Opinion
1 CA-CV 22-0434 FC
04-06-2023
In re the Matter of: RONNA GLICK, Petitioner/Appellee, v. REED STEVEN GLICK, Respondent/Appellant.
Attorneys for Freedom Law Firm, Chandler By Marc J. Victor 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. FN2022-091305 The Honorable Shellie F. Smith, Judge Pro Tempore
Attorneys for Freedom Law Firm, Chandler
By Marc J. Victor
Counsel for Respondent/Appellant
Judge Randall M. Howe delivered the decision of the court, in which Presiding Judge Samuel A. Thumma and Judge Anni Hill Foster joined.
MEMORANDUM DECISION
HOWE, JUDGE.
¶1 Reed Glick appeals the trial court's order affirming an order of protection ("Order"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On February 10, 2022, Ronna Glick petitioned for an Order against Reed. The petition alleged that on February 12, 2021, Reed had assaulted Ronna. Ronna was barricaded in a room during that incident, but Reed had barged through the door, taken her phone, and grabbed her wrists, causing her bruises. The petition also alleged that Reed had used his attorneys to harass Ronna and that she was afraid of him.
Because the parties share the same last name, we respectfully refer to them by their first names to avoid confusion.
¶3 A handwritten note attached to the petition alleged a second incident that occurred in March 2021. Allegedly, Reed started a verbal argument with Ronna and tried to grab items from the family home. While grabbing items, Reed scared Ronna by approaching her, blocking her with his body, and being argumentative. Ronna felt extremely fearful and unsafe in Reed's presence.
¶4 The court issued the Order. Reed requested a hearing to contest the Order. At the May 2022 hearing, both parties were present; Reed had counsel, but Ronna appeared on her own behalf.
¶5 At the beginning of the hearing, the trial court informed the parties that the hearing was scheduled for 45 minutes. The trial court then asked Ronna questions, but Ronna told the court that she had a "statement to read that can clear it all out." The court permitted Ronna to read the statement, which prompted Reed's counsel to ask the court whether reading the statement was an opening statement or sworn testimony and whether he would have a chance to do the same. The court stated that it was sworn testimony. Ronna then read her statement and answered questions from the court about the two alleged incidents. Ronna's testimony mainly reiterated the alleged incidents as described in her petition.
¶6 During cross-examination, Ronna was evasive in answering Reed's counsel's questions. Despite the court's instruction to listen and answer the questions asked, Ronna persistently evaded questions throughout cross-examination.
¶7 Just before the 45 minutes scheduled for the hearing expired, REED's counsel asked the court to continue the hearing because he still had witnesses to call and other evidence to present. The trial court denied his request. Counsel then called Reed to testify. Reed testified that Ronna regularly attacked him, and he would try to walk away during the attacks. Several times, Ronna disrupted Reed's testimony. The trial court told Ronna to save her comments because it would give her some time to rebut Reed's testimony. During Reed's counsel's examination of both Ronna and Reed, the trial court told counsel to "[w]rap it up" and "let's move along [] because we are almost out of time."
¶8 A few minutes later, both parties asked the court to play audio recordings that related to the alleged incidents. Although stating that they were out of time, the court admitted Reed's audio recording into evidence. When Reed's counsel said that he had several witnesses standing by to testify, the court stated that they were out of time. Then, the court allowed Ronna to state what she wanted the court to consider. Reed's counsel then asked the court if he could "make a two-minute summation." The court denied the request stating that he had already done so. Ultimately, the hearing lasted 67 minutes, 22 minutes beyond the time scheduled.
¶9 The trial court found that Ronna's testimony was credible and that she had proved by a preponderance of the evidence that Reed had committed an act or acts of domestic violence. It therefore affirmed the Order. Reed timely appealed.
DISCUSSION
¶10 Reed argues that the trial court (1) erred in determining that Ronna was a credible witness, (2) denied him a fair and impartial hearing, and (3) did not make a good cause finding to consider acts that occurred outside the one-year statutorily-prescribed period. Ronna has not filed an answering brief, which may be considered a confession of reversible error. See United Bonding Ins. Co. v. Thomas J. Grosso Inv., Inc., 4 Ariz.App. 285, 285 (1966). But in the exercise of our discretion, we will address the substance of Reed's appeal. See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).
I. Ronna's Testimony
¶11 Reed argues that the trial court abused its discretion in finding Ronna to be a credible witness because the record lacks evidence to support her credibility. But this court does not make credibility determinations or reweigh the evidence. Clark v. Kreamer, 243 Ariz. 272, 276 ¶ 14 (App. 2017); Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009). "The credibility of witnesses is a matter peculiarly within the province of the trier of facts," Imperial Litho/Graphics v. M.J. Enterprises, 152 Ariz. 68, 72 (App. 1986), and this court generally defers to its findings, Cardoso v. Soldo, 230 Ariz. 614, 619 ¶ 17 (App. 2012). Reed has not shown that the trial court abused its discretion in finding Ronna's testimony credible.
