Majidi v. Milkwick

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHAGHAYEGH MAJIDI, Petitioner/Appellee,

v.

GARY JAMES MILKWICK, Respondent/Appellant.

No. 1 CA-CV 24-0187 FC
FILED 12-19-2024

Appeal from the Superior Court in Maricopa County
No. FN2023-091770
The Honorable Richard J. Hinz, Commissioner

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Guymon Law, Chandler
By Joanna Amaris Medrano
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 Gary James Milkwick appeals the superior court's
continuance of an order of protection issued in favor of his wife,
Shaghayegh Majidi ("Wife"), and the issuance of a Notice of Brady Indicator
("Brady Indicator"). For the following reasons, we affirm the continued
protection order but vacate the Arizona Firearms Law restrictions therein,
and vacate the Brady Indicator in its entirety.

FACTS AND PROCEDURAL BACKGROUD

¶2 On April 7, 2023, at their marital home in Gilbert, Milkwick
and Wife discussed a divorce. The discussion lasted approximately one
hour and fifteen minutes. Wife recorded the conversation because she had
a "really bad gut feeling." Wife alleges Milkwick tried to sexually assault
her 53 minutes into the discussion.

¶3 In June 2023, Wife petitioned for an order of protection. She
cited the April 7 incident and requested the superior court bar Milkwick
from possessing firearms while the order was in effect. The court granted
the petition but not A.R.S. § 13-3602(G)(4) ("Arizona Firearms Law")
restrictions.

¶4 In September 2023, Wife amended the initial petition
("amended petition"), added a second allegation of domestic violence, and
requested exclusive possession of the marital residence. She alleged that
Milkwick and his son "own/carry guns and knives," but did not request a
firearms restriction. The superior court issued an amended protection
order, found that Milkwick posed a credible threat to Wife's physical safety,
and imposed Arizona Firearms Law restrictions.

¶5 Milkwick requested a contested hearing; he denied Wife's
allegations and opposed her request to possess the marital home. At the
January 30, 2024 hearing, both parties admitted exhibits, including text
messages, photographs, police reports, and a recording of the April 7
incident. Wife presented two short clips from this recording which

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captured her saying, "Stop, stop, stop," and "What, why are you trying to []
rape me?" to which Milkwick responded, "I thought you'd actually like it,
[or] like me." Milkwick objected; he argued that these clips lacked context
and did not fairly represent the entire conversation, but the court allowed
Wife to play them.

¶6 Later in the hearing, Milkwick offered to play the entire
recording to provide full context. The superior court instructed him to
focus on specific portions, noting that it was unnecessary to hear the entire
hour-plus recording. Milkwick then played portions of the recording.

¶7 Milkwick introduced additional evidence to support his
position, which included a police report where Wife told police she had
discussed a rape fantasy with Milkwick shortly before the April 7 incident.
Milkwick testified that, based on prior conversations with Wife, her
behavior following the incident—including her continuing the April 7
conversation, text messages, and other interactions—demonstrated the
incident did not distress her. Milkwick asked about these text messages
and interactions during Wife's cross-examination. He argued her true
motive for seeking the order was to obtain sole possession of the marital
home.

¶8 The superior court, after it considered the evidence, declined
to review the entire recording. It found the April 7 incident substantiated
domestic violence and issued an amended protection order with Arizona
Firearms Law restrictions as well as a Brady Indicator (the "January
Orders").

¶9 Milkwick timely appealed the January Orders. This Court has
jurisdiction under A.R.S. § 12-2101(A)(1), (5)(b), and Arizona Rule of
Protective Order Procedure 42(b)(2).

DISCUSSION

¶10 Milkwick argues the superior court erred by: (1) finding
sufficient evidence that domestic violence occurred; and (2) issuing the
Arizona Firearms Law restrictions and Brady Indicator without a request
by Wife and inquiry regarding firearms at the hearing.

¶11 We review "a superior court's decision to continue an order of
protection after a contested hearing" for an abuse of discretion. Flynn v.
Flynn, 256 Ariz. 544, 546, ¶ 7 (App. 2024). We "affirm where any reasonable
view of the facts and law might support the judgment," City of Phoenix v.

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Geyler, 144 Ariz. 323, 330 (1985), and "review any legal questions de novo,"
Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5 (App. 2014).

