Michaelson v. Garr, 234 Ariz. 542

Background

Michaelson (plaintiff) sought and obtained an ex parte order of protection against her ex-fiancé William Garr on Oct. 16, 2012; it barred contact, crimes against her, and possession/purchase of firearms/ammunition.
The order was served on Garr the next day; Garr later requested and received a contested hearing where both parties testified.
Michaelson testified she received numerous unwanted texts (60–110 on one day), that Garr contacted her workplace pretending to be an attorney and obtained her schedule, and sent threatening/possessive texts after she ended the engagement.
The superior court found by a preponderance of the evidence that an act of domestic violence (broadly defined to include harassment) occurred and continued the order of protection, including the firearm prohibition.
Garr appealed pro se, arguing (1) lack of specific domestic-violence allegations/basis for continuation, (2) improper evidence/admissions, and (3) that the firearm prohibition violated federal law because he was not an "intimate partner."

Issues

Issue	Michaelson's Argument	Garr's Argument	Held
Whether the order of protection should be continued under A.R.S. §13-3602(E)(1) (reasonable cause defendant may commit domestic violence)	Evidence of harassment (texts, workplace contact, messages after service) met preponderance standard	No specific allegation of domestic abuse; insufficient basis to continue order	Court affirmed continuation; harassment and communications satisfied the statutory domestic-violence standard
Admissibility/weight of electronic evidence (texts, email)	Texts and email showing post-service contact and harassment were probative	Court relied on illegible email and texts not printed; such evidence was improper or irrelevant	Court treated illegible email as probative identification (weight issue). Texts on plaintiff's phone were properly considered; Garr had opportunity to review and did not preserve some messages for appeal
Failure to object to certain evidence and exclusion of testimony about Garr’s engagement/new marriage	N/A (Michaelson relied on presented testimony/evidence)	Trial court erred by admitting unprinted texts and excluding testimony about Garr’s engagement	Errors waived where Garr failed to object at trial; exclusion of anticipated marriage was not relevant and properly precluded
Firearm prohibition under A.R.S. §13-3602(G)(4)	Plaintiff argued Garr was a credible threat to physical safety supporting a firearms ban	Garr argued federal law (18 U.S.C. §922(g)(8)) precludes state firearm prohibition because he was not an "intimate partner"	State court properly found Garr a credible threat and continued firearm prohibition; appellate court resolved issue under state law and did not reach federal claim

Key Cases Cited

Cardoso v. Soldo, 230 Ariz. 614 (App.) (expired protection orders may have collateral consequences allowing appellate review)
Mahar v. Acuna, 230 Ariz. 530 (App.) (standard reviewing trial court continuance of protection order; view facts favorably to upholding ruling)
In re Marriage of Pownall, 197 Ariz. 577 (App.) (questions of law reviewed de novo)
State v. Lacy, 187 Ariz. 340 (App.) (lack of positive identification affects weight, not admissibility)
State v. Hatton, 116 Ariz. 142 (App.) (evidence not a conclusive link goes to weight, not admissibility)
State v. Lopez, 217 Ariz. 433 (App.) (failure to object at trial waives appellate review)
State v. Villegas-Rojas, 231 Ariz. 445 (App.) (evidence not in record on appeal is unavailable for review; appellant must preserve record)
Bryant v. Thunderbird Acad., 103 Ariz. 247 (1968) (where record absent, appellate court presumes evidence supported judgment)
Duckstein v. Wolf, 230 Ariz. 227 (App.) (same principle regarding presumption in absence of record)
State v. Wilson, 179 Ariz. 17 (App.) (appellant’s responsibility to ensure record contains material to which he objects)
Gonzales v. Gonzales, 134 Ariz. 437 (App.) (court may decline to treat failure to file answering brief as confession of error)