Miller v. Miller

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
FRANCES MILLER, Plaintiff/Appellee,
v.
ERNEST MILLER, Defendant/Appellant.
No. 1 CA-CV 15-0410 FC
FILED 03-22-2016
Appeal from the Superior Court in Maricopa County
No. FN2015-092932
The Honorable Richard J. Hinz, Judge Pro Tempore
AFFIRMED
APPEARANCES
Ernest Miller, Mesa
Defendant/Appellant
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
MILLER v. MILLER
Decision of the Court
J O H N S E N, Judge:
¶1 Appellant Ernest Miller argues the superior court erred in
granting and affirming an order of protection in favor of his wife, Frances
Miller. For the following reasons, we affirm.
¶2 In May 2015, Frances petitioned for an order of protection
against Ernest, alleging he had committed acts of domestic violence against
her. The court found reasonable cause to believe Ernest "may commit an
act of domestic violence or has committed an act of domestic violence
within the past year," and issued an order of protection directing that he
have no contact with Frances and prohibiting him from going to or near her
residence. Ernest requested a hearing, which the court held the following
week. After hearing testimony from both parties, the court found good
cause to continue the order of protection and directed that it remain in
effect. Ernest timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes ("A.R.S.") section 12-2101(A)(5)(b) (2016).1
¶3 Ernest argues the superior court erred by issuing and later
affirming the order of protection because Frances' allegations of domestic
violence were false.2 We review an order of protection for an abuse of
discretion. Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014).
¶4 A court shall issue an order of protection if it determines there
is 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. A.R.S. § 13-3602(E)(2) (2016). The court may continue the
protective order after a hearing if the plaintiff proves his or her case by a
preponderance of the evidence. A.R.S. § 13-3602(I) (2016); Ariz. R. Prot.
Order P. 38(g). Because Ernest has not provided a transcript of the
protective order hearing, we must presume the record supports the
superior court's findings. Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).
Accordingly, we assume Frances presented credible evidence at the hearing
1 Absent material revision after the relevant date, we cite a statute's
current version.
2 Although we may regard Frances' failure to file an answering brief
as a confession of reversible error, McDowell Mtn. Ranch Cmty. Ass’n v.
Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007), in the exercise of our discretion,
we choose to address the merits of the appeal.
2
MILLER v. MILLER
Decision of the Court
that Ernest might commit an act of domestic violence or had committed an
act of domestic violence within the past year. Without a transcript of the
proceeding, we cannot say the court abused its discretion by granting and
continuing the order of protection. We therefore affirm.
:RT
3