Opinion
2 CA-CV 2023-0169
03-05-2024
Amanda Ashlee Nelson, Plaintiff/Appellee, v. Christian Torres, Defendant/Appellant.
Amanda Nelson In Propria Persona Christian Torres, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. DV20230514 The Honorable M. June Harris, Judge Pro Tempore The Honorable Lisa Schriner Lewis, Judge Pro Tempore
Amanda Nelson In Propria Persona
Christian Torres, Tucson In Propria Persona
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Christian Torres appeals the trial court's order continuing an order of protection in favor of Amanda Nelson and their child in common. For the reasons that follow, we reject Torres's arguments and affirm.
¶2 In April 2023, Nelson petitioned the trial court for an order of protection against Torres on behalf of herself and their child. The petition alleged that Torres had engaged in domestic violence against her and hit their four-year-old child, causing a bruise. The court granted the order of protection ex parte and ordered that Torres have no contact with Nelson or their child. It also prohibited Torres from going near Nelson's residence. The order of protection was served upon Torres, who signed the acceptance of service.
¶3 Torres requested a contested hearing. On the form requesting the hearing, he provided his address, phone number, and email address. The trial court set the hearing and notified Torres using the email address he had provided. The clerk of court also left him a voicemail. Although Nelson appeared at the contested hearing, Torres did not. The court therefore ordered that the order of protection remain in effect. Torres appealed that order. We have jurisdiction.
¶4 On appeal, Torres argues he was not "personally notified" of the contested hearing's time and date, which caused his failure to appear. Rule 38 of the Arizona Rules of Protective Order Procedure governs the notice that Torres was entitled to receive and the effect of his failure to appear. We review the interpretation and application of court rules de novo. Duckstein v. Wolf, 230 Ariz. 227, ¶ 8 (App. 2012).
¶5 Rule 38 does not require that either party receive personal service of an order setting a contested hearing. Ariz. R. Protective Order P. 38(c) ("There is no statutory requirement for personal service of the hearing notice."). To the extent Torres argues that personal service is required, we reject the argument.
¶6 In addition, Rule 38(f)(1) states, "If the plaintiff appears for the contested hearing and the defendant fails to appear, and the defendant received actual notice of the hearing, the protective order will remain in effect." Actual notice is "[n]otice given directly to, or received personally by, a party." Notice, Black's Law Dictionary (11th ed. 2019). Here, Torres received actual notice of the contested hearing via the email and voicemail from the clerk, both of which were sent using the contact information he had provided. To the extent he neglected to check that email or voicemail, he has failed to explain why that would excuse his failure to appear. Therefore, the trial court did not err in continuing the order of protection at the contested hearing.
¶7 Accordingly, we affirm the order of protection. As the prevailing party, we award Nelson her costs on appeal upon compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedure. See A.R.S. § 12-341.