Seidman v. Seidman (8/25/2009)

August 27, 2009

Arizona Court of Appeals Division One Holds That A Trial Court Must Hold an Evidentiary Hearing Before It Enters a Default Judgment as a Discovery Sanction.

Husband commenced a dissolution proceeding against Wife in 2006.  Wife failed to attend her deposition scheduled for September 13, 2006, and it was rescheduled for November 14.  On November 13, Wife’s counsel informed the court at an emergency hearing that Wife’s doctor signed a letter stating that she was unable to participate in her deposition for medical reasons.  The trial court refused to grant a continuance “absent a detailed, signed letter from her doctor, stating that [her] health is in imminent danger by appearing for the deposition.”  On November 14, Wife’s counsel provided Husband’s counsel a second doctor’s letter stating that Wife suffered from “depression and anxiety” and “may be at risk for her life if she is exposed to a stressful situation.”  On November 17, Husband filed a motion for sanctions for Wife’s failure to attend her deposition and sought a default judgment as a sanction, among other things.  On November 22, the court set the matter for a fifteen-minute “Return Hearing” for December 1, but Wife stipulated and requested that the hearing be vacated. Without holding an evidentiary hearing, the court entered a default judgment against Wife based on its understanding that Wife’s failure to attend her November 14 deposition “was not justified by medical or legal excuse,” Wife had not been forthcoming with her lawyer, and that a hearing was unnecessary because the discovery violation was the fault of Wife, not her lawyer.       

The Arizona Appeals Court reversed and remanded.  The Court first held that Wife did not waive her right to an evidentiary hearing when she stipulated and requested that the December 1 “Return Hearing” be vacated.  It explained that under the Rules of Family Law Procedure a return hearing is not an evidentiary hearing, and therefore Wife could not have waived her right to an evidentiary hearing because the trial court never scheduled one.

Addressing the merits, the Court held that the trial court erred by entering a default judgment against Wife without holding an evidentiary hearing, violating her due process rights.  Citing Zimmerman v. Shakman, 204 Ariz. 231, 62 P.3d 976 (App. 2003), the Court explained that an evidentiary hearing must be held to determine (1) whether the fault for the discovery violation lies with the client or counsel, (2) whether the violation was committed willfully or in bad faith, and (3) whether the egregiousness of the violation warrants the ultimate sanction of dismissal or some lesser sanction.  Because the trial court inferred or assumed the answers to the first two questions without holding an evidentiary hearing, the Court of Appeals held that the record did not support those findings.  Moreover, the trial court failed to make express findings showing that it thoroughly considered whether less severe sanctions would suffice.  Accordingly, the Court reversed and remanded.   

Judge Swann authored the opinion; Presiding Judge Orozco and Judge Irvine concurred.