Shah v. Vakharwala , 418 P.3d 974 ( 2018 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
ARPITA SHAH, Petitioner/Appellee,
v.
PURVIN VAKHARWALA, Respondent/Appellant.
No. 1 CA-CV 17-0129 FC
FILED 1-11-2018
Appeal from the Superior Court in Maricopa County
No. FC 2016-096043
The Honorable Jerry Bernstein, Judge Pro Tempore
AFFIRMED
COUNSEL
Collins & Collins, LLP, Phoenix
By C. Robert Collins, Jonathan S. Collins
Counsel for Respondent/Appellant
SHAH v. VAKHARWALA
Opinion of the Court
OPINION
Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown and Judge Patricia A. Orozco1 joined.
C A M P B E L L, Judge:
¶1 Purvin Vakharwala appeals the superior court’s grant of an
order of protection in favor of his ex-wife Arpita Shah and argues that to
violate an Arizona order of protection, the violation must occur within
Arizona. For the reasons explained, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Shah and Vakharwala have one child in common, a son. In
2015 the couple obtained a divorce in Georgia. Shah later moved to Arizona
with the child. On November 24, 2015, she obtained an Arizona order of
protection against Vakharwala, who remained in Georgia. The 2015 order
of protection included the following restriction: “[Vakharwala] shall have
no contact with [Shah] except through attorneys, legal process, court
hearings, and as follows: . . . in writing by U.S. Mail only to discuss the
parties’ son. [He] [a]lso may contact [Shah’s] attorney.” Based on the 2015
order, the Georgia court amended the decree to include the no contact terms
but also to allow Vakharwala some parenting time, including permitting
him to contact their son through a video chat service with specified
restrictions.2
¶3 On November 18, 2016, in anticipation of the expiration of the
2015 order, Shah petitioned for an ex parte order of protection. See Ariz.
Rev. Stat. (“A.R.S.”) § 13-3602(K) (an order of protection expires one year
after service). In her verified petition, Shah listed three separate incidents
1The Honorable Patricia A. Orozco, Retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution.
2For example, the decree stated Vakharwala may use video chat to
contact their son, but “[s]hall not initiate multiple communications in the
event the first attempt is unsuccessful, but instead shall be free to make one
follow up call, thereafter awaiting the child’s return call.”
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SHAH v. VAKHARWALA
Opinion of the Court
evidencing acts of domestic violence. First, in a November 21, 2015
domestic violence incident, he physically removed the child from Shah and
attempted to take him out of the state of Arizona. He was subsequently
charged with assault. Second, between June 2, 2016 and June 16, 2016, he
violated the 2015 order when he contacted her through video chat. Third,
Vakharwala contacted Arizona law enforcement on 15 separate occasions
in the preceding 12 months with allegations against Shah ranging from
custodial interference to violations of court orders. Each contact resulted in
law enforcement contact with Shah and the child and law enforcement
finding Vakharwala’s allegations to be unfounded.
¶4 In late November 2016, based on the claims contained in
Shah’s verified petition, the court granted another ex parte protective order
and included the same contact restrictions contained in the 2015 order.
Vakharwala then requested an evidentiary hearing. See A.R.S. § 13-3602(I).
Following the hearing, based on the court finding that at least one of the
contacts (a June 7 video chat) was an act of domestic violence because it
violated the communication restriction in the 2015 protective order, the
superior court continued the 2016 protective order.
DISCUSSION3
¶5 We review the superior court’s continuance of an order of
protection following an evidentiary hearing for an abuse of discretion, but
review questions of law de novo. Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5
(App. 2014). Upon the filing of a verified petition, A.R.S. § 13-3602(A)-(B), a
court has jurisdiction to issue an order of protection if it finds there is
reasonable cause to believe a “defendant may commit an act of domestic
violence” or “has committed an act of domestic violence within the past
year” or longer if the court finds good cause. A.R.S. § 13-3602(E); see also
A.R.S. § 13-3602(P). When the court issues an ex parte protective order,
upon the defendant’s request it shall hold a hearing, after which it may
continue the order. A.R.S. § 13-3602(I).
