Gilbert v. Sherman

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

CHELSEA GILBERT, Petitioner/Appellee,

v.

MICHAEL SHERMAN, Respondent/Appellant.

No. 1 CA-CV 24-0630 FC
FILED 02-12-2026

Appeal from the Superior Court in Maricopa County
No. FC2024-002571
The Honorable Richard J. Hinz, Judge, Pro Tempore

AFFIRMED

COUNSEL

Michael J. Sherman, Scottsdale
Respondent/Appellant

Community Legal Services, Phoenix
By Carol Park Aden, Laura Oven
Counsel for Petitioner/Appellee
 GILBERT v. SHERMAN
Opinion of the Court

OPINION

Presiding Judge Brian Y. Furuya delivered the opinion of the Court, in
which Judge David B. Gass and Chief Judge Randall M. Howe joined.

F U R U Y A, Judge:

¶1 Michael Sherman (“Father”) appeals from an order of
protection entered against him. He argues the superior court denied him
due process and substantially restricted his ability to parent his child in
prohibiting his direct contact with Chelsea Gilbert (“Mother”) and her
minor daughter from another relationship (“Daughter”). He further argues
that the issue preclusion doctrine barred the trial court from hearing
evidence about Mother’s previous order of protection applications. Finally,
Father argues that the trial court did not have sufficient evidence to sustain
Mother’s order of protection. Because Father has shown no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father ended their eleven-year romantic
relationship in 2024. During their relationship, they lived together with
their shared minor son (“Son”) and Daughter. Once separated, Mother
lived with the two children in a domestic violence shelter. Father then filed
family court proceedings to establish paternity, legal decision-making,
parenting time, and child support. Final judgment in that case was entered
after the events related to this appeal and are not part of this appeal.

¶3 Soon after the separation, Mother filed her first petition for an
ex parte order of protection against Father (“First Petition”). The First
Petition listed Mother, Daughter, and Son as protected persons. The court
granted this first ex parte order of protection (“First Protective Order”) only
as to Mother and Daughter.

¶4 Father was served with the First Protective Order after a
family court hearing, during which the court entered temporary orders
requiring both parents to remain in their respective vehicles during
parenting time exchanges, with only Son switching between Mother’s car
and Father’s scooter. At their next parenting time exchange, Father violated
the temporary orders and the First Protective Order by getting off his
scooter, approaching Mother’s vehicle, and opening the door (“Incident 1”).

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A month later, Mother contacted police about another incident with Father
at Son’s school science fair (“Incident 2”).

¶5 After Incidents 1 and 2, Father contested the First Protective
Order and requested an evidentiary hearing. At the beginning of that
hearing, the court prompted Mother to amend her First Petition to include
allegations about Incidents 1 and 2. After accepting the amendment in open
court in Father’s presence, the court informed him of his right under Rule
38(d) of the Arizona Rules of Protective Order Procedure (“Rules”) to take
a brief recess to review it, to continue the hearing to a later date, or, if he
chose, to proceed with the hearing as scheduled. Mother testified at the
hearing and attempted to admit video evidence, which the court
disregarded and rejected. Expressing doubt that Mother had proved any
domestic violence as “defined by the legislature,” the court dismissed the
First Protective Order. The court did not directly refer to either Incident 1
or 2 in its reasoning.

¶6 Mother then filed a second petition for an ex parte order of
protection that included allegations concerning Incidents 1 and 2 (“Second
Petition”). The court granted a new ex parte order of protection (“Second
Protective Order”) including Mother and Daughter as protected persons
but again excluding Son. After the Second Protective Order was issued but
before Father was served, Father, during another parenting exchange, again
left his scooter and approached Mother’s car but this time stared at Mother
through the car windows without touching the car (“Incident 3”). Father
was then served with the Second Protective Order and contested it,
requesting an evidentiary hearing.

¶7 Just before the hearing on the Second Protective Order,
Mother filed a supplement to include Incident 3. As before, the court
informed Father of the amendment and his right under Rule 38(d) and he
again chose to proceed immediately with the hearing. The court declined to
hear new evidence of Incidents 1 and 2, instead receiving evidence and
testimony about only Incident 3. However, the court said it considered
Mother’s allegations of Incidents 1 and 2 “to set a background basically for
the nature of the parties’ exchanges or contact . . . with each other at the
school and determine whether that sets forth a pattern of conduct.” The
court affirmed the Second Protective Order, finding Incident 3 clearly
violated the Temporary Orders from the family court proceedings and
constituted harassment of Mother.

¶8 Father moved to reconsider, which the court denied, finding
he did not provide a legal or factual basis for reconsideration. Father timely

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appealed the Second Protective Order. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) § 12-2101(A)(1) and Rule 42(a)(2) and (b)(2).

DISCUSSION

¶9 We review the continuation of an order of protection for
abuse of discretion. Vanwormer v. Lopez, 259 Ariz. 87, 89 ¶ 6 (App. 2024)
(citing Cardoso v. Soldo, 230 Ariz. 614, 619 ¶ 16 (App. 2012)).

