Opinion
1 CA-CV 21-0626 FC
09-08-2022
In re the Matter of: ABBY R. HARRIS, Petitioner/Appellant, v. DANIEL WILLIAM RICHARDSON, Respondent/Appellee.
Pangerl Law Firm, P.L.L.C., Phoenix By Regina M. Pangerl Counsel for Petitioner/Appellant Becker Zarling & Moye Law, Avondale By Gina M. Becker-Zarling Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2021-070978 The Honorable Casey J. Newcomb, Judge Pro Tempore
Pangerl Law Firm, P.L.L.C., Phoenix
By Regina M. Pangerl
Counsel for Petitioner/Appellant
Becker Zarling & Moye Law, Avondale
By Gina M. Becker-Zarling
Counsel for Respondent/Appellee
Judge Cynthia J. Bailey delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass joined.
MEMORANDUM DECISION
BAILEY, Judge:
¶1 Abby Harris appeals the denial of her petition for an order of protection against her husband, Daniel William Richardson. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Harris petitioned for an order of protection against Richardson, naming both herself and the parties' minor child as protected persons. The superior court granted the order following an ex parte hearing, but only as to Harris. Richardson was served with the order and requested a hearing. See Ariz. Rev. Stat. ("A.R.S.") § 13-3602(L).
¶3 At the start of the hearing, the court asked each party whether they would present any other witnesses. Although the parties' son was present, Harris stated, "I don't know if I will bring him into it." The court asked how old her son was, and Harris answered, "15." The court then said the son was "not old enough to testify in one of these proceedings," and Harris responded, "Okay." But see, A.R.S. §§ 12-2201(A), -2202(2); Ariz. R. Evid. 601. Harris did not object to the ruling, ask the court to reconsider its ruling, or call her son as a witness during the hearing.
¶4 Harris testified that after the parties agreed to live apart, Richardson began showing up at the parties' former marital home, where she and the child were living.
¶5 Harris testified that in June 2020, on Father's Day, Richardson became intoxicated and "started throwing stuff . . . throwing water" at their child before putting the child "in a headlock," leading to both the child and Harris "screaming" at Richardson to "let go of" the child.
¶6 Harris testified that in December 2020, Richardson showed up at the house unannounced and "shoved" her twice when she demanded he leave, bruising her hand.
¶7 Harris also testified to an incident when, after being directed to enter the garage for a visit, Richardson instead entered the home using a keypad. After working together to fix a sprinkler head, they argued, and he threw a leaf blower, which "flipped right at [her] feet," but did not hit her. She stated that, during that visit, Richardson also whipped a "drop cloth" in her face.
¶8 Finally, Harris testified that, in another incident, Richardson used his car to block her from backing out of their driveway and demanded to see their child. Harris testified that, to exit, she had to maneuver around several objects and through a rocky path, and Richardson pursued her after she left the driveway.
¶9 Richardson testified and contradicted Harris's testimony. He denied ever showing up to the house drunk and as for the Father's Day incident, testified that after the child became upset with him, he hugged the child until the child calmed down. He testified that until he petitioned to dissolve the marriage, he was on the parties' property regularly with Harris's consent, either to take care of the house or visit their child. He claimed that on the occasion Harris bruised her hand, she caused the bruise by hitting him, and that he had pushed her away and then left the home.
¶10 As for the incident with the leaf blower, he testified that after Harris began yelling at him that he "bowled or slid" it over to her and that it "probably rolled and - and hit her on the foot, yes." He also testified that the drop cloth fell off the laundry holder and that he "folded it back up and tossed it to her." Finally, he testified that he did not intentionally block Harris from leaving the driveway or pursue her.
¶11 The court found Harris failed to prove Richardson committed an act of domestic violence and dismissed the order of protection. The court noted that both parties appeared credible, but it found no evidence in the record to corroborate Harris's allegations. The court noted that even if it believed Richardson had entered the home without Harris's permission, insufficient evidence supported a trespass finding as the parties were still married and jointly owned the residence.
¶12 Harris timely appealed the dismissal. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(b). See also Moreno v. Beltran, 250 Ariz. 379, 382, ¶ 11 (App. 2020).
DISCUSSION
¶13 We review the dismissal of an order of protection for an abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16 (App. 2012). We will affirm the decision if evidence reasonably supports the exercise of discretion, and we will not reweigh conflicting evidence on appeal. O'Hair v. O'Hair, 109 Ariz. 236, 240 (1973).
¶14 Harris first argues that the superior court erred by prohibiting the child from testifying. Harris did not call the couple's child to testify, however, nor did she object to the superior court's ruling that the child was too young to testify. Because Harris did not present this argument to the superior court, she waived this argument on appeal. Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 7 (App. 2005).
¶15 Harris next argues she provided sufficient evidence that Richardson had committed an act of domestic violence. She maintains her evidence was "more convincing" than that presented by Richardson. We will not reweigh the evidence or second-guess the superior court's credibility determinations on appeal. See, e.g., Williams v. King, 248 Ariz. 311, 317, ¶ 25 (App. 2020). Substantial evidence supports the determination of the superior court. See O'Hair, 109 Ariz. at 240.
¶16 Richardson asks this court to award him reasonable attorneys' fees and costs on appeal, but he cites no authority for such an award. Consequently, we deny his request for fees. See ARCAP 21(a)(2). We award Richardson his taxable costs on appeal upon compliance with Rule 21, ARCAP. See A.R.S. § 12-341.
CONCLUSION
¶17 We affirm.