Nicaise v. Sundaram

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT J. NICAISE, JR., Petitioner/Appellee,

v.

APARNA SUNDARAM, Respondent/Appellant.

No. 1 CA-CV 17-0518
FILED 9-27-2018

Appeal from the Superior Court in Maricopa County
No. FC2017-092498
The Honorable Richard J. Hinz, Commissioner

AFFIRMED IN PART AND VACATED IN PART

COUNSEL

Horne Slaton, PLLC, Scottsdale
By Sandra L. Slaton, Matthew J. Monaco
Counsel for Respondent/Appellant

Law Offices of Karla L. Calahan, P.C., Scottsdale
By Karla L. Calahan
Counsel for Petitioner/Appellee
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MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Aparna Sundaram timely appeals from an order of protection
in favor of Robert Nicaise, Jr., and the subsequent denial of her motion for
new trial. The order of protection has since expired, but we conclude
Sundaram’s appeal is not moot and address her arguments on appeal. We
affirm the superior court’s order of protection but vacate the attendant
Notice of Brady Indicator.

BACKGROUND

¶2 Sundaram and Nicaise have a minor child in common and
have had a tumultuous co-parenting relationship. While in a doctor’s office
with their minor child in February 2017, there were two separate incidents
between Sundaram and Nicaise: During the first incident in the lobby,
Sundaram used her cell phone to video-record Nicaise while he repeatedly
asked her to stop; during the second incident in the exam room, Sundaram
went into a “rant” about Nicaise’s behavior in front of the doctor. Sundaram
later petitioned for and obtained a protective order against Nicaise.1 Nicaise
then filed a petition for a protective order against Sundaram, basing his
petition in part on the two incidents in the doctor’s office.

¶3 In April 2017, the superior court held a combined evidentiary
hearing concerning both Sundaram’s existing order and Nicaise’s petition.
After hearing testimony from both Sundaram and Nicaise, the superior
court continued the protective order against Nicaise and granted the
petition for a protective order against Sundaram, simultaneously issuing a
Notice of Brady Indicator against Sundaram. Mother filed a motion for new
trial/amended judgment, which the superior court denied.

1 Sundaram’s protective order against Nicaise is not at issue in this
appeal.

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DISCUSSION

¶4 Sundaram makes three arguments on appeal: (1) the superior
court erred by ruling that her conduct during the second incident in the
doctor’s office constituted harassment under A.R.S. § 13-2921; (2) the
superior court denied Sundaram due process by “pre-determining the
matter” before she had given all of her testimony; and (3) the superior court
erred by applying the Brady Act against Sundaram because there was no
credible threat of violence during the incident. She asks that we reverse and
vacate the order of protection, or alternatively, reverse and remand for a
new trial. Additionally, Nicaise contends that the expiration of the
protective order Sundaram now contests rendered her appeal moot.

¶5 “It is well settled that the issuance of an order of protection is
a very serious matter,” and one that we review for an abuse of discretion.
Savord v. Morton, 235 Ariz. 256, 259, ¶¶ 10-11 (App. 2014). The superior
court “abuses its discretion when it makes an error of law in reaching a
discretionary conclusion or when the record, viewed in the light most
favorable to upholding the . . . court’s decision, is devoid of competent
evidence to support the decision.” Id. at 259, ¶ 10 (citation omitted). We
review constitutional and purely legal issues de novo. State v. Moody, 208
Ariz. 424, 445, ¶ 62 (2004).

I. Sundaram’s appeal is not moot.

¶6 The superior court issued the protective order against
Sundaram on April 13, 2017, and a protective order expires one year after
service on the defendant, A.R.S. § 13-3602(K). Because the protective order
at issue has expired, we first consider the preliminary question of whether
to dismiss Sundaram’s appeal as moot. See Cardoso v. Soldo, 230 Ariz. 614,
616-17, ¶ 5 (App. 2012).

¶7 “A decision becomes moot for purposes of appeal where[,] as
a result of a change of circumstances before the appellate decision, action
by the reviewing court would have no effect on the parties.” Vinson v.
Marton & Assoc., 159 Ariz. 1, 4 (App. 1988). The question of mootness,
however, is a matter of prudential restraint subject to our discretion.
Cardoso, 230 Ariz. at 616-17, ¶ 5. Among other exceptions, we may review
an otherwise moot order if a party may continue to suffer collateral
consequences stemming from that order. Id. at 616-17, ¶¶ 5-7, 9.

¶8 Sundaram may continue to suffer collateral consequences
stemming from the issuance of the now-expired protective order. The
potential consequences include the expired order’s consideration by a court

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in deciding whether to issue any subsequent orders of protection, its
ongoing significance in disputes over joint custody of a minor child, and
harm to Sundaram’s reputation, among others. See id. at 618-19, ¶¶ 10-14.
We are unpersuaded by Nicaise’s argument that any other protective
orders which may have previously been issued between these parties give
only a marginal effect to the collateral consequences stemming from this
particular order. Accordingly, we conclude Sundaram’s appeal is not moot.

