Ingram v. Hernandez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MIA INGRAM, Petitioner/Appellee,

v.

MARIO HERNANDEZ, Respondent/Appellant,
______________________________

In re the Matter of:

MARIO ALBERTO HERNANDEZ, Petitioner/Appellant,

v.

MIA INGRAM, Respondent/Appellee.

No. 1 CA-CV 23-0567 FC
1 CA-CV 23-0735 FC
(Consolidated)
FILED 09-19-2024

Appeal from the Superior Court in Maricopa County
No. FC2023-001856, FC2023-090293
The Honorable William R. Wingard
The Honorable Richard J. Hinz, Judge

AFFIRMED
 COUNSEL

Mia Ingram, (Protected Address)
Petitioner/Appellee

Mario Alberto Hernandez, Las Vegas, Nevada
Respondent/Appellant

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Vice Chief Judge Randall M. Howe
joined.

P E R K I N S, Judge:

¶1 Mario Alberto Hernandez (“Father”) appeals the superior
court’s ruling in his order of protection and dissolution proceedings with
Mia Ingram (“Mother”). For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father have two children, Liam and Olivia, and
Mother has one child from a prior relationship, Thomas (we use
pseudonyms to protect the children). Father petitioned for dissolution of
his marriage to Mother in January 2023. Two months later, Father moved
for temporary orders for legal decision-making and physical custody of the
children, claiming that Mother absconded with the children after filing a
“phony” order of protection in June 2022. But Father could not serve
Mother the petition and motion because Mother refused service. She
explained that she did not want Father to know her address because she
feared he would hurt her and the children.

¶3 Thereafter, in a separate action in the superior court, Mother
petitioned for an order of protection against Father. The court issued an
order (“March Order of Protection”) covering Mother and Thomas.

¶4 Mother responded to the petition for dissolution and
temporary orders, alleging Father physically and emotionally abused her
and their children. She accused Father of being a “compulsive liar” and a

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“con-artist.” Mother also requested a protected address because of the
March Order of Protection, which the court granted.

¶5 After an evidentiary hearing, the dissolution court issued
temporary orders. The court awarded Mother temporary sole legal
decision-making and gave Father supervised parenting time with Liam and
Olivia for three hours every Saturday.

¶6 On May 6, Mother and Father arrived for the supervised
visitation. Father did not bring a supervising adult, so Mother refused to
allow Father to take the children, walked away from Father, and called 911.
When the police arrived, they served Father with the March Order of
Protection. A few days later, Mother filed another petition requesting an
order of protection that included all three children. The court issued an
Order of Protection (“May Order of Protection”) that included Thomas,
Liam, and Olivia as protected persons. Father was served with the May
Order of Protection in July.

¶7 Father filed a “Petition to Enforce Parenting Time” after he
did not see the children on May 6. He also asked the court to consolidate
the divorce proceeding with the order of protection proceedings. Mother
challenged the temporary orders. She explained that Father showed up to
the meeting without a supervisor, then chased Mother and the children
around a parking lot when she refused to allow Father to take them, causing
her to lock herself in a nearby restaurant until police arrived. The court,
noting the “dysfunction in this family,” denied both parties’ motions and
affirmed “all prior Temporary Orders.”

¶8 In July 2023, Father requested a hearing to contest the March
Order of Protection. Both parties attended the hearing and presented
testimony and exhibits. The court found reasonable cause to continue the
May Order of Protection, which modified the March Order of Protection,
because there “is reasonable cause to believe that [Father] has committed
an act of domestic violence within the last year or could commit an act of
domestic violence within the next year.” Father timely appealed.

¶9 Leading up to the dissolution trial, Father and Mother each
filed several motions with the court, and each failed to serve the other with
some motions and responses. Father successfully filed and served a
“Motion to Compel Discovery to Establish Fair Trial [and] Motion for
Continuance.” Mother failed to properly file her response. The court denied
the motion to continue and declined to rule on the motion to compel. And

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the court reserved for trial Father’s claim that Mother disobeyed the court’s
temporary orders by not letting Father see the children.

¶10 The day before trial, Father moved to stay the dissolution trial
pending resolution of the appeal in the order of protection case.

¶11 Father did not appear on the day of trial, and instead filed
another motion to compel discovery. The court did not address Father’s
motion to continue or motion to compel, held the trial without Father
present, and dissolved the marriage. A week after trial, the court denied
Father’s motion to stay. Father moved for reconsideration of the dissolution
decree, which the court denied.

¶12 Father timely appealed the dissolution decree. This Court
granted Father’s motion to consolidate the order of protection and
dissolution appeals. We have jurisdiction. A.R.S. § 12-2101(A).

DISCUSSION

¶13 Appellate briefs must explain an appellant’s “contentions
concerning each issue presented for review, with supporting reasons for
each contention, and with citations to legal authorities and appropriate
references to the portions of the record on which the appellant relies.”
ARCAP 13(a)(7). “An appellant who fails to make a bona fide and
reasonably intelligent effort to comply with the rules will waive issues and
arguments not supported by adequate explanation, citations to the record,
or authority.” Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (2022). Courts hold
unrepresented litigants in Arizona to the same standard as attorneys, and
do not give them special leniency. Flynn v. Campbell, 243 Ariz. 76, 83–84, ¶
24 (2017). We have done our best to discern Father’s arguments and will
address those we have discerned. But we will consider waived any
argument that Father did not clearly articulate in his opening brief.

