Muth v. Muth

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Marriage of: ) ) AARON A. MUTH, ) ) Petitioner/Appellant, ) ) v. ) ) JANET L. MUTH, ) ) Respondent/Appellee. ) ) __________________________________) DIVISION ONE FILED: 12/09/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CV 10-0126 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause Nos. FC2009-094239, FC2009-094243, FC2009-094396 (Consolidated) The Honorable R. Jeffrey Woodburn, Judge Pro Tempore The Honorable M. Jean Hoag, Judge APPEAL DISMISSED AS MOOT The Cavanaugh Law Firm, P.A. By Keith A. Berkshire Attorneys for Petitioner/Appellant Phoenix B R O W N, Judge ¶1 Aaron A. Muth ( Husband ) appeals the trial court s order continuing an order of protection prohibiting contact with his wife, Janet L. Muth ( Wife ). For the reasons set forth below, we dismiss the appeal as moot. 1 BACKGROUND ¶2 Husband and Wife each filed petitions for dissolution of their marriage on November 2, 2009, and Wife also filed a petition for an order of protection against Husband that was granted the same day. The two consolidated in the superior court. dissolution cases were After Husband requested a hearing, Wife filed an amended petition in support of the order of protection alleging various specific incidents of harassment and domestic violence. The hearing was held on December 2, 2009. ¶3 Wife s grandmother testified and was cross-examined about a telephone call received from Husband, in which he told grandmother that he had left the country and was in Canada. Wife testified she was terrified upon learning of the phone call to her grandmother because Husband had her son at the time; she immediately drove to Husband s house to make sure Husband had not taken her son to Canada. Wife further testified that Husband had made previous threats to leave with their son. 1 She Wife failed to file an answering brief, which could constitute a confession of reversible error. Bugh v. Bugh, 125 Ariz. 190, 191, 608 P.2d 329, 330 (App. 1980). We are reluctant, however, to reverse a decision based on an implied confession of error, and we decline to do so here. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994). 2 also testified generally about unwanted contact by texting and phone from Husband. ¶4 family At the court reluctantly conclusion upheld leaving of presentation of the order of protection, the order in place under the statute. evidence, stating based on it the was harassment The court noted the evidence that Husband had continued to text and call after Wife had asked him to stop, but relied more on the telephone call Husband had made to Wife s grandmother. Husband harassment, stating objected it was to not the pled court s by reliance Wife. on Husband s counsel also reminded the court of his previously filed motion for specific findings under Arizona Rule of Family Law Procedure 82(A). The court rejected the request, explaining that the ruling had been given on the record and that Rule 82 does not apply to order of protection proceedings. Husband filed a timely notice of appeal on January 4, 2010; however, perhaps because of a pending motion for attorneys fees Wife had filed, Husband did not take any action in furtherance of the appeal until the court denied the attorneys fees request in a signed order in March 2010. DISCUSSION ¶5 Husband presents four arguments for our consideration: (1) his appeal is not moot due to the expiration of the order of protection; (2) by using a statutory 3 definition of domestic violence not pled by Wife, the trial court violated the notice requirement for pleadings under Arizona law and his constitutional right to due process; (3) even if the trial court used the alternative statutory definition, there is insufficient evidence to uphold the order of protection; and (4) the trial court refused to make specific findings in violation of Arizona Rule of Family Law Procedure Rule 82(A). attorneys fees. Husband also requests Because we find that Husband s appeal is moot, we do not address the three remaining issues, nor do we address Husband s request for fees. ¶6 As a matter of judicial restraint, we generally do not address moot issues. Stop Exploiting Taxpayers v. Jones, 211 Ariz. 576, 578, ¶ 6, 125 P.3d 396, 398 (App. 2005); Dunwell v. Univ. of Ariz., 134 Ariz. 504, 507, 657 P.2d 917, 920 (App. 1982) ( It has long been the rule of this state that the appellate court is not empowered to decide moot questions or abstract propositions, or declare, for the sake of future cases, principles or rules of law which cannot affect the result of the instant issue. ). A decision becomes moot for purposes of appeal where as a result of a change of circumstances before the appellate decision, action by the reviewing court would have no effect on the parties. Vinson v. Martin & Assocs., 159 Ariz. 1, 4, 764 P.2d 736, 739 (App. 1988). On rare occasions, we may elect to consider a matter that is otherwise moot when it is of 4 considerable public importance or when it is likely to recur. See State v. Super. Ct. of Pima Cnty., 104 Ariz. 440, 441, 454 P.2d 982, 983 (1969). ¶7 In this case, the order of protection obtained by Wife expired on November 2, 2010. See Ariz. Rev. Stat. § 13-3602(K) (Supp. 2010) ( An order [of protection] expires one year after service on the defendant. ); Ariz. R. Prot. Ord. P. 1(M)(2). Thus, it is presumed to be moot. Husband recognizes that his appeal will likely be resolved after the Order of Protection has already review this importance, expired, but argues matter because including the it nonetheless involves interrelation that we of issues of family should public law and protective order procedure and the specificity required in order of protection petitions. ¶8 Though this type of case is likely to recur, we disagree that it justifies consideration as a matter of public importance. by the explain The issues Husband raises are adequately addressed Arizona the Rules nature of and Protective scope of a Order Procedure, protective order, which the specificity required in a petition seeking such an order, the type of disclosure required by the parties, and the court s duty to make findings on the record. ¶9 Moreover, though we have not been apprised by either party of new developments in the case, we take judicial notice 5 of an interim minute entry stating that Husband and Wife have agreed to joint custody of their son, so the order of protection at issue here would presumably have no bearing on determining custody-related issues. Furthermore, an amended order of protection, apparently unopposed by Husband, was signed by the family court on August 16, 2010, as noted in a minute entry dated the same day. The amended order contains restrictions to the original order of protection. similar Thus, if we were to consider the merits of Husband s appeal, the resolution would have no effect on the amended order, as Husband has not appealed it. Even if he had challenged the amended order, however, it would still be moot, as a modified protective order expires one year after service of the initial order. R. Prot. Ord. P. 1(M)(2). 6 See Ariz. CONCLUSION ¶10 For the foregoing issues presented are moot. reasons, we conclude that the Accordingly, we dismiss the appeal. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ __________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ __________________________________ JOHN C. GEMMILL, Judge 7

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