’s invitation to do so here. See Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 

(App. 2013) (“[I]f the best interests of the child trump the consequences 

ordinarily imposed for violations of the rules, then they should not be 

ignored under the discretionary doctrine of waiver.”); Mendoza v. Mendoza, 

177 Ariz. 603, 605 (App. 1994) (“[E]ven an intentional waiver of child
SOLORZANO v. JENSEN

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support is not binding on the courts and will be enforced only if the child’s

interests are not adversely affected.”).

¶14 In summary, there was no adversarial check on the 

information the court considered to increase Father’s monthly child 

support obligation from $450 to $815. See Volk, 235 Ariz. at 469, ¶ 24. We 

therefore conclude Father suffered prejudice, vacate the child support order 

and associated attorneys’ fees award, and remand for an evidentiary 

hearing. See id. at 470, ¶ 26 (“Due process errors require reversal only if a 

party is thereby prejudiced.”).

III. We Decline to Award Attorneys’ Fees and Costs on Appeal.

¶15 Both parties request their attorneys’ fees and costs incurred 

on appeal pursuant to A.R.S. § 25-324(A), under which we must consider 

“the financial resources of both parties and the reasonableness of the 

positions each party has taken throughout the proceedings.” Neither party 

took unreasonable positions in this appeal. Having considered the relevant 

financial evidence in the record, we decline to award fees.

CONCLUSION

¶16 We vacate the child support order and associated attorneys’

fees award and remand for an evidentiary hearing. We do not address the 

merits of the dispute and express no opinion as to either party’s position.