Opinion
2 CA-CV 2023-0062
09-14-2023
Darbi Davis, Plaintiff/Appellee, v. Marta Ignatova, Defendant/Appellant.
Kuykendall & Associates, Tucson By Gregory J. Kuykendall Counsel for Plaintiff/Appellee. The Reyna Law Firm P.C., Tucson By Ron Reyna Counsel for Defendant/Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. DV20221418 The Honorable Randi L. Burnett, Judge.
COUNSEL
Kuykendall & Associates, Tucson By Gregory J. Kuykendall Counsel for Plaintiff/Appellee.
The Reyna Law Firm P.C., Tucson By Ron Reyna Counsel for Defendant/Appellant.
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge:
¶1 Marta Ignatova appeals from the trial court's order of protection preventing her from contacting Darbi Davis and Davis's two minor children. She argues the relationship between the parties does not provide a basis for the order. For the following reasons, we vacate the court's order of protection.
Factual and Procedural Background
¶2 Davis and her deceased husband, who share two minor children, were married for nineteen years before he committed suicide in 2020. Soon thereafter, the relationship between Davis and her late husband's family became tumultuous, resulting in Davis sending an email to the family requesting that they have no "verbal, written or physical" contact with her or her children. Despite this request, the family continued to contact Davis and her children over the next two years.
¶3 In August 2022, Davis filed a petition for an order of protection against Ignatova, who is Davis's late husband's sister. In the petition, Davis designated her two minor children as protected persons. The trial court issued an ex parte order of protection and set an evidentiary hearing to determine whether the order should remain in effect. During the hearing, the court dismissed all but three of Davis's allegations because they were outside the one-year statutory limit or they related to a non-party victim.
¶4 One of the three remaining allegations concerned messages that Ignatova had sent to Davis through a social-media account. The trial court found the messages to be harassing and upheld the order of protection "based on the acts of [Ignatova] sending those messages."
¶5 Right before the hearing ended, Ignatova argued that the domestic violence statute does not apply because it does not include former sister-in-law or aunt among the relationships covered by the statute. Citing State v. Ramsey, 171 Ariz. 409 (App. 1992), Davis responded that the marital relationship between her and her husband had not ended with his death. Davis additionally argued Ignatova had waived this argument by not raising it before the hearing. The trial court determined that Ignatova had not waived the argument but concluded that her relationships with Davis and the children were covered by the statute. The court upheld the order of protection against Ignatova. Ignatova appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b).
Discussion
¶6 Ignatova argues that, in upholding the order of protection, the trial court "effectively rewrote the statute" by impermissibly expanding the relationships that qualify as a basis for such an order under A.R.S. § 13-3601(A)(4). We review orders of protection for an abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, ¶ 16 (App. 2012). We review de novo matters of law, such as the interpretation of statutes and court rules. Vera v. Rogers, 246 Ariz. 30, ¶ 11 (App. 2018). We interpret statutes and rules consistent with the intent of the drafters, and a statute's or rule's plain language is the best indicator of that intent. Id. Furthermore, the meaning of a statute or rule is best discerned from its language when the language is clear and unambiguous. Id. "We will not rewrite statutes to effectuate a meaning different than the one the legislature intended." Parker v. City of Tucson, 233 Ariz. 422, ¶ 20 (App. 2013). "However, we must construe related statutes and rules in conjunction with each other and harmonize them whenever possible." Vera, 246 Ariz. 30, ¶ 11 (quoting Fitzgerald v. Myers, 243 Ariz. 84, ¶ 39 (2017)).
Davis contends we should consider Ignatova's argument as "one being raised for the first time on appeal," resulting in waiver. Although this argument may have come late in the proceedings, the parties fully presented their positions below, and the trial court addressed it on the merits. See Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, ¶ 12 (App. 2011) (purpose of waiver rules is to allow trial court opportunity to address issues on their merits). We therefore do not deem this argument waived.
¶7 Orders of protection are governed by A.R.S. § 13-3602 and the Arizona Rules of Protective Order Procedure. An order of protection is meant to "prevent a person from engaging in acts of domestic violence" and is limited to parties with specifically defined relationships under § 13-3601(A). Ariz. R. Protective Order P. 4(a); see § 13-3602(A), (C)(4). As relevant here, the statute defines a victim as one "related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, stepgrandchild, brother-in-law or sister-in-law." § 13-3601(A)(4).
