Opinion
2 CA-CV 2023-0143
01-24-2024
Travis Raymer, Plaintiff/Appellee, v. Tina Juanita Rivera, Defendant/Appellant.
Law Office of Shannon Peters, Phoenix By Shannon Peters Counsel for Defendant/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FN2023091308 The Honorable Harriet M. Bernick, Judge Pro Tempore
Law Office of Shannon Peters, Phoenix By Shannon Peters Counsel for Defendant/Appellant
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O' NEIL, Judge
¶1 Tina Rivera appeals from the trial court's decision to continue an order of protection granted in favor of her former romantic partner, Travis Raymer. Because the court afforded Rivera a meaningful opportunity to be heard and the evidence supported the court's decision, we affirm.
Background
¶2 We view the facts in the light most favorable to sustaining the trial court's decision. See Michaelson v. Garr, 234 Ariz. 542, ¶ 5 (App. 2014). Rivera and Raymer were involved in a romantic relationship and lived together for a portion of their relationship. Shortly after their relationship ended, in early February 2023, while Raymer was at the gym, Rivera found Raymer's truck in the parking lot and left his hat on the door handle. Upon finding the hat, believing that Rivera was living in Fort Worth at the time, Raymer called Rivera and asked whether he needed to be concerned. Although initially he "calmed down," his concern grew as Rivera continued "consistently communicating with" Raymer. Within two or three days after finding the hat on his truck, Raymer "blocked" Rivera's phone number for the first time. Raymer told Rivera "on multiple occasions" that he was "blocking her," including "[b]y email, text message, and verbally over the phone." "[O]n two separate occasions," Raymer informed Rivera that he would seek an order of protection if she continued to contact him.
¶3 Although Raymer had asked Rivera to "please leave [him] alone," he had also told her that she could "get into contact" if she had "an emergency with . . . the kids." In April, Rivera used her son's phone to contact Raymer about an incident involving Rivera's daughter. But after Raymer had unblocked Rivera for a discussion concerning Rivera's daughter, Rivera began sending unrelated "text messages . . . in reference to [their] relationship." At one point Rivera invited him to meet, and Raymer told her he did "not want to speak with [her]." But "she persisted" in contacting him. After Raymer had blocked Rivera's phone, she began using her son's phone to continue sending him text messages.
¶4 Finally, Raymer sent an email to Rivera, informing her that he had decided to seek an order of protection. He informed her that "[a]ny further contact from [her] will 100 percent be reported to the police." He concluded the email, "Do not under any circumstance for any reason ever in your lifetime contact me again." Rivera nonetheless called Raymer several hours later "from a blocked number." She left a voicemail in which she told him she was "not okay," urged him not to take "[him]self out of [her] kids' life," and said she was "obsessed with fixing everything." She said, "The only reason I'm still sitting here right now with my little boys in that room next to me, and I will not have him be the one that finds me." Rivera was "relatively emotional" during the voicemail, and her statement concerning her son being the one "to find her . . . scared" Raymer. He called her and "implored her greatly to go check herself into the hospital." The next morning, Rivera called Raymer again, this time from "a Kentucky number," to inform him that she had checked herself into "a behavioral healthcare facility."
¶5 Raymer sought and obtained an order of protection the following day. The trial court later conducted a contested hearing at Rivera's request. The court continued the order of protection at the conclusion of that hearing, and Rivera appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b). Although Raymer filed no answering brief, we decline to treat the lack of a response as confession of error because the issues Rivera raises in her opening brief are not debatable. See In re Pinal Cnty. Juv. Action No. S-389 , 151 Ariz. 564, 565 (App. 1986) ("In a civil case in which an appellant raises a debatable issue and the appellee makes no reply, we may, in our discretion, treat the lack of a response as a confession of error and reverse on that basis.").
