Contreras v. Bourke
| Decision Date | 02 December 2020 |
| Docket Number | No. 2 CA-CV 2020-0046,2 CA-CV 2020-0046 |
| Parties | ROGER H. CONTRERAS, Plaintiff/Appellee, v. NANCY L. BOURKE, Defendant/Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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
The Honorable Denneen L. Peterson, Judge Pro Tempore
APPEAL DISMISSED IN PART AND AFFIRMED IN PART
Pahl & Associates, Tucson
By Danette R. Pahl
Nancy Bourke, Sierra Vista
In Propria Persona
MEMORANDUM DECISIONChief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
¶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.
¶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.1 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 afterContreras 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.
¶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,2 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) (); Mahar v. Acuna, 230 Ariz. 530, ¶ 11 (App. 2012) ().
¶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.3
¶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) ().
¶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.4
¶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 onspeech."5 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.
¶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) (). 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) (), (12) (definition of structure), 13-1503(A) (), 13-1503(A) (). "[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,...
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