Opinion
No. 2 CA-CV 2020-0046
12-02-2020
ROGER H. CONTRERAS, Plaintiff/Appellee, v. NANCY L. BOURKE, Defendant/Appellant.
COUNSEL Pahl & Associates, Tucson By Danette R. Pahl Counsel for Plaintiff/Appellee Nancy Bourke, Sierra Vista In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Cochise County
No. S0200PO202000007
The Honorable Denneen L. Peterson, Judge Pro Tempore
APPEAL DISMISSED IN PART AND AFFIRMED IN PART
COUNSEL Pahl & Associates, Tucson
By Danette R. Pahl
Counsel for Plaintiff/Appellee Nancy Bourke, Sierra Vista
In Propria Persona
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 Nancy Bourke appeals from the trial court's order of protection precluding her from contacting her former husband, Roger Contreras, and its orders sealing portions of the record and denying media and video coverage of the protection hearing. She argues the order of protection should be vacated because Contreras's petition lacked any allegations of domestic violence and the court's ruling did not include findings to support it. She contends the court's order sealing portions of the record and requiring the parties to "maintain confidentiality" of that information constituted an improper prior restraint on free speech and the court erroneously denied media and video coverage because it lacked specific findings of fact. Finally, she claims the court erred by eliminating her telephonic parenting time with her child. For the reasons that follow, we dismiss in part and affirm in part.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. Michaelson v. Garr, 234 Ariz. 542, n.1 (App. 2014). In December 2019, Contreras drove the parties' minor child to a court-designated restaurant to make an exchange with Bourke for her parenting time. As was his custom, Contreras backed into a parking space, intending to walk the child to the front door, where the exchange was required to occur. Bourke had driven into the parking lot directly after Contreras and stopped her car in front of his. Contreras testified that he had remained in his vehicle because he feared for his safety. He explained that he could not walk to the front door of the restaurant without passing "directly by" Bourke's vehicle. He also could not move his vehicle because her vehicle was blocking it. He honked his horn, gestured to an open parking space, and texted Bourke to move her car. He finally yelled from within his vehicle for her to move to the open space.
This court granted Contreras's motion to seal the appellate record. Specifically, we ordered that "[t]he record on appeal shall be sealed and shall not be disseminated to anyone other than the parties and their counsel." Bourke asserts that she was therefore denied "access to the electronic record" and "must guess what is in the record and the sequence of such records." But as noted, our order plainly states that both parties are permitted access to the record on appeal. In any event, Bourke was sufficiently able to cite to the record, and we were able to address her arguments.
¶3 Over the next several minutes, Bourke briefly got out of her car multiple times. After the court-ordered time for the exchange had passed, Bourke eventually walked over to Contreras's vehicle. Contreras yelled at her to get away, and when he attempted to lock his doors he inadvertently unlocked them instead. Bourke opened the rear passenger door, reached into the vehicle, and removed the child, who was crying. Bourke then put the child in her car and drove away.
¶4 The following month, Contreras filed a petition for an order of protection against Bourke alleging several incidents of harassment and aggressive conduct. The trial court set a hearing, limiting it to the incident described above, and denied Bourke's request under Rule 122, Ariz. R. Sup. Ct., for media and video coverage of the hearing. Following the hearing, at which both parties testified, the court granted Contreras's petition, finding "reasonable cause to believe that [Bourke] may commit an act of domestic violence or has committed an act of domestic violence within the past year." It also granted in part his request to seal the record. Bourke appealed the court's orders, and pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b), we have jurisdiction over the appeal stemming from the order of protection and the order to seal. See Ariz. R. Protective Order P. 42(a)(2) (defining order of protection after hearing as appealable); Mahar v. Acuna, 230 Ariz. 530, ¶ 11 (App. 2012) (signed protective order after hearing is final, appealable order).
Before the hearing, the trial court had not issued an ex parte order of protection because it had concerns about denying or granting the petition absent notice to Bourke.
Request for Media and Video Coverage
¶5 Bourke claims that the trial court erroneously denied the request for media and video coverage of the hearing. But a denial or limitation of such coverage is "reviewable only by special action." Ariz. R. Sup. Ct. 122(d). Special-action jurisdiction is appropriate where there is no "equally plain, speedy, and adequate remedy by appeal." Stapert v. Ariz. Bd. of Psych. Exam'rs, 210 Ariz. 177, ¶ 21 (App. 2005) (quoting State ex rel. Romley v. Fields, 201 Ariz. 321, ¶ 4 (App. 2001)). There is no remedy we can provide here—the hearing has already occurred. Therefore, while we may treat an appeal as a special action, we decline to do so here. See State ex rel. Dep't of Econ. Sec. v. Powers, 184 Ariz. 235, 236 (App. 1995). We thus dismiss the appeal as it relates to the denial of Bourke's request for media and video coverage.
