confession of reversible error in Arizona

2026In cases that the Arizona Supreme Court decided before this court existed, when no answering brief was filed, that court developed a general approach that when a debatable issue is raised on appeal, the court would “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).

2026When an appeal raises debatable issues unrelated to a child’s best interests, we “will assume that the failure to file an answering brief is a 3 BANKS v. BAILEY Decision of the Court confession of reversible error on the part of the appellee.” Tiller v. Tiller, 98 Ariz. 156, 157 (1965); see also In re Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653 , at *1-5, ¶¶ 5-20 (Ariz. App. Mar. 26, 2024) (Morse, J., concurring) (mem. decision). ¶13 Although our courts have yet to establish a test to determine what constitutes a “debatable issue,” they have found debatable issues exist when: (1

2023See Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982) (“Although we may regard this failure to respond as a confession of reversible error, we are not required to do so.”).

2022See Michaelson v. Garr, 234 Ariz. 532, 544 , ¶ 4 n.3 (App. 2014) (citing Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982) (“Although we may regard [the] failure to respond as a confession of reversible error, we are not required to do so.”)).

2024In 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 ).

2016Because this court is “reluctant to reverse based on an implied confession of error when . . . the trial court has correctly applied the law,” id., Husband’s lack of answering brief will not be considered a confession of reversible error. 2 MAGALLANES v. MAGALLANES Decision of the Court “with the number of motions here we should have a motions hearing and hear it all.” ¶4 Both Wife and Husband testified at the hearing, and the court took the matters under advisement.

2026"When 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).

2026So we have only Wife’s opening brief. ¶10 “When 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).

2026Ranch Cmty. Ass’n v. Simons, 216 Ariz. 266 , 269 ¶ 13 (App. 2007), we do not do so here, because Flores raises no debatable issues.

2025Action No. J-65812-1, 144 Ariz. 428, 429 (App. 1985) (“[W]e may, in our discretion, treat the lack of a response as a confession of error.”); Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994) (Failure to file an answering brief could be a confession of error.); Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 4, n.3 (App. 2014) (similar); McDowell Mountain Ranch Cmty. Ass'n, Inc. v. Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007) (similar). 4 SEDILLO v. COOLEY Decision of the Court ¶¶ 9-10 (Ariz. App. Mar. 26, 2024) (Morse, J., specially concurring) (mem. decision). ¶11 We discern no good cause for Husb

2024See, 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

2015See Bugh v. Bugh, 125 Ariz. 190, 191 (App. 1980) ("Where debatable issues are raised, the failure of an appellee to file an answering brief constitutes a confession of reversible error.").

2025When an appeal raises debatable issues, and there is no good cause for the appellee’s failure to respond, we “will assume that the failure to file an answering brief is a confession of reversible error on the part of the appellee.” See Tiller v. Tiller, 98 Ariz. 156, 157 (1965); Stover v. Kesmar, 84 Ariz. 387, 388 (1958). ¶10 Our courts have not established a definitive test for a “debatable issue.” But caselaw provides us with examples.

2024See 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 (1

2024See 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 (1

2024See 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 (1

2025Michaelson v. Garr, 234 Ariz. 542, 544 , ¶ 4 n.3 (App. 2014). 3 MCCARTHY, et al. v. KUMMERLE, et al.

2025Action No. J-65812-1, 144 Ariz. 428, 429 (App. 1985) (“[W]e may, in our discretion, treat the lack of a response as a confession of error.”); Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994) (Failure to file an answering brief could be a confession of error.); Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 4, n.3 (App. 2014) (similar); McDowell Mountain Ranch Cmty. Ass'n, Inc. v. Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007) (similar). 4 SEDILLO v. COOLEY Decision of the Court ¶¶ 9-10 (Ariz. App. Mar. 26, 2024) (Morse, J., specially concurring) (mem. decision). ¶11 We discern no good cause for Husb

2026When an appeal raises debatable issues unrelated to a child’s best interests, we “will assume that the failure to file an answering brief is a 3 BANKS v. BAILEY Decision of the Court confession of reversible error on the part of the appellee.” Tiller v. Tiller, 98 Ariz. 156, 157 (1965); see also In re Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653 , at *1-5, ¶¶ 5-20 (Ariz. App. Mar. 26, 2024) (Morse, J., concurring) (mem. decision). ¶13 Although our courts have yet to establish a test to determine what constitutes a “debatable issue,” they have found debatable issues exist when: (1

2026Eyman, 5 Ariz. App. 415 (1967) (“[T]he failure to file an answering brief does not constitute a confession of reversible error since no debatable issue is presented.”). 4 GHARADAGHIAN v. OLIVES Decision of the Court ¶13 The Arizona Supreme Court characterized a debatable question as one requiring “much industry and independent research to refute.” Merrill v. Wheeler, 17 Ariz. 348, 350 (1915).

2024Flickinger 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 )).

