Cardoso v. Soldo

Decision Date29 May 2012
Docket NumberNo. 1 CA–CV 11–0281.,1 CA–CV 11–0281.
Citation277 P.3d 811,635 Ariz. Adv. Rep. 26
PartiesMaria C. CARDOSO, Plaintiff/Appellant, v. Paul SOLDO, Defendant/Appellee.
CourtArizona Court of Appeals

OPINION TEXT STARTS HERE

Maria Cardoso, In Propria Persona, Santa Monica, CA.

OPINION

NORRIS, Judge.

¶ 1 Maria C. Cardoso timely appeals from the superior court's continuance of an order of protection issued in favor of her former husband, Paul Soldo. Although the order of protection expired before we could hear her appeal, we hold Cardoso's appeal is not moot and address the merits of her arguments on appeal. As to the merits, we find her arguments unsupported by the evidence of record and affirm the superior court's decision continuing the order of protection.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On January 27, 2011, Soldo petitioned the Phoenix Municipal Court for an ex parte order of protection against Cardoso, citing Cardoso's “complete unrelentless harassment” through text and e-mail messages since September 2, 2010. Based on Soldo's petition, that same day the municipal court issued an order of protection which barred Cardoso from having any contact with Soldo and a third party and from communicating with them by any means.

¶ 3 Cardoso moved to dismiss the order of protection and requested a hearing. The municipal court scheduled but then vacated the hearing and transferred the case to the Maricopa County Superior Court after it learned the superior court had scheduled a hearing on Cardoso's request that the superior court hold Soldo in contempt for non-payment of child support and other court-ordered obligations. SeeAriz. Rev. Stat. (“A.R.S.”) § 13–3602(O) (2010) (when post-decree proceeding has been commenced but not finally determined in the superior court, municipal court shall stop further proceedings and forward all papers to superior court which shall proceed as though petition for order of protection had been originally brought in that court).

¶ 4 After the transfer, Cardoso renewed her motion to revoke the order of protection. After conducting an evidentiary hearing, the superior court denied Cardoso's motion and instead continued the order of protection.1

DISCUSSION
I. Mootness

¶ 5 Soldo served the order of protection on Cardoso on February 3, 2011. An order of protection expires one year after service on the defendant. A.R.S. § 13–3602(K). Therefore, the order of protection against Cardoso expired before we considered her appeal in April 2012. Because the order of protection has expired, we are presentedwith a threshold question—should we dismiss Cardoso's appeal as moot? As we have explained in other contexts, generally, we will dismiss an appeal as moot when our action as a reviewing court will have no effect on the parties. Bank of New York Mellon v. De Meo, 227 Ariz. 192, 194, ¶ 8, 254 P.3d 1138, 1140 (App.2011). Our reluctance to consider a moot question is not driven by the Arizona Constitution but is a matter of prudential or judicial restraint subject to the exercise of our discretion. Big D Const. Corp. v. Court of Appeals for State of Ariz., Div. One, 163 Ariz. 560, 563, 789 P.2d 1061, 1064 (1990); Phoenix Newspapers, Inc. v. Molera, 200 Ariz. 457, 460, ¶ 12, 27 P.3d 814, 817 (App.2001). We have exercised that discretion and considered appeals that have become moot when they present an issue of great public importance or one capable of repetition yet evading review. Id.; see also LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 9, 56 P.3d 56, 59 (App.2002) (injunction against harassment restricting political speech not moot because it presented “an issue of great public importance that is capable of evading review”).

¶ 6 Neither of these exceptions to mootness is a good fit here. The “issue of great public importance” exception to mootness usually involves an issue that will have broad public impact beyond resolution of the specific case. See, for example, Bank of New York Mellon, 227 Ariz. at 194, ¶ 8, 254 P.3d at 1140 (construction of federal Protecting Tenants at Foreclosure Act of 2009, and its application to Arizona forcible entry and detainer statutes), and as discussed above, LaFaro. Cardoso's challenges to the protective order entered here are essentially grounded on the sufficiency of the evidence and the procedures followed by the municipal and superior courts in entering and then continuing the order of protection. And, although Cardoso argues the municipal and superior courts violated her constitutional due process and statutory rights, her arguments are grounded on the events that occurred in this case. Her arguments thus do not present the type of significant public issue that typically triggers this exception to the mootness doctrine.

