Savord v. Morton

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of

REBECCA SAVORD, Plaintiff/Appellee,

v.

DANIEL F. MORTON, Defendant/Appellant.

No. 1 CA-CV 13-0305

FILED 07-24-2014

Appeal from the Superior Court in Maricopa County

No. FN2013-051283

The Honorable Julie P. Newell, Commissioner

VACATED

COUNSEL

Sacks Tierney, PA, Scottsdale

By David L. Rose, Ellen K. Aiken

Counsel for Defendant/Appellant

OPINION

Presiding Judge Patricia A. Orozco delivered the opinion of the Court, in

which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

SAVORD v. MORTON

Opinion of the Court

O R O Z C O, Judge:

¶1 Appellant Daniel F. Morton (Father) appeals the trial court’s

order granting and affirming an order of protection and the Notice to

Sheriff of Positive Brady Indicator (the Notice of PBI)1 in favor of Appellee

Rebecca Savord (Mother) and their daughter O.S. (Child). For the reasons

stated below, we vacate the trial court’s decision and quash the order

affirming the order of protection and the Notice of PBI.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father are Child’s biological parents. Pursuant

to a paternity order, the parties share joint legal decision-making authority

and shared parenting time.

¶3 In early 2013, Mother filed a petition for an order of

protection alleging Child reported she was being sexually abused by her

fourteen-year-old step-brother (Step-brother). Mother’s sole complaint of

Father was that he was aware of the alleged abuse and failed to report it.

Mother’s Petition did not include any allegations that she felt harassed or

intimidated by Father.

¶4 At an ex parte hearing to secure an order of protection,

Mother explained her concerns and stated that the reason for her request

was to protect Child. At no time during the hearing did Mother indicate

that she felt threatened or harassed by Father.

¶5 Finding reasonable cause existed to believe an act of

domestic violence occurred or might occur in the future, the trial court

granted an order of protection prohibiting Father and Step-brother2 from

any contact with Child and severely limited Father’s contact with Mother.

The court also issued the Notice of PBI, which barred Father from

purchasing, receiving or possessing a firearm or ammunition and required

him to surrender any firearms or ammunition in his possession.

1 See 18 U.S.C. § 922(g)(8)(c)(i)-(ii) (2012).

2 Arizona Revised Statutes (A.R.S.) section 13-3602.B.2 (Supp. 2013)

does not allow a court to grant an order of protection against a person less

than twelve years of age. In this case Step-brother was fourteen years of

age.

2

SAVORD v. MORTON

Opinion of the Court

¶6 After being served with the order of protection, Father

requested a hearing. At the hearing, Mother’s counsel asked Mother if she

felt harassed, intimidated, or bothered by Father. Father timely objected

and the court overruled the objection. The court stated that inquiry into

Father’s relationship with Mother was an “appropriate extension” of the

order of protection since Mother was the named plaintiff. Mother testified

that Father had intimidated and harassed her. Specifically, Mother

described an incident where Father attempted to pick up Child for

visitation, even though Mother had previously advised Father she had

plans with Child. In spite of this, Mother stated Father showed up at her

home, called her several times, sent her several text messages, and called

her parents threatening to call the police.

¶7 At the conclusion of the contested hearing, the court found

that insufficient evidence was presented regarding the sexual abuse

allegations. However, the court found reasonable cause existed to believe

that aggressive behavior had taken place between Child and Step-brother.

The court also explained that, based on the evidence, Father was aware of

Step-brother’s aggressive behavior and had failed to protect Child. Based

on these findings, the court affirmed the order of protection in favor of

Child and Mother, including the Notice of PBI.

¶8 Father timely appealed.3 We have jurisdiction pursuant to

Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-2101.A.1

(2003), -2101.A.5(b) (Supp. 2013), and Rule 9.B.2 of the Arizona Rules of

Protective Order Procedure.

DISCUSSION

¶9 On appeal, Father argues the court erred by granting the

order of protection, affirming the order of protection after the hearing, and

affirming the Notice of PBI. Mother has not filed an answering brief.

When debatable issues exist and an appellee fails to file an answering

brief, we may consider such failure a confession of reversible error. See

United Bonding Ins. Co. v. Thomas J. Grosso Inv., Inc., 4 Ariz. App. 285, 285,

419 P.2d 546, 546 (1966). However, we are not required to do so, and we

address the substance of Father’s appeal in the exercise of our discretion.

See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994).

3 Father does not contest the portion of the order of protection

prohibiting Step-brother from having contact with Child.

3

SAVORD v. MORTON

Opinion of the Court

I. Ex Parte Issuing of the Order of Protection

¶10 We review an order of protection for an abuse of discretion.

See Cardoso v. Soldo, 230 Ariz. 614, 619, ¶¶ 15-16, 277 P.3d 811, 816 (App.

2012). A trial court abuses its discretion when it makes an error of law in

reaching a discretionary conclusion or “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.” Mahar v. Acuna, 230 Ariz.

530, 534, ¶ 14, 287 P.3d 824, 828 (App. 2012) (internal quotation marks

omitted).

¶11 It is well settled that the issuance of an order of protection is

a very serious matter. See, e.g., Cardoso, 230 Ariz. at 619, ¶ 14, 277 P.3d at

816. Once issued, an order of protection carries with it an array of

“collateral legal and reputational consequences” that last beyond the

order’s expiration. Id. Therefore, granting an order of protection when

the allegations fail to include a statutorily enumerated offense constitutes

error by the court. See A.R.S. § 13-3601 (Supp. 2013) (listing offenses that

justify issuance of an order of protection).

