Terepocki v. Grim-Moore ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MONTSE C. TEREPOCKI, Petitioner/Appellee,
v.
KELLY JO GRIM-MOORE, Respondent/Appellant.
No. 1 CA-CV 18-0050 FC
FILED 11-15-2018
Appeal from the Superior Court in Maricopa County
No. FN2017-005833
The Honorable Bernard C. Owens, Judge Pro Tempore
AFFIRMED
APPEARANCES
Montse C. Terepocki, Peoria
Petitioner/Appellee
Kelly Jo Grim-Moore, Phoenix
Respondent/Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
TEREPOCKI v. GRIM-MOORE
Decision of the Court
H O W E, Judge:
¶1 Kelly Grim-Moore appeals from the trial court’s order of
protection in favor of Montse Terepocki and the subsequent denial of her
motion for a new trial. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2015, Moore’s daughter, Terepocki, obtained an ex
parte protective order against Moore based on allegations that Moore had
committed several acts of harassment against her. Terepocki alleged that
Moore had caused a “massive scene before and after church” that
“escalated to her physically grabbing [Terepocki;]” vandalized her
bathroom at her grandfather’s home by writing on the mirrors, signs, and
walls; and sent her a book even though Terepocki “clearly told her that [she]
wanted to be left alone by her multiple times.” After an evidentiary hearing,
the trial court dismissed that order of protection.
¶3 In September 2017, Terepocki sought and was granted an
order of protection against Moore. In her petition, she referred to the
incidents she had alleged in 2015, along with several other incidents that
were more than a year old. At the subsequent evidentiary hearing, the court
stated at the outset that it would not consider any incidents that occurred
more than a year before filing of the current petition because Terepocki had
failed to establish good cause for the court to do so.
¶4 The trial court heard testimony from Terepocki, Moore, and
one other witness. The court also received exhibits, including Terepocki’s
text messages to Moore requesting that Moore never contact her directly
but only through her husband and only about important family matters.
¶5 Terepocki testified about three separate incidents that
occurred in or around her workplace. She stated that these incidents
occurred after she told her mother “countless times to leave [her] alone”
and to contact her only through her husband. The first alleged incident
occurred in the parking lot of the bank where Terepocki worked. According
to Terepocki, Moore followed her around the parking lot and attempted to
give her a Christmas present even though she repeatedly asked Moore to
leave. The next alleged incident occurred in Terepocki’s workplace while
she was out of town. According to Terepocki, during a visit to the bank,
Moore “asked about [her]” and placed a signed “sticky note” on her
computer. After receiving the note, Terepocki told her mother by text
message “not to come to [her] place of work” and told her again to contact
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TEREPOCKI v. GRIM-MOORE
Decision of the Court
her only through her husband. As for the third alleged incident, Terepocki
testified Moore again showed up at her workplace, “announced ‘love you
pretty girl’” as she walked by Terepocki, and then quickly exited the
building. On redirect examination, the court asked Terepocki to explain
why the acts Terepocki described disturbed her. Without objection,
Terepocki responded by relating the incidents that underlay her October
2015 petition.
¶6 Moore testified that during the parking lot incident, she was
trying to give Terepocki medical records that contained “life-threatening
medical information,” along with a Christmas gift. She also added that she
left immediately upon Terepocki’s request. Moore further testified that
during the second and third incidents Terepocki described, she had come
to the bank to conduct business. She elaborated that she chose the particular
branch on the day of the third incident because she had just left her
attorney’s office, which was located “right across the street[.]”
¶7 Terepocki’s sister-in-law also testified at the hearing.
According to her testimony, Terepocki had indicated to her that she had
been “thinking about reconciling with [her] mom” and had said through
social media that she had contemplated reconciling with Moore at one
point.
¶8 In urging the trial court to sustain the protective order,
Terepocki stated that her mother’s conduct annoyed her “so much so to
where it distracts [her] . . . from being able to do [her] job[.]” The court
subsequently found that, based on the 2015 incidents, Terepocki had a
reasonable basis for requesting that her mother not contact her. The court
further noted that Moore was aware of her daughter’s request to not contact
her directly. The court therefore determined that Moore’s leaving a “sticky
note” on Terepocki’s office computer and stating “love you pretty girl” as
she passed by Terepocki during a visit to her workplace constituted
harassment. As such, the court sustained the order of protection.
¶9 Moore moved for a new trial, arguing that the trial court
should not have considered the 2015 incidents. The trial court denied the
motion and noted that it heard that evidence “solely to give context to
[Terepocki’s] decision to limit contact with her mother.” Moore timely
appealed.
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TEREPOCKI v. GRIM-MOORE
Decision of the Court
DISCUSSION
1. Evidentiary Issues
¶10 Moore argues that the trial court erred by ruling that her
conduct during the second and third incidents constituted harassment and
by relying on the 2015 incidents in making its decision. We review the
issuance of an order of protection for an abuse of discretion. Savord v.
Morton, 235 Ariz. 256, 259 ¶ 10 (App. 2014). A trial court abuses its
discretion when the record, viewed in the light most favorable to upholding
the trial court’s decision, is devoid of competent evidence supporting the
decision. Id.