¶ 7 Nor is the “capable of repetition yet evading review” exception to mootness implicated here. Typically, that exception is applicable when, because of time constraints, an issue that is capable of recurring cannot be decided by the appellate court. See, e.g., Ariz. Dep't of Econ. Sec. v. Superior Court, 171 Ariz. 688, 690, 832 P.2d 705, 707 (App.1992) (order requiring state to provide medical care to child adjudicated dependent but remaining in parents' physical custody not moot even though state provided care because issue “is a recurrent one, capable of repetition yet evading review”); KPNX Broad. v. Superior Court, 139 Ariz. 246, 250, 678 P.2d 431, 435 (1984) (appeal challenging orders prohibiting participants in criminal case from contacting media and requiring television station to submit courtroom sketches to superior court before being broadcast not moot even though trial was over).

¶ 8 Here, in contrast, the protective order was effective for a year after service. And, nothing in the record before us suggests Soldo has attempted to obtain another order of protection against Cardoso. Thus, Cardoso's appeal does not fall within the “capable of repetition, yet evading review” exception to mootness.

¶ 9 Another exception to mootness exists that, in our view, is applicable to expired orders of protection—the collateral consequences exception. Under this exception, an appellate court will review an otherwise moot order if the consequences of that order will continue to affect a party. See generally Carafas v. LaVallee, 391 U.S. 234, 237–38, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968) (petitioner's release from custody did not moot habeas corpus proceeding; as a consequence of his conviction, petitioner was unable to vote, serve as a juror or labor union official for a specified period of time, or engage in certain businesses). Our supreme court and this court have recognized the collateral consequences exception to mootness in criminal cases. See, e.g., State v. Cutler, 121 Ariz. 328, 330, 590 P.2d 444, 446 (1979) (although defendant released from jail, appeal challenging confinement not moot); State v. Lane, 128 Ariz. 360, 360–61, 625 P.2d 949, 949–50 (App.1981) (defendant who has served sentence and been released from custody still entitled to appeal superior court's refusal to order mental examination for competency; “possibility of appellant suffering collateral legal consequences from a sentence already served permits us to review his claim on its merits,” conviction may be relevant in further criminal proceedings against defendant for determining bail, availability of probation, and sentence enhancement). And, although we did not refer to the doctrine of collateral consequences by name, in Ciulla v. Miller ex rel. Arizona Highway Department, 169 Ariz. 540, 541, 821 P.2d 201, 202 (App.1991), we reached the merits of a party's challenge to the suspension of his driver's license even though his suspension had expired because it would impact both his driving record and insurance rates. We also considered the merits of an otherwise moot appeal of a court-ordered mental health treatment order due to “the Appellant's interests at stake as a result of having a commitment order in her record.” In re M.H. 2007–001236, 220 Ariz. 160, 165 n. 3, ¶ 12, 204 P.3d 418, 423 n. 3 (App.2008).

¶ 10 In Arizona, expired orders of protection have ongoing collateral legal consequences. An order of protection is issued “for the purpose of restraining a person from committing an act included in domestic violence.” A.R.S. § 13–3602(A). In determining whether to issue an order of protection, the requesting party must advise a court whether a prior order of protection has been issued concerning “the conduct that is sought to be restrained.” A.R.S. § 13–3602(C)(5). Thus, the issuance of a prior, albeit expired, order of protection is a circumstance a court is entitled to consider in deciding whether to issue a subsequent order of protection. Additionally, when a court issues an order of protection, it is required to forward to the sheriff a copy of the order of protection and proof of service on the defendant for registration in a “central repository” so that its existence and validity can be “easily verified.” A.R.S. § 13–3602(L). The statute does not, however, direct the sheriff to remove expired orders of protection from the “central repository.”

¶ 11 An order of protection, even if expired, also has ongoing significance in a dispute over joint custody of a minor child. Section 25–403.03(A) (2008) prohibits a court from awarding joint custody if it finds “by a preponderance of the evidence that there has been a significant history of domestic violence.” This statute goes on to instruct that in deciding whether a person has committed an act of domestic violence, a court should consider, among other matters, [f]indings from another court of competent jurisdiction.” A.R.S. § 25–403.03(C)(1). Further, the statute imposes a rebuttable presumption that it is not in a child's best interests to award custody to a parent who has committed “an act of domestic violence” against the other parent. A.R.S. § 25–403.03(D). In turn, the statute defines an “act of domestic violence” as...

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