Opinion
No. 2 CA-CV 2014-0056
10-09-2014
DEANNA B. DOMINGUEZ, Plaintiff/Appellee, v. AARON E. FINNEY, Defendant/Appellant.
Aaron E. Finney, Glendale In Propria Persona
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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. DV20132564
The Honorable Sean E. Brearcliffe, Judge
AFFIRMED
Aaron E. Finney, Glendale
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Aaron Finney appeals from the trial court's order of protection issued in favor of Deanna Dominguez. On appeal, he argues the court violated his due process rights by failing to give him notice of the hearing to contest the order. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to upholding the trial court's ruling." Mahar v. Acuna, 230 Ariz. 530, ¶ 2, 287 P.3d 824, 826 (App. 2012). On December 20, 2013, Dominguez filed a petition for an ex parte order of protection against Finney, with whom she has a child in common. She alleged Finney "continuously harassed [her] over the phone at home and at work" and "threatened to shoot himself in [her] front yard" in the presence of her children. Following an ex parte hearing, the trial court granted Dominguez's petition and issued an order of protection that barred Finney from having contact with Dominguez or the children.
¶3 Finney was served with notice of the order and requested a hearing. However, he failed to appear at the hearing on February 6, 2014. The trial court found that "he had notice . . . of th[e] hearing [because] it was set at his request" and therefore affirmed the December 20 order of protection. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) and (5)(b). See Ariz. R. Protective Order P. 9(A)(2), (B)(2); Savord v. Morton, 235 Ariz. 256, ¶ 8, 330 P.3d 1013, 1016 (App. 2014).
Notice
¶4 Finney argues the trial court erred by affirming the protective order based on his failure to appear at the hearing. He maintains the court failed "to timely notify [him] of the scheduled date of the . . . hearing" and this failure denied him due process of law. Generally, we will not disturb a court's ruling on an order of protection absent a clear abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, ¶ 16, 277 P.3d 811, 816 (App. 2012). However, we review due process claims de novo. Emmett McLoughlin Realty, Inc. v. Pima Cnty., 212 Ariz. 351, ¶ 16, 132 P.3d 290, 294 (App. 2006); Mack v. Cruikshank, 196 Ariz. 541, ¶ 6, 2 P.3d 100, 103 (App. 1999).
Dominguez did not file an answering brief. See Ariz. R. Civ. App. P. 15 (filing of briefs). In our discretion, we may treat the failure to file a brief as a confession of reversible error. See McDowell Mountain Ranch Cmty. Ass'n v. Simons, 216 Ariz. 266, ¶ 13, 165 P.3d 667, 670 (App. 2007). Nevertheless, we choose to address the merits of this appeal.
¶5 "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Generally, at a minimum, due process requires notice and "an opportunity to be heard at a meaningful time in a meaningful manner." Wallace v. Shields, 175 Ariz. 166, 174, 854 P.2d 1152, 1160 (App. 1992); see Huck v. Haralambie, 122 Ariz. 63, 65, 593 P.2d 286, 288 (1979).
¶6 Section 13-3602(I), A.R.S., states that "[a]t any time during the period during which the order is in effect, a party who is . . . restrained from contacting the other party is entitled to one hearing on written request." See also Ariz. R. Protective Order P. 8(A). Rule 8(B) further provides that upon receiving a request, "[t]he court shall notify the plaintiff of the hearing." This court has also held that the requesting party is entitled to "receive notice, reasonably calculated to apprise him of the action in order to adequately prepare his opposition." Savord, 235 Ariz. 256, ¶¶ 16-17, 330 P.3d at 1017 (due process violation where scope of hearing exceeded "allegations of the petition").
¶7 In this case, Finney argues he "has been denied his right of due process with regard to proper, lawful, timely and sufficient notice of the hearing he requested, to contest the Order of Protection." We disagree. The record on appeal includes a notice of the hearing generated by the clerk of the court. That notice indicates that a copy was mailed to Finney on February 4, 2014. The notice also includes a handwritten notation on the certificate of transmittal, "left mess[age]," which suggests the clerk placed a telephone call to Finney as well. Finney acknowledges in his opening brief that "the Court did have the correct address," which he had provided, with his telephone number, on his original request for a hearing.
¶8 Finney nevertheless argues the trial court erred when it found "he had notice . . . of th[e] hearing [because] it was set at his request." He maintains the court's ruling does not mention "any evidence presented to the court at [the hearing] that [he] had actual notice or even constructive notice of the scheduled hearing date." However, Finney has failed to provide this court a transcript of the hearing below. See Ariz. R. Civ. App. P. 11(b)(1) ("If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence . . . , the appellant shall include in the record a certified transcript of all evidence relevant to such finding or conclusion."); see also Ariz. R. Protective Order P. 1(L) ("[A]ll contested protective order hearings and, where practicable, ex parte hearings, [shall] be recorded electronically or by court reporter."). In the absence of a transcript, we presume that whatever transpired at the hearing supported the trial court's findings. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). In view of that presumption and the record as detailed above, we cannot say the court erred in finding that Finney had notice of the hearing or that it abused its discretion by granting the order of protection. See Emmett McLoughlin Realty, Inc., 212 Ariz. 351, ¶ 16, 132 P.3d at 294.
Disposition
¶9 For the foregoing reasons, we affirm the trial court's order of protection.