Volk v. Brame, 1-CA-SA 14-0079

by Annette Burns on September 2, 2014

In Volk v. Commissioner Brame, a Father took a Special Action Petition on his claim that he was denied a hearing and the opportunity to present testimony, resulting in a denial of due process through Maricopa County’s Family Court Conference process.   (This process used to be called Expedited Services.)   That case involved a modification of child support with wildly different estimates of father’s income on each side.  Mother estimated his monthly income at somewhere between $8700-9500/ month; Father said that his income was $1432/ month.    The court ultimately agreed with Mother’s estimate of his income and awarded child support in the amount of $1034/ month, 72% of what Father claimed to earn.

How did this happen?  The court allocated 15 minutes for the hearing to determine what Father’s income was; the parties were actually in the courtroom for about 31 minutes total. That time was spent with each party submitting documents in support of his or her position on income, and, in Father’s case at least, asking for more time to explain his income and exhibits and refute an exhibit of Mother’s that claimed his income was high.    Mother’s counsel gave avowals about that exhibit that gave her position on Father’s income.  Neither party testified, and there was no witness testimony.

The Court of Appeals accepted Special Action jurisdiction on Father’s claim and issued its opinion on 8/28/2014.    The credibility of the parties was clearly at issue, where the parties’ opinions of Father’s true income differed so greatly.

This opinion does not go so far as to say all Maricopa County hearings are too short or that none provide due process.   “Though the court may impose time limits that appear reasonable in advance of a proceeding, those limits become unreasonable if they prove insufficient to allow a substantive hearing. If, during the progress of a scheduled hearing, it becomes apparent that the court lacks sufficient time to receive adequate testimony, then the court must allow reasonable additional time or continue the hearing to permit it to perform its essential tasks . . . . When the court allows no time to hear testimony, or when the time available for each necessary witness does not allow for meaningful direct testimony and efficient but adequate cross-examination, the court violates the parties’ due process rights.”

The Volk fact situation was particularly ripe for this ruling, as (a) the hearing was scheduled for only 15 minutes  — extremely short even for Maricopa County hearings; and (b) NO ONE testified, even though they wanted to.  It’s impossible to say if this holding will be applied to longer hearings (Is 30 minutes enough?  Is three hours enough for a trial?) or to a hearing where the parties did testify but say they didn’t have enough time.  What if a party has an hour to testify, but doesn’t use the time wisely, spends the hour on irrelevant issues, and then claims s/he didn’t have to time to cover an issue adequately?   The Volk decision doesn’t seem to help with those situations.   As has always been the case, whether a litigant was afforded due process and an opportunity to be heard in a particular situation is always going to depend on specific facts.    It appears that the Volk opinion is trying to walk the fine line between due process rights and the court’s need to find enough time to try a monumental amount of cases within a reasonable time.

The opinion is also instructive to litigants who might feel a lack of hearing time is the attorney’s fault, when it isn’t.  This decision mentioned how Father’s attorney attempted to have testimony presented, but was rebuffed.  Perhaps the most interesting part of this opinion is concern as to how the Minute Entry, which stated that the Court had considered the “testimony” of the witnesses, contradicted the hearing transcript:   “[D]espite the trial court’s written statement (Minute Entry) that it had considered the testimony of both parties, it received no testimony at all.   The transcript and video recording of the hearing reveal that no witnesses were sworn, no witnesses were called or examined, and the court summarily rejected the parties’ polite attempts to offer explanatory comments.   [FTNT5]   The court’s insistence that Father submit documents only — and not testify about those documents — violated his right to present his evidence. [FTNT6]”

Footnote 5 shows the appellate court’s concern about the minute entry.  “The discrepancy between the minute entry and the transcript on these points is a serious matter.   We have therefore reviewed the video recording of the hearing to ensure that our analysis is not based on a flawed transcription.”   Relating to the attempts to present testimony, Footnote 6 notes:  “Father in fact made several calm attempts during the hearing to clarify his exhibits and confront Mother’s evidence, even after the court refused to entertain his requests and told the parties to ‘settle down.’”

What we are left with from Volk is: (1) due process still exists in family court; and (2) extreme and obvious violations of the right to present evidence and be heard will be remanded.   What constitutes a “meaningful” right to present evidence will still depend on the specific facts of a case and what happened in a hearing, but an example so extreme that it prevented either party from testifying at all is a good candidate for remand.

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