Graves v. Slawson ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
MISTY GRAVES, Petitioner/Appellee,
v.
RONNY SLAWSON, Respondent/Appellant.
No. 1 CA-CV 20-0194 FC
FILED 1-14-2021
Appeal from the Superior Court in Maricopa County
No. FC 2020-090219
The Honorable Mervyn Braude, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Lasiter & Jackson PLLC, Phoenix
By Nicole Porter Lasiter
Counsel for Respondent/Appellant
Maxwell Law Group, Mesa
By April Maxwell
Counsel for Petitioner/Appellee
GRAVES v. SLAWSON
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
B R O W N, Judge:
¶1 Ronny Slawson (“Father”) appeals the superior court’s
decision to grant a petition for order of protection filed by Misty Graves
(“Mother”), on behalf of S.S., the parties’ 12-year-old daughter. For the
following reasons, we affirm the order as to S.S., but vacate the order as to
Mother. And after consideration of the parties’ supplemental briefs, we
vacate the court’s order restricting Father’s firearm rights.
BACKGROUND
¶2 Mother’s petition, filed in the superior court on January 10,
2020, alleged she was concerned for the immediate physical and mental
safety of S.S. because Father “raped” S.S. in late December 2019, during his
custodial time. The petition further alleged that similar conduct occurred
twice previously, although S.S. could not recall the other dates. Mother also
claimed that Tempe police had been notified, S.S. met with a detective, and
Father was aware of the accusations. The court granted an ex parte order
of protection, ordering that Father have no contact with S.S. or Mother. The
order listed several protected locations, including S.S.’s school, Mother’s
residence and workplace, and the maternal grandparents’ residence. After
service of the order, Father denied the allegations and requested a hearing.
¶3 At the outset of the evidentiary hearing, Father was served
with papers relating to a family law matter, in which Mother was
requesting “sole custody” of S.S. The court then heard testimony from S.S.,
Mother, and Father. S.S. testified that during the recent winter break,
Father came into her room, took off her clothes, and had sexual intercourse
with her. During Mother’s testimony, her counsel sought admission of a
police report relating to the incident. Father first responded that he had not
received a copy of the report. He then objected to its relevance, but the
court overruled his objection and admitted the report. At the close of
testimony, the superior court questioned the need for Mother to be included
in the order, noting she had not presented any evidence of domestic
violence as to herself.
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¶4 The superior court affirmed the order of protection as
amended, explaining in part it was “swayed on the balance of probabilities
by the testimony of the child,” which necessarily satisfied “the standard of
a preponderance of the evidence.” The court removed Mother’s workplace
and the grandparents’ residence from the list of protected locations, but
Mother remained in the order as a protected party. In addition, the court
issued a Notice of Brady Indicator (“Brady notice”), 18 U.S.C.
§ 922(g)(8)(C)(i)–(ii), prohibiting Father from possessing or purchasing
firearms or ammunition for the duration of the protective order. Father
timely appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1), (5)(b).
See Mahar v. Acuna, 230 Ariz. 530, 533, ¶ 11 (App. 2012).
DISCUSSION
¶5 We review the superior court’s grant and continuance of an
order of protection for an abuse of discretion. Michaelson v. Garr, 234 Ariz.
542, 544, ¶ 5 (App. 2014). “The court abuses its discretion when it makes an
error of law in reaching a discretionary conclusion or ‘when the record,
viewed in the light most favorable to upholding the trial court’s decision, is
devoid of competent evidence to support the decision.’” Id. (citation
omitted). We review de novo the application of Arizona and federal law to
the evidence presented. Mahar, 230 Ariz. at 534, ¶ 14.
A. Scope of the Appeal
¶6 After the superior court affirmed the order of protection,
Father properly appealed the order to this court. See Ariz. Rules of
Protective Order P. (“ARPOP”) 42(a)(2). Father argues the scope of his
appeal should include analysis of how the order impacts the related family
law case. He notes that the judge in the family law case relied in part on
the protective order in awarding temporary sole legal decision-making to
Mother. In making this reference, Father deviates from the record on
appeal. Although he includes various documents related to the family law
case in the appendix to his opening brief, those items are not part of this
appeal and thus we do not consider them. Similarly, we do not consider
the police report included with Mother’s appendix, which is not the same
report introduced as an exhibit at the evidentiary hearing. Instead, we
focus only on the superior court record in this order of protection case. See
ARCAP 11(a) (outlining the composition of the “record on appeal”).
¶7 In support of his argument, Father asks us to reject the
analysis in Vera v. Rogers, 246 Ariz. 30, 33, ¶ 10 (App. 2018), which explained
“the interplay between the procedural rules and statutes governing
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Decision of the Court
protective orders and family law proceedings.” In Vera, we held that when
a protective order and a request for parenting-time conflict, the superior
court may “consider them together in a joint hearing . . . [to] fashion an
appropriate solution.” Id. at 33–34, ¶¶ 14–15; see Ariz. R. Fam. Law P. 5(a).
