                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

                    ARIEL HARTER, Petitioner/Appellee,

                                        v.

               JONATHAN MOLINA, Respondent/Appellant.

                           No. 1 CA-CV 19-0579 FC
                               FILED 3-17-2020


           Appeal from the Superior Court in Maricopa County
                           No. FC2019-095353
            The Honorable Shellie F. Smith, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Ariel Harter, Phoenix
Petitioner/Appellee

Jonathan Molina, Chandler
Respondent/Appellant
                           HARTER v. MOLINA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


G A S S, Judge:

¶1             Jonathan Molina (father) appeals the superior court’s order of
protection filed by Ariel Harter (mother). Father challenges the grounds for
the order of protection and the Notice to Sheriff of Positive Brady Indicator
(the Brady Notice). Because the superior court did not abuse its discretion,
this court affirms the decision.

               FACTUAL AND PROCEDURAL HISTORY

¶2            This court views the facts in the light most favorable to
upholding the superior court’s ruling. See IB Prop. Holdings, LLC v. Rancho
Del Mar Apartments Ltd. P’ship, 228 Ariz. 61, 63, ¶ 2 (App. 2011). On
September 16, 2017, father and mother married. Father and mother have
one child in common, LM. Mother also has two children from prior
relationships, VS, and JH. On October 1, 2018, mother filed a Petition for
Dissolution of Marriage with Minor Children (divorce).

¶3             On July 3, 2019, mother appeared before the superior court in
an ex parte hearing to request a protective order against father on behalf of
herself and LM. At the hearing, mother said she believed father was having
her followed. Mother also said father “hired a private investigator to dig up
police calls” from her background.

¶4           The superior court found mother established the need for an
order of protection. At the conclusion of the hearing, the superior court
issued a protective order for LM and mother. The superior court further
ordered father to surrender all firearms in his possession to the Maricopa
County Sheriff’s Office. Father was served on July 3, 2019.

¶5            After service, father requested a hearing to contest the
protective order. On July 24, 2019, both parties appeared before the superior
court for a contested hearing on the protective order.

¶6          Mother testified at the hearing. She said father relapsed on
alcohol immediately after their separation and sent mother verbally abusive


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                            Decision of the Court

text messages at all hours, day and night. She said father verbally abused
her on several occasions. This verbal abuse escalated to the point where
father was contacting mother’s friends, family, and at one point, the father
of one of her other children. Mother also reasserted the allegation father
hired someone to follow her.

¶7            Mother also described a specific event when father displayed
his firearm. Mother and father got into a fight one evening. Mother said she
went upstairs and saw father had his gun out on the bed. Mother asked
father what he was doing with the gun, and he said, “don’t test me.”

¶8            In his defense father said during the fight mother “tore apart
the kitchen” and screamed at her toddler. Father said because of mother’s
behavior he decided to remove the gun from the home. Father took the gun
out of the home in a backpack and put it in a public storage unit down the
street. He then gave the storage unit key to his mother and her boyfriend,
and later told police the gun was “with a friend.”

¶9            The superior court found by a preponderance of the evidence
father committed an act of domestic violence within the last year against
mother. The superior court specifically held the instances mother testified
to with respect to the gun and verbal abuse were enough to uphold the
protective order and the Brady Notice. The superior court did not find
sufficient evidence to uphold the protective order as to LM and removed
LM as a protected person.

¶10          Father timely appealed the order. He argues the superior
court should not have: (1) granted an ex parte order of protection; (2)
affirmed the order of protection at the contested hearing; and (3) granted
the Brady Notice. This court has jurisdiction under the Arizona Rules of
Protective Order Procedure 42(b)(2).

                                  ANALYSIS

¶11            This court reviews the superior court’s ex parte issuance of the
protective order for an abuse of discretion. See LaFaro v. Cahill, 203 Ariz. 482,
485, ¶ 10 (App. 2002). The same standard of review applies to the superior
court’s continuance of a protective order following a contested hearing.
Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16 (App. 2012). This court defers to the
superior court’s determination of witness credibility and does not re-weigh
testimonial evidence presented to the superior court. Gutierrez v. Gutierrez,
193 Ariz. 343, 347, ¶ 13 (App. 1998).




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                           Decision of the Court

I.    The superior court did not abuse its discretion when it granted
      mother’s motion for a protective order after the ex parte hearing.

¶12            To secure a protective order after an ex parte hearing, a
petitioner must show a domestic relationship exists between the parties and
establish reasonable cause to believe the defendant either may commit an
act of domestic violence or has committed such an act within the last year.
See A.R.S. §§ 13-3601(A), 13-3602(E). Because mother and father have a child
in common, they have a domestic relationship.