Contreras suggests that Bourke lacks standing to assert this claim. Based on resolution of the issue on jurisdictional grounds, we need not address this argument.
Sealing the Record
¶6 Bourke contends the trial court erred in sealing the record as to documents filed before proof of service and in ordering that the parties maintain confidentiality of the information therein. We review a court's order to seal for abuse of discretion. Cf. Ctr. for Auto Safety v. Goodyear Tire & Rubber Co., 247 Ariz. 567, ¶¶ 16, 25 (App. 2019) (considering motion to unseal records for abuse of discretion and considering same factors as sealing records); In re Marriage of Flynn, 27 Ariz. App. 653, 655 (1976) (reviewing for abuse of discretion motion to seal transcript under family law).
¶7 After the trial court granted his petition, Contreras requested that the court seal the record. Bourke objected, arguing that Rule 7, Ariz. R. Protective Order P., did not apply and that "people need to know what kind of suffering happens when people cannot afford attorneys and the cases are sealed for no reason." Pursuant to Rule 5.4, Ariz. R. Civ. P., the court ordered that all documents filed before service of the order of protection be sealed.
The Rules of Civil Procedure generally apply when not inconsistent with the Rules of Protective Order Procedure. Ariz. R. Protective Order P. 2. And because this protective order matter was not "heard in conjunction with [a] pending family law case[]," the Rules of Family Law Procedure do not apply. Id.
¶8 Bourke contends that there were reasonable, less restrictive alternatives that would have preserved confidentiality and that requiring the parties to maintain confidentially is a "classic prior restraint on speech." But Bourke waived this argument by not presenting it below. See Trantor v. Fredrikson, 179 Ariz. 299, 300-01 (1994); Odom v. Farmers Ins. Co., 216 Ariz. 530, ¶ 18 (App. 2007). Thus, we will not consider it further.
Bourke claims the trial court improperly relied on Rule 7, Ariz. R. Protective Order P., when sealing the documents. She maintains that rule "only applies when a protective order has been issued and not yet served." The court made no reference to Rule 7 when sealing the record, either during the hearing or in its written order. Instead, the court applied Rule 5.4, Ariz. R. Civ. P., and identified the appropriate considerations when sealing the documents. Thus we find no merit in Bourke's argument.
Sufficiency of Allegations and Evidence
¶9 Bourke argues the trial court abused its discretion in granting an order of protection absent "any allegations of domestic violence" and without any specific findings of domestic violence. "We review an order of protection for an abuse of discretion." See Savord v. Morton, 235 Ariz. 256, ¶ 10 (App. 2014). "A trial court abuses its discretion when it makes an error of law in reaching a discretionary conclusion." Id. However, we review de novo matters of law such as interpretation of statutes. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 5 (App. 2008).
¶10 A petition for an order of protection must "allege each specific act of domestic violence that will be relied on at hearing." Ariz. R. Protective Order P. 23(b)(1); see also A.R.S. § 13-3602(C)(3) (requiring "[s]pecific statement, including dates, of the domestic violence alleged"). A petition must allege an offense enumerated in A.R.S. § 13-3601, such as threatening or intimidating (A.R.S. § 13-1202), unlawful imprisonment (A.R.S. § 13-1303), or criminal trespass in the second degree (A.R.S. § 13-1503). See Savord, 235 Ariz. 256, ¶ 11. To grant an order of protection, a judicial officer must find "that the defendant may commit an act of domestic violence or has committed an act of domestic violence within the past year." Ariz. R. Protective Order P. 23(e)(1); see Ariz. R. Protective Order P. 38(g).
¶11 Contreras stated in his petition that he had been unable to "exit his parking space, and [he] could not safely walk to the front door area of the neutral exchange location" because Bourke had stopped her car directly in front of his vehicle. And he alleged that he had "feared what [Bourke] was going to do and had attempted to lock his doors as [Bourke] walked down the passenger side of his truck" before she opened the door to his truck and reached into it.
