Overfield v. Sungulyan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALLEN OVERFIELD, Petitioner/Appellee,

v.

MARIAM SUNGULYAN, Respondent/Appellant.

No. 1 CA-CV 23-0781 FC
FILED 07-18-2024

Appeal from the Superior Court in Maricopa County
No. FC2023-004482
The Honorable Joanna Reihing, Judge Pro Tempore

AFFIRMED

COUNSEL

Allen Overfield, Protected Address
Petitioner/Appellee

Best Law Firm, Scottsdale
By Maricella Heyn
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

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

C A T T A N I, Judge:

¶1 Mariam Sungulyan appeals the superior court’s order
affirming a protective order entered against her in favor of Allen Overfield,
with whom she has a child in common. Sungulyan asks that we reverse
and vacate the court’s order. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In August 2023, Overfield petitioned the superior court for a
protective order against Sungulyan because he was worried for his safety
after enduring “threats of violence and constant harassment.” In his
petition, Overfield cited three incidents in which Sungulyan (1) “went onto
Facebook asking people to shoot [him]”; (2) stated that if Overfield “came
to the Arizona court house she would take everything to the next levels and
that [his] whole family [would] pay the price”; and (3) while on the phone
with Overfield, screamed “If I have to get you killed I Will[.] Leave me the
fuck Alone[.] I’m busy.” The same day, the court issued an ex parte
protective order prohibiting Sungulyan from contacting Overfield and
from possessing, receiving, or purchasing firearms under A.R.S. § 13-
3602(G)(4).

¶3 Sungulyan requested a hearing to contest the protective
order. At the hearing, the court admitted into evidence four exhibits—
including an audio recording, text messages, and screenshots—and heard
testimony from Overfield, Mayra Hernandez (Overfield’s witness), and
Sungulyan. The court then affirmed the protective order “[b]ased on the
information and testimony presented,” finding by “a preponderance of the
evidence that there is reasonable cause to believe that [Sungulyan] has
committed an act of domestic violence within the last year.”

¶4 Sungulyan filed a motion for reconsideration, asserting (1) the
superior court erred when affirming the protective order “solely based on
Plaintiff’s Exhibit 7,” an audio recording that Sungulyan argued should not

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have been admitted into evidence, and (2) that Overfield’s and Hernandez’s
testimony lacked credibility. The court denied the motion.

¶5 Sungulyan timely appealed. We have jurisdiction under
A.R.S. § 12-120.21(A)(1) and Rule 42(a)(2) of the Arizona Rules of Protective
Order Procedure.

DISCUSSION

I. Sufficiency of the Evidence.

¶6 We review the superior court’s decision to affirm a protective
order for abuse of discretion. Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5
(App. 2014). A 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 [superior] court’s decision, is
devoid of competent evidence to support the decision.” Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014) (citation omitted).

¶7 For a contested protective order to remain in effect, the
plaintiff must prove, by a preponderance of the evidence, that “[t]he
defendant may commit an act of domestic violence” or “has committed an
act of domestic violence within the past year.” Ariz. R. Prot. Ord. P.
38(g)(3); A.R.S. § 13-3602(E). We do not reweigh the evidence, and we
presume the superior court considered all evidence before it. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009); Fuentes v. Fuentes, 209 Ariz. 51, 55–56, ¶
18 (App. 2004).

¶8 Sungulyan contends the court erred by affirming the order,
asserting that it was based solely on a recording of a phone call (Exhibit 7)
in which Sungulyan said to Overfield, “I swear to fucking God, I’ll get your
ass fucking killed, leave me alone, I’m busy.” But the record shows the
court considered all of the evidence before it. The court based its order “on
the information and testimony presented” at the hearing, which included
testimony from three witnesses and three other exhibits in addition to
Exhibit 7.

¶9 Overfield testified that he “constantly [had] threats on [his]
life,” including that on August 2, 2023, Sungulyan told him she was
“hoping that the cops would shoot [him]” during a SWAT raid of his home.
Additionally, Hernandez testified that she had “heard conversations that
were negative and life threatening [to Overfield] over the phone calls” and
that Overfield has “been worried about [his] safety.” This evidence
provided an adequate basis for the superior court’s finding “by a

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preponderance of the evidence that the allegations in [the] petition occurred
and an act of domestic violence happened.”

