New Case Limits Application of Hays v. Gama: Johnson v. Provoyeur

New Case Limits Application of Hays v. Gama: Johnson v. Provoyeur

A 2003 case, Hays v. Gama has been cited repeatedly, and often incorrectly, for the proposition that a trial court cannot exclude evidence that would tend to add information about a child’s best interests, no matter how late that evidence is produced or whether it violates disclosure requirements.   That misuse of the Hays findings is no longer the case, thanks to Johnson v. Provoyeur (2018).

In the Johnson case, which was a contested parenting time proceeding, a comprehensive family evaluation (CFE) was conducted, and when the final report on the evaluation was delayed, a hearing was continued from November to the following February.   The hearing was continued because the report of Mother’s expert was disclosed one week after the required disclosure date.   Disclosure dates were extended for the new hearing, and final disclosure of expert opinions was due 60 days prior to the new March 6 hearing date.

Mother again disclosed her expert’s report late.  Her expert submitted a Supplemental Report on February 21, approximately five weeks after the required disclosure deadline and only 13 days prior to the rescheduled hearing date.   Father objected to the Supplemental Report, and the court ruled that the Supplemental Report could not be admitted.  In supplying the late Supplemental Report, Mother did not (a) tell Father or the court that another report was coming and that it would be delayed; (b) tell Father or the court why the Supplemental Report would be delayed; or (c) request a continuance of the hearing date.   The Supplemental Report included summaries of child interviews conducted by the evaluator in late December, including the children’s wishes regarding their parenting time.

Mother appealed the court’s denial of the Supplemental Report.    The Court of Appeals affirmed the trial court’s decision, finding that (1) the report was not disclosed timely; (2) Father was prejudiced by the untimely disclosure; (3) Mother had no good cause for the delay; and (4) Hays v. Gama did not apply to this situation or require the admission of the late Supplemental Report.  It’s this fourth finding that is the subject of this post.

Mother’s argument regarding Hays was simply this:  if evidence impacts a child’s best interests, the evidence must be admitted regardless of disclosure violations.  While the Hays decision has been cited for this proposition for years, that’s an incorrect application of Hays.   Hays v. Gama involved the preclusion of evidence (about a child’s therapy) as a contempt sanction, as the Mother in that case was not supposed to take the child to that therapist.    When used as a sanction like that situation, the sanction precluded potentially significant information about the child.   In Hays, the custody evaluator had testified that he wanted the information about the child’s therapy and he could not ethically ignore such potentially useful information.      The Provoyeur case, on the other hand, involved Mother’s direct violation of a disclosure rule set by the court, and the preclusion was an appropriate sanction under Rule 65(c), Arizona Rules of Family Law Procedure.    In addition, the preclusion of the Supplemental Report did not preclude evidence which had an “especially significant effect” on the court’s ability to determine the child’s best interests.  The court still had the original and complete CFE as evidence, and the evaluator testified at the hearing.     Even if the Supplemental Report had information about the children’s interviews and preferences about parenting time, the court made a finding that the children were too young to give weight to their preferences.

This decision made several mentions of Mother’s failure to advise either Father or the trial court that a Supplemental Report was forthcoming or why it was delayed beyond the disclosure deadline.    This case could therefore be distinguished in future situations where a party finds himself or herself in a truly delayed situation, through no fault of their own, and properly notifies all parties and the court of the delay and properly requests either a continuance of the hearing or an extension of the disclosure deadlines.

Another noteworthy finding in the case addresses Mother’s insistence that, upon receiving the Supplemental Report only thirteen days prior to hearing, Father should have been forced to take a last-minute deposition of the expert instead of simply moving to exclude the report. The Court of Appeals recognized that “Arizona’s disclosure rules do not require an opposing party to undertake new discovery the week prior to trial to remediate or avoid prejudice caused by the other party’s disclosure violation.”    It was specifically noted that Mother gave Father no advance warning of the Supplemental Report.   The Court has thus noted that communication to the other party is vital if last-minute evidence is anticipated, to try and remediate the problem.

Ultimately, we are left with the final finding on Hays, which is “a parent may not rely on Hays as a means to flout multiple disclosure deadlines without good cause, as Mother did here.”  That express finding was long overdue.

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