LUDWIG v. GLACY
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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 Matter of: ) ) LYNDA S. LUDWIG, ) ) Petitioner/Appellee, ) ) v. ) ) STEPHEN D. GLACY, ) ) Respondent/Appellant. ) __________________________________) DIVISION ONE FILED: 5/28/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0186 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2005-007187 The Honorable Julie P. Newell, Judge Pro Tempore AFFIRMED Rader Lucero, PLLC By Diana I. Rader Attorneys for Petitioner/Appellee Kutak Rock LLP By Andrew J. Russell Franci G. Fealk Attorneys for Respondent/Appellant K E S S L E R, Judge Phoenix Scottsdale ¶1 Stephen D. Glacy ( Father ) challenges an order of protection entered against him on October 12, 2011, and in favor of his minor children, A. and J., and their mother, Lynda S. Ludwig ( Mother ), which was upheld by the superior court. Finding no error, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 In proceedings in the family court division of the Maricopa County joint legal Superior custody of Court, their the parties children, A. agreed and to J., designate Mother as the primary residential parent. share and to Father then married his current wife, who has a son, A.B., from a prior relationship. ¶3 On October 12, 2011, Mother successfully petitioned the superior court for an order of protection against Father alleging thirteen-year-old witnessed one of inappropriately. the A.B. had acts, Pursuant to molested and Father s A., Father Father had request, had responded the superior court scheduled a hearing on the order of protection for January 10, 2012. ¶4 The agreement, permitted rejected parties which Father an offer the came to superior unsupervised to the revise court hearing rejected visitation. the 2 with settlement The to an because oral it court also address that concern, finding the agreement as modified was not in the children s best interests. ¶5 Having rejected turned to the merits. the settlement efforts, the court During the discussions with the court, counsel for both parties agreed that Child Protective Services ( CPS ) did not have anything else pending with respect Father. The court stated that either Father gets a hearing, we do a hearing or he withdraws his request for a hearing. goes back to the family court division. to Then it Father s counsel told the court that we can t go forward without the CPS witnesses, then proposed to withdraw the hearing request if Father could have supervised visitation. ¶6 The court refused. Mother then avowed to the court under oath that the allegations accurate. in an affidavit she submitted were true and When asked by the court whether Father would like to submit evidence, Father s counsel answered Nothing further. ¶7 Father The superior court affirmed the order of protection. timely Arizona (A)(5)(b) appealed. Revised (Supp. We Statutes 2012), have ( A.R.S. ) and jurisdiction sections 12-120.21(A)(1) pursuant 12-2101(A)(1), (2003), and 9(B)(2) of the Arizona Rules of Protective Order Procedure. 3 to Rule DISCUSSION I. Father s appeal is not moot. ¶8 the On December 21, 2012, while this appeal was pending, family court conducted an evidentiary hearing on an additional order of protection Mother had obtained on October 11, 2012. The family court found that Mother has failed to demonstrate by a preponderance of the evidence that [Father] has committed acts of domestic violence that warrant the continuation of the Order of Protection that was entered against him. Accordingly, the family court dismissed and quashed that order of protection. Mother then moved to dismiss this appeal based on mootness over Father s opposition. ¶9 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. P.2d 736, 739 Vinson v. Marton & Assocs., 159 Ariz. 1, 4, 764 (App. 1988). Although no constitutional bar exists to our consideration of moot issues, this Court has the discretion not to address such issues as a matter of judicial restraint. Big D. Constr. Corp. v. Ariz. Ct. of Appeals, 163 Ariz. 560, 563, 789 P.2d 1061, 1064 (1990). ¶10 Relying on Cardoso v. Soldo, 230 Ariz. 614, 618, ¶ 12, 277 P.3d 811, 815 (App. 2012), Father contends that the order of protection decision is not moot. 4 In Cardoso, Maria Cardoso appealed from an order of protection entered in favor of her former husband, Paul Soldo. Id. at 616, ¶ 1, 277 P.3d at 813. Notwithstanding the order s expiration on appeal, we reached the merits based upon the collateral consequences exception to the mootness doctrine. Id. at 619, ¶ 14, 277 P.3d at 816. We recognized that even an expired order of protection has ongoing legal consequences, id., including in a subsequent order of protection and child custody proceedings, id. at 618, ¶¶ 10-11, 277 P.3d at 815. ¶11 Although this case is in a somewhat different procedural posture, the Cardoso concerns still apply. As the superior court stated, each order of protection is a separate order that stands on its own merit and is not contingent upon prior orders. based upon A superior court may issue an order of protection reasonable cause to believe that a defendant commit or has committed an act of domestic violence. 13-3602(E) presumption (Supp. committing 2012). against the The granting act. order legal A.R.S. § creates custody a to may A.R.S. § rebuttable parent (Supp. 25-403.03(D) the 2012). Another collateral consequence is that a court must be advised about the order of protection if future orders of protection are sought. A.R.S. § 13-3602(C)(5). Evidence of that order s issuance is a matter of public record, A.R.S. § 13-3602(L), and may have consequences beyond the 5 underlying proceeding for Father s reputation as well as his legal rights. See Cardoso, 230 Ariz. at 618, ¶¶ 10-12, 277 P.3d at 815. In light of these consequences, we deny Mother s motion to dismiss on mootness grounds and reach the merits of Father s appeal. II. The superior court did not deprive Father of due process. ¶12 due Father argues that the superior court deprived him of process by: (1) misconstruing the burden of proof and focusing on improper factors; (2) forcing him to proceed with a hearing for which he was not fully prepared or withdraw his hearing request; and (3) reaching a decision before Father had presented a case. prior order hearing. 