¶11 A court shall issue an order of protection if it has reasonable
cause to believe that “the defendant may commit an act of domestic
violence” or “has committed an act of domestic violence within the past
year or within a longer period of time if the court finds that good cause
exists to consider a longer period.” A.R.S. § 13–3602(E). “Domestic
violence” encompasses harassment when the victim and defendant are
related by blood. A.R.S. § 13–3601(A)(4). In pertinent part, a person
commits harassment under A.R.S. § 13–2921(A) if, with the intent to harass
or with knowledge that the person is harassing another person, the person
engages in any of the following conduct:
1. Anonymously or otherwise contacts, communicates or
causes a communication with another person by verbal,
electronic, mechanical, telegraphic, telephonic or written
means in a manner that harasses.
...
3. Repeatedly commits an act or acts that harass another
person.
Section 13–2921(E) further defines “harassment” as “conduct that is
directed at a specific person and that would cause a reasonable person to
be seriously alarmed, annoyed, or harassed and the conduct in fact
seriously alarms, annoys or harasses the person.”
¶12 The trial court did not abuse its discretion because the
evidence supports a finding of harassment under A.R.S. § 13–2921. The
record demonstrates that the 2015 incidents strained Terepocki’s
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TEREPOCKI v. GRIM-MOORE
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relationship with her mother so much that Terepocki instructed Moore to
cease contacting her directly. The record also indicates that despite Moore’s
knowledge of that request, Moore directed conduct at Terepocki when she
left a note on Terepocki’s work computer and, on a separate visit to her
workplace, said “love you pretty girl” as she walked nearby. In addition,
Terepocki stated that these communications had annoyed her and
distracted her attention at work. As such, competent evidence supports a
finding that a reasonable person would be seriously annoyed, alarmed, or
harassed by Moore’s seemingly innocuous conduct and that Terepocki was
in fact, seriously annoyed, alarmed, or harassed.
¶13 Moore argues nonetheless that she neither intended to harass
Terepocki nor knew that her conduct would harass her. The record,
however, supports the trial court’s contrary conclusion. According to the
record, Terepocki testified that she instructed her mother several times to
communicate with her only regarding urgent matters and to do so
exclusively through her husband. As such, the trial court could infer that
Moore was aware of the effect that her conduct would have on Terepocki.
Furthermore, although Moore disputed that she intended to harass
Terepocki, the trial court was free to accept Terepocki’s evidence to the
contrary. See Vincent v. Nelson, 238 Ariz. 150, 155 ¶ 18 (App. 2015) (noting
that the trial court is in the best position to judge credibility and resolve
conflicting evidence and that the appellate court generally defers to its
findings). Thus, Moore’s argument fails.
¶14 Moore next claims that the evidence is insufficient to satisfy
A.R.S. § 13–2921(A)(3), which states that a person commits harassment if
the person “[r]epeatedly commits an act or acts that harass another person.”
However, as pertinent here, harassment also occurs when a person
“contacts, communicates or causes a communication with another person
by verbal, electronic, mechanical, telegraphic, telephonic or written means
in a manner that harasses.” A.R.S. § 13–2921(A)(1). Because the evidence
supports a finding of harassment under that provision, we will not address
Moore’s argument regarding the third statutory definition.
¶15 Moore also contends that the trial court abused its discretion
by basing its decision on evidence that it had stated it would not consider.
Moore has waived this argument, however, because Moore did not object
to Terepocki’s testimony regarding the 2015 incidents. See Ritchie v. Krasner,
221 Ariz. 288, 303 ¶ 51 (App. 2009) (noting that counsel’s failure to object to
an argument at trial generally waives the issue on appeal).
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2. Constitutional Issues
¶16 Moore argues that the trial court violated her due process
rights by denying her “a meaningful opportunity to be heard[.]” Moreover,
she claims that because she relied on the trial court’s statement at the
beginning of the evidentiary hearing that it would not consider Terepocki’s
2015 allegations, Moore did not present testimony rebutting those
allegations or cross-examine Terepocki regarding the incidents. We review
constitutional and purely legal issues de novo. State v. Moore, 222 Ariz. 1, 12
¶ 51 (2009).
¶17 Here, the record shows that, contrary to her argument on
appeal, Moore’s counsel in fact cross-examined Terepocki after she testified
about the 2015 incidents. Further, Moore knew by the time that Terepocki
rested her case that the court had allowed Terepocki to testify about the
2015 events to explain why the later events disturbed her. Moore therefore
had the opportunity during her own case to offer her own account of those
incidents. As such, the record reflects that the court provided Moore a
reasonable opportunity to respond to Terepocki’s allegations.
3. Attorneys’ Fees
¶18 Moore requests attorneys’ fees on appeal under A.R.S.
§ 13–3602(P). We deny her request, however, because she is not the
prevailing party on appeal.
CONCLUSION
¶19 For the foregoing reasons, we affirm. We award Terepocki her
costs on appeal, contingent on her compliance with Arizona Rule of Civil
Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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