¶13           Section 13-3601 defines domestic violence to include certain
criminal acts and harassment. Harassment includes “communication with
another person by verbal, electronic, mechanical, telegraphic, telephonic or
written means in a manner that harasses” and includes “caus[ing] another
person to surveil a person for no legitimate purpose.” See A.R.S. § 13-
2921(1)-(4).

¶14           During the ex parte hearing, mother testified father had
someone follow her and hired a private investigator to dig up her past
phone calls to the police. The superior court correctly noted domestic
violence is far broader than “hitting another person that which you’re
married to.” Father’s behavior falls squarely within the definition of
harassment under A.R.S. § 13-2921(A)(4). Based on the petition and the
evidence presented, the superior court did not abuse its discretion when it
found Mother’s testimony credible and granted her ex parte request for a
protective order.

II.   The superior court did not abuse its discretion when it upheld
      mother’s protective order after the contested hearing.

¶15           The superior court shall continue an order of protection if the
petitioner demonstrates, by a ponderance of the evidence, reasonable cause
to believe the defendant may commit an act of domestic violence or has
committed an act of domestic violence within the last year. Michaelson v.
Garr, 234 Ariz. 542, 544, ¶ 6 (App. 2014).

¶16            Father argues the superior court abused its discretion.
Specifically, father argues mother’s petition does not meet the threshold
requirements under A.R.S. § 13-3602, and further says “absolutely no
competent evidence [establishes] father committed or will commit an act of
domestic violence against mother.”

¶17          Instances of harassment, both verbal and through text
message, are sufficient to uphold a protective order. See Michaelson, 234


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                           Decision of the Court

Ariz. at 544-45, ¶¶ 6-7. Michaelson upheld an order of protection based on
harassment stemming from an ex-fiancé sending the petitioner between 60-
110 unwanted text messages. Id. Michaelson also considered text messages
the ex-fiancé sent to Michaelson’s eighteen-year-old daughter and a phone
call he made to Michaelson’s employer as evidence of harassment. Id. at 545,
¶ 8.

¶18             Here, mother testified father sent her verbally abusive text
messages at all hours of the day and night. Mother also said father sent text
messages to her friends and family. At one point, father even contacted the
father of one of her other children. Father’s messages were not read into the
record or otherwise preserved. In the absence of such record, this court will
presume the evidence at trial was sufficient to uphold the protective order.
See id. at 546, ¶ 13.

¶19          Based on the petition and the evidence presented at the
contested hearing, the superior court did not abuse its discretion when it
found mother’s testimony credible and upheld the protective order.

III.   The superior court did not abuse its discretion when it found a
       Positive Brady Indicator for father.

¶20          In addition to issuing a protective order, the superior court
issued an order prohibiting father from possessing or purchasing a firearm
for the duration of the order of protection under the Brady Act.1 The
superior court will issue such an order, if it determines the defendant is a
credible threat to the physical safety of the plaintiff. See A.R.S. § 13-
3602(G)(4). A Brady Notice prohibits the defendant from possessing or
purchasing a firearm for the duration of the order.

¶21            Here, the superior court held father posed a credible threat to
mother’s physical safety because of the incident involving the firearm when
she testified father said “don’t test me” while he removed the gun from the
home.

¶22           Father relies on Mahar v. Acuna to show an abuse of discretion.
See 230 Ariz. 530 (App. 2012). In Mahar, an ex-wife obtained a protective
order and the issuance of a Brady Notice from the superior court against


1The“Brady Act” refers generally to the federal Brady Handgun Violence
Prevention Act, Pub.L. No. 103–59, 107 Stat. 1536 (1993).




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                          Decision of the Court

her ex-husband. Id. at 531, ¶ 1. Mahar reversed the superior court on the
Brady Notice in part because the parties made no reference to firearms
during the superior court hearing. Id. at 533, ¶ 8. Further, Mahar’s record
was devoid of any evidence ex-husband threatened or used force against
ex-wife. Id. at 535, ¶ 17.

¶23          In contrast to Mahar, at the contested hearing here, father and
mother argued extensively about the significance of father’s comment as his
gun was lying on the bed. Mother testified father told her “don’t test me”
when she asked him why he had the gun out on the bed. The superior court
found father’s actions involving the firearm were a threat against mother.

¶24           The superior court did not abuse its discretion when it issued
a Brady Notice against father because this incident and father’s verbal
abuse established father was a credible threat to mother’s safety.

                              CONCLUSION

¶25           For the foregoing reasons, this court affirms the superior
court’s protective order and issuance of a Brady Notice.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




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