¶6 The term “domestic violence” is defined by statute. A.R.S.
§ 13-3601(A). “In the context of a past or current romantic relationship, the
term domestic violence is broadly defined in § 13–3601(A) and includes a
wide array of criminal acts as well as harassment by verbal, electronic,
3 Although Shah did not file an answering brief, in our discretion, we
decline to consider her failure to do so as a confession of error. See Cardoso
v. Soldo, 230 Ariz. 614, 616 n.1, ¶ 4 (App. 2012).
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Opinion of the Court
mechanical, telegraphic, telephonic or written communication.” Michaelson,
234 Ariz. at 544, ¶ 6 (citations omitted). As relevant here, Shah alleged that
Vakharwala committed a domestic violence offense by engaging in online
contact in violation of the order of protection. See A.R.S. § 13-3601(A)
(domestic violence includes offense prescribed in A.R.S. § 13-2810(A)(2));
A.R.S. § 13-2810(A)(2) (disobeying a lawful court order).
I. Jurisdiction
¶7 Vakharwala argues the superior court lacked both subject
matter and personal jurisdiction to issue the 2016 protective order.4 He
bases this claim on the notion that Arizona courts lack jurisdiction to
prohibit conduct outside of Arizona. In that vein, Vakharwala posits that
when he initiated the June 7 video chat, he was in Georgia and Shah was in
Amsterdam. He reasons, even assuming the contact constituted an act of
domestic violence, the court lacked jurisdiction because the “domestic
violence”—the violation of the 2015 order—was not committed “in
Arizona.”
¶8 First, Vakharwala waived any personal jurisdictional
challenge. Vakharwala appeared and submitted to the court process; he
was served with the 2016 ex parte protective order as required by statute,
A.R.S. § 13-3602(K) (“An order is effective on the defendant on service of a
copy of the order and petition”), and requested a hearing pursuant to A.R.S.
§ 13-3602(I) without raising any objections as to the court’s jurisdiction to
grant the ex parte protective order. See Ins. Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 703-04 (1982) (party may waive jurisdiction
by either expressly or impliedly consenting to a court’s personal
jurisdiction); Tarr v. Super. Ct. In and For Pima Cty., 142 Ariz. 349, 351 (1984)
(any act by which the defendant comes before the court and recognizes the
case as pending, with the exception of a special appearance to contest
jurisdiction over his or her person, will constitute a general appearance and
subject him or her to the jurisdiction of the court). Accordingly, Vakharwala
waived any objection to the exercise of personal jurisdiction by entering a
general appearance.
¶9 Next, Vakharwala argues that the court lacked subject matter
jurisdiction because the June 7 video chat occurred outside of Arizona.
Once the court has jurisdiction over the parties, the authority to issue an
order of protection is derived from statute. Pursuant to A.R.S. § 13-3602(A),
4Vakharwala does not directly challenge the validity of the 2015
order. See infra ¶ 10 n. 5.
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SHAH v. VAKHARWALA
Opinion of the Court
the Superior Court of Arizona is granted jurisdiction to hear orders of
protection upon the filing of a verified petition. An order entered pursuant
to that section has the force of a court order. A.R.S. § 13-3602(J). To violate
that order is to disobey a court order under A.R.S. § 13-2810(A)(2). There is
no requirement that the acts that give rise to this violation occur within the
state boundaries and, thus, a court has subject matter jurisdiction to enforce
its own orders.
¶10 Here, the superior court found the June 7 video chat violated
the 2015 protective order’s restrictions on his contact with Shah. See supra
¶ 4.5 Although Vakharwala argues that a communication must either
originate or be received in Arizona for the court to have subject matter
jurisdiction, “[i]t is a settled principle of law that an order issued by a court
with jurisdiction over the subject matter must be obeyed by the parties until
that order is reversed by orderly and proper proceedings.” State v. Chavez,
123 Ariz. 538, 540 (App. 1979) (citation omitted). Any violation of the court’s
order, regardless of where it occurred, is still a violation of a court order.
