Opinion
1 CA-CV 11-0391
05-29-2012
In re the Matter of: HEATHER WRIGHT, Plaintiff/Appellee, v. LORY TOON, Defendant/Appellant.
Lory Toon, Defendant/Appellant In Propria Persona Peoria
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FN2011-050686
The Honorable John R. Doody, Judge Pro Tempore
AFFIRMED
Lory Toon, Defendant/Appellant
In Propria Persona
Peoria GEMMILL, Judge
¶1 Lory Toon ("Toon") appeals from an order continuing an order of protection against her. For the reasons that follow, we affirm the superior court's order.
BACKGROUND
¶2 On March 10, 2011, Heather Wright ("Wright") petitioned for an order of protection against Toon. Toon is Wright's mother and the grandmother of Wright's son, "H." H. was eight years old at the time of these events.
¶3 Wright's petition alleges that Toon stole a house key from H., copied it, and used the copied key to enter Wright's home and remove papers and clothes during Wright's absence and without her knowledge. Wright further alleges that on several occasions Toon had picked up H. from school without Wright's knowledge and then would not answer Wright's calls. According to Wright, Toon also barges into Wright's home to "mak[e] a scene" in front of H. and Wright's guests and has quizzed Wright's employer about Wright's activities.
¶4 The superior court granted Wright's petition on March 14, 2011, and ordered Toon to have no contact with Wright or H. Service on Toon was completed on March 22, 2011. Toon responded by obtaining a protective order against Wright on March 28, 2011, based upon the latter's alleged threats to assault Toon and generally "threatening my life."
¶5 Both Wright and Toon appeared at a hearing on these orders on April 15, 2011. After receiving evidence from both parties, the superior court continued Wright's protective order against Toon and dismissed Toon's protective order against Wright in signed orders filed on April 15, 2011. The court also denied Toon's subsequent motion for reconsideration. Toon appeals.
DISCUSSION
¶6 Toon contends that the superior court erroneously continued the order of protection against her with respect to Wright and H. According to Toon, Wright is a "meth addict" who gave perjured testimony and is endangering H. by leaving him with drug dealers and felons.
¶7 This court reviews the superior court's decision to grant or deny the order under the clear abuse of discretion standard. See LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 10, 56 P.3d 56, 59 (App. 2002). We are bound by the superior court's findings of fact unless clearly erroneous. Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 47, ¶ 9, 156 P.3d 1149, 1152 (App. 2007). In addition, we view the evidence and all reasonable inferences from it in the light most favorable to sustaining the superior court's ruling. Inch v. McPherson, 176 Ariz. 132, 136, 859 P.2d 755, 759 (App. 1992).
Wright did not file an Answering Brief. "Although we may regard [the] failure to respond as a confession of reversible error, we are not required to do so." Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982). In the exercise of our discretion, we choose to address the merits of this appeal.
We also note that Toon's "Statement of the Case" and "Argument" sections contain no citations to the record, as required by Rule 13(a)(4) of the Arizona Rules of Civil Appellate Procedure. She also relies upon documents appended to her Opening Brief, but never specifies whether these items are included in the appellate record. Such practices provide grounds for this court to find Toon's arguments waived. See Delmastro & Eells v. Taco Bell Corp., ___ Ariz. ___, ___, ¶ 7, 263 P.3d 683, 686 n.2 (App. 2011). Nevertheless, we have reviewed the record to determine whether there is merit to the appeal. See id.
¶8 A person may petition for an order of protection "for the purpose of restraining a person from committing an act [of] domestic violence." Ariz. Rev. Stat. ("A.R.S.") § 13-3602(A) (Supp. 2011). Arizona law defines "domestic violence" to include custodial interference under A.R.S. § 13-1302(A)(1) (Supp. 2011), which is defined as taking, enticing, or keeping a child, with knowledge or reason to know that the person lacks a legal right to do so, from another person entrusted with custody. See A.R.S. § 13-3601 (Supp. 2011) (defining domestic violence to include a series of statutory offenses, including A.R.S. § 13-1302, when the victim has a specified relationship with the defendant).
Unless otherwise specified, we cite the current versions of statutes when no material revisions have been enacted since the events in question.
¶9 Section 13-3602(E) (Supp. 2011) provides in relevant part:
The court shall issue an order of protection under subsection G of this section if the court determines that there is reasonable cause to believe any of the following:
1. The defendant may commit an act of domestic violence.
2. 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.
¶10 After the hearing, the superior court found by a preponderance of the evidence "that Defendant has committed an act of domestic violence within the last year or may commit an act of domestic violence in the future." The record supports the continuance of the order of protection on these grounds.
¶11 Toon admitted that she had previously filed an emergency petition for custody of H. with the Northwest Justice Court several days after service of Wright's order of protection covering both Wright and H. on March 22, 2011. Toon obtained the emergency custody order without disclosing the existence of the protective order against her. Thereafter, Wright's stepfather, Toon, and the process server arrived at Wright's house and took H. According to Wright, a judge later vacated the emergency custody order after learning of the protective order against Toon and H. was returned to Wright. The Peoria Police Department referred the matter to the prosecutor's office on or about March 25, 2011.
Toon also testified that she had "charged [Wright] with criminal bank fraud."
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¶12 Wright describes the impact of such events on H. as "unhealthy." According to Wright, H. "needs stability" and it was in both her and H.'s best interest to maintain the protective order against Toon. Toon herself even testified that "I don't think it's in the best interest of [H.] for Heather and I [to] have any contact."
¶13 This evidence of custodial interference supports the superior court's finding of domestic violence and the continuance of the order of protection against Toon with respect to both Wright and H. Toon contends that Wright offered perjured testimony but the superior court specifically found Wright's testimony "credible and true." The superior court is in the best position to make that judgment, and we must defer to its credibility determination and the weight to give conflicting evidence offered by Wright and Toon. See Goats v. A.J. Bayless Markets, Inc., 14 Ariz. App. 166, 171, 481 P.2d 536, 541 (1971); Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998).
¶14 Finally, we reject Toon's contention that the superior court deprived her of due process and thereby prevented her from establishing that the parties had some non-hostile interactions. The superior court allowed Toon to present her case and expressly acknowledged that Toon had established that point. Nevertheless, we must view the record in the light most favorable to sustaining the superior court's ruling. Inch, 176 Ariz. at 136, 859 P.2d at 759. The evidence supports the court's ruling and we find that the court committed no abuse of discretion by continuing the order of protection against Toon.
CONCLUSION
¶15 We affirm the superior court's continuance of the order of protection against Toon. Although Toon expresses concerns about Wright's parenting, those issues are properly addressed in a separate family court action. See Ariz. R. of Protective Order P. 4(B)(1).
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JOHN C. GEMMILL
CONCURRING:
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PATRICIA A. OROZCO, Presiding Judge
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PHILIP HALL, Judge