Opinion
1 CA-CV 21-0493 FC
05-03-2022
In re the Matter of: SHAMA AHMED, Petitioner/Appellee, v. FARHAN AHMED, Respondent/Appellant.
Defenders of Children, Phoenix By David J. Newstone Counsel for Petitioner/Appellee Benjamin C. Green Law, P.L.C., Phoenix By Benjamin C. Green Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2021-002939 The Honorable Christine E. Mulleneaux, Judge pro tempore
Defenders of Children, Phoenix By David J. Newstone Counsel for Petitioner/Appellee
Benjamin C. Green Law, P.L.C., Phoenix By Benjamin C. Green Counsel for Respondent/Appellant
Presiding Judge Paul J. McMurdie delivered the Court's decision, in which Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.
MEMORANDUM DECISION
MCMURDIE, JUDGE
¶1 Farhan Ahmed appeals from the superior court's protective order in favor of Shama Ahmed. We find no reversible error and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Farhan and Shama are married but in the process of divorcing. In May 2021, the superior court issued an ex parte protective order for Shama against Farhan based on an allegation that Farhan committed an act of domestic violence. The protective order did not include the parties' child. Farhan requested a hearing to contest the order. See A.R.S. § 13-3602(L).
¶3 Through a Hindi language interpreter at the hearing, Shama testified that Farhan slapped and pushed her during an argument about their child's sleeping arrangements. Farhan testified that he did not hit, push, or touch Shama. Farhan secretly recorded audio with his cell phone during the argument because he believed Shama would accuse him of domestic violence.
¶4 Shama called the police, but she could not communicate effectively with the responding officers because of a language barrier. Shama admitted she never disclosed the slap to the officers, who described the incident as "no crime" in their report. Farhan voluntarily left for the night and was not arrested. A doorbell video-monitoring system recorded the parties' interactions with the police.
¶5 Shama left the marital residence with the child and sought refuge in a domestic violence shelter. Farhan tracked Shama's location through her cell phone. Twice, Shama requested Farhan conduct child-custody exchanges at sites other than those mandated by a temporary custody order.
¶6 The superior court admitted a transcript of Farhan's audio recording, multiple police incident reports, and several text-message exchanges between the parties. The court refused to admit as cumulative Farhan's doorbell videos because their purpose was to show Shama never told police she was slapped. The court found Shama proved "by a preponderance of the evidence that [Farhan] has committed an act of domestic violence within the past year, specifically assault." Accordingly, the court found good cause to continue the protective order.
¶7 Farhan appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), -2101(A)(1), and (5)(b). See Ariz. R. Protective Order P. 42.
DISCUSSION
¶8 Farhan claims the superior court abused its discretion by affirming the protective order because there was insufficient evidence that he committed an act of domestic violence. Farhan further argues that the superior court erred by ignoring the cellphone transcript, refusing to admit the doorbell videos, and failing to consider the collateral repercussions of its findings on Farhan's legal status and reputation. We reject Farhan's claims.
¶9 The superior court must continue a contested protective order if the plaintiff shows by a preponderance of the evidence that "there is reasonable cause to believe . . . [t]he defendant has committed an act of domestic violence within the past year." A.R.S. § 13-3602(E)(2); Ariz. R. Protective Order P. 38(g)(3). Assault is an act of domestic violence under A.R.S. § 13-3601(A) if committed against a spouse. See A.R.S. § 13-1203 (defining assault).
¶10 We review a ruling continuing a protective order for an abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16 (App. 2012). "A trial 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.'" Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014) (quoting Mahar v. Acuna, 230 Ariz. 530, 534, ¶ 14 (App. 2012)). We review questions of law de novo. Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5 (App. 2014).
A. Sufficient Evidence Supported the Court's Conclusion.
¶11 Farhan claims the "overwhelming testimony and evidence . . . shows no act of domestic violence was committed." At the hearing, Shama testified that Farhan slapped and pushed her. Shama admitted she did not tell the police about the slap because she was scared, confused, and "couldn't tell [her] story because of the language barrier." Farhan sought to rebut Shama's testimony with his testimony, the cellphone recording transcript, police reports, and various text messages, proving that Shama was not assaulted or had no fear of Farhan. But none of Farhan's evidence is dispositive.
¶12 When evidence conflicts, as it does here, we defer to the superior court's "determination of witnesses' credibility and the weight to give conflicting evidence." Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998). When presented with the conflicting accounts, the superior court could reasonably find Shama more credible than Farhan.
¶13 The court concluded that Farhan committed an act of domestic violence by assaulting Shama within the past year and therefore did not abuse its discretion by continuing the protective order.
B. The Superior Court Did Not Disregard the Transcript.
¶14 Farhan argues the superior court did not read or consider the cellphone recording transcript before deciding the case. Farhan's argument is speculative. We assume a superior court considers all competent evidence unless proven otherwise. See, e.g., Fuentes v. Fuentes, 209 Ariz. 51, 57, ¶ 18 (App. 2004). As Shama points out, the content and substance of the transcript were covered in depth during each party's testimony. This provided context for the superior court to consider the transcript and determine its evidentiary weight. And as discussed above, the transcript is not dispositive on whether an assault occurred.
¶15 We assume the superior court considered all admitted evidence, including the transcript, before determining the outcome.
C. The Superior Court Did Not Err by Precluding the Doorbell Videos.
¶16 Farhan next argues the superior court erred by refusing to admit the doorbell videos. We defer to the superior court's decisions on the admission of evidence and will not reverse absent a clear abuse of discretion and resulting prejudice. Kimu P. v. ADES, 218 Ariz. 39, 42, ¶ 11 (App. 2008).
¶17 During the hearing, Farhan's counsel stated the purpose of the videos was to prove Shama never told police about the slap. Because Shama conceded this point in her testimony, the videos provided no new information. Their exclusion was, therefore, not an abuse of discretion. See Ariz. R. Protective Order P. 36(a) ("[T]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . needlessly presenting cumulative evidence.").
D. A Superior Court Does Not Err by Refusing to Consider the Collateral Repercussions of a Protective Order.
¶18 Farhan argues the superior court erred by ignoring the collateral repercussions of its decision on Farhan's immigration status and reputation. We agree with the parties that "the issuance of an order of protection is a very serious matter . . . [that] carries with it an array of 'collateral legal and reputational consequences.'" Savord, 235 Ariz. at 256, ¶ 11 (citing Cardoso, 230 Ariz. at 619, ¶ 14). But the superior court does not consider potential collateral repercussions when deciding whether to continue a protective order. Instead, it only determines whether relevant evidence proves a domestic violence incident. See A.R.S. § 13-3602(E); Ariz. R. Protective Order P. 23(e). There is not a heightened burden of proof if the result of a protective order is adverse immigration consequences.
ATTORNEY'S FEES
¶19 Shama requests attorney's fees under A.R.S. §§ 12-349, 13-3602(T), 25-324; ARCAP 21 and 25; Arizona Rule of Family Law Procedure 78(e); and Arizona Rule of Protective Order Procedure 39. Because she is the successful party, we award Shama her costs on appeal subject to her compliance with ARCAP 21. See A.R.S. § 12-341. We decline to award attorney's fees on appeal.
CONCLUSION
¶20 We affirm.