STATE DES v. Valentine

945 P.2d 828, 190 Ariz. 107, 243 Ariz. Adv. Rep. 30, 1997 Ariz. App. LEXIS 187, 1997 WL 251303
CourtCourt of Appeals of Arizona
DecidedOctober 28, 1997
Docket1 CA-CV 96-0305
StatusPublished
Cited by18 cases

This text of 945 P.2d 828 (STATE DES v. Valentine) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE DES v. Valentine, 945 P.2d 828, 190 Ariz. 107, 243 Ariz. Adv. Rep. 30, 1997 Ariz. App. LEXIS 187, 1997 WL 251303 (Ark. Ct. App. 1997).

Opinions

OPINION

GRANT, Judge.

Lenny Valentine (“Respondent”) appeals from the trial court’s denial of his Motion for Reconsideration and Motion to Set Aside Judgment. For the reasons that follow, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises from a paternity judgment and order entered in an action by the State of Arizona (the “state”), through its Department of Economic Security (“D.E.S.”), filed in 1994 to establish paternity of Lisa Schwoegler’s (the biological mother) child who was born in January 1989.

A blood test pursuant to the state’s motion and order demonstrated that there was a 99.78% probability that Respondent was the biological father of the child. In October 1995, the state moved for summary judgment regarding paternity based on the test results, and Respondent admitted paternity in his response to the state’s motion. Based on the test results and Respondent’s admissions, the court .entered summary judgment on December 22, 1995, estabhshing that Respondent was the child’s biological father. The court next set a Post-Paternity Establishment Hearing for Support to be held on February 1, 1996.

On December 31, 1995, Respondent filed, and the court denied, a motion to transport him to the hearing from the Arizona State Prison Complex in Florence where he was imprisoned. The court stated in its minute entry that Respondent could appear telephonically at his own expense. The court did not enter an order guaranteeing that Respondent would have access to prison telephones on the day and time of the support hearing. The minute entry was sent only to Respondent, but not to the Department of Corrections. Respondent subsequently filed a letter with the court stating that because he could not personally appear at the hearing, he would “refuse to recognize or acknowledge further ... proceedings----”

Despite Respondent’s absence, the court held the support hearing and entered current and past support orders on February 9, 1996. On March 8, 1996, Respondent then filed a Motion for Reconsideration and Motion to Set Aside Judgment pursuant to Rule 60(c) of the Arizona Rules of Civil Procedure (“Rule 60(c)”). The court denied those motions on April 23, 1996. Respondent timely filed his Notice of Appeal from the denial of his Motion for Reconsideration and his Motion to Set Aside Judgment on May 23, 1996.

Respondent did not directly appeal the original judgment. Accordingly, this court lacks jurisdiction in this appeal to consider the merits of the paternity and support orders that the trial court entered. A motion for reconsideration does not extend the time to file a notice of appeal. See Ariz. Unif. R. Prac. IV(h) (“Rule IV(h)”). Therefore, those orders were appealable under Arizona Revised Statutes Annotated (“A.R.S.”) section 12-2101(B) by March 6, 1996. However, this court has jurisdiction to decide the issues raised in Respondent’s Motion for Reconsideration and Motion to Set Aside Judgment pursuant to A.R.S. section 12-2101(C), and can therefore consider the support issues raised in those motions.

DISCUSSION

In his Motion for Reconsideration, Respondent raises numerous due process violations and factual disputes relating to the trial court’s paternity and support orders. However, these arguments are waived since Rule PV(h) states that a motion for reconsideration or motion to set aside judgment does not toll the time for filing a notice of appeal. Here,- a timely notice of appeal was not filed. Therefore, on review we must determine whether [110]*110Respondent raised a cognizable claim under Rule 60(e)(6) in the post-hearing motions. Rule 60(c)(6) provides that on motion, and upon such terms as are just, the court may relieve a party from a final judgment for any reason justifying relief from the judgment not addressed in Rule 60(c)(1)-(5).

In his Motion for Reconsideration, Respondent argues that (1) the trial court violated his due process rights by not allowing him to personally appear at the support hearing, and (2) the trial court based its support findings on “fraudulent” information because Respondent is not employed and the support was calculated during his imprisonment when he had no income.

Respondent’s contention that he was denied due process because he was not allowed to personally appear at the support hearing is without merit. A prisoner’s access to the courts is not absolute. Strube v. Strube, 158 Ariz. 602, 604, 764 P.2d 731, 733 (1988). The court has discretion to balance the interests of the prisoner against those of other parties and the state, taking into account such factors as whether the prisoner is a security risk, the possibility of delay, and the cost of transportation. Id. at 605, 764 P.2d at 734. We must presume that the record in this case supports the trial court’s ruling.1 See Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668, 676 (App.1993), cert. denied, 513 U.S. 929, 115 S.Ct. 319, 130 L.Ed.2d 280 (1994). We therefore hold, as have other states, that appearance by telephone is an appropriate alternative to personal appearance. See Murray v. Murray, 894 P.2d 607, 608 (Wyo.1995) (An appearance by conference call meets the constitutional requirement of a meaningful opportunity to be heard.).

However, although we hold that the trial court was within its discretion to allow Respondent to attend the support hearing telephonieally, the trial court erred by not ordering the Arizona Department of Corrections to provide Respondent access to a telephone at the time of the hearing. The trial court should have been alerted to the need for this order after Respondent informed the court in his January 1996 letter that he was unable to appear éither telephonieally or by facsimile, because he was an “indigent prisoner.” We disagree with the state that this letter amounted to a “waiver” of Respondent’s appearance at this hearing, because Respondent obviously sent the letter out of frustration over the trial court’s failure to provide the means for him to participate in the hearing. The trial court’s minute entry was sent to Respondent but not to proper prison authorities.

We will reverse the trial court only if this failure resulted in prejudice to Respondent. An error justifying reversal “must be prejudicial to [the] substantial rights of the appealing party”; such error will not be presumed from the record, and any error deemed “harmless” will not warrant reversal. See, e.g., Dykeman v. Ashton, 8 Ariz.App. 327, 329, 446 P.2d 26, 28 (1968). Here, Respondent was denied a fair trial because, by not being able to be telephonically present, he was denied his constitutional right to be present at the hearing and confront and cross-examine witnesses. These basic due process violations meet the criteria of Rule 60(c)(6). Rule 60(e)(6) provides that the reason for setting aside the judgment must not be one of the reasons set forth in the five preceding clauses; and second, the “other reason” advanced must be one which justifies relief. Edsall v. Superior Court In and For Pima County, 143 Ariz. 240, 243, 693 P.2d 895, 898 (1984); Webb v. Erickson, 134 Ariz.

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STATE DES v. Valentine
945 P.2d 828 (Court of Appeals of Arizona, 1997)

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Bluebook (online)
945 P.2d 828, 190 Ariz. 107, 243 Ariz. Adv. Rep. 30, 1997 Ariz. App. LEXIS 187, 1997 WL 251303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-des-v-valentine-arizctapp-1997.