Lopez v. Lopez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JAYME LOPEZ, Petitioner/Appellee,
v.
BRANDON LOPEZ, Respondent/Appellant.
No. 1 CA-CV 17-0736 FC
FILED 9-13-2018
Appeal from the Superior Court in Maricopa County
No. FC2017-096666
The Honorable Richard J. Hinz, Judge Pro Tempore
AFFIRMED
COUNSEL
Tyler Allen Law Firm, Phoenix
By Shannon L. Peters
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Diane M. Johnsen joined.
LOPEZ v. LOPEZ
Decision of the Court
C R U Z, Judge:
¶1 Brandon Lopez (“Husband”) appeals the superior court’s
order continuing an order of protection. He argues the superior court
abused its discretion by violating his due process rights and by ordering a
firearm restriction under the federal Brady Handgun Violence Prevention
Act (“Brady Act”).1 He also argues the superior court abused its discretion
because its findings were supported by improper evidence.2 For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY3
¶2 In October 2017, Jayme Lopez (“Wife”) filed a petition for an
order of protection. She alleged Husband had been “physically,
emotionally, and mentally abusive” towards her during the eighteen
months she and Husband were married. The superior court issued an ex
parte order of protection, and Husband requested a hearing.
¶3 The superior court held a hearing after which it ordered that
the order of protection should remain in full force and effect. The court
found by a preponderance of the evidence that there was reasonable cause
to believe Husband had committed an act of domestic violence within the
1 The Brady Act, codified within Title 18, Chapter 44 of the United
States Code, provides, in relevant part, that “[i]t shall be unlawful for any
person . . . who is subject to a court order that . . . restrains such person from
harassing, stalking, or threatening an intimate partner of such person . . . or
engaging in other conduct that would place an intimate partner in
reasonable fear of bodily injury to the partner . . . and includes a finding
that such person represents a credible threat to the physical safety of such
intimate partner . . . to . . . possess . . . any firearm or ammunition.” 18 U.S.C.
922(g) (2015).
2 Jayme Lopez (“Wife”) did not file an answering brief. In the exercise
of our discretion, we decline to treat her failure to file an answering brief as
a confession of error. See Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982)
(“Although we may regard [the] failure to respond as a confession of
reversible error, we are not required to do so.”).
3 We view the facts in the light most favorable to upholding the
superior court’s ruling. Michaelson v. Garr, 234 Ariz. 542, 544 n.1 (App.
2014).
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LOPEZ v. LOPEZ
Decision of the Court
last year. It also found that good cause existed to continue the application
of the Brady Act.
¶4 Husband timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(5)(b), and Arizona Rule of Protective Order
Procedure 42(b)(2).
DISCUSSION
¶5 We review an order of protection for an abuse of discretion,
Shah v. Vakharwala, 244 Ariz. 201, 202, ¶ 5 (App. 2018), but we review
questions of law, including due process claims, de novo. Savord v. Morton,
235 Ariz. 256, 260, ¶ 16 (App. 2014).
¶6 Upon the filing of a verified petition, a court has jurisdiction
to issue an order of protection if it finds there is reasonable cause to believe
a “defendant may commit an act of domestic violence” or “has committed
an act of domestic violence within the past year” or longer if the court finds
good cause. A.R.S. § 13-3602(E); see also A.R.S. § 13-3602(P). When the court
issues an ex parte protective order, upon the respondent’s request it shall
hold a hearing, after which it may continue the order. A.R.S. § 13-3602(I).
The term “domestic violence” is defined by statute. A.R.S. § 13-3601(A).
I. Due Process
¶7 Husband argues the superior court violated his due process
rights because it allowed Wife to testify about matters not sufficiently
specified in Wife’s petition, which he asserts lacked specific dates and acts.
He also argues the superior court abused its discretion by considering
testimony regarding allegations that were not specifically alleged in the
petition.
¶8 Due process protections apply to protective order
proceedings. See Savord, 235 Ariz. at 259-60, ¶ 16. Husband was therefore
entitled to receive notice reasonably calculated to apprise him of Wife’s
allegations so he could adequately prepare his opposition and have a
meaningful opportunity to be heard. See Ariz. R. Protective Order P. 38(e)
(providing that at a contested order for protection hearing, “[t]he judicial
officer must ensure that both parties have an opportunity to be heard, to
present evidence, and to call and examine and cross-examine witnesses.”).
Allowing a petitioner to testify as to matters outside the petition deprives a
defendant of due process. See Savord, 235 Ariz. at 259, ¶ 16.
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LOPEZ v. LOPEZ
Decision of the Court
¶9 Husband admits that from the petition itself he was on notice
that Wife alleged he committed acts of domestic violence against her on
October 14, 2017, October 17, 2017, and November 18, 2016. In the petition
filed October 19, 2017, Wife also references events occurring the day prior,
that is October 18, 2017. While it is true that the court allowed, over
Husband’s objection, Wife to testify about events occurring outside of these
four dates, the court nonetheless found Wife proved acts of domestic
violence on each of the four relevant dates, and those findings sufficiently
supported its decision to continue the protective order. For example, the
superior court found that as to the November 18, 2016 incident, where the
police were called and a report was generated, Wife proved by a
preponderance of the evidence an act of domestic violence. Specifically, the
court stated, “[t]he Court believes that [Husband] did likely choke [Wife]
or put his hands on her, also knocked a bag of candy out of her hands.”
Thus, it concluded that incidents of harassment and disorderly conduct
occurred on the three dates alleged. We will affirm the superior court on
any basis supported by the record. Adage Towing & Recovery, Inc. v. City of
Tucson, 187 Ariz. 396, 398 (App. 1996).
¶10 The superior court also stated that, having observed the
testimony and judged the credibility of the witnesses present in the
courtroom, it did not find Husband’s testimony credible. Although there
was conflicting evidence presented at the hearing, we defer to the court’s
superior position to weigh the evidence, make credibility determinations,
and resolve conflicts in facts. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13
(1999). In sum, we affirm the superior court’s order because its findings
that Husband committed domestic violence acts against Wife, as Wife
alleged in the petition, were supported by her testimony and the court
found her to be credible.
II. Brady Act Restriction
¶11 Husband next argues the superior court erred because there
was no basis upon which the court could have concluded that he posed a
credible threat to Wife’s physical safety. He also argues Wife never put his
access to firearms at issue because her petition alleged no incidents
involving firearms. We disagree.
¶12 A court issuing an order of protection can “prohibit the
defendant from possessing or purchasing a firearm for the duration of the
order” if it determines that “the defendant is a credible threat to the physical
safety of the plaintiff.” A.R.S. § 13-3602(G)(4).
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LOPEZ v. LOPEZ
Decision of the Court
¶13 In Wife’s petition, at item 7, she requested Husband not be
permitted to possess firearms because of a risk of harm. This was sufficient
to put the matter at issue and Husband on notice. In addition, she testified
she felt fearful when she learned the gun kept in the home had been moved
from its usual storage place. This testimony, along with the superior court’s
findings that Husband had been physically violent with Wife, supported
the court’s decision to order the continued application of the Brady Act
restriction on Husband’s right to possess a firearm for the term of the order
of protection.
CONCLUSION
¶14 For the foregoing reasons, we affirm the superior court’s
order affirming the order of protection and firearms restriction.
AMY M. WOOD • Clerk of the Court
FILED: AA
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