Aragon v. Eulate ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
RACHAEL ARAGON, Petitioner/Appellee,
v.
JESSE EULATE, Respondent/Appellant.
No. 1 CA-CV 18-0742 FC
FILED 10-1-2019
Appeal from the Superior Court in Maricopa County
No. FC2018-007444
The Honorable Margaret Benny, Judge Pro Tempore
VACATED
COUNSEL
Jesse Eulate, Gilbert
Respondent/Appellant
ARAGON v. EULATE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.
J O N E S, Judge:
¶1 Jesse Eulate (Father) appeals from the trial court’s order
upholding an order of protection that limits his contact with his minor
daughter (Child). For the following reasons, we vacate the order.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2018, Rachel Aragon (Mother) petitioned the trial
court for an order of protection against Father, alleging he was physically
harming Child and threatening not to return her following his court-
ordered parenting time. At the time, a separate domestic relations matter
was pending before the family court. After a contested hearing, the trial
court found that Father “had committed an act of domestic violence against
[Mother] within the last year or may commit an act of domestic violence in
the future.”1 The court entered an order of protection “pertain[ing] to the
child only” that limited Father’s contact with Child to prescheduled
telephone calls. Father timely appealed the final order, and we have
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1),2 -2101(A)(5)(b), and Arizona Rule of Protective Order
Procedure 42.
DISCUSSION
¶3 Father first argues he was not properly served with notice of
the hearing and did not have an adequate opportunity to prepare for it.
1 Father asks this Court to take judicial notice of contrary findings
entered by the family court in April 2019. Those findings, made by a
different judicial officer six months after the protective order entered, do
not provide a basis for reversal. See Vera v. Rogers, 246 Ariz. 30, 35-36, ¶¶ 20-
22 (App. 2018). Accordingly, we deny the request.
2 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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Decision of the Court
However, “[t]here is no statutory requirement for personal service of the
hearing notice.” Ariz. R. Protective Order P. 38(c). Moreover, having
personally appeared at the hearing and participated without objection,
Father waived these claims of error. See Shah v. Vakharwala, 244 Ariz. 201,
203, ¶ 8 (App. 2018) (citations omitted); Cardoso v. Soldo, 230 Ariz. 614, 619,
¶ 18 (App. 2012) (citing Englert v. Carondelet Health Network, 199 Ariz. 21, 26,
¶ 13 (App. 2000)).
¶4 Father next argues the trial court erred by designating Child
a person protected by the order. “We review a protective order for an abuse
of discretion.” Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014) (citing
Cardoso, 230 Ariz. at 619, ¶¶ 15-16). “An abuse of discretion occurs when
the court commits an error of law that underlies its exercise of discretion.”
Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018) (citing Kohler v.
Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)).
¶5 Pursuant to Arizona Rule of Protective Order Procedure
5(b)(1), “[a] judicial officer cannot include a defendant’s child in a protective
order unless there is reasonable cause to believe . . . physical harm may
result or has resulted to the child, or . . . the alleged acts of domestic violence
involved the child.” “A separate reasonable cause determination must be
made as to . . . any child with whom the defendant has a legal relationship.”
Ariz. R. Protective Order P. 23(e)(2). Additionally:
Before granting a protective order prohibiting contact with a
child with whom the defendant has a legal relationship, the
judicial officer must consider:
(1) whether the child may be harmed if the defendant is
permitted to maintain contact with the child; and
(2) whether the child may be endangered if there is contact
outside the presence of the plaintiff.
Ariz. R. Protective Order P. 35(b). Where, as here, a domestic relations case
involving the parties is already pending, the court that finds a parent has
committed an act of domestic violence “should refer to the options in A.R.S.
§ 25-403.03(F)” when determining the bounds of the protective order. Ariz.
R. Protective Order P. 35(b) cmt.; see also Courtney v. Foster ex rel. Cty. of
Maricopa, 235 Ariz. 613, 616, ¶ 11 (App. 2014) (recognizing “the primacy of
[A.R.S.] § 25-403.03(F) in parenting time decisions”). These options include
ordering parenting time be supervised, requiring the offending parent to
post a bond for the child’s safe return, restricting the offending parent’s
alcohol or controlled substance use during parenting time, and
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ARAGON v. EULATE
Decision of the Court
“[i]mpos[ing] any other condition that the court determines is necessary to
protect the child.” A.R.S. § 25-403.03(F).
¶6 “Although we presume that the trial court knows the law and
applies the correct standard, that presumption may be rebutted by the
record.” Hart v. Hart, 220 Ariz. 183, 188, ¶ 18 (App. 2009) (citing Fuentes v.
Fuentes, 209 Ariz. 51, 58, ¶ 32 (App. 2004); Frederickson v. McIntyre, 52 Ariz.
61, 64 (1938); and Brewer v. Peterson, 9 Ariz. App. 455, 458 (1969)). Here, the
trial court found only that Father had committed or was likely to commit
an act of domestic violence against Mother. The trial court did not find an
act of domestic violence against Child, did not make a separate
determination that reasonable cause existed to believe Child was at risk, and
did not make any findings indicating it considered the effect of Father’s
behavior on Child before limiting his contact with her. Nor is there any
indication that the court referred to the options set forth in A.R.S. § 25-
403.03(F).
¶7 Given the fundamental right to parent at stake here, see Kent
K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455
U.S. 745, 753 (1982), and Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
248, ¶ 11 (2000)), Father presents a debatable issue regarding whether the
trial court complied with due process, protective order procedure, and
Arizona statutes, see Savord, 235 Ariz. at 259-60, ¶ 16 (confirming that due
process protections apply to protective order proceedings). Under these
circumstances, we consider Mother’s failure to file an answering brief as a
confession of reversible error. See Adkins v. Adkins, 39 Ariz. 530, 532 (1932)
(“[A] failure to file an answering brief is equivalent to a confession of error
by the appellee, and . . . when on examination of the record it appears a
debatable question is raised by the appellant and no reasonable cause is
shown for appellee’s failure to file a brief, we will reverse the case.”)
(collecting cases); ARCAP 15(a)(2) (“If the appellee does not timely file an
answering brief, the appellate court may deem the appeal submitted for
decision based on the opening brief and the record.”). Accordingly, we find
the trial court abused its discretion when it entered an order of protection
limiting contact between Father and Child without making a separate
reasonable cause determination, considering the factors identified within
Arizona Rule of Protective Order Procedure 35(b), or referring to the less
restrictive options detailed in A.R.S. § 25-403.03(F).
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ARAGON v. EULATE
Decision of the Court
CONCLUSION
¶8 The order of protection is vacated.
AMY M. WOOD • Clerk of the Court
FILED: AA
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