¶12 Bourke argues that Contreras's petition "failed to allege any acts of domestic violence." Bourke contends that Contreras did not allege criminal trespass as she had the "absolute right, license, authority, and privilege to have her child with her and engage in activities with him during her parenting time." As it applies here, a person commits second-degree criminal trespass by "knowingly entering or remaining unlawfully in or on any nonresidential structure," such as a vehicle. A.R.S. §§ 13-1501(10) (definition of nonresidential structure), (12) (definition of structure), 13-1503(A) (elements for second-degree criminal trespass), 13-1503(A) (elements for second-degree criminal trespass). "[T]he intrusion of any part of any instrument or any part of a person's body inside the external boundaries of a structure" constitutes entry. § 13-1501(3). And entry is unlawful if "the person's intent for so entering . . . is not licensed, authorized or otherwise privileged." § 13-1501(2). Here, even if Bourke intended to enter Contreras's truck to remove the child, and not for the sole purpose of intimidating and harassing Contreras, she did so without Contreras's permission. The order providing how exchanges were to be made specified that they were to occur by the front door of the restaurant. Therefore, in either case, Bourke's entry into the vehicle was unlawful, and thus Contreras sufficiently alleged a second-degree trespass in his petition. In addition, because the trial court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," Doherty v. Leon, 249 Ariz. 515, ¶ 16 (App. 2020) (quoting Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004)), we will defer to it, see Farmers Ins. Co. of Ariz. v. Young, 195 Ariz. 22, ¶ 19 (App. 1998).
¶13 Bourke further claims the petition only generally asserted that Contreras had "feared what [Bourke] was going to do" without any rational reason. She concludes the direct testimony that Contreras felt "imprisoned" or that her actions constituted "trespass" was a "belated" attempt to allege specific acts of domestic violence not in the petition. Petitioners need not cite to a specific statute or include magic words; instead they must provide a "[s]pecific statement, including dates, of the domestic violence alleged" as was done here. See § 13-3602(C)(3); see also Ariz. R. Protective Order P. 23(b)(1). Contreras sufficiently alleged acts of domestic violence when describing that he could not safely leave his truck and that Bourke entered his truck without permission.
¶14 Bourke contends that the trial court "made a general legal conclusion, but no findings to support the legal conclusion" that she had committed an act of domestic violence within the previous year or might commit one. She argues that the mere "parrot[ing]" of statutory language is insufficient under Rule 38(h), Ariz. R. Protective Order P. Bourke does not provide, nor have we found, any authority for her contention that the court must make a "specific determination relating to domestic violence committed by" the defendant, or that the court's findings were insufficient. Accordingly, we find no abuse of discretion.
Telephonic Parenting Time
¶15 For the first time on appeal, Bourke contends the order of protection "eliminated" her court-ordered telephonic parenting time with their child. Again, we review orders of protection for an abuse of discretion. Savord, 235 Ariz. 256, ¶ 10.
¶16 While the judicial officer must consider specific factors before issuing an order of protection that prohibits contact between a respondent and their child, Ariz. R. Protective Order P. 35(b), this is not such an order. Bourke is specifically prohibited from contacting Contreras, not her child. She has not demonstrated how the trial court's order has prevented her from telephonic parenting time with the child. The court specified that it did not "think [the order of protection was] going to conflict with an existing order" and stated that Bourke could email Contreras about the child, conceivably including arranging telephonic parenting time. Notably, the order did not prohibit the child from initiating contact with Bourke. Contreras asserts the order has not affected Bourke's telephonic parenting time, and Bourke has not contradicted him. Thus, Bourke has not shown that the trial court eliminated her parenting time, erroneously or otherwise.
Bourke has not filed a reply brief on appeal.
¶17 In any event, Bourke never raised this concern before the trial court. Generally, issues raised for the first time on appeal are waived. See Trantor, 179 Ariz. at 300-01; Michaelson, 234 Ariz. 542, ¶ 10. We therefore find no abuse of discretion.
Attorney Fees
¶18 Contreras requests his attorney fees on appeal pursuant to A.R.S. § 25-324 and in accordance with Rule 21, Ariz. R. Civ. App. P. He contends Bourke "has repeatedly advanced unreasonable positions that are not supported in fact or law." We deny Contreras's request for attorney fees. See § 25-324(A). But because Contreras is the prevailing party, he is entitled to his costs upon compliance with Rule 21. See Braillard v. Maricopa County, 224 Ariz. 481, ¶ 60 (App. 2010).
Disposition
¶19 For the foregoing reasons, we affirm the trial court's order of protection and order to seal part of the record, and dismiss the appeal from the denial of the request for media and video coverage.