In re Crane

1

In re the Matter of MICHELLE CRANE, Petitioner/Appellee, v. PAUL M CRANE, Respondent/Appellant.

No. 1 CA-CV 22-0777 FC

Court of Appeals of Arizona, First Division

February 1, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. FN2022-051976 The Honorable John R. Doody, Judge Pro Tempore

Michelle Crane, Scottsdale Petitioner/Appellee

High Desert Family Law Group, LLP, Phoenix By Craig P. Cherney Counsel for Respondent/Appellant Presiding Judge Paul J. McMurdie delivered the Court's decision, in which Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

MEMORANDUM DECISION

MCMURDIE, JUDGE:

¶ 1 Paul M. Crane ("Husband") appeals from the superior court's amended protective order against him. We affirm the protective order and the notice of Brady^[1] indicator.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Husband and Michelle Crane ("Wife") are married and have two adult children. The parties lived together until the court issued the subject protective order.

¶ 3 In October 2022, Wife petitioned for an order of protection against Husband. See A.R.S. § 13-3602(A). Wife asserted that within the past year, Husband "constantly harassed" her, filmed her, slapped her cell phone out of her hand, tracked her vehicle, and threw a hard drive at her. Wife also claimed in her petition that Husband had shot his gun in the house two times during arguments "over the years[,]" and in November or December 2021, she "heard him racking his gun" and thought he was intimidating her. Wife stated, "I am afraid [Husband] will use his gun and hurt me or my daughter."

¶ 4 The court entered a protective order. The order warned Husband that "it may be unlawful for [him] to possess or purchase a firearm . . . under 18 U.S.C. § 922(g)(8)" and instructed Husband to consult with an attorney to answer questions. Husband requested a hearing to contest the order. The hearing form Husband submitted to the court warned Husband, "Under federal law, certain conditions can cause you to be prohibited from possessing firearms while an Order of Protection is in effect." The hearing form listed the conditions.

¶ 5 The court held a hearing, and both Husband and Wife appeared and testified. Counsel represented Husband. Wife detailed the incidents she alleged in her petition. For example, she explained that she and Husband had a heated conversation about a hard drive, and Husband "chucked it down the hall at [her], just barely missing [her]." Husband acknowledged the hard drive incident but claimed he "underhand tossed [the hard drive] to her."

¶ 6 Husband's attorney cross-examined Wife and asked her whether Husband had ever struck her with his body. Wife revealed that within the last year, Husband had pushed her. Wife conceded she did not feel she was in danger during the incident.

¶ 7 Husband offered videos of his interactions with Wife. Husband's attorney asserted that some video footage showed Wife "wielding something in her hand." Although the superior court viewed the footage, the video evidence was not admitted, and we have no record of it on appeal.

¶ 8 Husband uses a wheelchair as he is paralyzed in his lower body. He testified about his firearm use and stated he almost always kept his gun in his wheelchair. Husband explained that, about once per week, he removed the magazine from his gun to clean it. The court asked Husband about his gun, and Husband confirmed he carried his gun in the house in his wheelchair. Wife testified that Husband was "always cocking his gun, like every night[,]" and he cleaned his gun in front of her to intimidate her. Husband denied cleaning his gun in front of Wife.

¶ 9 Once the matter was submitted, the court said, "Let me just think about it for a second.... I will find that [Wife] has not met her burden, and I'm going to dismiss the order of protection." The court continued to describe the parties' relationship, calling it a "selfish, toxic environment," and noted that Wife was crying in the courtroom. The court commented on the video footage, observing that Wife appeared "pretty strong in that video when [she was] holding that hammer," and she "stood up to [Husband] pretty well."

¶ 10 The court reiterated that it felt Wife had not met her burden, but it was "trying to look at all of these events in the scheme of things and to see whether there is something." After reviewing all the evidence, the court found there was "evidence that [Husband] did commit at least two acts of domestic violence" when Husband pushed Wife and when he threw the hard drive at Wife. The pushing incident was "domestic violence, even if it didn't hurt [Wife]," and even if she did not feel frightened. After the court conveyed it would affirm and continue the protective order, Husband stated he wanted to testify again and offer more video evidence, but the court refused to reopen the evidence. The court said its decision was "not up for debate," as it had heard from both Husband and Wife.

