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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 03-26-2024
MAYBERRY v. STAMBAUGH

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2

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
MAYBERRY v. STAMBAUGH

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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 
MAYBERRY v. STAMBAUGH

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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 
MAYBERRY v. STAMBAUGH

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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)).
MAYBERRY v. STAMBAUGH

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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.