However, the court’s ability to conduct a joint hearing is limited in three
ways. First, the court has discretion to hear the matters together but is not
obligated to do so. Vera, 246 Ariz. at 34, ¶ 16. Second, a superior court judge
cannot “engage in horizontal appellate review” of another superior court
judge’s decision to affirm a protective order. Id. at 36, ¶ 22. An order of
protection “affirmed . . . after a hearing at which both parties had an
opportunity to appear” is a final, appealable judgment, ARPOP 42(a)(2),
and is not reviewable by another superior court judge, Vera, 246 Ariz. at 36,
¶ 22. Finally, the court’s ability to amend a protective order exists “only to
the extent such action would not conflict with the statutes and procedural
rules governing protective orders.” Id. at 35, ¶ 20; see ARPOP 2. As
provided by rule, a party is entitled to only one hearing to contest a
protective order. ARPOP 38(a). After the hearing, an affirmed order “may
be amended or dismissed only in two ways”: (1) by request of the protected
party, ARPOP 40(a), 41(a), or (2) by appeal to this court, ARPOP 42(a)(2),(b).
Vera, 246 Ariz. at 35, ¶ 20.
¶8 In this case, nothing in the record reveals that Father
requested a joint hearing on Mother’s protective order petition and her
request for sole legal decision-making. Thus, Father’s only avenue after the
protective order hearing was to appeal the order to this court. Applying
Vera, this appeal encompasses only the order of protection; orders issued in
the family law proceedings are not before us.
¶9 Father also argues the order of protection now serves as a de
facto determination of his legal decision-making and parenting-time rights.
Orders of protection, however, cannot determine such rights, even if the
order and its underlying allegations have an effect on family law
proceedings. See ARPOP 35(a) (explaining that orders of protection “cannot
contain provisions regarding legal decision-making or parenting-time”).
B. Compliance with ARPOP
¶10 Father argues the superior court abused its discretion by
failing to comply with applicable law in continuing the protective order,
namely ARPOP 5(b)(1), 23(e) and its statutory analogue, and 35(b). But
Father has waived this argument because he failed to raise it in the superior
court. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987) (recognizing
that generally, “an appellate court will not consider issues not raised in the
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trial court”). Even without applying waiver, we are not persuaded the
court committed reversible error.
¶11 ARPOP 5(b)(1) states that a court cannot include a
defendant’s child in an order of protection “unless there is reasonable cause
to believe: (A) physical harm may result or has resulted to the child, or (B)
the alleged acts of domestic violence involved the child.” The allegations
here would qualify as acts of domestic violence under A.R.S. § 13-3601(A)
(listing as predicate offenses A.R.S. § 13-705 (dangerous crimes against
children) and § 13-1406 (sexual assault)). In affirming the order of
protection, the superior court found S.S.’s testimony credible. Thus,
viewing the record in the light most favorable to upholding the court’s
decision, sufficient evidence was presented for the court to find reasonable
cause that S.S. was physically harmed and that the domestic violence
involved S.S.
¶12 ARPOP 23(e)(1) requires a court to find “reasonable cause to
believe that the defendant . . . has committed an act of domestic violence
within the past year” before granting an ex parte order of protection. The
same requirement is codified in A.R.S. § 13-3602(E). Because these
provisions apply only to ex parte orders, they are inapplicable here, as
Father is challenging an order granted after a hearing in which both parties
appeared. See ARPOP 3(b) (defining “ex parte” as a court procedure
“without notice to or presence of the other party”). Even if these provisions
apply here, the record provides competent evidence supporting the court’s
finding of “reasonable cause to believe that the Defendant . . . committed
an act of domestic violence against Plaintiff within the last year or may
commit an act of domestic violence in the future.”
¶13 Finally, ARPOP 35(b) states that “[b]efore granting a
protective order prohibiting contact with a child with whom the defendant
has a legal relationship,” the court “must consider: (1) whether the child
may be harmed if the defendant is permitted to maintain contact . . . and (2)
whether the child may be endangered if there is contact outside the
presence of the plaintiff.” Father argues that ARPOP 35(b) requires explicit
findings on the record, but the text of that rule only requires the judge to
“consider” those two factors. Cf. ARPOP 35(c)(2) (requiring courts to
consider various factors and “mak[e] specific findings on the record”).
¶14 We also presume the superior court was aware of the rules
governing protective orders, including ARPOP 35(b), and properly applied
them in making its decision. See State v. Lee, 189 Ariz. 608, 616 (1997)
(citation omitted) (“Trial judges ‘are presumed to know the law and to
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apply it in making their decisions.’”). The court found S.S.’s allegations of
sexual misconduct against Father to be credible. Given that finding, it is
implicit in the court’s order of protection that S.S. could be harmed and
endangered if Father was allowed to maintain contact with her.