1967And while this Court has stated that we do not read these cases as requiring an automatic reversal where the appellee has failed to file a brief, Hoffman v. Hoffman, 4 Ariz.App. 83 , 417 P.2d 717 (1966), where there are debatable issues before this Court, we may assume that the failure to file an answering brief is a confession of reversible error.

2025Nelson v. Nelson, 91 Ariz. 215, 218 (1962); Mower v. Street, 79 Ariz. 282, 283 (1955).

2024See 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 (1

2026Eyman, 5 Ariz. App. 415, 415 (1967) (“[T]he failure to file an answering brief does not constitute a confession of reversible error since no debatable issue is presented.”). 1 We do not consider the documents attached to Flores’s opening brief that are not part of the superior court record.

2026Eyman, 5 Ariz. App. 415 (1967) (“[T]he failure to file an answering brief does not constitute a confession of reversible error since no debatable issue is presented.”). 4 GHARADAGHIAN v. OLIVES Decision of the Court ¶13 The Arizona Supreme Court characterized a debatable question as one requiring “much industry and independent research to refute.” Merrill v. Wheeler, 17 Ariz. 348, 350 (1915).

2026When an appeal raises debatable issues unrelated to a child’s best interests, we “will assume that the failure to file an answering brief is a 3 BANKS v. BAILEY Decision of the Court confession of reversible error on the part of the appellee.” Tiller v. Tiller, 98 Ariz. 156, 157 (1965); see also In re Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653 , at *1-5, ¶¶ 5-20 (Ariz. App. Mar. 26, 2024) (Morse, J., concurring) (mem. decision). ¶13 Although our courts have yet to establish a test to determine what constitutes a “debatable issue,” they have found debatable issues exist when: (1

2026Although our courts have yet to establish a test to determine what constitutes a “debatable question,” they have found a debatable question exists when: (1) the opening brief claimed error with supporting authority, and it would “require much industry and independent research to refute” the appellant’s position, Merrill v. Wheeler, 17 Ariz. 348, 350 (1915); (2) there is “at least grave doubt” about the superior court’s order, Adkins v. Adkins, 39 Ariz. 530, 532 (1932); or (3) when an appeal raises novel legal questions, Luna v. Peinado, 2024 WL 2207309 , at *3 ¶ 17 (Ariz. App. May 16, 2024) (m

2025Action No. J-65812-1, 144 Ariz. 428, 429 (App. 1985) (“[W]e may, in our discretion, treat the lack of a response as a confession of error.”); Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994) (Failure to file an answering brief could be a confession of error.); Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 4, n.3 (App. 2014) (similar); McDowell Mountain Ranch Cmty. Ass'n, Inc. v. Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007) (similar). 4 SEDILLO v. COOLEY Decision of the Court ¶¶ 9-10 (Ariz. App. Mar. 26, 2024) (Morse, J., specially concurring) (mem. decision). ¶11 We discern no good cause for Husb

2024See, 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

2025See In re Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653 , at *2, 2 See, e.g., City of Phoenix v. Schooley, 5 Ariz. App. 149, 150 (1967) (“[W]here there are debatable issues before this Court, we may assume that the failure to file an answering brief is a confession of reversible error.”) (emphasis added); Ariz. Tank Lines, Inc. v. Ariz. Corp. Comm'n, 13 Ariz. App. 19, 21 (1970) (“[T]his Court views [the confession of error rule] as a permissive rather than a mandatory rule.”); Pima County Juv.

2024Stock v. Stock, 250 Ariz. 352, 354, ¶ 5 (App. 1 See, e.g., City of Phoenix v. Schooley, 5 Ariz. App. 149, 150 (1967) (“[W]here there are debatable issues before this Court, we may assume that the failure to file an answering brief is a confession of reversible error.”) (Emphasis added.); Ariz. Tank Lines, Inc. v. Ariz. Corp. Comm’n, 13 Ariz. App. 19, 21 (1970) (“[T]his Court views [the confession of error rule] as a permissive rather than a mandatory rule[.]”); Pima County Juv.

2025See In re Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653 , at *2, 2 See, e.g., City of Phoenix v. Schooley, 5 Ariz. App. 149, 150 (1967) (“[W]here there are debatable issues before this Court, we may assume that the failure to file an answering brief is a confession of reversible error.”) (emphasis added); Ariz. Tank Lines, Inc. v. Ariz. Corp. Comm'n, 13 Ariz. App. 19, 21 (1970) (“[T]his Court views [the confession of error rule] as a permissive rather than a mandatory rule.”); Pima County Juv.

2024See, 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

2024See In re Marriage of Dieszi, 201 Ariz. 524, 525, ¶ 2 (App. 2002). 4 SCHNEIDER v. PEREA Decision of the Court I.

2024See In re Marriage of Dieszi, 201 Ariz. 524, 525, ¶ 2 (App. 2002). ¶7 “Any change in residence outside Arizona is necessarily a relocation.” Woyton v. Ward, 247 Ariz. 529 , 533, ¶ 11 (App. 2019).

