Chereka v. Gadissa ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KIDIST CHEREKA, Plaintiff/Appellant,
v.
WORKNEH GADISSA, Defendant/Appellee.
No. 1 CA-CV 14-0624 FC
FILED 6-11-2015
Appeal from the Superior Court in Maricopa County
No. FC2014-004661
The Honorable Thomas Kaipio, Judge Pro Tempore
AFFIRMED
COUNSEL
Kidist Chereka, Phoenix
Plaintiff/Appellant
Workneh Gadissa, Phoenix
Defendant/Appellee
CHEREKA v. GADISSA
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.
K E S S L E R, Judge:
¶1 Kidist Chereka (“Mother”) appeals from a judgment of the
superior court removing her children from an order of protection issued by
a justice court against the children’s father, Workneh Gadissa (“Father”).
For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Father previously lived together and share legal
decision making for their two children, S.W. (age 4) and K.W. (age 1).
Mother alleged Father beat her and threw dangerous items at her. She
further alleged Father hit S.W., severely bruising him and threw hot water
at S.W., requiring her to take him to the hospital. Mother also alleged K.W.
returned home from Father’s care covered in rashes, including diaper
rashes, and had not been fed while he was with Father.
¶3 Mother filed a request for a protective order against Father for
herself, S.W., and K.W. in justice court. The justice court granted Mother’s
request, listing Mother and the two children as protected persons. The
court then transferred the matter to the superior court, where a family court
proceeding was pending between Mother and Father. See generally Ariz. R.
Prot. Ord. P. 4. Father then requested a hearing to contest the protective
order. The superior court did not consolidate the transferred case from the
justice court and the pending family court matter.1
¶4 The superior court held an evidentiary hearing. In its minute
entry from that hearing, after receiving testimony from Mother and Father
and receiving various documentary exhibits, the court ruled that there was
reasonable cause to believe that Father committed an act of domestic
violence against Mother and that “significant acrimony exists between the
parties” warranting the continuance of the order of protection, but found it
1The other matter not before us on appeal is Maricopa County Superior
Court FC 2013-002025.
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CHEREKA v. GADISSA
Decision of the Court
was appropriate to modify the order “by removing the minor children
from” its protection “as stated on the record.” The court accordingly filed
an amended order of protection excluding the children.
¶5 Mother filed a timely notice of appeal from the superior
court’s order. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, Arizona Revised Statutes (“A.R.S.”) sections 12-
2101(A)(1), -2101(A)(5)(b), and Rule 9(B)(2) of the Arizona Rules of
Protective Order Procedure.
ISSUES AND STANDARD OF REVIEW
¶6 On appeal, Mother argues: (1) the superior court erred by
improperly excluding witness testimony that would have proven that the
children needed to be included in the protective order; (2) the exclusion of
such evidence violated her right to due process; (3) the superior court
violated her First Amendment rights by preventing her from taking the
children to church; and (4) the court improperly adjusted the parenting time
preventing her from attending school.
¶7 We review the trial court’s grant of an order of protection for
an abuse of discretion. Savord v. Morton, 235 Ariz. 256, 259, ¶ 10, 330 P.3d
1013, 1016 (App. 2014). A court abuses its discretion when there is no
factual support for the court’s conclusions or the court erroneously applies
the law. Grant v. Arizona Pub. Serv. Co., 133 Ariz. 434, 455–56, 652 P.2d 507,
528–29 (1982). We review legal issues de novo. Department of Child Safety v.
Beene, 235 Ariz. 300, 304, ¶ 8, 332 P.3d 47, 51 (App. 2014) (quoting Mario G.
v. Arizona Dep't of Econ. Sec., 227 Ariz. 282, 285, ¶ 12, 257 P.3d 1162, 1165
(App. 2011)). We view the evidence in a light most favorable to upholding
the trial court’s decision and will not overturn the trial court unless the
ruling “is devoid of competent evidence to support the decision.”
Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5, 323 P.3d 1193, 1195 (App. 2014)
(internal quotation marks and citations omitted). We review evidentiary
rulings for misapplication of the law and abuses of discretion that result in
unfair prejudice. Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6, 995 P.2d 281, 283
(App. 2000), amended (Feb. 22, 2000). It is the duty of the appellant to order
the necessary transcripts. Ariz. R. Civ. App. P. 11(c). When the record is
incomplete, we assume that any missing evidence supports the trial court’s
ruling. Bliss v. Treece, 134 Ariz. 516, 519, 658 P.2d 169, 172 (1983).
DISCUSSION
¶8 Mother’s first two arguments are that the superior court erred
in excluding a witness’s testimony. She alleges that the judge was “mad”
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CHEREKA v. GADISSA
Decision of the Court
at her for “appealing his July 21, 2014 Ruling” and that excluding the
witness denied her due process. The record indicates that another witness
was sworn but did not testify. Even if the superior court excluded that
witness’s testimony, Mother did not provide a transcript of the superior
court proceeding. We presume that the evidence presented at trial
supported the trial court’s decision to exclude the witness’s testimony and
that the judge properly weighed the evidence in accordance with the
relevant factors. See Bliss, 134 Ariz. at 519, 658 P.2d at 172; Aguirre v. Robert
Forrest, P.A., 186 Ariz. 393, 397, 923 P.2d 859, 863 (App. 1996).
¶9 In addition, in the absence of a transcript, we cannot find any
due process violation. The Fourteenth Amendment’s due process
protections entitle a party “to notice and an opportunity to be heard at a
meaningful time and in a meaningful manner.” Curtis v. Richardson, 212
Ariz. 308, 312, ¶16, 131 P.3d 480, 484 (App. 2006) (citing Comeau v. Arizona
State Bd. of Dental Exam’rs, 196 Ariz. 102, 106–07, ¶ 20, 993 P.2d 1066, 1070–
71 (App. 1999)). Due process entitles a party to offer evidence and challenge
adverse testimony. Id. at ¶ 16 (citing Application of Levine, 97 Ariz. 88, 91–
92, 397 P.2d 205, 207 (1964)). Due process also entitles parties who do not
understand English to have the proceedings translated into their native
language. See cf. State v. Natividad, 111 Ariz. 191, 194, 526 P.2d 730, 733
(1974) (stating that it is “axiomatic” for a criminal defendant who does not
speak English to have the proceedings translated into his or her native
language so long as a request for translation is timely made). The minute
entry from the hearing shows that Mother was present for the evidentiary
hearing, was permitted to participate, was represented by counsel, and had
the benefit of a court interpreter to interpret from English to the parties’
native language. Given the lack of any transcript, we presume the court did
not deny Mother due process of law. See Larsen, 196 Ariz. at 241, ¶ 6, 995
P.2d at 283.
¶10 Mother also argues that the superior court violated her First
Amendment rights by precluding her from taking the children to church
and further erred in preventing her from going to school by changing
parenting time. The amended order of protection from which Mother
appeals does not restrict Mother’s choice of where to take her children to
worship nor does it address parenting hours. We will only consider issues
raised in proceedings before the superior court. See Quila v. Schafer’s Estate,
7 Ariz. App. 301, 302, 438 P.2d 770, 771 (1968). If there are orders in the
related family court proceeding involving these issues it is not before us,
and the notice of appeal did not include such orders. Accordingly, we
express no opinion on them.
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CHEREKA v. GADISSA
Decision of the Court
CONCLUSION
¶11 For the reasons set forth above, we affirm the superior court’s
amended protective order.
:ama
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