                                   IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE




                        In re the Matter of
                 REBECCA SAVORD, Plaintiff/Appellee,

                                     v.

               DANIEL F. MORTON, Defendant/Appellant.

                          No. 1 CA-CV 13-0305
                           FILED 07-24-2014


          Appeal from the Superior Court in Maricopa County
                         No. FN2013-051283
            The Honorable Julie P. Newell, Commissioner

                              VACATED


                               COUNSEL


Sacks Tierney, PA, Scottsdale
By David L. Rose, Ellen K. Aiken
Counsel for Defendant/Appellant



                             OPINION

Presiding Judge Patricia A. Orozco delivered the opinion of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
                           SAVORD v. MORTON
                            Opinion of the Court

O R O Z C O, Judge:

¶1            Appellant Daniel F. Morton (Father) appeals the trial court’s
order granting and affirming an order of protection and the Notice to
Sheriff of Positive Brady Indicator (the Notice of PBI)1 in favor of Appellee
Rebecca Savord (Mother) and their daughter O.S. (Child). For the reasons
stated below, we vacate the trial court’s decision and quash the order
affirming the order of protection and the Notice of PBI.

                FACTS AND PROCEDURAL HISTORY

¶2            Mother and Father are Child’s biological parents. Pursuant
to a paternity order, the parties share joint legal decision-making authority
and shared parenting time.

¶3            In early 2013, Mother filed a petition for an order of
protection alleging Child reported she was being sexually abused by her
fourteen-year-old step-brother (Step-brother). Mother’s sole complaint of
Father was that he was aware of the alleged abuse and failed to report it.
Mother’s Petition did not include any allegations that she felt harassed or
intimidated by Father.

¶4             At an ex parte hearing to secure an order of protection,
Mother explained her concerns and stated that the reason for her request
was to protect Child. At no time during the hearing did Mother indicate
that she felt threatened or harassed by Father.

¶5           Finding reasonable cause existed to believe an act of
domestic violence occurred or might occur in the future, the trial court
granted an order of protection prohibiting Father and Step-brother2 from
any contact with Child and severely limited Father’s contact with Mother.
The court also issued the Notice of PBI, which barred Father from
purchasing, receiving or possessing a firearm or ammunition and required
him to surrender any firearms or ammunition in his possession.



1     See 18 U.S.C. § 922(g)(8)(c)(i)-(ii) (2012).

2     Arizona Revised Statutes (A.R.S.) section 13-3602.B.2 (Supp. 2013)
does not allow a court to grant an order of protection against a person less
than twelve years of age. In this case Step-brother was fourteen years of
age.



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                          SAVORD v. MORTON
                           Opinion of the Court

¶6            After being served with the order of protection, Father
requested a hearing. At the hearing, Mother’s counsel asked Mother if she
felt harassed, intimidated, or bothered by Father. Father timely objected
and the court overruled the objection. The court stated that inquiry into
Father’s relationship with Mother was an “appropriate extension” of the
order of protection since Mother was the named plaintiff. Mother testified
that Father had intimidated and harassed her. Specifically, Mother
described an incident where Father attempted to pick up Child for
visitation, even though Mother had previously advised Father she had
plans with Child. In spite of this, Mother stated Father showed up at her
home, called her several times, sent her several text messages, and called
her parents threatening to call the police.

¶7            At the conclusion of the contested hearing, the court found
that insufficient evidence was presented regarding the sexual abuse
allegations. However, the court found reasonable cause existed to believe
that aggressive behavior had taken place between Child and Step-brother.
The court also explained that, based on the evidence, Father was aware of
Step-brother’s aggressive behavior and had failed to protect Child. Based
on these findings, the court affirmed the order of protection in favor of
Child and Mother, including the Notice of PBI.

¶8            Father timely appealed.3 We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-2101.A.1
(2003), -2101.A.5(b) (Supp. 2013), and Rule 9.B.2 of the Arizona Rules of
Protective Order Procedure.

                               DISCUSSION

¶9            On appeal, Father argues the court erred by granting the
order of protection, affirming the order of protection after the hearing, and
affirming the Notice of PBI. Mother has not filed an answering brief.
When debatable issues exist and an appellee fails to file an answering
brief, we may consider such failure a confession of reversible error. See
United Bonding Ins. Co. v. Thomas J. Grosso Inv., Inc., 4 Ariz. App. 285, 285,
419 P.2d 546, 546 (1966). However, we are not required to do so, and we
address the substance of Father’s appeal in the exercise of our discretion.
See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994).



3     Father does not contest the portion of the order of protection
prohibiting Step-brother from having contact with Child.



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                           SAVORD v. MORTON
                            Opinion of the Court

I.     Ex Parte Issuing of the Order of Protection

¶10           We review an order of protection for an abuse of discretion.
See Cardoso v. Soldo, 230 Ariz. 614, 619, ¶¶ 15-16, 277 P.3d 811, 816 (App.
2012). A trial court abuses its discretion when it makes an error of law in
reaching a discretionary conclusion or “when the record, viewed in the
light most favorable to upholding the trial court’s decision, is devoid of
competent evidence to support the decision.” Mahar v. Acuna, 230 Ariz.
530, 534, ¶ 14, 287 P.3d 824, 828 (App. 2012) (internal quotation marks
omitted).

