Opinion
2 CA-CV 2024-0090
10-15-2024
Stan Wineberg, Plaintiff/Appellee, v. Susan Buonsante, Defendant/Appellant.
Stan Wineberg, Apache Junction In Propria Persona Stillman Smith Gadow, Phoenix By Christopher J. Torrenzano 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. FN2024000202 The Honorable Richard J. Hinz, Judge Pro Tempore
Stan Wineberg, Apache Junction In Propria Persona
Stillman Smith Gadow, Phoenix By Christopher J. Torrenzano Counsel for Defendant/Appellant
Presiding Judge Gard authored the decision of the Court, in which Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
GARD, PRESIDING JUDGE
¶1 Susan Buonsante appeals from an order of protection, which the superior court granted at the request of her former husband, Stan Wineberg, and continued after a contested hearing. The court found that Buonsante had committed harassment, an act of domestic violence, by revealing negative information about Wineberg to third parties. See A.R.S. §§ 13-3601, 13-3602, 13-2921. Buonsante argues the court erred by 1) including in its order conditions that amounted to a prior restraint on her speech; 2) restricting her right to possess firearms without sufficient findings; and 3) concluding that her behavior met the statutory definition of harassment as set forth in § 13-2921. Because we agree with Buonsante's third argument, we vacate the order of protection.
Factual and Procedural History
¶2 "We view the evidence in the light most favorable to upholding the [superior] court's ruling." Mahar v. Acuna, 230 Ariz. 530, ¶ 2 (App. 2012). In January 2024, Wineberg filed a petition for an order of protection under § 13-3602. He alleged that Buonsante had engaged in the following acts:
She has been stalking my community. She has delivered my personal information to people in my community even though being told she has no reason to be around my home. She has been seen on my porch looking through my front window. [S]he has blasted me all over social media. [S]he has harassed my friends and family. This has been going on since June 2023.
¶3 The superior court conducted an ex parte hearing, at which Wineberg explained that Buonsante had shown his neighbors a published article containing negative information about him. Wineberg stated that he had not had any communication with Buonsante, but that she had told others that she was "trying to destroy" him. He accused her of seeking to prove that he was a "predator of women."
¶4 The superior court determined that Buonsante had "committed the offense of harassment" and granted the order of protection. Based on Wineberg's allegation that Buonsante had disparaged him in videos on a social-media platform, the court included in the protective order a directive that Buonsante "shall not post messages about [Wineberg] on the internet or on social media." It also ordered Buonsante not to possess any firearms for the order's duration and to surrender her existing firearms to law enforcement.
¶5 After being served with the petition, Buonsante exercised her right to a contested hearing. See § 13-3602(L); Ariz. R. Protective Order P. 38(a). Before testimony began, Buonsante offered to leave the order in place in exchange for removing the restriction on her right to possess firearms. Wineberg maintained that the firearms restriction was necessary because Buonsante posed a credible threat of violence to him, and Buonsante elected to proceed with the hearing.
¶6 Wineberg thereafter testified that Buonsante had circulated a disparaging note about him within his retirement community and had sent similar letters to his friends and family members. He produced text messages between his current girlfriend and Buonsante, in which Buonsante indicated that she had visited Wineberg's residence and had seen his couches through the open blinds. Based on these messages, Wineberg deduced that Buonsante had trespassed on his front porch; he explained that his home is elevated above street-level, and Buonsante could not have seen through the windows from the street.
¶7 Wineberg further testified that Buonsante had posted videos on social media exposing his purported misdeeds. He also accused her of circulating to his friends, family, and employer a published magazine article discussing alleged acts of wrongdoing in his past. Wineberg admitted, however, that he had never personally seen Buonsante at his home, and that she was unable to contact him because he had blocked her.
¶8 Buonsante also testified, and she provided a copy of the article Wineberg had referenced. That article, for which Buonsante and others had been interviewed, was published in InMaricopa magazine and accused Wineberg of having committed stolen valor and other deceitful acts. Buonsante admitted that she had shared the article with others.