1 of He accordingly requests that we dismiss the protection upheld at the January We review due process claims de novo. 10, 2012 See State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004). A. The superior court applied the appropriate burden of proof and applicable standards. ¶13 Father argues the superior court misapplied the burden of proof and applicable standards. ¶14 According to Rule 8(F) We disagree. of the Arizona Rules of Protective Order Procedure: The plaintiff shall prove the case by a preponderance of the evidence, in order for a protective order to remain in effect as originally issued or as modified 1 In his opening brief, Father had alternatively requested a remand for an evidentiary hearing, but has since received such a hearing on December 21, 2012. 6 after the hearing. The superior court expressly recognized this burden at the outset, and instructed Mother that you re the one that asked for the order of protection. So the burden is on you to prove by a preponderance of the evidence that reasonable cause still exists to keep this order in place. Okay. So we ll start with your side of the story. ¶15 Father claims that the superior court did not focus on the statutory requirements for an order of protection, which are: reasonable cause to believe that a defendant may commit an act of domestic violence or has committed an act of domestic violence within the past year, or for a longer period if good cause permits. A.R.S. § 13-3602(E). When the order is directed at prohibiting contact with a child with whom the defendant has a legal relationship, the court must also consider whether the child may be: (a) harmed if the defendant is permitted to maintain contact with the child; and (b) endangered if there is contact outside the presence of the plaintiff. Ariz. R. Prot. Ord. P. 4(B)(4). ¶16 During the hearing, the superior court stated that it needed to step outside the boundaries of you folks and look at the best interests of the children. There is no record evidence that the court did not consider the relevant factors when it ultimately chose to affirm the order of protection. Nor is there any evidence that the court used the best interests to 7 shift the burden of proof to Father. to the best proposed interest settlement standard Rather, the court referred when agreement, which rejecting included the parties parenting time terms. ¶17 In any event, Father correctly concedes that the children s best interests are not irrelevant to the order of protection. consider As explained previously, the court is required to whether defendant or a child endangered plaintiff s presence. B. may be harmed through such by contact contact with outside the the See Ariz. R. Prot. Ord. P. 4(B)(4). The superior court did not deprive Father of a hearing. ¶18 Due process, under Amendments to the United Section of the Arizona 4 both States the Fifth Constitution Constitution, meaningful opportunity to be heard. and and Fourteen Article guarantees Father 2, a See Armstrong v. Manzo, 380 U.S. 545, 552 (1965); Wallace v. Shields, 175 Ariz. 166, 174, 854 P.2d 1152, 1160 (App. 1992). Likewise, Rule 8(D) of the Arizona Rules of Protective Order Procedure provides that, at 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 crossexamine witnesses. ¶19 Contrary to Father s allegation, the superior court did not prevent him from presenting evidence or force him to 8 proceed without adequate time for preparation. The superior court stated that Father had a right to a hearing and repeatedly inquired whether Father wished to have a hearing or withdraw his request for a hearing. The record also reflects that Father s counsel had arrived at court prepared for trial, as evidenced by her stack of exhibits and the subpoenas she had issued to two CPS witnesses. ¶20 Father claims that the court violated his due process rights by witnesses. insisting that he proceed without the absent CPS But the failure of Father s subpoenaed witnesses to appear did not preclude Father from testifying, cross-examining Mother, or making a formal offer of proof as to what the absent witnesses would state. hearing. Father chose not to participate in the On this record, we reject Father s claim of a due process violation. C. The superior court did not reach a decision before hearing the evidence. ¶21 its Finally, Father claims that the superior court made decision prior to hearing the evidence. The transcript fails to support this claim. ¶22 The superior court was not new to the case, having reviewed Mother s petition during the initial ex parte hearing, and again in preparation for the January 10, 2012 hearing. The court attempted to start the evidentiary hearing by stating the 9 burden of proof and calling on Mother to present evidence, but the parties diverted the discussion to their proposed settlement and other issues. ¶23 The superior court then heard from both parties counsel that no CPS investigation was pending against Father, and Father s counsel avowed that the police detective was extremely squeamish about testifying [at] this early stage. After a discussion supervised order of 4(B)(1), parenting protection the about time, allowing an issue proceeding, court rejected Father not see justiciable Ariz. the professionally R. proposed Prot. in this Ord. settlement P. and expressed an inclination to affirm the order and then let the family court exchanges division with really counsel, delve the into superior affirming the order the way it is. this. court ¶24 court s stated: more I m So that you can get to [the family court division] as quickly as possible. happy to take testimony. After I m more than But that s up to you. In this context, we find neither impropriety in the informing the parties of its inclination nor any indication that the court reached a decision without considering evidence. arguments We find concerning it unnecessary Mother s choice to reach of forum. the parties Nor do we address the merits of the superior court s decision, an issue 10 Father first raised in his reply brief. See State v. Guytan, 192 Ariz. 514, 520, ¶ 15, 968 P.2d 587, 593 (App. 1998). CONCLUSION ¶25 Father s appeal from the initial order of protection is not moot. We hold that Father received due process at the hearing on that order and therefore affirm. /S/ DONN KESSLER, Judge CONCURRING: /S/ MAURICE PORTLEY, Presiding Judge /S/ SAMUEL A. THUMMA, Judge 11
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