Opinion
No. 2 CA-CV 2017-0206
06-01-2018
VERONICA B. DOE, Plaintiff/Appellee, v. JESUS BERNAL, Defendant/Appellant.
COUNSEL Law Office of Mark L. Williams, Nogales By Mark L. Williams Counsel for Defendant/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. DV20172277
The Honorable Cathleen Linn, Judge Pro Tempore
AFFIRMED
COUNSEL Law Office of Mark L. Williams, Nogales
By Mark L. Williams
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Eppich concurred. BREARCLIFFE, Judge:
¶1 Jesus Bernal appeals from the order of protection issued and affirmed by the trial court in favor of the appellee, Veronica Doe. For the following reasons, we affirm.
Issues
¶2 Bernal contends that the trial court abused its discretion by continuing an ex parte order of protection after a contested evidentiary hearing and by refusing to award him attorney fees. Doe did not file an answering brief. The issues are: Is the trial court's order continuing the order of protection supported by substantial evidence? And did the trial court correctly refuse to award Bernal attorney fees?
We could regard Doe's failure to file an answering brief as a confession of reversible error. However, we are not required to do so, and choose to address the substance of Bernal's appeal. Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982).
Factual and Procedural Background
¶3 We view the evidence before the trial court in the light most favorable to supporting its ruling. State v. Nelson, 208 Ariz. 5, ¶ 4 (App. 2004). Bernal and Doe ended a two-year relationship in July 2017. Doe had a daughter, J.C., but the parties had no children together. Doe sought and was granted an ex parte order of protection in October 2017. In her petition for the order of protection, Doe alleged that she and Bernal were in a "current or previous" "romantic or sexual relationship." She requested that the order cover her and her daughter. The issued ex parte order of protection prohibited Bernal from having any contact with Doe or her daughter. The order states, "[t]he court, finding reasonable cause to believe that [Bernal] may commit an act of domestic violence or has committed an act of domestic violence within the past year . . . hereby orders: No Contact [with Doe or her daughter]."
¶4 After he was served with the order, Bernal filed a request for hearing denying the "substantive allegations" and requesting that the ex parte order of protection be dismissed and an award of attorney fees. A hearing was granted and held in November 2017, at which both Bernal and Doe testified. Doe testified that she and Bernal "were in a relationship for two years," during which they "would break up" and "get back together." The relationship lasted from June 2015 through July 2017. She described the relationship as a "personal relationship."
¶5 Doe testified that in February 2017, Bernal pushed her while she was attempting to give him a hug. She then provided copies of text message to the trial court showing Bernal admitting to pushing her. Doe also testified that in May 2017, Bernal, in an effort to "look through [her] phone," restrained Doe and, in doing so, bruised her wrists. Lastly, Doe testified that later that month, after interrupting him while they were talking at a restaurant, Bernal "screamed at [her] to shut the fuck up." Doe testified that she feared "his violent tendencies, his explosive behavior in public," and feared for her safety "because of things that . . . transpired within [their] relationship." Though denying any acts of domestic violence, Bernal admitted to having a "relationship" with Doe, and that it was an "on and off relationship."
During the hearing, Doe testified that it was "May of last year"; however, the petition for the order states 2017 as the year of the incident.
¶6 At the close of evidence, Bernal asked the trial court to dismiss the order and requested an award of attorney fees. Bernal argued, among other things, that Doe's testimony was not credible, that she failed to testify that their relationship was "sexual" or "romantic," that she failed to prove that domestic violence occurred, that Bernal was, in part, defending himself from Doe, and that, though he may have used foul language toward Doe, there was no evidence that "anybody's peace was disturbed."
¶7 In its ruling, the trial court stated, "I've considered the evidence, the testimony and the demeanor of the parties and the exhibits. I do believe that [Doe] has met her burden of proof and I am maintaining the order of protection without amendment." The court also, without stating a basis for doing so, denied Bernal's request for attorney fees. Bernal appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).
Principles of Law
¶8 A person seeks an order of protection to restrain "a person from committing an act included in domestic violence" by filing a verified petition. A.R.S. § 13-3602(A). A court, after reviewing "the petition, any other pleadings on file and any evidence offered by the plaintiff," shall, on an ex parte basis and without further hearing, issue an order of protection "if the court determines that there is reasonable cause to believe" that "the defendant may commit an act of domestic violence," or "has committed an act of domestic violence within the past year or," for good cause, "within any longer period of time." § 13-3602(E). "Domestic violence" encompasses several acts specified by the statute, including assault, harassment, and disorderly conduct, that occur between people in certain defined relationships, including those who are or have been in a "romantic or sexual relationship." § 13-3601(A)(1), (6); Michaelson v. Garr, 234 Ariz. 542, ¶ 6 (App. 2014) ("[T]he 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, mechanical, telegraphic, telephonic or written communication.'"). An order of protection may bar contact between the plaintiff and the defendant and also between the defendant and any "other specifically designated persons," § 13-3602(G)(3), including the plaintiff's minor children, Ariz. R. Protective Order P. 5(b)(2).