¶9 Buonsante further claimed that she had learned about various troubling aspects of Wineberg's past after she married him, and that he had attempted during the marriage to defraud her in various ways. She said she had reached out to his former wives and romantic partners to gather more information about him. She claimed that she had intended only to warn others of Wineberg's alleged wrongdoing. She denied having trespassed on Wineberg's property; she admitted having driven past his home, but maintained she could see into the windows from the street.
¶10 At the end of the hearing, the superior court found that Buonsante's disclosure of negative information about Wineberg to third parties amounted to harassment, an act of domestic violence:
The Court believes based on the testimony [Wineberg] has proven by a preponderance of the evidence that an act of domestic violence . . . has occurred. The Court believes [Buonsante] has reached out to friends and family member[s] of [Wineberg] to malign . . . [Wineberg] and to provide information about [Wineberg]. Even if true that would be disturbing to [Wineberg] if he found out that those people were contacted.
The court does not believe it was [Buonsante's] obligation to notify or interfere with [Wineberg's] life, to notify his friends and family of information that they could discover on their own or through public sources. The Court believes that by providing information and links to other videos and information in the public sphere that still was harassment despite the fact that it was viewable publicly. The Court believes [Buonsante] did it merely to harass or disturb [Wineberg] and it was done solely for that purpose.
Based on the above findings, the court continued the order of protection, amending it to reflect that Buonsante was prohibited from possessing firearms under federal law. See 18 U.S.C. § 922(g)(8). Buonsante appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b).
Discussion
¶11 Buonsante contends the superior court erred by finding that her conduct met the legal definition of harassment. Among other arguments, she maintains that her actions were not "directed at" Wineberg as § 13-2921(E) requires. We review a superior court's decision to continue an order of protection for an abuse of discretion, which occurs when the court "makes an error of law in reaching a discretionary conclusion or 'when the record, viewed in the light most favorable to upholding the [superior] court's decision, is devoid of competent evidence to support the decision.'" Michaelson v. Garr, 234 Ariz. 542, ¶ 5 (App. 2014) (quoting Mahar, 230 Ariz. 530, ¶ 14). We agree with Buonsante that the court misapplied the definition of harassment, and that the record of the contested hearing does not support a finding that her actions were "directed at" Wineberg. § 13-2921(E). We therefore vacate the order of protection.
Because we vacate the order of protection in its entirety based on the sufficiency of the superior court's harassment finding, we need not address Buonsante's arguments that 1) the order's restriction on her social-media activities constituted a prior restraint on her speech, in violation of her First Amendment rights, and 2) the court made insufficient findings to restrict her right to possess a firearm.
¶12 As a preliminary matter, in response to the opening brief, Wineberg filed a one-page letter detailing his mental-health struggles and explaining how his conflict with Buonsante has worsened them.Buonsante contends that this filing does not qualify as an answering brief under Rule 13(b), Ariz. R. Civ. App. P.
We issued an order advising the parties that we would construe Wineberg's filing as his answering brief. Separately, Wineberg submitted a letter from his mental-health treatment provider; we advised the parties we would take no action on this correspondence.
¶13 The filing does not respond to Buonsante's legal arguments and does not contain citations to authority or the record. We therefore agree with Buonsante that it does not comply with the rule. See id. When an appellee fails to file an answering brief and an appellant raises debatable issues, we may, in our discretion, conclude that the appellee has conceded reversible error. Alyssa W. v. Justin G., 245 Ariz. 599, n.2 (App. 2018). But we generally prefer to decide issues on their merits, see Ramos v. Nichols, 252 Ariz. 519, ¶ 13 (App. 2022), and we exercise our discretion to do so in this case.
¶14 A court must enter an order of protection if, as relevant here, it determines that the "defendant 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." § 13-3602(E)(2). "The term 'domestic violence' is defined by statute," specifically § 13-3601(A), and includes any offense enumerated in that section when committed against certain categories of individuals, including former spouses and romantic partners. Shah v. Vakharwala, 244 Ariz. 201, ¶ 6 (App. 2018).