Nonetheless, we strongly encourage trial judges to make specific findings
on the record when considering the ARPOP 35(b) factors so appellate courts
may avoid relying on inferences.
C. Due Process
¶15 Father argues the superior court hearing did not comport
with the requirements of due process. We review constitutional issues de
novo. State v. West, 238 Ariz. 482, 488, ¶ 12 (App. 2015).
¶16 First, Father argues the protective order rules are inadequate
to meet the demands of due process. We disagree. “[D]ue process is
flexible and calls for such procedural protections as the particular situation
demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). It requires at least
notice and “an opportunity to be heard at a meaningful time in a
meaningful manner . . . .” Wallace v. Shields, 175 Ariz. 166, 174 (App. 1992).
The rules provide adequate procedural protections to parties to address the
issues surrounding a petition for order of protection. The rules require that
“both parties have an opportunity to be heard, to present evidence, and to
call and examine and cross-examine witnesses.” ARPOP 38(f)(1).
¶17 Second, Father argues that Mother’s failure to disclose the
police report before the hearing deprived him of an opportunity to defend
himself in a meaningful manner. Father objected to the relevance of the
police report at the hearing, but not to its non-disclosure. “[A]n objection
on one ground does not preserve the issue on another ground.” State v.
Lopez, 217 Ariz. 433, 434, ¶ 4 (App. 2008). Thus, Father waived his ability to
challenge admission of the evidence based on non-disclosure. Waiver
aside, the court did not abuse its discretion in admitting the police report.
The protective order rules do not include a prehearing disclosure
requirement. See ARPOP 37. And Father cannot reasonably complain he
lacked notice of the claims in the police report. He had been served with
the allegations in Mother’s petition for the protective order, which
referenced the police investigation, and he had a full and fair opportunity
to present evidence in his defense at the hearing.
D. Inclusion of Mother as Protected Party
¶18 The petition for the order of protection followed proper
procedures in listing Mother as plaintiff “on behalf of . . . minor family
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member” S.S. See ARPOP 5(a)(4)(A). As noted by Father, the record does
not include any allegations or evidence of domestic violence against
Mother, which she does not dispute. We therefore vacate the order of
protection as to Mother. Savord v. Morton, 235 Ariz. 256, 259, ¶ 11 (App.
2014) (“[G]ranting an order of protection when the allegations fail to
include a statutorily enumerated offense constitutes error by the court.”);
see A.R.S. § 13-3601(A) (listing recognized offenses).
E. Application of Brady Law
¶19 Though not raised by Father, we ordered supplemental
briefing on whether the superior court committed reversible error by
issuing the Brady notice. See Stokes v. Stokes, 143 Ariz. 590, 592 (App. 1984)
(noting appellate court may consider issue not raised on appeal in civil case
when “facts of a particular case so warrant and the question is one of
substantive law presenting no dispute as to the facts”).
¶20 Before imposing firearms restrictions under the Brady Act, a
court must make an explicit finding that a credible threat of physical harm
is present. See Quezada v. Servin, No. 1 CA-CV 20-0014 FC, 2020 WL
6834323, at *2, ¶ 6 (Ariz. Ct. App. Nov. 19, 2020). The court may prohibit a
party from possessing or purchasing a firearm for the duration of the order
of protection only if the order “includes a finding that the person represents
a credible threat to the physical safety” of the protected person. Mahar 230
Ariz. at 534, ¶ 15 (quoting 18 U.S.C. § 922(g)(8)(c)(i)) (citing A.R.S. § 13-
3602(G)(4)). “A restriction against firearms does not automatically follow”
a general no-contact order absent such an explicit finding. Savord, 235 Ariz.
at 260, ¶ 22. Furthermore, ARPOP 23(i) requires the court to “ask the
plaintiff about the defendant’s use of or access to firearms to determine
whether the defendant poses a credible threat,” and it permits firearms
restrictions upon such a finding.
¶21 Here, the superior court did not make an explicit finding that
Father posed a credible threat of physical harm to Mother or S.S. In its
minute entry, the court stated it advised the parties of the Brady law, and
that the parties may be prohibited from possessing firearms until the order
of protection expires. The court then issued the Brady notice, stating Father
is disqualified from possessing or purchasing a firearm or ammunition for
the duration of the order. However, the record does not include a credible
threat finding, nor does it include any allegations or discussion relating to
firearms. Thus, the Brady notice must be vacated.
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Decision of the Court
F. Attorneys’ Fees and Costs
¶22 Mother requests attorneys’ fees and costs on appeal under
A.R.S. § 12-1809(O). That statute, however, governs injunctions against
harassment and is not applicable here. Even assuming Mother had
properly cited A.R.S. § 13-3602(S), which authorizes a discretionary fee
award to any party in protective order cases, we would deny her request.
Because each party achieved partial success on appeal, we decline to award
taxable costs.
CONCLUSION
¶23 We vacate the order of protection as to Mother, and the Brady
notice. The remainder of the order of protection is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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