Miller v. Miller

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

ALEXANDRA MILLER, Petitioner/Appellee,

v.

SEAN ALEXANDER MILLER, Respondent/Appellant.

No. 1 CA-CV 21-0611 FC
FILED 7-21-2022

Appeal from the Superior Court in Maricopa County
No. FN2021-092556
The Honorable Terri L. Clarke, Judge Pro Tempore

REMANDED

APPEARANCES

Alexandra Miller
Petitioner/Appellee

Law Office of Shannon Peters, Phoenix
By Shannon Peters
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.

W I L L I A M S, Judge:

¶1 Sean Miller appeals the superior court’s ruling continuing an
order of protection against him. For the following reasons, we remand for
further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 Sean allowed his adult daughter, Alexandra Miller, to live
with him. On July 30, 2021, they got into an argument, and Alexandra began
moving out. After moving some, but not all, of her belongings out of the
home, Sean informed Alexandra she was not allowed back into the home
unless they agreed upon a time for her to return. Alexandra tried to
schedule a time to return, but Sean refused.

¶3 The next day, Alexandra returned to the home—without
permission—to retrieve the rest of her belongings. She confronted Sean in
his garage; the two argued; and Sean repeatedly told Alexandra to leave.
When Sean began to walk into the home, Alexandra followed. Sean then
pushed Alexandra out of the doorway, and she fell to the ground. The two
gave differing accounts whether Sean touched or kicked Alexandra in the
back before ultimately closing the door.

¶4 Alexandra petitioned for an ex parte order of protection, which
the superior court granted. Once served with the protective order, Sean
requested a hearing. The court held an evidentiary hearing on September
21st.

¶5 At the hearing, Sean moved to admit evidence that Alexandra
was trespassing on his property at the time of the altercation. The superior
court refused to consider any evidence related to trespassing, finding it
irrelevant to whether an act of domestic violence occurred. The court
affirmed the order of protection.

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¶6 Sean timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) and
-2101(A)(1).1

DISCUSSION

¶7 We review the superior court’s continuation of a protective
order for an abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 16
(App. 2012). “A trial 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 trial court’s decision, is devoid of
competent evidence to support the decision.’” Savord v. Morton, 235 Ariz.
256, 259, ¶ 10 (App. 2014) (quoting Mahar v. Acuna, 230 Ariz. 530, 534, ¶ 14
(App. 2012)).

¶8 Sean first argues Alexandra’s petition was deficient because it
failed to allege an act of domestic violence. We disagree.

¶9 When petitioning for an order of protection, the plaintiff must
allege a specific act of domestic violence. Ariz. R. Protect. Ord. P. 23(b)(1);
A.R.S. § 13-3602. Assault is an act of domestic violence under A.R.S.
§ 13-3601(A) if committed by, among others, a person related to the victim
by blood. See A.R.S. § 13-1203 (defining assault).

¶10 In her petition, Alexandra alleged that Sean “slamm[ed] the
door on [her] body,” “push[ed] [her] . . . until [she] fell to the ground,” and
“kick[ed] [her] out of the doorway.” Alexandra’s petition sufficiently
alleged an act of domestic violence.

¶11 Sean next argues the superior court erred by refusing to
consider or admit evidence of Alexandra’s alleged trespass. We agree.

¶12 Section 13-3601(B) provides that “[a]n act of self-defense that
is justified under [A.R.S. title 13, chapter 4] is not deemed to be an act of
domestic violence.” As relevant here, a person does not commit an act of
domestic violence when justified in “threatening or using physical force
against another when and to the extent that a reasonable person would
believe it immediately necessary to prevent or terminate the commission or

1 Alexandra failed to file an answering brief. In our discretion we decline to
treat her failure as a concession of reversible error, see Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994), and instead consider the merits of Father’s
appeal, see Bugh v. Bugh, 125 Ariz. 190, 191 (App. 1980).

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attempted commission of a criminal trespass by the other person in or upon
the premises.” A.R.S. § 13-407; A.R.S. § 13-3601(B).

¶13 Despite testimony that Alexandra was at Sean’s home
without his permission, as well as testimony and video evidence that Sean
repeatedly asked Alexandra to leave, the superior court refused to consider
or admit any evidence of Alexandra’s alleged trespass, finding it irrelevant
to whether Sean committed an act of domestic violence. But before the court
could conclude that Sean committed an act of domestic violence, it was
obligated to consider whether Alexandra was trespassing, and if so,
whether Sean’s acts were justified under A.R.S. § 13-407. The court’s failure
to do so constitutes error. See Kimu P. v. ADES, 218 Ariz. 39, 42, ¶ 11 (App.
2008).

¶14 We, therefore, remand for the superior court to: (1) consider
evidence of the alleged trespass, (which will likely require an additional
evidentiary hearing), and (2) if the court concludes Alexandra trespassed
(only for purposes of the order of protection hearing), whether Sean was
justified in any use of physical force he used. The order of protection
remains in place until further order of the superior court.

CONCLUSION

¶15 We remand for further proceedings consistent with this
decision.

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

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