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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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 REMAND ED

COUNSEL
The Murray Law Offices, P.C., Scottsdale By Stanley D. Murray Counsel for Petitioner

/Appellant

Berkshire Law Office
, PLLC, Tempe By Ke ith Berk shire , Kristi A. Reardon, Alexandra Sandlin C ounsel for Respondent

/Appellee FILED 9-29-2020SOLORZANO 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 h is credibility without hearing any in

- person testimony. We agree and therefore vacate and remand for an evidentiary hearing.

FACT S 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, paren ting 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 co n vert the trial into a settlem ent 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 attorney s’ fees

. At the hearing , the court spoke to both parties ’ counsel and proposed that they submit the matter on briefs. T he 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
, t he court found Father “did not provide

. . . any documentation to substantiate”

1 In February 2018, t he parties also stipulated to the entry of a temporary child support order , requiring Father to pay $450 per month

.SOLORZANO v. JENSEN Decision of the Court

3 his claimed payments for childcare, extra educational expenses, or healthcare for the minor child. The court also foun d Father to be “not credible
, ” determined that he was “attempting to hide his actual in come , ” and ordered him to pay $815 in monthly child support. The court also awarded Mother attorney s’ fees, finding a substantial financial disparity and that Father had acted unreasonably by “failing to disclose pertinent information prior to the pr e cedi ng 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 tim ely appealed after t he 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 b y Assessing His Credibility Without Hearing In

- Person Te stimony.

¶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, d ue process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner
, a s 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 d ue 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 Mot her ’ s attorney s’ fee s and cost s 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 th at 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).SOLORZANO v. JENSEN Decision of the Court

4 ¶8 Father contends that when a c ourt assess es credibility
, it must give parties an opportunity to present sworn oral testimony , citing Volk v. Bra me , 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 46 5

- 6 6, ¶ ¶ 9

- 11 ( all alterations except third in original ) . W e 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, t he parties conceded during oral argument before this
court that their prehearing briefs and affidavits raised issues of credibility. For example, Father stated in hi s 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 previ ously 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 n ot work as a cosmetologist despite holding a Ca lifornia 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 present ed affidavit testimon y 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.” T he court’s findings on th ese issue s largely mirror Mother’s affidavit test i mony , furtherSOLORZANO v. JENSEN Decision of the Court

5 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 in

person testimony. She cites Pearson v. Pearson , 190 Ariz. 231 , 234 (App. 1997), where we held a party who had agreed to pr oceed “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 affid avit” 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)) ). Ind eed, 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 s ignificant attorney s’ fe e s 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 attorney s’ 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 disting uish ed Volk and acknowledg ed 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 T here is no indication that any of the issues raised in Shacknai required a credibilit y assessment

. Moreover, unlike Shacknai
, this case involves a minor child ’s needs. See i d

. 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 childSOLORZANO v. JENSEN Decision of the Court

6 support is not binding on the courts and will be enforced only if the child’s interests are not adversely affected .”).

¶14 In summary, t here 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 as sociated attorney s’ fee s 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 Attorney s’ Fees and Costs on Appeal

. ¶15 Both parties request their attorney s’ 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 procee dings.” 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 attorney s’ fee s 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.