¶8 Ignatova contends Davis became her former sister-in-law upon her brother's death, and although § 13-3601(A) defines certain "former" or "previous" relationships as qualifying relationships, "former sister-in-law" is not included. Here, the parties are related by affinity, defined as the "connection existing in consequence of a marriage, between each of the married persons and the kindred of the other." Allen v. Sanders, 237 Ariz. 93, ¶ 8 (App. 2015) (quoting Ramsey, 171 Ariz. at 411). Therefore, we must determine whether the statute contemplates affinity relationships after the marriage that created the relationships ceases to exist.
¶9 Section 13-3601(A) is specific regarding the relationships that qualify as a basis for an order of protection. Three of the six defined qualifying relationships relate to prior relationships. See § 13-3601(A)(1), (5), (6). Under § 13-3601(A)(1), a relationship between parties who were formerly married or who had "resided in the same household" is a qualifying basis for an order of protection. Similarly, under § 13-3601(A)(5), there is a qualifying relationship if the victim is a child and "has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person . . . who has resided in the same household as the defendant." And lastly, a victim can seek an order of protection if the victim and the defendant "previously [had] a romantic or sexual relationship." § 13-3601(A)(6).
¶10 Conversely, the terms "previous" or "former" are not included when defining the relationships under § 13-3601(A)(4), the subsection at issue. Moreover, § 13-3601(A)(4) prefaces the qualifying relationships, including sister-in-law, with the phrase "is related." (emphasis added). In drafting § 13-3601(A)(1) through (6), it is clear that the legislature intended that only certain prior relationships qualify as a basis for an order of protection, and we are not in a position to rewrite the statute to provide otherwise. See Parker, 233 Ariz. 422, ¶ 20. Therefore, under the plain language of the statute, Ignatova is correct that a former sister-in-law is not a qualifying relationship to serve as the basis for an order of protection. See § 13-3601(A)(4); Ariz. R. Protective Order P. 23(f)(4)(B).
To the extent Davis argues her relationship with Ignatova is not fairly characterized by the term "former" because she is the "surviving spouse" of the decedent, this distinction is insignificant in the context of an order of protection. We recognize that "former" applies in the context of divorce, see, e.g., A.R.S. § 25-1202(4), (26), (29), and "surviving" applies in the context of death, see, e.g., A.R.S. § 14-2802(A) ("A person who is divorced from the decedent . . . is not a surviving spouse ...."); cf. Parada v. Parada 196 Ariz. 428, ¶¶ 13-15 (2000) (identifying distinction between former spouses and surviving spouses). However, nothing in this decision limits the legal benefits afforded to Davis by virtue of her designation as a surviving spouse and as expressly provided for in the applicable statutes. Furthermore, the issue before us does not concern the relationship between Davis and her deceased husband, but between Davis and her deceased husband's sister.
¶11 Ignatova also argues that the order of protection should be dismissed as to Davis's minor children because aunts are not one of the enumerated relationships under § 13-3601(A)(4). The trial court concluded that "Ignatova being the paternal aunt is sufficient to meet the blood relationship test" because there is no "language indicating that only the relatives listed in the rule/statute qualify as a blood relative." The court reasoned that in listing the types of qualifying blood relationships, Rule 23(f)(3) uses the term "include[]" as opposed to "limited to." The court noted that although "aunt" was "left . . . out," that relationship falls within the rule's scope because "of the nature of blood relationships." We disagree.
¶12 Under § 13-3601(A)(4) and Rule 23(f)(3), qualifying blood relationships are limited to when the victim is "related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister." And while the rule uses the term "include," it nonetheless requires the court to "find that a specific relationship exists." Ariz. R. Protective Order P. 23(f)(1). This requirement, in addition to the statute's omission of the term "include," § 13-3601(A)(4), leads us to conclude that the only relationships that qualify as a basis for an order of protection are those specifically listed. Therefore, the court abused its discretion by upholding the order of protection.
We note that if Davis and Ignatova had a qualifying relationship that the protection afforded to Davis would have extended to her children. Section 13-3602 authorizes parents to protect their minor children by listing them as "specifically designated person[s]" in petitions seeking orders of protection. § 13-3602(A); see also Ariz. R. Protective Order P. 5(a)(4)(A). It expressly authorizes trial courts to "[r]estrain [a] defendant from contacting . . . other specifically designated persons." § 13-3602(G)(3); see also Ariz. R. Protective Order P. 23(h)(1). Furthermore, Rule 5(b)(2) provides that when a child listed as a specifically designated person has no legal relationship with the defendant, the court "may prohibit the defendant's contact with the child based on danger to the plaintiff."
As Ignatova points out, Davis is not without a remedy for her and her children because she can seek an injunction against harassment under A.R.S. § 12-1809, which does not require a qualifying relationship. See also Ariz. R. Protective Order P. 25.
Disposition
¶13 The trial court's order of protection is vacated.