Straw v. Witts

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL
PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
JENELL STRAW, Plaintiff/Appellant,
v.
JOHN ROBERT WITTS, Defendant/Appellee.
No. 1 CA-CV 13-0173
FILED 03/04/2014
Appeal from the Superior Court in Maricopa County
No. FC2006-090100
The Honorable Rodrick J. Coffey, Judge
AFFIRMED
COUNSEL
Wylde Summers PLLC, Gilbert
By Jennifer Summers
Counsel for Plaintiff/Appellant
Atchley and Delgado LLP, Mesa
By Michael G. Delgado
Counsel for Defendant/Appellee
STRAW v. WITTS
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 Jenell Straw appeals from the superior court’s order
dismissing an order of protection she obtained against her ex-husband,
John Robert Witts, on behalf of their minor daughter. On appeal, Straw
argues the superior court abused its discretion in dismissing the order of
protection because the evidence presented at an evidentiary hearing
demonstrated Witts had committed an act of domestic violence against the
daughter. See Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16, 277 P.3d 811, 816
(App. 2012) (order of protection ruling reviewed for abuse of discretion).
For the following reasons, we disagree with her argument and affirm the
order.
¶2 Witts’s current wife, who observed parts of the incident
between Witts and the daughter, testified that after Witts took the
daughter’s cell phone away, the daughter “tried to lunge in and grab the
phone from him.” She testified Witts then tried to usher the daughter into
her room, and “she just went nuts” and started hitting, kicking, and
scratching him. Witts’s wife further testified Witts restrained the
daughter by “lower[ing] her to the ground,” but that he did not hurt her
in any way. Witts’s wife called the police, and they asked Witts if he
wished to press charges against the daughter; he declined to do so.
¶3 Straw also testified at the hearing based on her
conversations with the daughter. Straw’s testimony supported Witts’s
wife’s testimony that the daughter initiated physical contact with Witts
and he was trying to restrain her. Straw stated the daughter told her that
Witts had the daughter’s cell phone in his hand, and “she went over the
top of him to go grab it.” The daughter also told Straw that Witts had
then grabbed the daughter’s arm and sat her back down. When he would
not let go of her arm, the daughter “took a swing at him.” 1
1Atthe hearing, Straw testified that Witts grabbed the
daughter by the throat. Witts’s wife, however, testified Witts never
2
STRAW v. WITTS
Decision of the Court
¶4 Based on this testimony and the other evidence presented at
the hearing, reasonable evidence supported the superior court’s dismissal
of the order of protection. See State v. Morris, 215 Ariz. 324, 341, ¶ 77, 160
P.3d 203, 220 (2007) (Under an abuse of discretion standard, “we uphold a
decision if there is any reasonable evidence in the record to sustain it.”
(citation omitted) (internal quotation marks omitted)).
¶5 Witts has requested fees on appeal pursuant to Arizona
Revised Statutes section 25-324 (Supp. 2013). Section 25-324 authorizes
attorneys’ fees in dissolution of marriage and legal decision-making and
parenting time actions and is, consequently, inapplicable here. As the
prevailing party on appeal, however, Witts is entitled to costs on appeal
contingent upon his compliance with Arizona Rule of Civil Appellate
Procedure 21.
¶6 For the foregoing reasons, we affirm the superior court’s
order dismissing the order of protection.
:gsh
grabbed the daughter’s throat and his hands were on her shoulders.
Which witness to believe was a decision for the superior court. State v.
Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) (“finder-of-fact, not
the appellate court . . . determines the credibility of witnesses”).
3