Sufficiency of the Evidence
¶6 On appeal, Rivera asserts the evidence was insufficient to support the trial court's decision to continue the order of protection because "a reasonable person would not feel seriously alarmed, annoyed, humiliated, or mentally distressed by" Rivera's conduct towards Raymer. We review the decision to continue an order of protection for abuse of discretion. See Michaelson, 234 Ariz. 542, ¶ 5. A court abuses its discretion "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." Id. The record is sufficient here
¶7 At the contested hearing, Raymer bore the burden to demonstrate by a preponderance of the evidence that the defendant "may commit an act of domestic violence" or "has committed an act of domestic violence within the past year." A.R.S. § 13-3602(E); see also Michaelson, 234 Ariz. 542, ¶ 6. An act of domestic violence includes harassment as defined by A.R.S. § 13-2921 when the parties are currently or were previously in a romantic relationship. A.R.S. § 13-3601(A). As relevant here, a person commits harassment if the person "knowingly and repeatedly commits an act or acts that harass another person" or knowingly "[c]ontacts . . . another person by verbal, electronic, mechanical, telegraphic, telephonic or written means" "in a manner that harasses." § 13-2921(A). And conduct that "harasses" is defined as "conduct that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed and the conduct in fact seriously alarms, annoys, humiliates or mentally distresses the person." § 13-2921(E).
¶8 Rivera does not dispute that the parties were in a romantic relationship. See § 13-3601(A)(6). Nor has Rivera developed any argument on appeal either that her conduct was not directed at Raymer or that Raymer was not in fact seriously alarmed, annoyed, humiliated, or mentally distressed by it. See § 13-2921(E); see also Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996) (argument not raised on appeal is waived). Regardless, Raymer testified that in the days after finding the hat on his truck, he "was genuinely becoming a little concerned for [his] well being." Rivera continued to contact him, using her children's phones, a "blocked" phone number, and a phone number from Kentucky, even after Raymer had blocked her phone number and social media accounts and had informed her by email, text message, and phone that he no longer wanted contact. Although Raymer had invited contact concerning Rivera's children, Rivera continued to send messages "in reference to [their] relationship." When he received Rivera's voicemail stating the only reason she was "still here" was because she did not want to have her son "be the one that finds [her]," Raymer testified that it "scared" him.
¶9 Rivera argues that Raymer's actions-including his invitation to contact him concerning the children, his decision at times to unblock her, and his text message and phone call to her after receiving the voicemail- should have led the trial court to conclude that a reasonable person would not have been harassed by Rivera's conduct. But while that evidence might have been relevant, the court was in the best position to weigh it against the other evidence in the case. See Cardoso v. Soldo, 230 Ariz. 614, ¶ 17 (App. 2012). Rivera's argument amounts to an invitation to reweigh that evidence on appeal-an invitation we must decline. See Merkens v. Fed. Ins. Co., 237 Ariz. 274, ¶ 24 (App. 2015) ("We will not reweigh evidence on appeal.").
Due Process
¶10 Rivera also argues the trial court abused its discretion and violated her right to due process because it "failed to familiarize itself with the evidence that it admitted to the record and limited Ms. Rivera's presentation of the text messages she offered." We review due process claims de novo. See Jeff D. v. Dep't Child Safety, 239 Ariz. 205, ¶ 6 (App. 2016); McGovern v. McGovern, 201 Ariz. 172, ¶ 6 (App. 2001). Due process requires a court to afford an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965). To obtain relief on a due process claim, a party must also demonstrate prejudice. Brown v. Ariz. Dep't of Real Estate, 181 Ariz. 320, 324 (App. 1995).
¶11 At the beginning of the hearing, the trial court reminded the parties "that the hearing is set for 45 minutes total." In reference to the exhibits the parties had prepared, the court cautioned that "it's unlikely that I'll be able to review all of this in 45 minutes." The court thus advised the parties to "pick very carefully what exhibits you want the Court to actually review," noting that it would "be reading them and listening to the testimony at the same time."