¶9 The restrained party is entitled to a hearing within five or ten days of a written request. § 13-3602(I). Following such a hearing, the court may modify, quash, or continue the order. Id. Under the rules of protective order procedure, the scope of the contested hearing is limited to the allegations of the petition. Ariz. R. Protective Order P. 36(a). A court may leave the order in place as originally issued if the plaintiff demonstrates by a preponderance of evidence that there is reasonable cause to believe that the defendant has committed an act of domestic violence within the last year or may commit such an act in the future. § 13-3602(E); Ariz. R. Protective Order P. 23(e)(1), 38(g). "At the conclusion of the hearing, the court must state the basis for continuing, modifying or revoking the protective order." Ariz. R. Protective Order P. 38(h).
¶10 After any such hearing, the court may "order any party to pay the costs of the action, including reasonable attorneys' fees, if any." Ariz. R. Protective Order P. 39. The court in doing so, may consider "the merits of the claim or the defense asserted by the unsuccessful party," "whether the award will pose an extreme hardship on the unsuccessful party" and "whether the award may deter others from making valid claims." Id.
¶11 We review the decision of the trial court to continue an order of protection for abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, ¶ 16 (App. 2012). "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.'" Michaelson, 234 Ariz. 542, ¶ 5, quoting Mahar v. Acuna, 230 Ariz. 530, ¶ 14 (App. 2012). We review questions of law de novo. In re Marriage of Pownall, 197 Ariz. 577, ¶ 7 (App. 2000). Absent an abuse of discretion, we will not disturb the court's decision regarding attorney fees. Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 32 (App. 1998).
Analysis
¶12 Bernal argues that Doe "failed to meet the threshold requirements of §13-3601 because there were no allegations that [Bernal] committed any acts of domestic violence against [Doe] nor her child within a year of filing the petition for the order of protection and [Doe] failed to establish there was a qualifying relationship." Additionally, he argues that the trial court was required to state the basis for continuing the order of protection at the conclusion of the hearing as directed under Rule 38(h), Ariz. R. Protective Order P.
¶13 There was sufficient evidence to support the trial court's oral finding that Doe had proved her case by a preponderance of the evidence, and its implicit finding that the parties were in either a current or previous sexual or romantic relationship. There was also sufficient evidence to support the court's express written finding in the order of protection, as affirmed, that Bernal "may commit an act of domestic violence or has committed an act of domestic violence within the past year."
¶14 Doe testified to multiple incidents of physical violence and conduct amounting to harassment and disorderly conduct. Doe's testimony, if credited by the trial court, is sufficient to sustain her burden. See State v. Munoz, 114 Ariz. 466, 469 (App. 1977) (conviction may be based on uncorroborated testimony of victim unless story is physically impossible or so incredible that no reasonable person could believe it). Though Bernal argues that Doe's testimony was "inconsistent" and "not credible," matters of credibility are left to the trial court which is in the best position to judge testimony and weigh evidence, and we defer to those determinations. Cardoso, 230 Ariz. 614, ¶ 17.
As to Bernal's complaint that there was no evidence that he committed domestic violence against Doe's child, the court properly barred contact between Bernal and Doe's child based solely on danger posed to Doe. Ariz. R. Protective Order P. 5(b)(2). --------
¶15 As to whether the parties were in a "qualifying relationship," the trial court could properly derive from the testimony of both parties that it was a sexual or romantic relationship. See State v. Morris, 215 Ariz. 324, ¶ 77 (2007) (court of appeals will uphold any decision if the record reasonably is supported by evidence); see also Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 169, 171 (1971) (because the trial court is in the best position to evaluate conflicts in the evidence, as well as inferences that could reasonably be drawn therefrom we generally defer to its findings). Certainly, though Bernal did not bear the burden of proof, had he wished to clarify that the "personal," "on and off" relationship was neither romantic nor sexual, he had ample chance to do so and did not.
¶16 As to the trial court's refusal to grant Bernal attorney fees pursuant to A.R.S. §§ 13-3602(P) and 25-324, the fact that Bernal did not succeed is sufficient grounds to deny an award of attorney fees. See Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570 (1985) (several factors exist when determining if an award of attorney fees is appropriate, including whether a party was successful).
Disposition
¶17 The trial court's order continuing the order of protection was supported by substantial evidence and the court correctly refused to award Bernal attorney fees. We affirm the court's order. Bernal has requested his attorney fees on appeal pursuant to A.R.S. § 25-324. Because he did not prevail on appeal, we deny his request.