¶ 11 The court found there was reasonable cause to believe that Husband committed domestic violence within the last year. Thus, the court ordered that Husband "shall not commit any crimes, including but not limited to harassment, stalking, or conduct involving the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury, against [Wife]." The court prohibited Husband from having physical contact with Wife, granted Wife exclusive use of their residence, and prohibited Husband from going near the residence.

¶ 12 The court expressly declined to restrict Husband's firearm use under Arizona law. See A.R.S. § 13-3602(G)(4). But by issuing a notice of Brady indicator, the court notified Husband that under federal law, Husband was "disqualified from purchasing or possessing a firearm or ammunition for the duration of the Order of Protection." Husband accepted service of the amended protective order, and the court entered the order with the notice of Brady indicator.

¶ 13 Husband appealed, and we have jurisdiction under Arizona Rule of Protective Order Procedure 42(a)(2), A.R.S. § 12-2101(A)(1), (5)(b), and A.R.S. § 12-120.21(A)(1). See Mahar v. Acuna, 230 Ariz. 530, 533-34 ¶¶ 11-12 (App. 2012).

DISCUSSION

¶ 14 "We review an order of protection for an abuse of discretion." Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014). The superior court abuses its discretion by making an error of law or issuing a decision unsupported by the record. Mahar, 230 Ariz at 534, ¶ 14. We review interpretations of Arizona and federal law de novo. Id.

A. The Superior Court Did Not Violate Husband's Due Process Rights by Affirming and Continuing the Protective Order.

¶ 15 Due process protections apply to protective order proceedings. See Savord, 235 Ariz. at 259-60, ¶ 16. "The fundamental requisite of due process of law is the opportunity to be heard." Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). In a contested protective order hearing where both parties appear, "[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." Ariz. R. Prot. Ord. P. 38(g)(1).

¶ 16 Husband claims the "[c]ourt initially quashed Wife's [order of protection]" but "unilaterally reversed its prior decision and sustained the [order] after Wife "sob[bed] at her chair." Thus, Husband argues the court violated his due process rights by "wrongfully accept[ing] additional evidence from Wife" of her sobbing, and then rejecting Husband's requests to present more evidence and reversing its ruling.

¶ 17 The record does not support Husband's claims. First, an issue or claim is not final until the court enters an appealable order. See Banner Univ. Med. Ctr. Tucson Campus, LLC v. Gordon, 252 Ariz. 264, 266, ¶ 10 (2022) (A court decision must be a final judgment on the merits before issue or claim preclusion applies.). Here, the court never quashed the order of protection and did not reverse a prior decision. While deliberating, the court stated that "[it felt] that [Wife had] not met [her] burden" of proof and that it was "going to dismiss the order of protection." But after the court continued considering the evidence, it changed its position when it found that Husband committed domestic violence. Husband cannot claim that the court's first statement constituted a final resolution of the dispute because it had not yet entered an appealable order. See Props. Inv. Enters., Ltd. v. Found. for Airborne Relief, Inc., 115 Ariz. 52, 54 (App. 1977) (quoting Decker v. City of Tucson, 4 Ariz.App. 270, 272 (1966)) ("A final judgment or decree decides and disposes of the cause on its merits, leaving no question open for judicial determination."); Camasura v. Camasura, 238 Ariz. 179, 182, ¶ 9 (App. 2015) (An order is final and appealable "if no decision of the court could change and the only remaining task is merely ministerial.").

¶ 18 Second, the court did not reopen evidence by observing that Wife was crying in the courtroom. The court mentioned that Wife was crying as it described the parties' relationship as "selfish" and "toxic." But the matter was submitted, and the court did not accept more evidence from either party.

¶ 19 Nor did the court cite Wife's crying as its reason for affirming and continuing the protective order. Rather, the court determined that the pushing^[2] and hard-drive incidents were acts of domestic violence. Husband had the opportunity "to be heard, to present evidence, and to call and examine and cross-examine witnesses" on both incidents. See Ariz. R. Prot. Ord. P. 38(g)(1). The court did...