I. The Court Did Not Infringe on Father’s Due Process Rights.

¶10 Father argues the court denied him due process by allowing
him to proceed immediately at the evidentiary hearing on the Second
Protective Order and not requiring him to take the continuance or recess,
citing Rule 38(d). “Due process requires notice and an opportunity to be
heard in a meaningful manner and at a meaningful time.” Ariz. Dep’t of
Transp. v. Ariz. Motor Vehicle, LLC, 255 Ariz. 139, 142 ¶ 14 (App. 2023)
(cleaned up). “We review constitutional questions, including compliance
with due process, de novo.” Id.

¶11 In the context of evidentiary hearings for protective orders,
the Rules ensure due process rights to notice and opportunity to be heard.
Here, the Rules provide that when an amendment to a protective order
petition is made at a contested hearing, the court must explain to the
defendant that the defendant may: (1) continue the hearing, (2) take a brief
recess, or (3) waive those options and immediately proceed with the
hearing including the amendment. Ariz. R. Prot. Ord. P. 38(d)(2)(A)–(C).
“We interpret court rules to effect the rule-makers’ intent, using the same
principles we apply when interpreting statutes.” State v. Salazar-Mercado,
234 Ariz. 590, 592 ¶ 4 (2014). “If a rule’s language is plain and unambiguous,
we apply it as written without further analysis.” Id.

¶12 Father does not dispute that the court complied with Rule
38(d). Instead, he argues he had no opportunity to be meaningfully heard
because the court did not compel him to continue the hearing or take a
recess. But nothing in Rule 38(d)’s language requires the court to compel
Father either to continue the hearing or to take a recess. To the contrary,
Rule 38(d)(2)(C) specifically provides that the court “must offer the
defendant” “an explanation of the options [] and an opportunity to waive
them.” And if a defendant chooses to waive other options, “then the court
must proceed with the contested hearing on the amended petition that
includes the additional allegations.” Ariz. R. Prot. Ord. P. 38(d)(2)(C)
(emphasis added). The court properly afforded Father his due process
rights by informing him of Mother’s amendment to the Second Petition and

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offering him the options of continuance, a brief recess, or affirmative waiver
of either option, as specified in Rule 38(d). After the court presented him
with his options, it was Father who affirmatively chose to move forward
with the hearing, where he was given a meaningful opportunity to be
heard. Father has shown no infringement of his due process rights.

II. Issue Preclusion Does Not Prevent the Court from Considering
Previous Orders of Protection When Issuing Subsequent
Protective Orders.

¶13 “Application of issue preclusion is an issue of law, which we
review de novo.” Hancock v. O’Neil, 253 Ariz. 509, 512 ¶ 9 (2022) (citation
omitted). “Issue preclusion is a judicial doctrine that, when applicable,
prevents a party from relitigating an issue of fact decided in a prior
judgment.” Id. at 512 ¶ 10. The doctrine “applies when an issue was actually
litigated in a previous proceeding, there was a full and fair opportunity to
litigate the issue, resolution of the issue was essential to the decision, a valid
and final decision on the merits was entered, and there is common identity
of parties.” Hullett v. Cousin, 204 Ariz. 292, 297–98 ¶ 27 (2003). For issue
preclusion to apply, “there must be a final judgment on the merits.” Banner
Univ. Med. Ctr. Tucson Campus, LLC v. Gordon, 252 Ariz. 264, 266 ¶ 10 (2022).
However, “even in cases in which the technical requirements for the
application of [issue preclusion] are met, courts do not preclude issues
when special circumstances exist.” Hullett, 204 Ariz. at 298 ¶ 28.

¶14 Here, Father argues the First Protective Order proceedings
included Incidents 1 and 2, which were also alleged as supporting the
Second Petition, and thus, triggered issue preclusion. For her part, Mother
argues the issues were not the same and she did not receive a full and fair
opportunity to litigate Incidents 1 and 2 at the first evidentiary hearing. She
further argues applying issue preclusion to proceedings under A.R.S. § 13-
3602 undermines public policy.

¶15 Because the court did not consider or specifically address
Incidents 1 or 2 in its order dismissing the First Protective Order, whether
this order qualifies as “a final judgment on the merits”—a necessary
prerequisite to applying issue preclusion here, Gordon, 252 Ariz. at 266 ¶
10–is debatable. But even assuming it does so qualify, we need not reach
whether issue preclusion prohibited the court from considering Incidents 1
and 2 in the Second Protective Order proceeding for two reasons.

¶16 First, orders of protection may be issued “for the purpose of
restraining a person from committing an act included in domestic

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violence.” A.R.S. § 13-3602(A). To that end, the court may consider the
issuance of prior orders of protection, even if inactive, when deciding the
issuance of a subsequent order. See A.R.S. § 13-3602(C)(5). Moreover, the
Rules state that a “judicial officer must not consider the number of times a
protective order has been dismissed as a basis for denying a request for
protective relief.” Ariz. R. Prot. Ord. P. 19. Instead, the court must make an
independent determination whether it has reasonable cause to issue a
protective order “[e]ach time a plaintiff petitions for protective relief.” Id.
(emphasis added). Thus, this statutory authority forms a special
circumstance allowing courts to consider events alleged in prior
applications in hearings for orders of protection, even if a full and fair
adjudication of those prior incidents was reached. See Hullett, 204 Ariz. at
298 ¶ 28.

