Morrison v. Bennett ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TAMMY F. MORRISON, Plaintiff/Appellee,
v.
THERESA BENNETT, Defendant/Appellant.
No. 1 CA-CV 14-0132
FILED 1-8-2015
Appeal from the Superior Court in Maricopa County
Nos. CV2014-051930
The Honorable John R. Doody, Judge Pro Tempore
AFFIRMED
COUNSEL
Theresa Bennett, Phoenix
Defendant/Appellant
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
P O R T L E Y, Judge:
¶1 Theresa Bennett appeals from an Injunction Against
Harassment entered in favor of Tammy Morrison. For the following
reasons, we affirm.
MORRISON v. BENNETT
Decision of the Court
FACTS AND PROCEDURAL HISTORY
¶2 Morrison filed a petition for an Injunction Against
Harassment in January 2014.1 She alleged that Bennett filed multiple false
police reports against her, threatened her and her children, and tried to get
her evicted from her apartment. The court issued an Injunction Against
Harassment, prohibiting Bennett from committing “any act of ‘harassment’
against [Morrison] or [her children]” or having any contact with Morrison
and her children except through attorneys, legal process and court
hearings. After a contested hearing, the court affirmed the injunction.
Bennett appealed, and we have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(5)(b)2 and Arizona Rule of Protective
Order Procedure 9(A)(2).3
DISCUSSION
¶3 Bennett argues that the superior court abused its discretion by
affirming the Injunction Against Harassment, and requests that we vacate
the injunction. She specifically claims the hearing process was not fair, she
was limited to only one witness, her other witnesses would have
undermined the facts leading to the injunction, and the evidence was
insufficient to support affirming the injunction.
¶4 We review the court’s ruling for an abuse of discretion, Savord
v. Morton, 235 Ariz. 256, 259, ¶ 10, 330 P.3d 1013, 1016 (App. 2014), but view
the facts in a light most favorable to upholding the ruling. Michaelson, 234
Ariz. at 544 n.1, 323 P.3d at 1195 n.1. We are also mindful of the potential
consequences of a ruling both to one’s reputation and the collateral
consequences. Cardoso v. Soldo, 230 Ariz. 614, 618, ¶ 12, 277 P.3d 811, 815
(App. 2012).
¶5 Although Bennett challenges the process and the evidence
that was considered, she did not include a transcript of the contested
1 Morrison’s petition followed one that Bennett filed against her in 2013 that
was affirmed after a hearing on September 6, 2013. See Bennett v. Morrison,
Maricopa Cnty. Super. Ct., CV2013-054249.
2 We cite to the current version of the statute unless otherwise noted.
3 Morrison did not file an answering brief. We decline to treat her failure to
do so as a confession of error. See Michaelson v. Garr, 234 Ariz. 542, 544 n.3,
323 P.3d 1193, 1195 n.3 (App. 2014)
2
MORRISON v. BENNETT
Decision of the Court
hearing in the record on appeal.4 We, as a result, do not know what
happened at the hearing other than the information in any minute entries
and exhibits that may have been admitted into the record, and cannot
determine whether the court abused its discretion. See 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.”). Moreover, when we do not have a transcript
on appeal “the reviewing court assumes that the record supports the trial
court’s decision.” Kline v. Kline, 221 Ariz. 564, 572, ¶ 33, 212 P.3d 902, 910
(App. 2009) (citations omitted). Consequently, we must presume that the
missing transcript would support the trial court’s ruling. Michaelson, 234
Ariz. at 546, ¶ 13, 323 P.3d at 1197.
¶6 Here, the minute entry summarizing the hearing noted that
Bennett and Morrison testified, as did their witnesses, Olivia Montoya and
Deena Hasinburill. The minute entry also notes that the court, after
considering the testimony and evidence, found by a preponderance of the
evidence that Bennett had harassed Morrison and ordered that “the
Injunction Against Harassment remain in full force and effect.” On the
limited record, we cannot conclude the court abused its discretion in the
process that was used or by finding that the evidence supported the
continuation of the Injunction Against Harassment. Consequently, we
cannot find an abuse of discretion to warrant reversing the court’s ruling.
CONCLUSION
¶7 For the foregoing reasons, we affirm.
:ama
4 During the pendency of the appeal, Bennett asked to provide the audio
recording of the hearing in lieu of a transcript. We reverted jurisdiction to
the superior court to allow Bennett the opportunity to ask the superior court
to waive or defer the fees associated with the preparation of a transcript.
There is no evidence that she asked the court for such relief.
3