¶14 Father did not provide transcripts from the order of
protection hearing or the dissolution trial. Our rules require parties to
provide transcripts to this Court. ARCAP 11(c)(1)(A); State ex rel. Dep’t of
Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16 (App. 2003) (“An appellant is
responsible for making certain that the record on appeal contains all
transcripts or other documents necessary for us to consider the issues raised
on appeal.”). Because Father did not provide transcripts, we cannot review
(a) his argument that the court improperly admitted evidence in the order
of protection and dissolution hearings or (b) his argument that Mother
presented allegations at the order of protection hearing that were not
included in the petition. See Ariz. R. Protect. Ord. P. 38(d)(2)(A). For these

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issues, we presume the transcripts would support the superior court’s
ruling. J.F. v. Como, 253 Ariz. 400, 406, ¶ 31 (App. 2022).

¶15 Father argues the court erred by not consolidating the order
of protection and the dissolution proceedings. But our rules expressly state
“[t]he court may not consolidate a case involving an order of protection
with a family law case.” Ariz. R. Fam. Law P. 5(a)(4); see also Vera v. Rogers, 246 Ariz. 30, 34, ¶ 16 (App. 2018). The court, therefore, properly kept the
two proceedings separate. On appeal, Father argues the court made several
errors in both proceedings, which we address in turn.

I. Order of Protection

¶16 First, Father argues he was not properly served the order of
protection. We review service of process de novo. See Ruffino v. Lokosky, 245
Ariz. 165, 168–69, ¶¶ 9–10 (App. 2018). The court can issue an ex parte order
of protection if the court finds the defendant has committed or will commit
an act of domestic violence. Ariz. R. Protect. Ord. P. 23(e); A.R.S. § 13-
3602(L), (T), (V)(2). Once the court issues an order of protection, “the court
shall provide the order to a law enforcement agency” or other authorized
entity to serve the defendant. A.R.S. § 13-3602(I)–(K). “If a defendant is
physically present with the plaintiff and has not yet been served, a peace
officer may be summoned to the scene and may use the plaintiff’s copy of
the protective order to effect service on the defendant.” Ariz. R. Protect.
Ord. P. 31(h). Once service is complete, the officer or agency shall notify the
plaintiff that the order has been served. A.R.S. § 13-3602(I).

¶17 Father acknowledged receiving service of the order of
protection when he attempted to pick up Liam and Olivia for supervised
visitation. And a Phoenix Police Department officer declared that he
personally served Father the March Order of Protection on May 6, which
complies with Arizona Rule of Protective Order Procedure 31(h). In any
event, by asserting his right to a contested hearing, Father waived service
and rendered the order effective. See Montano v. Scottsdale Baptist Hosp., Inc.,
119 Ariz. 448, 452 (1978) (a party’s appearance despite lack of service
renders service unnecessary).

¶18 Father argues Mother failed to disclose the exhibits and
evidence she used at the order of protection hearing. But order of protection
proceedings have no disclosure requirement. Ariz. R. Protect. Ord. P. 37.

¶19 Finally, Father argues that the court violated Section 13-
3602(H) when it ordered multiple orders of protection. But Section 13-
3602(H) prohibits only mutual orders of protection, when “opposing

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parties separately file verified petitions for an order of protection” and the
court grants both. The court here did not issue mutual orders of protection;
only Mother requested an order of protection. The court issued initial
orders and thereafter changed them at Mother’s request, taking into
account Father’s subsequent interactions with Mother and the children. The
court did not violate Section 13-3602(H).

II. Dissolution

¶20 Father argues the court erred by denying his motion for a
continuance of the dissolution trial. We review the denial of a motion to
continue for an abuse of discretion. State v. Barreras, 181 Ariz. 516, 520
(1995). A party may request a continuance for good cause. Ariz. R. Fam.
Law P. 34(a)(4). Father asked to continue the trial based on his incorrect
assertion that the order of protection and dissolution cases should have
been consolidated. Father lacked good cause for a continuance. The court
did not abuse its discretion.

¶21 Father also argues the court violated Father’s due process
right to discovery, warranting a mistrial, by not ordering compliance with
Rule of Family Law Procedure 49. But at the resolution management
conference, the court ordered both parties to “complete all disclosure
requirements required by Rules 49, 50, and 91.” Father correctly points out
that neither party complied with this order. “Due process entitles a party to
notice and an opportunity to be heard at a meaningful time and in a
meaningful manner.” Curtis v. Richardson, 212 Ariz. 308, 312, ¶ 16 (App.
2006). And we will reverse a decision based on a due process violation only
if the error prejudices a party. Volk v. Brame, 235 Ariz. 462, 470, ¶ 26 (App.
2014). Both Father and Mother received notice of their obligation to comply
with the discovery requirements and failed to do so. The court did not
abuse its discretion by proceeding with the hearing despite the parties’
mutual failure to abide by its disclosure order.

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CONCLUSION

¶22 We affirm.

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

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