implied confession error in Arizona

2022ANALYSIS ¶6 As an initial matter, we exercise our discretion and determine mother’s failure to file an answering brief on appeal was not an implied confession of error, especially given the superior court “correctly applied the law.” See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994) (A party’s 2 RODRIGUEZ v. RODRIGUEZ Decision of the Court failure to file a brief may be treated as an implied confession of error, but “this doctrine is discretionary,” and this court is “reluctant to reverse based on an implied confession of error” when the superior court “has correctly applied the law.”). ¶7

2017“This doctrine is discretionary, however, and we are reluctant to reverse based on an implied confession of error when, as here, the trial court has correctly applied the law.” Id. ¶6 We will not disturb a trial court’s decision to award attorneys’ fees under A.R.S. § 25–324 absent an abuse of discretion.

2026Declining to reverse based solely on the appellee’s failure to file an answering brief is particularly appropriate in cases in which “a child’s best interests are involved.” In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002); see also Matter of Mayberry v. Stambaugh, No. 1 CA-CV 23-0289 FC, 2024 WL 1282653 at *5, ¶ 20 (Ariz. App. Mar. 26, 2024) (mem. decision) (Morse, J., specially concurring) (“[I]n cases involving children’s best interests, we may decline to treat a failure to respond as an implied confession of error if doing so would have an adverse effect on the children.” (cit

2024Id. ¶13 Subsequently, we applied the Hoffman approach— considering the child's best interests in deciding whether to accept an implied confession of error—in cases involving child custody or support, Blech v. Blech, 6 Ariz. App. 131, 132 (1967), but we also expanded the 5 MAYBERRY v. STAMBAUGH Decision of the Court exception to general divorce matters, see Counterman v. Counterman, 6 Ariz. App. 454, 457 (1967) (citing Hoffman in a divorce appeal that did not involve children). ¶14 By the end of the 1960s, we sometimes reiterated that Hoffman presented an exception to the mandatory-confession-o

2024Our Court has cited Nydam for this proposition approximately 120 times.2 And 1 In Navajo County Juvenile Action No. J-3206, 121 Ariz. 407, 408 (App. 1979), we stated that "criminal and quasi-criminal cases . . . require the application of an analogous, but more restrictive version of the confession of error doctrine." That more-restrictive version provides that "it is appropriate to reverse a criminal or quasi-criminal appeal solely on the basis of the state's failure to respond unless this Court, in its discretion, believes that justice requires a decision on the merits." Id. (citing People v

2024Our Court has cited Nydam for this proposition approximately 120 times.2 And 1 In Navajo County Juvenile Action No. J-3206, 121 Ariz. 407, 408 (App. 1979), we stated that "criminal and quasi-criminal cases . . . require the application of an analogous, but more restrictive version of the confession of error doctrine." That more-restrictive version provides that "it is appropriate to reverse a criminal or quasi-criminal appeal solely on the basis of the state's failure to respond unless this Court, in its discretion, believes that justice requires a decision on the merits." Id. (citing People v

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

2024Grosso Inv., Inc., 4 Ariz. App. 285, 285 (1966) (citing Hoffman's non-mandatory language in an insurance dispute); City of Phoenix v. Schooley, 5 Ariz. App. 149, 150 (1967) (citing Hoffman for the proposition that we "may" accept the implied confession of error when the appeal presents debatable issues in a zoning dispute). ¶15 And even after we explained in In re O'Neil and Flickinger that Hoffman was a limited exception to the mandatory-confession-of-error rule, we continued to apply Hoffman in non-family contexts.

2024Id. ¶13 Subsequently, we applied the Hoffman approach— considering the child's best interests in deciding whether to accept an implied confession of error—in cases involving child custody or support, Blech v. Blech, 6 Ariz. App. 131, 132 (1967), but we also expanded the 5 MAYBERRY v. STAMBAUGH Decision of the Court exception to general divorce matters, see Counterman v. Counterman, 6 Ariz. App. 454, 457 (1967) (citing Hoffman in a divorce appeal that did not involve children). ¶14 By the end of the 1960s, we sometimes reiterated that Hoffman presented an exception to the mandatory-confession-o

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 )).

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

2024Id. ¶13 Subsequently, we applied the Hoffman approach— considering the child's best interests in deciding whether to accept an implied confession of error—in cases involving child custody or support, Blech v. Blech, 6 Ariz. App. 131, 132 (1967), but we also expanded the 5 MAYBERRY v. STAMBAUGH Decision of the Court exception to general divorce matters, see Counterman v. Counterman, 6 Ariz. App. 454, 457 (1967) (citing Hoffman in a divorce appeal that did not involve children). ¶14 By the end of the 1960s, we sometimes reiterated that Hoffman presented an exception to the mandatory-confession-o

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

2024Grosso Inv., Inc., 4 Ariz. App. 285, 285 (1966) (citing Hoffman's non-mandatory language in an insurance dispute); City of Phoenix v. Schooley, 5 Ariz. App. 149, 150 (1967) (citing Hoffman for the proposition that we "may" accept the implied confession of error when the appeal presents debatable issues in a zoning dispute). ¶15 And even after we explained in In re O'Neil and Flickinger that Hoffman was a limited exception to the mandatory-confession-of-error rule, we continued to apply Hoffman in non-family contexts.

2022DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019).

2017In re Marriage of Berger, 140 Ariz. 156, 167 (App. 1983).