¶12 Later, while testifying, Rivera began to reference text messages she had included in a prepared exhibit. Rivera asked the trial court whether it "need[ed] a little time to see through those text messages." Consistent with its earlier explanation, the court advised Rivera that it did not "have really time to read" all of the text messages, and that if Rivera wished the court to examine a particular message, she should "direct [the court] to one." Rivera then directed the court's attention to a particular series of messages, and the court asked Raymer whether he objected to admission of the exhibit in its entirety. The court ultimately admitted the exhibit. But when the court asked Rivera "what else" she wanted to present, she offered no further testimony or argument related to the text messages in that exhibit.
¶13 We first address Rivera's argument that "the court effectively cut off Ms. Rivera's opportunity to present the text messages." The record belies this characterization of the trial court's conduct. After admitting the text messages, the court invited Rivera to continue her testimony and in no way limited her opportunity to continue testifying concerning the content of the messages. Nor does Rivera cite any authority for the proposition that a court violates due process when it interjects to afford the opposing party an opportunity to be heard concerning an exhibit's admission. We turn, therefore, to Rivera's remaining argument that the court failed to consider the evidence in the record.
¶14 According to Rivera, once the trial court admitted the text messages, however voluminous, it was required to "consider the evidence in the record in its totality," and it should have therefore "taken the matter under advisement and reviewed the messages later so that it could issue an informed decision." In support of her argument, Rivera cites only Sulger v. Arizona Corp. Commission, 5 Ariz.App. 69, 73 (1967), which explains that due process requires "a full consideration and determination according to the evidence." That general principle, however, does not support the conclusion that Rivera urges in this case. A party may not simply supply documentary evidence and expect a court to construct arguments based on that evidence, a procedure that would, among other concerns, limit the opposing party's opportunity to meaningfully respond. See Best Choice Fund, LLC v. Low &Childers, P.C., 228 Ariz. 502, n.3 (App. 2011) (rejecting contention an argument was sufficiently raised because "'implicit' in affidavits"). "The trial court cannot be expected to glean a party's arguments from a review of the evidence; the party must articulate its legal arguments." Id.
¶15 The trial court could have required a separate showing of relevance as to each text message or series of messages, consistent with Rule 36, Ariz. R. Protective Order P. Instead, likely for efficiency, after hearing Raymer's sole objection concerning the "time frame" of some of the messages, the court admitted all of the messages and directed Rivera to identify particular relevant messages within the allotted time. Trial courts have broad discretion to set reasonable time limits, Brown v. U.S. Fid. &Guar. Co., 194 Ariz. 85, ¶ 29 (App. 1998), to determine admissibility of evidence, Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 19 (App. 2005), and to control the mode and order of presenting evidence, State ex rel. Montgomery v. Padilla, 239 Ariz. 314, ¶ 13 (App. 2016). We find no abuse of the court's discretion here. And considering Rivera's due process claim de novo, we find the court's approach satisfied due process by affording Rivera a "meaningful" opportunity to be heard. Armstrong, 380 U.S. at 552. Had Rivera wished to make further arguments concerning the text messages, she could have done so.
¶16 Rivera also has not demonstrated prejudice. See Brown, 181 Ariz. at 324. At the hearing, Rivera argued only that she had "provided so many text messages to kind of give you a context of it, everything that transpired." Similarly, on appeal, Rivera argues that "the messages paint a highly relevant picture of her relationship with Mr. Raymer pre- and postbreakup, and many of them directly relate to allegations in the petition." Rivera now also argues that the text messages would have provided greater specificity as to certain dates, would have shown that Raymer texted Rivera in addition to calling her after receiving the April 26 voicemail, and would have rebutted allegations related to a home security account and contact with Raymer's employer that were included in the petition but not addressed at the contested hearing. Even assuming the trial court considered only those messages actually referenced during the hearing, Rivera has not demonstrated that the additional messages would have affected the outcome of the case. Id.; see also Creach v. Angulo, 189 Ariz. 212, 215 (1997) ("[P]rejudice is not presumed but must appear from the record.").
Disposition
¶17 The evidence supports the trial court's decision to continue the order of protection, and Rivera has demonstrated neither error nor prejudice in the court's consideration of the evidence. We therefore affirm.