II. Due Process Violations
¶12 Reed contends that the trial court denied him a fair and impartial hearing because he was not afforded "a full opportunity to be heard, to present evidence, and to call witnesses." We review the trial court's enforcement of trial time limits for an abuse of discretion and will not reverse unless Reed shows that he was harmed. Brown v. U.S. Fidelity &Guar. Co., 194 Ariz. 85, 91 ¶ 30 (App. 1998). We review constitutional issues de novo. State v. Moody, 208 Ariz. 424, 445 ¶ 62 (2004).
¶13 A trial court generally has "broad discretion over the management of its docket." Findlay v. Lewis, 172 Ariz. 343, 346 (1992). "The court shall exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment." Ariz. R. Evid. 611(a). The trial court "may impose reasonable time limits on trial proceedings." See Ariz. R. Civ. P. 16(j); see also Ariz. R. Evid. 611 cmt. to 2012 amend.
¶14 Due process is guaranteed under the Fourteenth Amendment to the United States Constitution and Article 2, Section 4 of the Arizona Constitution. Due process includes the opportunity to be heard. Mullane v. Cent. Hanover Bank &Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950). Heeding that guarantee, Arizona Rule of Protective Order Procedure ("Rule") 38(g)(1) provides that at a contested Order hearing, "[t]he judicial officer shall ensure that both parties have an opportunity to be heard, to present evidence, and to call and examine and cross-examine witnesses."
¶15 Reed argues that he was denied the opportunity to fully examine the witnesses because the trial court told him to "[w]rap it up" and "let's move along [] because we are almost out of time." But the trial court informed the parties at the beginning of the hearing that the hearing was scheduled for 45 minutes. Yet because Reed had not yet testified within the scheduled 45 minutes, the trial court allowed Reed to proceed with his testimony. Ultimately, the hearing lasted 67 minutes. Thus, the trial court was not rigid in adhering to the predetermined time limit. And although the trial court told Reed's counsel to move quickly because of the time constraints, the court did not stop him from eliciting further testimony from Reed or Ronna. Thus, the trial court was within its discretion in exercising reasonable control over the mode and order of interrogating witnesses and presenting evidence. See Ariz. R. Evid. 611(a).
¶16 Reed also argues that he was not allowed to make an opening statement or closing argument while Ronna was allowed to do both. But the trial court stated that Ronna's statement at the beginning of the hearing was not an opening statement but sworn testimony. Reed too gave sworn testimony. Similarly, the trial court stated during the hearing that it would give Ronna some time to rebut Reed's testimony. Thus, Ronna's statement at the end of the hearing was not a closing argument but a rebuttal of Reed's testimony. Thus, Reed has shown no error.
¶17 Next, Reed argues that the trial court abused its discretion in not allowing him to play the audio recording of one of the incidents during the hearing. Reed's audio recording, however, was admitted in evidence. And "[w]e presume that after admitting this evidence, the trial court considered it." See Able Distrib. Co., Inc. v. James Lampe, Gen. Contractor, 160 Ariz. 399, 409 (App. 1989). As a result, Reed's argument fails.
¶18 Finally, Reed contends that because he was not allowed to call multiple witnesses, the trial court abused its discretion. But Reed was on notice from the start that the hearing was scheduled for 45 minutes. And although Ronna's evasive conduct prolonged her cross-examination, Reed's counsel still chose to spend most of his time cross-examining her. Further, the trial court allowed the hearing to continue 22 minutes beyond the scheduled time. Nor did Reed make "an offer of proof stating with reasonable specificity what the evidence would have shown." Brown, 194 Ariz. at 91 ¶ 30. Thus, because Reed failed to show that he was harmed because of the trial court's time limitations, reversal is not warranted.
III. Good Cause Finding
¶19 Reed argues that the trial court abused its discretion because it failed to make an express good cause finding when it considered an event that occurred outside the one-year statutorily-prescribed period. He contends that the trial court considered the alleged domestic violence incident that occurred in February 2021-more than a year before the new Order went into effect-without finding that good cause existed to consider an earlier period. "We review any questions of law de novo." Michaelson v. Garr, 234 Ariz. 542, 544 ¶ 5 (App. 2014).
¶20 Under A.R.S. § 13-3602(E)(2), the court must issue an Order if the defendant (1) "may commit an act of domestic violence," or (2) "has committed an act of domestic violence within the past year or within a longer period of time if the court finds that good cause exists to consider a longer period." (emphasis added). Rule 38, however, requires only that "the judicial officer [] state the basis for continuing, modifying, or revoking the protective order."
¶21 Here, as Rule 38 requires, the trial court stated that Reed's commission of an act or acts of domestic violence was the basis for continuing the Order. And that is all that the trial court was required to state. In any event, this court "may infer that the trial court has made the additional findings necessary to sustain its judgment." Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990). Thus, the trial court was not required to make a good cause finding, but even if it were, we infer that it did so find on the record provided. Thus, Reed has shown no error.
CONCLUSION
¶22 For the foregoing reasons, we affirm.