Interference with a judicial proceeding is specifically included as one of the
acts that qualifies as an act of domestic violence for this very purpose. A.R.S.
§ 13-3602(N). The court therefore had subject matter jurisdiction to issue the
2016 order based on Vakharwala’s violation of the 2015 order regardless of
where the violation took place. State v. Chacon, 221 Ariz. 523, 525, ¶ 6 (App.
2009) (“Subject matter jurisdiction is the power of a court to hear and
determine a controversy.”) (citation omitted).
II. Sufficiency of Evidence
¶11 Vakharwala argues there was insufficient evidence to support
the court’s finding that at least one of the video chats constituted an act of
In a footnote in his briefing on appeal, Vakharwala asserts “[i]t is
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questionable that the [c]ourt had subject matter [] or personal jurisdiction
to enter [the 2015] order.” Vakharwala, however, fails to provide any
supporting argument or citation to legal authority or the record and these
issues are therefore not properly before this court. Ritchie v. Krasner, 221
Ariz. 288, 305, ¶ 62 (App. 2009) (“Opening briefs must present and address
significant arguments, supported by authority that set forth the appellant’s
position on the issue in question”); ARCAP 13(a)(7).
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Opinion of the Court
domestic violence.6 Viewing the facts in the light most favorable to
upholding the superior court’s ruling, his argument fails. Michaelson, 234
Ariz. 542, 544 n.1 (App. 2014).
¶12 At the hearing, Shah presented screen shots of her video chat
account containing calls and chats from Vakharwala on June 7, 2016. She
testified that on June 7, she was in Amsterdam for business and her son was
in Arizona with his grandparents. She further testified the video chats were
directed at her, in violation of the 2015 order that was still in place. The
court concluded Vakharwala directed the June 7 video chat at Shah, based
on the verbiage contained in the message. Specifically, “[y]ou also left the []
child alone without any notification and possibly have left the country
without [] notice.” The superior court did not abuse its discretion in
rejecting Vakharwala’s argument that the chat was not directed at Shah.
Contact directly with Shah was strictly prohibited by the 2015 order. Based
on the verbiage of the communication, there can be no mistake:
Vakharwala’s transmission was directed at Shah. The court did not abuse
its discretion in finding that Vakharwala violated the 2015 order. See
Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 17 (App. 2012) (“superior court is in
the best position to judge credibility of witnesses and resolve conflicting
evidence, and appellate court generally defers to its findings”) (citation
omitted).
III. Rule 38(h)
¶13 Vakharwala argues the superior court violated Arizona Rule
of Protective Order Procedure 38(h), which requires that “[a]t the
conclusion of the hearing, the judicial officer must state the basis for
continuing, modifying, or revoking the protective order.” Because the court
stated on the record its basis for continuing the order, we reject
Vakharwala’s argument that, because the hearing minute entry did not
specify the basis, the court violated Rule 38(h).
IV. Court Advisement
¶14 Finally, Vakharwala argues the superior court should not
have advised him at the start of the hearing of potential firearm restrictions
in the event the court affirmed the protective order, see A.R.S. § 13-
Vakharwala also raises various arguments regarding his other
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contacts, but we do not address them because the court relied on the June 7
chat as a basis for continuing the order.
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Opinion of the Court
3602(G)(4), and of potential immigration consequences, if he were to testify,
and that in doing so, the court “intimidated” Vakharwala to “[e]nsure” he
did not testify. Vakharwala did not raise these arguments in the superior
court, and therefore he has waived them here. Hahn v. Pima Cty., 200 Ariz.
167, 172, ¶ 13 (App. 2001) (“[T]he failure to raise an issue [] at the trial level
. . . constitutes a waiver of the issue.”) (citation omitted). Even had he
challenged the court’s admonition, these arguments are without merit.
Vakharwala does not argue that the information the court gave him was
incorrect, but simply that he was subjectively intimidated by the
advisement and therefore did not testify. To testify or not was Vakharwala’s
choice. He chose not to testify and his retrospective challenge is without
merit.
CONCLUSION
¶15 For the foregoing reasons, we affirm the superior court’s
continuance of the 2016 protective order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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