II. The superior court did not err by finding that Sundaram harassed
Nicaise.

¶9 Sundaram first argues the superior court erred by
determining that her “rant” during the second incident in the doctor’s office
constituted harassment, which the court used as the basis for the protective
order. See A.R.S. § 13-3602(A), (E); § 13-3601(A) (listing the offenses,
including harassment, that may constitute domestic violence and justify the
issuance of an order of protection). We disagree.

¶10 In relevant part, a person commits harassment if, with intent
to harass or with knowledge that the person is harassing another person,
the person:

1. Anonymously or otherwise contacts, communicates or
causes a communication with another person by verbal,
electronic, mechanical, telegraphic, telephonic or written
means in a manner that harasses.

...

3. Repeatedly commits an act or acts that harass another
person.

A.R.S. § 13-2921(A). The statute further clarifies that “harassment” is
“conduct that is directed at a specific person and that would cause a
reasonable person to be seriously alarmed, annoyed or harassed and the
conduct in fact seriously alarms, annoys or harasses the person.” A.R.S.
§ 13-2921(E).

¶11 During the combined evidentiary hearing, Nicaise provided
testimony regarding the two incidents at the doctor’s office in February
2017. He described the first incident to the court as follows:

I do the right thing, invite her to attend a medical
appointment during my parenting time. I get there, and she

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starts camcording me, which she knows hits my buttons. . . . I
ask her to stop; she refuses, nastily refuses. . . . I go again and
try to get her to stop. It includes waving my hand in front of
her cell phone. I never took possession of her cell phone and
I never did anything to it.

Regarding the second incident, Nicaise testified:

We then get back into an exam room. We both threw down a
cool down period, get into an exam room, and she goes into a
rant about my mental health, labeling me as a schizophrenic,
bipolar in front of the doctor -- compromising the doctor’s
ability to accomplish what he’s there . . . to do, and that is to
evaluate and treat our daughter. She did this not just in front
of me and the doctor. She did it in front of our daughter, no
matter the court order that was only five days old . . . .

¶12 After the close of evidence, the court explained its ruling on
Nicaise’s petition for an order of protection from the bench. The court found
that (1) Sundaram videotaping Nicaise did not constitute assault and that
Nicaise had therefore failed to prove an act of domestic violence by that
allegation, but (2) Nicaise had proven Sundaram’s “rant” was an act of
domestic violence under the harassment statute: “The Court finds that that
was done solely for the purpose of harassing or disturbing [Nicaise]. . . .
Harassment is, ‘Repeatedly commits an act or acts that harass another
person’. The Court does find that the discussions in the conference room
violate that particular provision of A.R.S. 13-2921.”

¶13 Sundaram later filed a motion for a new trial/amended
judgment, arguing that her “rant” did not meet the statutory definition of
“repeatedly commit[ting] an act or acts that harass another person.” The
superior court denied Sundaram’s motion, explaining that:

[D]espite the fact that the Court isolated that specific
definition of harassment, Sundaram conveniently ignores the
remainder of the statutory definition of harassment.
Harassment also occurs when one “. . . contacts,
communicates, or causes a communication with another
person by verbal . . . means in a manner that harasses.” A.R.S.
§ 13-2921(A)(1). . . . Here, although the Court did not isolate the
alternative definition of harassment in the statute, the evidence
clearly supported granting the Order of Protection based on the
evidence and the application of that statute.

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(Emphasis added). Sundaram now argues the superior court erred because
Nicaise’s testimony did not provide enough evidence to meet the third
statutory definition of harassment, “[r]epeatedly commit[ting] an act or acts
that harass another person.” A.R.S. § 13-2921(A)(3). We need not address
Sundaram’s arguments regarding the third definition of harassment,
however, because the evidence clearly supports a finding of harassment
under the first definition outlined in section (A)(1) of the statute.

¶14 To refute a finding of harassment under the first definition,
Sundaram first argues that her “rant” was not actually directed at Nicaise,
but rather that it was directed at the doctor and was merely about Nicaise.
This argument is unsupported by the record and we reject it. The superior
court was free to infer—particularly given Nicaise’s description of the first
incident in the lobby preceding her “rant” in the exam room—that
Sundaram was aware of the effect her words would have on Nicaise.
Sundaram provided no testimony that her comments were directed solely
at the doctor, nor that she sought a private audience with the doctor to
express any legitimate concerns about Nicaise’s behavior in relation to his
ability to care for the child and identify any medical concerns relating to the
child.

¶15 To further attempt to refute a finding of harassment under the
first definition, Sundaram argues Nicaise provided no evidence that her
“rant” in fact harassed him. Again, this argument is not supported by the
record. Nicaise testified that “even when she was [ranting], I pointed out to
her that she’s violating the minute entry that was only five days old . . .
[and] [t]he judge down the hall here is very adamant that we shouldn’t be
doing these antics and charades in front of our daughter,” from which the
superior court could infer that he found her behavior inappropriate and
annoying and wanted her to stop.