¶11           It is well settled that the issuance of an order of protection is
a very serious matter. See, e.g., Cardoso, 230 Ariz. at 619, ¶ 14, 277 P.3d at
816. Once issued, an order of protection carries with it an array of
“collateral legal and reputational consequences” that last beyond the
order’s expiration. Id. Therefore, granting an order of protection when
the allegations fail to include a statutorily enumerated offense constitutes
error by the court. See A.R.S. § 13-3601 (Supp. 2013) (listing offenses that
justify issuance of an order of protection).

¶12           Section 13-3601 lists several enumerated offenses that
constitute domestic violence. Father argues Mother’s petition failed to
meet the threshold requirements of § 13-3601 because there were no
allegations that Father committed any acts of domestic violence against
Mother or Child. Therefore, Father contends the court erred in granting
the order of protection against him. We agree.

¶13             In this case, Mother’s petition alleged her concern that Step-
brother was sexually abusing Child while Child was under Father’s
supervision, and Father neglected to report the abuse. Mother also noted
her belief that Father would interfere with a police investigation. None of
the allegations, however, are recognized offenses for which a court may
grant an order of protection against Father.

¶14           At the ex parte hearing, Mother reiterated her concerns
about Child’s relationship with Step-brother, but Mother made no
allegations against Father at any point in the hearing. Nevertheless, the
court issued an order of protection against Father in favor of Mother and
Child. Thus, we find the court erred when it issued the order of
protection against Father in favor of Mother and Child because Mother’s
petition did not allege any of the recognized offenses in § 13-3601.




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                           SAVORD v. MORTON
                            Opinion of the Court

II.    Contested Hearing Affirming the Order of Protection

¶15            Rule 8.D of the Arizona Rules of Protective Order Procedure
provides that, in a contested hearing on an order for protection: “The
judicial officer shall ensure that both parties have an opportunity to be
heard, to present evidence and to call and examine and cross examine
witnesses.”

¶16            In permitting Mother to testify as to matters outside of the
Petition, the court deprived Father of due process. Due process
protections provided under the Fourteenth Amendment of the United
States Constitution and Article 2, Section 4, of the Arizona Constitution,
guarantee that Father receive notice, reasonably calculated to apprise him
of the action in order to adequately prepare his opposition. See Armstrong
v. Manzo, 380 U.S. 545, 550 (1965) (“[F]ailure to give the petitioner notice of
the pending . . . proceedings violated the most rudimentary demands of
due process of law.”). “We review due process claims de novo.” See Mack
v. Cruikshank, 196 Ariz. 541, 544, ¶ 6, 2 P.3d 100, 103 (App. 1999).

¶17           At the contested hearing, Mother’s counsel asked her
whether Father’s conduct had ever made her feel harassed, intimidated or
bothered. Father objected, but the court overruled his objection. In doing
so, the court forced Father to defend against Mother’s allegations of
harassment without sufficient notice to adequately prepare a defense. The
better practice would be to sustain the objection and thereby limit the
scope of the hearing to the allegations of the petition, or to allow Mother
to amend her petition and reschedule the hearing, thereby giving Father
the opportunity to appropriately prepare for the new allegations.

¶18          We find the court erred in allowing Mother to testify about
matters outside of the Petition. Therefore, the order of protection against
Father in favor of Mother should not have been affirmed after the
contested order of protection hearing. Accordingly, we quash the order of
protection.

III.   Brady Notice

¶19            Father argues the trial court erred in issuing the Notice of
PBI because he did not pose a credible threat of harm to Mother. We
agree that no evidence was presented supporting a finding Father posed
such a threat.

¶20          Upon issuing an order of protection, a court may prohibit
the possession of firearms if it finds the defendant poses a credible threat


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                          SAVORD v. MORTON
                           Opinion of the Court

to the physical safety of the plaintiff or another specifically designated
person. See A.R.S. § 13-3602.G.4 (Supp. 2013); see also Mahar, 230 Ariz. at
534, ¶ 15, 287 P.3d at 828. A higher standard of review applies when a
court’s order implicates a defendant’s right to possess firearms under the
Second Amendment to the United States Constitution or under Article 2,
Section 26, of the Arizona Constitution. See id. A firearm restriction under
the federal Gun Control Act is triggered by an order of protection “only if
the order ‘includes a finding that [the] person represents a credible threat
to the physical safety of [the] intimate partner or child.’” Id.; see also 18
U.S.C. § 922(g)(8)(C)(ii). We “review the application of Arizona and
federal law to the facts de novo.” Mahar, 230 Ariz. at 534, ¶ 14, 287 P.3d at
828 (emphasis omitted).

¶21            Rule 6.C.5.d(1) of the Rules of Procedure for Issuing
Protective Orders requires the court to “ask the plaintiff about the
defendant’s use of or access to weapons or firearms. This inquiry shall be
made to determine if the defendant poses a credible threat to the physical
safety of the plaintiff or other protected persons.”

¶22           In this case, the court made no inquiry as to Father’s use of
or access to weapons or firearms. “[O]rders concerning firearms should
be based on a court’s assessment of credible threats of physical harm by
the specific person whose rights should be affected by the order.” Mahar,
230 Ariz. at 536, ¶ 20, 287 P.3d at 830. A restriction against firearms does
not automatically follow an order of protection. See id. at 535, ¶ 19, 287
P.3d at 829.

¶23           Considering the lack of evidence supporting the Notice of
PBI and the absence of the appropriate inquiries in that regard, Father is
entitled to have the PBI quashed.




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                         SAVORD v. MORTON
                          Opinion of the Court

                            CONCLUSION

¶24           For the above mentioned reasons, we vacate the trial court’s
decision and quash the order affirming the order of protection and Notice
of PBI against Father.




                               :gsh




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