Williams v. Jiminez ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
In re the Matter of:
MATTHEW WILLIAMS, Plaintiff/Appellant,
v.
IVAN GONZALEZ JIMINEZ, Defendant/Appellee.
No. 1 CA-CV 20-0698 FC
FILED 9-23-2021
Appeal from the Superior Court in Maricopa County
No. FN2020-004673
The Honorable Richard L. Nothwehr, Judge Pro Tempore
AFFIRMED
COUNSEL
Matthew Williams, Protected Address
Plaintiff/Appellant
Ivan Gonzalez Jiminez, Glendale
Defendant/Appellee
WILLIAMS v. JIMINEZ
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
F U R U Y A, Judge:
¶1 Matthew Williams appeals from an order of protection
dismissed by the superior court in favor of appellee, Ivan Jiminez. 1 For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On October 30, 2020, Williams petitioned the superior court
for an order of protection on behalf of E.W., his minor child, against
Jiminez—E.W.’s uncle. Williams alleged Jiminez had inappropriately
touched E.W. a week earlier. Based on Williams’ petition, the court found
reasonable cause to believe Jiminez may commit or had committed an act
of domestic violence within the past year and issued a protective order
that same day, barring Jiminez from having any contact with Williams or
E.W.
¶3 On November 9, 2020, Jiminez requested a hearing to
dismiss the protective order. Citing a Glendale police report closing its
investigation of the case around October 29, Jiminez alleged Williams
made false accusations about Jiminez inappropriately touching E.W. The
court scheduled a hearing for November 24, 2020.
¶4 After being sworn, both parties testified and cross-examined
each other, Williams presented documentary evidence—including the
Glendale police report—with Jiminez being afforded the same
1 Jiminez did not file an answering brief, and we could regard failure
to do so as a confession of reversible error. See Gonzales v. Gonzales, 134
Ariz. 437, 437 (App. 1982). However, we are not required to do so, and in
the exercise of our discretion, we address the substance of Williams’
appeal. See id.2
WILLIAMS v. JIMINEZ
Decision of the Court
opportunity. See Ariz. R. Protective Ord. P. (“ARPOP”) 38(f)(1)–(2). 2 At the
conclusion of the hearing, the court stated it was most concerned with the
“sufficiency of the evidence” to support maintaining the protective order,
given the “higher standard of proof” at this stage. See ARPOP 38(f)(3).
¶5 At close of the hearing, the court highlighted Williams’
failure to provide copies of additional reports he had alleged
substantiated his accusations against Jiminez, explaining that its decision
could only be based on “hard, firm evidence.” The court also noted
Williams’ potential ulterior motive in seeking the protective order.
Specifically, Williams was simultaneously seeking to modify an order in
his dissolution case requiring equal parenting time of E.W. with his ex-
wife. Maintenance of the protective order could effectively disrupt
Williams’ ex-wife’s residence, which she apparently shared with Jiminez
and E.W. See ARPOP 38(h). The court also intimated concern over the
timing of Williams’ request for the protective order, which was filed after
Williams had learned that Glendale police would be closing its
investigation as unfounded following a forensic interview of E.W.
Accordingly, the court dismissed the protective order.
¶6 Williams timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes §§ 120.21(A)(1) and -2101(A)(5)(b),
and ARPOP 42(a)(2), (b)(2). See Moreno v. Beltran, 250 Ariz. 379, 382, ¶ 11
(App. 2020).
DISCUSSION
¶7 We review the decision of the court to dismiss a protective
order following an evidentiary hearing for an abuse of discretion. See
Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16 (App. 2012). “The 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.” Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5 (App.
2014) (quotation omitted). We do not reweigh evidence on appeal, see
Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009) (citation omitted), and the
party who initially sought the protective order has the burden to prove, by
a preponderance of the evidence, that it should remain in effect. ARPOP
38(f)(3).
2 Absent material change, we cite to the current version of rules.
3
WILLIAMS v. JIMINEZ
Decision of the Court
¶8 Williams raises several issues, all of which are tantamount to
requesting we reweigh the evidence on appeal, something we will not do.
See Hurd, 223 Ariz. at 52, ¶ 16; In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13
(1999) (“In reviewing a trial court’s findings of fact, we do not reweigh
conflicting evidence or redetermine the preponderance of the evidence but
examine the record only to determine whether substantial evidence exists
to support the trial court’s action.”). Competent evidence, as relevant here,
exists to support the court’s dismissal of the protective order, see supra ¶ 5.
Therefore, Williams has shown no abuse of discretion.
CONCLUSION
¶9 For the foregoing reasons, we affirm the superior court’s
dismissal of the protective order.
AMY M. WOOD • Clerk of the Court
FILED: AA
4