Opinion
2 CA-CV 2022-0018
07-19-2022
Joyette Marie Smith, Plaintiff/Appellee, v. Chad Lee Smith, Defendant/Appellant.
Chad Lee Smith, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Gila County No. P0400PO202100071 The Honorable David E. Wolak, Judge Pro Tempore
Chad Lee Smith, Tucson In Propria Persona 1
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eckerstrom and Chief Judge Vásquez concurred.
MEMORANDUM DECISION
ESPINOSA, JUDGE
¶1 Chad Smith appeals from the trial court's order affirming an order of protection against him obtained by his estranged wife. For the reasons that follow, we affirm.
Procedural Background
¶2 In December 2021, Joyette Smith, on behalf of herself and minor children X.S. and Y.R., filed a petition for an order of protection against Chad, alleging he had threatened to kill her, verbally and mentally abused her, was abusing drugs, and would "consistently" leave with X.S. "and not come back for days on end with no communication." After the trial court granted the petition ex parte, Chad filed a request for a hearing and to dismiss the order, claiming he had been "falsely accused." At the hearing, Chad indicated he was not contesting the order of protection as to Joyette and Y.R., but only as to his biological child, X.S. The court affirmed the order of protection, finding by a preponderance of the evidence that Chad had committed an act of domestic violence. Chad timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b).
Discussion
¶3 Chad broadly argues he was denied the right to a fair trial, his civil rights were violated, and he was prejudiced by a conflict of interest with Joyette's counsel. He contends he "was told he could not submit [evidence, present testimony or witnesses in court." And he claims the allegations against him were false and requests dismissal or reversal based on the petition's "failure to [s]tate ultimate facts sufficient to constitute a[n] order of protection." 2
Joyette did not file an answering brief. Given the trial court's finding and involvement of children, in the exercise of our discretion, we decline to treat Joyette's failure to file an answering brief as a confession of error. See Michaelson v. Garr, 234 Ariz. 542, n.3 (App. 2014).
¶4 Chad's appeal, however, is deficient in several significant and dispositive respects. Rule 13(a)(7)(A), Ariz. R. Civ. App. P., requires an appellant to provide "supporting reasons" and "citations of legal authorities" for each issue presented on appeal. This rule applies to pro se appellants as well as those represented by counsel. See Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, ¶ 16 (App. 2000) (party who conducts case without attorney entitled to same consideration from court as party represented by counsel and held to same standards). An appellant waives any claim not supported with an argument that should contain citations to relevant authorities. See Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007). Chad has failed to provide relevant legal citations or even minimally explain his arguments, and we therefore deem them waived.
For example, Chad merely cites 15 U.S.C. § 1692e, which relates to false representations pertaining to debt collections practices and also quotes authority describing the requirements for a negligence complaint to survive a motion to dismiss.
¶5 Moreover, even if Chad's claims were not waived on appeal, he has failed to provide the transcript of the hearing necessary to review the trial court's ruling. "A party is responsible for making certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal." Baker v. Baker, 183 Ariz. 70, 73 (App. 1995); see also Ariz. R. Civ. App. P. 11(c)(1) (appellant must order transcripts "necessary for proper consideration of the issues on appeal," and if challenging a finding or conclusion as unsupported by evidence "appellant must include in the record transcripts of all proceedings containing evidence relevant to that judgment, finding or conclusion"). Because we lack a transcript of the proceeding at which the trial court received evidence, including the parties' testimony, heard arguments, and made its ruling, we cannot say the trial court erred, and indeed we presume the missing transcript would support the court's findings and conclusions. See Baker, 183 Ariz. at 73. 3
Chad has appended various exhibits to his brief, some of which are filings already in the record on appeal, but many that are not. We do not consider any exhibits not admitted into evidence below. See Ariz. R. Civ. App. P. 11(a) (defining record on appeal); Ashton-Blair v. Merrill, 187 Ariz. 315, 317 (App. 1996) ("We may only consider the matters in the record before us.").
Disposition
¶6 For the reasons stated above, the trial court's order is affirmed. 4