¶15 Section 13-3601(A)'s list of offenses includes harassment under § 13-2921. The elements of harassment, in turn, are:
A. A person commits harassment if the person knowingly and repeatedly commits an act or acts that harass another person or the person knowingly commits any one of the following acts in a manner that harasses:
1. Contacts or causes a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means.
2. Continues to follow another person in or about a public place after being asked by that person to desist.
3. Surveils or causes a person to surveil another person.
4. Makes a false report to a law enforcement, credit or social service agency against another person.
5. Interferes with the delivery of any public or regulated utility to another person.
And "[f]or the purposes of this section, 'harass' means 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); accord Ariz. R. Protective Order P. 3(e).
¶16 "[T]he issuance of an order of protection is a very serious matter" because such an order "carries with it an array of 'collateral legal and reputational consequences' that last beyond the order's expiration." Savord v. Morton, 235 Ariz. 256, ¶ 11 (App. 2014) (quoting Cardoso v. Soldo, 230 Ariz. 614, ¶ 14 (App. 2012)). "Therefore, granting an order of protection when the allegations fail to include a statutorily enumerated offense constitutes error by the court." Id.
¶17 Here, the superior court did not find that Buonsante had engaged in one of the acts enumerated in § 13-2921(A)(1)-(5). The court instead appears to have found that Buonsante "knowingly and repeatedly commit[ted] an act or acts" that harassed Wineberg. § 13-2921(A). The court found that Buonsante had "reached out to [Wineberg's] friends and family member[s]" in order to "malign" him by sharing negative background information. Although the information was already in the public record, the court reasoned that Buonsante should not have informed others of it, and found that she had done so solely for the purpose of harassment.
¶18 It is undisputed that Buonsante neither made nor attempted contact with Wineberg; Buonsante therefore maintains that her conduct was not "directed at" him as § 13-2921(E) requires. She relies on LaFaro v. Cahill, 203 Ariz. 482, ¶ 13 (App. 2002), in which we construed the statute governing injunctions against harassment. See A.R.S. § 12-1809. That statute defines harassment in materially the same manner as § 13-2921(E). See § 12-1809(T)(1)(a) (defining "harassment" as a "series of acts over any period of time that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person and serves no legitimate purpose" (emphasis added)).
¶19 The plaintiff in LaFaro sought an injunction against harassment in part because he had overheard the defendant call him pejorative names during a conversation with another person. 203 Ariz. 482, ¶¶ 11-13. We concluded that the defendant's communication with the third party did "not satisfy the statutory definition of harassment, which requires a harassing act to be 'directed at' the specific person complaining of harassment." Id. ¶ 13 (quoting § 12-1809(T)(1)(a)). We concluded that, although the defendant was talking about the plaintiff, "his comments were 'directed at' [the third party], not [the plaintiff]." Id.
¶20 Wineberg does not address LaFaro in his filing, let alone distinguish that case. See Ramos, 252 Ariz. 519, ¶ 8 ("Courts hold unrepresented litigants in Arizona to the same standards as attorneys and do not afford them special leniency."). Although we stopped short in LaFaro of holding that a third-party conversation could never meet the definition of harassment, 203 Ariz. 482, n.3, the facts here largely parallel LaFaro's. Buonsante spoke about Wineberg to third parties and disclosed damaging, but not private, information. Like the plaintiff in LaFaro, Wineberg learned of these statements and found them distressing. But they were "directed at" the third parties, not at Wineberg. § 13-2921(E).
¶21 While we do not minimize the impact of Buonsante's actions on Wineberg, we conclude that they do not satisfy § 13-2921, and that the superior court abused its discretion by determining otherwise. Wineberg's legal remedies, if any exist, do not lie in §§ 13-3602 and 13-2921. We therefore vacate the order of protection.
Attorney Fees
¶22 Citing § 13-3602(T) and Rule 25, Ariz. R. Civ. App. P., Buonsante requests her attorney fees on appeal, in part as a sanction for Wineberg's conduct in requesting an extension of time for his answering brief and then failing to file a compliant brief. In our discretion, we deny her request. But as the prevailing party on appeal, Buonsante is entitled to her costs upon compliance with Rule 21, Ariz. R. Civ. App. P.
Disposition
¶23 For the foregoing reasons, we vacate the order of protection.