¶17 Second, even assuming the court was precluded from basing
the Second Protective Order on Incidents 1 and 2, the court said it
considered the supplement alleging Incident 3 only when confirming the
Second Protective Order. The court acknowledged that Incidents 1 and 2
could contextualize the facts surrounding Incident 3, but it expressly did
not base the Second Protective Order on those events, and they were not
relitigated as Father argues. The court’s consideration of Incidents 1 and 2
in this manner—as auxiliary evidence to interpret whether Incident 3
constituted harassment—was permissible. See A.R.S. § 13-3602(E).

¶18 Father further argues the court erred in granting the Second
Protective Order because the Second Petition alleged only Incidents 1 and
2, which he claims the court was precluded from considering. This
argument is likewise unavailing. The court could permit Mother’s Incident
3 supplement and consider Incident 3 even assuming, arguendo, the
original pleading was defective because of issue preclusion. See Ariz. R.
Prot. Ord. P. 38(d); Ariz. R. Fam. L. P. 28(d) (A court may permit
supplementation even though the original pleading is defective in stating a
claim for relief or defense); accord Ariz. R. Prot. Ord. P. 2 (to the extent not
inconsistent, Family Law rules apply “to protective order matters heard in
conjunction with pending family law cases”). Father has shown no error.

III. The Evidence Presented at the Contested Hearing for the Second
Order of Protection Sufficiently Supports the Court’s Findings and
Constitutes Sufficient Evidence of Harassment.

¶19 Father argues the evidence presented at the contested hearing
for the Second Protective Order was insufficient to affirm the ex parte
protection order. Not so.

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¶20 The court may issue an order of protection if it finds
reasonable cause to believe the defendant has harassed or may harass the
protected person. Ariz. R. Prot. Ord. P. 3(e). See A.R.S. §§ 13-3602(E), 13-
2921, 13-3601(A), and 13-3624(C). A defendant is entitled to a hearing to
contest an order of protection. A.R.S. § 13-3602(L). If the plaintiff then
shows by a preponderance of the evidence that “there is reasonable cause
to believe . . . [t]he defendant has committed an act of domestic violence
within the past year,” the court must affirm the ex parte order of protection.
A.R.S. § 13-3602(E).

¶21 Because Mother and Daughter have previously lived with
Father, harassment between them qualifies as domestic violence. A.R.S.
§§ 13-3601(A) and 13-3602(A). Harassment includes when the defendant
knowingly “[c]ontacts or causes a communication” or “continues to follow
another person in . . . a public place after being asked . . . to desist[.]” A.R.S.
§ 13-2921(A). Those actions constitute harassment when “directed at a
specific person and . . . would cause a reasonable person to be seriously
alarmed, annoyed, humiliated or mentally distressed and the conduct in
fact seriously alarms, annoys, humiliates or mentally distresses the person.”
A.R.S. § 13-2921(E). As factfinder, the court has discretion to weigh and
assess conflicting evidence and credibility, and we defer to its
determinations. Vanwormer, 259 Ariz. at 90 ¶ 9; Gutierrez v. Gutierrez, 193
Ariz. 343, 347 ¶ 13 (App. 1998).

¶22 The court heard evidence of Incident 3. Mother testified that
she found Father’s behavior intimidating and was alarmed and worried
about what he could do. Although Father testified that this incident was
harmless, Mother testified that she was in fact seriously annoyed, alarmed,
or harassed. Also, the court heard evidence of Mother’s mental health
diagnoses and her history of similar interactions with Father, and Father
was on notice of Mother’s likely reaction to his presence. In email
correspondence early in their separation, Father said he “underst[ood] that
[he is] a major trigger of [Mother’s] condition” and would comply with the
now imposed Second Protective Order writing, “I will be committed to
keeping my distance and give you your space. I will not interact with you
at all unless it is absolutely necessary.” As we previously noted, the court
could consider evidence of Incidents 1 and 2 at the very least to provide
context for the reasonableness of Mother’s alarm as to Incident 3. Given this
evidence, the court determined Father’s behavior during Incident 3 was
unreasonable, constituting harassment.

¶23 Mother’s testimony, together with other evidence
substantiating the harassment claims, substantially supports the court’s

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findings. Father asks us to reweigh this evidence on appeal, which we
cannot do. See Gutierrez, 193 Ariz. at 347 ¶ 13; Hurd v. Hurd, 223 Ariz. 48, 52
¶ 16 (App. 2009).

CONCLUSION

¶24 We affirm.

¶25 Father and Mother each request an award of attorneys’ fees
and costs under Rule 39. In our discretion, we decline to award Mother her
attorneys’ fees but grant her award of her costs on appeal upon compliance
with Arizona Rules of Civil Appellate Procedure 21. See A.R.S. § 13-3602(T);
Rule 39(a)–(b).

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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