II. Evidentiary Issues.

¶10 Sungulyan contends the court erred by admitting Exhibit 7
and by concluding that Overfield and Hernandez were credible witnesses.
In a contested hearing regarding a protective order, the court “may exclude
relevant evidence if its probative value is substantially outweighed by . . .
unfair prejudice, confusing the issues, undue delay, wasting time,
needlessly presenting cumulative evidence, or lack of reliability.” Ariz. R.
Prot. Ord. P. 36(a).

¶11 “A [superior] court has broad discretion in admitting or
excluding evidence, and we will not disturb its decision absent a clear abuse
of its discretion and resulting prejudice.” Lashonda M. v. Ariz. Dep’t of Econ.
Sec., 210 Ariz. 77, 82–83, ¶ 19 (App. 2005); Ariz. R. Prot. Ord. P. 36(a) cmt.
(superior court has broad discretion in “determining whether proffered
evidence is admissible in any individual protective order hearing”).
“Generally, an abuse of discretion is discretion manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.” Lashonda M.,
210 Ariz. at 83, ¶ 19 (citation omitted). Further, we defer to the “court’s
superior position to weigh the evidence, make credibility determinations,
and resolve conflicts in facts.” Great W. Bank v. LJC Dev., LLC, 238 Ariz. 470,
482, ¶ 42 (App. 2015).

A. Exhibit 7.

¶12 Sungulyan argues the court erred by admitting the audio
recording of her threatening statements. First, Sungulyan contends the
exhibit was outside the time frame relevant to the petition and was
unreliable (and thus unfairly prejudicial) because of uncertainty regarding
the date of the audio recording. But, although Sungulyan testified the
recording was from “2015 possibly,” Overfield testified to the contrary that
the recording was from June 24, 2023. Hernandez likewise confirmed that
she was “there to hear [the phone conversation]” on that same date.

¶13 The court noted the dispute over the date of the recording but
implicitly credited Overfield’s and Hernandez’s account over Sungulyan’s
by finding that the allegation of domestic violence had been proven by a
preponderance of the evidence. Because the superior court is best situated
to weigh the evidence and make credibility determinations, we defer to its
resolution of this factual dispute.

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¶14 Sungulyan also asserts that she could not hear the audio
recording and, therefore, could not dispute its contents. But Overfield
stated verbatim the contents of the audio recording before playing it at the
hearing. Sungulyan only testified that she “personally couldn’t hear [the
recording] while [the others] were hearing it,” not that she did not hear
Overfield testify as to its contents. Thus, her argument is unavailing.

¶15 Finally, Sungulyan contends the court erred by admitting
Exhibit 7 because Overfield failed to provide metadata for the recording—
which would have shown the date it was made—after the court instructed
him to do so. That argument fails, however, given the superior court’s
broad discretion and the parties’ testimony regarding the date of the
recorded phone call. Notwithstanding the absence of metadata, the court
did not abuse its discretion by admitting Exhibit 7.

B. Witness Credibility.

¶16 Sungulyan asserts that the court erred by determining that
Overfield and Hernandez were credible witnesses because—she claims—
their testimony was directly contradicted by previous statements. But the
court was not obligated to wholly discount the witness testimony based on
prior inconsistent statements. And here, the court reasoned that both
parties were “equally credible,” but “additional witness testimony” from
Hernandez put the court “over 51 percent” to “more probable than not” as
necessary to find that Overfield had proven his allegation of domestic
violence by a preponderance of the evidence. Sungulyan has not
established error in the superior court’s assessment of witness credibility.
See Great W. Bank, 238 Ariz. at 482, ¶ 42.

III. Attorney’s Fees.

¶17 Lastly, Sungulyan requests her attorney’s fees and costs
incurred in this matter under Rule 39 of the Arizona Rules of Protective
Order Procedure, arguing that Overfield made false claims, submitted
unreliable evidence, perjured himself, and allowed Hernandez to perjure
herself. Assuming this rule provides a substantive basis for an award of
fees on appeal, Sungulyan’s position on appeal was not meritorious, see
Ariz. R. Prot. Ord. P. 39(b)(1), and we decline her request.

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CONCLUSION

¶18 We affirm.

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

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