¶12 Section 13-3601 lists several enumerated offenses that

constitute domestic violence. Father argues Mother’s petition failed to

meet the threshold requirements of § 13-3601 because there were no

allegations that Father committed any acts of domestic violence against

Mother or Child. Therefore, Father contends the court erred in granting

the order of protection against him. We agree.

¶13 In this case, Mother’s petition alleged her concern that Step-

brother was sexually abusing Child while Child was under Father’s

supervision, and Father neglected to report the abuse. Mother also noted

her belief that Father would interfere with a police investigation. None of

the allegations, however, are recognized offenses for which a court may

grant an order of protection against Father.

¶14 At the ex parte hearing, Mother reiterated her concerns

about Child’s relationship with Step-brother, but Mother made no

allegations against Father at any point in the hearing. Nevertheless, the

court issued an order of protection against Father in favor of Mother and

Child. Thus, we find the court erred when it issued the order of

protection against Father in favor of Mother and Child because Mother’s

petition did not allege any of the recognized offenses in § 13-3601.

4

SAVORD v. MORTON

Opinion of the Court

II. Contested Hearing Affirming the Order of Protection

¶15 Rule 8.D of the Arizona Rules of Protective Order Procedure

provides that, in a contested hearing on an order for protection: “The

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.”

¶16 In permitting Mother to testify as to matters outside of the

Petition, the court deprived Father of due process. Due process

protections provided under the Fourteenth Amendment of the United

States Constitution and Article 2, Section 4, of the Arizona Constitution,

guarantee that Father receive notice, reasonably calculated to apprise him

of the action in order to adequately prepare his opposition. See Armstrong

v. Manzo, 380 U.S. 545, 550 (1965) (“[F]ailure to give the petitioner notice of

the pending . . . proceedings violated the most rudimentary demands of

due process of law.”). “We review due process claims de novo.” See Mack

v. Cruikshank, 196 Ariz. 541, 544, ¶ 6, 2 P.3d 100, 103 (App. 1999).

¶17 At the contested hearing, Mother’s counsel asked her

whether Father’s conduct had ever made her feel harassed, intimidated or

bothered. Father objected, but the court overruled his objection. In doing

so, the court forced Father to defend against Mother’s allegations of

harassment without sufficient notice to adequately prepare a defense. The

better practice would be to sustain the objection and thereby limit the

scope of the hearing to the allegations of the petition, or to allow Mother

to amend her petition and reschedule the hearing, thereby giving Father

the opportunity to appropriately prepare for the new allegations.

¶18 We find the court erred in allowing Mother to testify about

matters outside of the Petition. Therefore, the order of protection against

Father in favor of Mother should not have been affirmed after the

contested order of protection hearing. Accordingly, we quash the order of

protection.

III. Brady Notice

¶19 Father argues the trial court erred in issuing the Notice of

PBI because he did not pose a credible threat of harm to Mother. We

agree that no evidence was presented supporting a finding Father posed

such a threat.

¶20 Upon issuing an order of protection, a court may prohibit

the possession of firearms if it finds the defendant poses a credible threat

5

SAVORD v. MORTON

Opinion of the Court

to the physical safety of the plaintiff or another specifically designated

person. See A.R.S. § 13-3602.G.4 (Supp. 2013); see also Mahar, 230 Ariz. at

534, ¶ 15, 287 P.3d at 828. A higher standard of review applies when a

court’s order implicates a defendant’s right to possess firearms under the

Second Amendment to the United States Constitution or under Article 2,

Section 26, of the Arizona Constitution. See id. A firearm restriction under

the federal Gun Control Act is triggered by an order of protection “only if

the order ‘includes a finding that [the] person represents a credible threat

to the physical safety of [the] intimate partner or child.’” Id.; see also 18

U.S.C. § 922(g)(8)(C)(ii). We “review the application of Arizona and

federal law to the facts de novo.” Mahar, 230 Ariz. at 534, ¶ 14, 287 P.3d at

828 (emphasis omitted).

¶21 Rule 6.C.5.d(1) of the Rules of Procedure for Issuing

Protective Orders requires the court to “ask the plaintiff about the

defendant’s use of or access to weapons or firearms. This inquiry shall be

made to determine if the defendant poses a credible threat to the physical

safety of the plaintiff or other protected persons.”

¶22 In this case, the court made no inquiry as to Father’s use of

or access to weapons or firearms. “[O]rders concerning firearms should

be based on a court’s assessment of credible threats of physical harm by

the specific person whose rights should be affected by the order.” Mahar,

230 Ariz. at 536, ¶ 20, 287 P.3d at 830. A restriction against firearms does

not automatically follow an order of protection. See id. at 535, ¶ 19, 287

P.3d at 829.

¶23 Considering the lack of evidence supporting the Notice of

PBI and the absence of the appropriate inquiries in that regard, Father is

entitled to have the PBI quashed.

6

SAVORD v. MORTON

Opinion of the Court

CONCLUSION

¶24 For the above mentioned reasons, we vacate the trial court’s

decision and quash the order affirming the order of protection and Notice

of PBI against Father.

:gsh

7