Mierkey v. Mierkey

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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 ) ) ) Plaintiff/Appellee, ) ) v. ) ) DEBRA ANN MIERKEY, ) ) Defendant/Appellant. _______________________________________ ) DIVISION ONE FILED: 03/27/2012 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CV CHARLES LLOYD MIERKEY, 11-0349 DEPARTMENT C MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Mohave County Cause No. S8015DO201100306 The Honorable Julie S. Roth, Judge AFFIRMED Charles Lloyd Mierkey In Propria Persona Kingman Debra Ann Mierkey In Propria Persona Kingman N O R R I S, Judge ¶1 Debra superior court s issued in favor Ann Mierkey order of ( Debra ) continuing her an then-husband timely order of Charles appeals the protection it Lloyd Mierkey ( Charles ). 1 Debra first argues this court should Lift/Reverse the order of protection because Charles obtained the order based on false allegations and the superior court did not allow her to present testimony . . . to prove [the] allegations . . . were untrue. On the record before us, we see no basis for overturning the superior court s order. ¶2 As the appellant, Debra bears the burden of providing sufficient evidence for us to address these issues. ARCAP 11(b)(1) ( If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a certified transcript of all evidence relevant to such finding or conclusion. ). Debra has not included in the record on appeal a transcript of the court s hearing on the order of protection, thus, we have no way to determine whether Charles obtained the order based on false allegations or whether the superior court prevented Debra from presenting evidence to show the allegations were false. 1 See State ex rel. Dep t of Econ. On May 17, 2011, Charles filed, and the superior court granted, a petition for an order of protection alleging, among other things, Debra had assaulted him at work, then called him repeatedly and returned to his place of business the next day, when he called police and she was arrested for domestic violence. He also alleged she continued to harass him after the domestic violence incident. Two days later, at Debra s request, the court held a hearing on the order of protection. It found Charles [met] the requirements for having an order of protection, and upheld the order. 2 Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73 (App. 2003) (appellant contains all responsible transcripts for and ensuring documents record necessary on to appeal address issues raised on appeal); Retzke v. Larson, 166 Ariz. 446, 449, 803 P.2d 439, 442 (App. 1990) (citations omitted) (in absence of a transcript, we assume missing portions of record supported the [superior] court s finding ). Indeed, the minute entry of the hearing showed Debra was present, was sworn and testified, was permitted to introduce present closing arguments. an exhibit, and was allowed to Thus, the record we have does not reflect the superior court abused its discretion in continuing the order of protection. 485, ¶ 10, (appellate 56 P.3d court 56, reviews See LaFaro v. Cahill, 203 Ariz. 482, 59 (App. superior 2002) court s (citation injunction omitted) against harassment for clear abuse of discretion ). ¶3 Debra also argues the superior court, in continuing the order of protection, should not have relied on allegations she committed a domestic violence offense against Charles, because the State dismissed the domestic violence charges against her. We disagree. The record before us contains next to no information regarding the nature of what appear to be criminal charges filed against Debra by the State. The hearing minute entry reflects Debra introduced as an exhibit an order 3 entered by the Kingman imposed a fine Municipal (partially Court that suspended), appears required her to have to pay certain fees, prohibited her from having any uninvited contact with Charles, and dismissed, pursuant to the State s agreement, two charges offense, and (assault, the use classified of a as telephone a to domestic terrify, violence intimidate, threaten, harass, annoy or offend) against her. ¶4 Again, because we have no transcript, the best we can glean from the record is that the municipal court imposed some type of probation based on Debra s commission of some criminal offense. Thus, although the State may well have agreed to dismiss the charges identified in the exhibit, this does not mean Charles failed to present the superior court with sufficient evidence warranting both entry and continuance of the order of protection. 4 ¶5 For the foregoing reasons, we affirm the superior court s continuance of the order of protection. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ MARGARET H. DOWNIE, Judge /s/ PATRICIA A. OROZCO, Judge 5

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