2013See Nydam v. Crawford, 181 Ariz. 101, 101 , 887 P.2d 631, 631 (App. 1994); see also Wickman v. Ariz. State Bd. of Osteopathic Exam’rs, 138 Ariz. 337, 340 , 674 P.2d 891, 894 (App.1983) (“If a debatable issue is raised on appeal, appellee’s silence constitutes a confession of reversible error.”).

2013See Nydam v. Crawford, 181 Ariz. 101, 101 , 887 P.2d 631, 631 (App. 1994); see also Wickman v. Ariz. State Bd. of Osteopathic Exam’rs, 138 Ariz. 337, 340 , 674 P.2d 891, 894 (App.1983) (“If a debatable issue is raised on appeal, appellee’s silence constitutes a confession of reversible error.”).

2024See 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 (1

2024Co. 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

2024See 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 (1

1980Barrett v. Hiney, 94 Ariz. 133 , 382 P.2d 240 (1963); Turf Irrigation Waterworks Supply v. Mountain States Telephone & Telegraph Co., 24 Ariz. App. 537 , 540 P.2d 156 (1975); Liberty Mutual Insurance Co. v. MacLeod, 17 Ariz.App. 449 , 498 P.2d 523 (1972); Civil Service Employees Insurance Co. v. Sticht, 14 Ariz.App. 36 , 480 P.2d 373 (1971).

2021Beck v. Beck, 9 Ariz. App. 77, 78 (1969); see also McDowell Mountain Ranch Cmty. Ass’n v. Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007).

1980Beck v. Beck, 9 Ariz.App. 77 , 449 P.2d 313 (1969); Witherspoon v. Witherspoon, 17 Ariz.App. 391 , 498 P.2d 233 (1972). 2 Appellant contends that the trial court erred when it attempted to reclassify “the original award of spousal maintenance” in the divorce decree to that of a property right in appellant’s military retirement pay, erred in the calculation of arrearages owed by him to his former spouse, erred in requiring him to execute and deliver an allotment of his military retirement pay to her and erred in the award of attorneys’ fees to her attorneys.

2024Co. 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

1980Barrett v. Hiney, 94 Ariz. 133 , 382 P.2d 240 (1963); Turf Irrigation Waterworks Supply v. Mountain States Telephone & Telegraph Co., 24 Ariz. App. 537 , 540 P.2d 156 (1975); Liberty Mutual Insurance Co. v. MacLeod, 17 Ariz.App. 449 , 498 P.2d 523 (1972); Civil Service Employees Insurance Co. v. Sticht, 14 Ariz.App. 36 , 480 P.2d 373 (1971).

2025If an appellant’s opening brief and the record reveal a debatable question and no good cause appears for the appellee’s failure to file, we will assume “a confession of reversible error on the part of the appellee.” See Navarro v. State, 32 Ariz. 119 , 120–21 (1927); see also Tiller v. Tiller, 98 Ariz. 156, 157 (1965).

2024Our supreme court has held in cases with debatable issues, “a failure to file an answering brief is equivalent to a confession of error by appellee.” Navarro v. State, 32 Ariz. 119, 120 (1927); see also Tiller v. Tiller, 98 Ariz. 156, 157 (1965) (reiterating that our Supreme Court will “assume that failure to file an answering brief is a confession of reversible error on the part of appellee.”).

2024See 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 (1

1965Wilson v. Wilson, 94 Ariz. 353 , 385 P.2d 226 (1963); Siemers v. Randall, 94 Ariz. 302 , 383 P.2d 753 (1963) ; Barrett v. Hiney, 94 Ariz. 133 , 382 P.2d 240 (1963); Tom v. Baca, 93 Ariz. 96 , 378 P.2d 912 (1963) ; Nelson v. Nelson, 91 Ariz. 215 , 370 P.2d 952 (1962); Stover v. Resinar, 84 Ariz. 387 , 329 P.2d 1107 (1958); Dowding v. Smithers, 82 Ariz. 261 , 311 P.2d 967 (1957).

2016Comm’n, 213 Ariz. 536, 538-39 (App. 2006); Witherspoon v. Witherspoon, 17 Ariz. App. 391, 393 (1972) (“The failure to file an answering brief constitutes a confession of reversible error if the reasons presented for reversal are debatable, and it is our duty to determine whether these are debatable.”). 10 WALKER v. SINIKOVA Decision of the Court Expedited Petition suffered from verification defects following Mother’s curative efforts, the record supported the court’s conclusion that, the pleadings did not show that the children’s health was seriously endangered as required by A.R.S. § 25-411(A

1980Beck v. Beck, 9 Ariz.App. 77 , 449 P.2d 313 (1969); Witherspoon v. Witherspoon, 17 Ariz.App. 391 , 498 P.2d 233 (1972). 2 Appellant contends that the trial court erred when it attempted to reclassify “the original award of spousal maintenance” in the divorce decree to that of a property right in appellant’s military retirement pay, erred in the calculation of arrearages owed by him to his former spouse, erred in requiring him to execute and deliver an allotment of his military retirement pay to her and erred in the award of attorneys’ fees to her attorneys.