¶16 We view the evidence in the light most favorable to sustaining
the superior court’s order, reversing only when the record is devoid of
competent evidence to support it. Savord, 235 Ariz. at 259, ¶ 10. Because the
record here contains competent evidence supporting the court’s finding of
harassment, we discern no error.

III. The superior court did not deprive Sundaram of due process by
“pre-determining the matter” prior to hearing all of the evidence.

¶17 Sundaram argues the superior court erred as a matter of law
by denying her due process when it “pre-determin[ed] the matter” before

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Sundaram had the opportunity to respond to Nicaise’s allegations. Her
argument is without merit.

¶18 According to the superior court’s instructions at the
beginning of the combined evidentiary hearing, the hearing proceeded as
follows: Sundaram testified first concerning her protective order against
Nicaise; Nicaise, representing himself, cross-examined Sundaram; and
Sundaram underwent redirect examination. Nicaise then had the
opportunity to both respond to Sundaram’s allegations and present his own
case-in-chief concerning his pending petition for a protective order against
Sundaram. After cross-examining Nicaise, Sundaram’s counsel asked to
put Sundaram back on the witness stand, to which the court responded:
“Counsel, for purposes of rebuttal, I’m going to allow just a few
questions. . . . I’ve probably heard enough of the evidence at this point to
make a determination in any case.” Sundaram then underwent further
redirect examination.

¶19 In this context, informing the parties of the court’s
preliminary view that it had likely heard enough evidence to arrive at a
determination of the issues was not improper and does not establish that
the court “had predetermined the outcome by stating a fixed opinion.” The
cases Sundaram cites do not alter our analysis. See Cravens, Dargan & Co. v.
Superior Court, 153 Ariz. 474, 476 (1987) (“No rule of civil procedure
authorizes a trial court to grant its own sua sponte request for judgment
without giving notice and an opportunity to be heard to the opposing
party.”); see also Matthews v. Harney County School Dist. No. 4, 819 F.2d 889,
893-94 (9th Cir. 1987) (holding that a jury could reasonably find that a
teacher called into a meeting only after the school board had already voted
in favor of dismissal was a meaningless pre-termination opportunity to
respond). The superior court has broad discretion in managing the conduct
of a trial, State v. Cornell, 179 Ariz. 314, 332 (1994), and the record does not
reflect that the court precluded any specific line of questioning or actually
reached its final decision without considering all of the evidence ultimately
offered.

IV. The superior court erred by applying the Brady Act against
Sundaram.

¶20 Finally, Sundaram argues the superior court erred as a matter
of law by applying the federal Brady Act against her because there was no
evidence presented that she posed a credible threat of physical violence to
Nicaise. We agree.

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¶21 The Brady notice against Sundaram was issued pursuant to
federal law, explicitly stating that the protective order “appears to meet the
criteria established in the Violent Crime Control and Law Enforcement Act
of 1994 (18 U.S.C. § 922).” This federal statute prohibits the subject of a
protective order from possessing firearms if the protective order “includes
a finding that [the] person represents a credible threat to the physical safety
of [an] intimate partner or child,” 18 U.S.C. § 922(g)(8)(C)(i), or “by its terms
explicitly prohibits the use, attempted use, or threatened use of physical
force against [an] intimate partner or child that would reasonably be
expected to cause bodily injury,” 18 U.S.C. § 922(g)(8)(C)(ii); see also Mahar
v. Acuna, 230 Ariz. 530, 534, ¶ 15 (App. 2012). Sundaram does not dispute
that she and Nicaise were “intimate partners,” see 18 U.S.C. § 921(a)(32),
and the protective order issued against Sundaram included language
comporting with section (C)(ii) of the statute: “[Sundaram] shall not commit
any crimes, including but not limited to harassment, stalking, or conduct
involving the use, attempted use, or threatened use of physical force that
would reasonably be expected to cause bodily injury against [Nicaise].”

¶22 As Sundaram notes, however, Arizona law still required the
superior court to conduct a specific inquiry into whether she posed a
credible threat to Nicaise’s physical safety. Pursuant to A.R.S. § 13-
3602(G)(4), “[a] firearm restriction under the federal [Brady] Act is triggered
by an order of protection only if the order includes a finding that [the]
person represents a credible threat to the physical safety of [the] intimate
partner or child.” Savord, 235 Ariz. at 260, ¶ 20 (citations omitted). “A
restriction against firearms does not automatically follow an order of
protection,” id. at 260, ¶ 22, and Rule 23(i)(1) of the Arizona Rules of
Protective Order Procedure requires the court to “ask the plaintiff about the
defendant’s use of or access to firearms to determine whether the defendant
poses a credible threat to the physical safety of the plaintiff or other
protected persons.”

¶23 The superior court failed to conduct the required inquiry
regarding Sundaram’s access to firearms, and the record lacks evidence
concerning Sundaram threatening any physical violence toward Nicaise.
Therefore, we vacate the Notice of Brady Indictor.

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CONCLUSION

¶24 We affirm the superior court’s order of protection against
Sundaram but vacate the attendant Brady Notice.

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

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