¶12 Wife did not file an answering brief in this appeal. If an
appellant raises debatable issues unrelated to a child's best interests, we
treat the appellee's lack of a response as a confession of reversible error.
Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (1966); see also Matter of Mayberry v.
Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653, at *1–5, ¶¶ 5–20 (Ariz.
App. Mar. 26, 2024) (Morse, J., concurring) (mem. decision) (discussing
cases on non-response confession of error). While our courts have not
established a definitive test for debatable issues, they have found them to
exist when: (1) it "would require much industry and independent research
to refute [appellant's] position," Merrill v. Wheeler, 17 Ariz. 348, 350 (1915);
(2) "there is at least grave doubt" about the superior court's order, see Adkins
v. Adkins, 39 Ariz. 530, 531–32 (1932); or (3) an appeal raises novel legal
questions, see Childs v. Frederickson, 21 Ariz. 248, 249 (1920). Conversely, "an
issue is not debatable when the record 'clearly' resolves the question raised."
Luna v. Peinado, 1 CA-CV 23-0634 FC, 2024 WL 2207309, at *2, ¶ 9 (Ariz.
App. May 16, 2024) (mem. decision) (citing Air E., Inc. v. Wheatley, 14 Ariz.
App. 290, 294 (1971); Honsey v. Honsey, 126 Ariz. 336, 337 (App. 1980)).

¶13 We address the merits of Milkwick's arguments, applying
confession of reversible error on debatable issues presented, and affirming
the superior court's judgment on the remainder.

I. Sufficiency of the Evidence and Alleged Ulterior Motive.

¶14 Milkwick argues that Wife presented insufficient evidence to
support a finding of domestic violence in light of his refuting evidence and
Wife's purported ulterior motive.

¶15 In a contested hearing, the superior court must ensure the
parties have an opportunity to be heard, present evidence, and cross-
examine witnesses. Ariz. R. Prot. Order P. 38(g). We will defer to the
superior court's factual findings if they are "reasonably supported by the
evidence." State v. Adair, 241 Ariz. 58, 60, ¶ 9 (2016).

¶16 "An order of protection shall be continued by the court if the
plaintiff demonstrates by a preponderance of the evidence that 'there is
reasonable cause to believe . . . [that] [t]he defendant may commit an act of
domestic violence.'" Michaelson, 234 Ariz. at 544, ¶ 6 (citing A.R.S. § 13-
3602(E)(1); Ariz. R. Prot. Order P. 8(F) [now Ariz. R. Prot. Order P. 38(g)]).
"In the context of a past or current romantic relationship, the term 'domestic
violence' is broadly defined in [A.R.S.] § 13-3601(A) and includes a wide

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array of criminal acts . . . ." Id. The superior court makes findings of
domestic violence based on statutory definitions, not on the subjective
views of experts or involved parties. Engstrom v. McCarthy, 243 Ariz. 469,
473–74, ¶¶ 13, 16 (App. 2018). "We defer to the judge with respect to any
factual findings explicitly or implicitly made, affirming them so long as they
are supported by reasonable evidence." Twin City Fire Ins. Co. v. Burke, 204
Ariz. 251, 254, ¶ 10 (2003).

¶17 "A trial 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. Arizona Dep't of Econ.
Sec., 210 Ariz. 77, 82–83, ¶ 19 (App. 2005). And Arizona Rule of Evidence
106 permits the superior court to limit presentation of lengthy recordings.
See State v. Wooten, 193 Ariz. 357, 368, ¶ 59 (App. 1998) (finding no violation
of Arizona Rule of Evidence 106 when the opposing party had adequate
notice and opportunity to contextualize the excerpts played).

¶18 Here, the record reflects that ample evidence supported the
superior court's domestic-violence finding. See supra ¶¶ 5–7. While
Milkwick argues that the April 7 incident was consensual and does not
meet the statutory requirements for sexual assault, the superior court is
tasked with weighing the credibility of witnesses and acted within its
discretion in finding the incident constituted domestic violence under
A.R.S. § 13-3601(A). And we defer to the superior court's factual findings.
See Michaelson, 234 Ariz. at 545, ¶ 9 (deferring to the superior court's factual
finding in assessing whether domestic violence occurred).

¶19 The record also reflects the superior court considered the
ulterior-motive argument. At the hearing, after granting Wife exclusive use
of the marital home, the court addressed Wife, stating "this does not award
you the house. The divorce will determine who gets which assets."

¶20 Likewise, the record supports the superior court's exercise of
discretion in declining to listen to the entire recording. See Wooten, 193 Ariz.
at 368, ¶ 59 (upholding superior court's discretion in its decision to play
excerpts of tapes without requiring the entire recordings to be played). The
superior court allowed Milkwick to play additional parts of the recording
to provide context. And the text messages Milkwick argues the superior
court failed to consider were incorporated during Wife's cross-examination
and Milkwick's own testimony. See supra ¶ 7. Because of the deferential
standard of review, and the strong record support for the superior court's
ruling, Milkwick has not raised a debatable issue. Luna, 2024 WL 2207309,
at *2, ¶ 9 ("[A]n issue is not debatable when the record 'clearly' resolves the

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question raised"). We find no abuse of discretion and affirm the superior
court. See Flynn, 256 Ariz. at 560, ¶¶ 19–20 (affirming a continued order of
protection upon finding no reversible error).

II. Arizona Firearms Law Restriction and Brady Indicator.

¶21 Milkwick challenges the Arizona Firearms Law restrictions
and Brady Indicator, arguing Wife did not request them in the amended
petition and that the superior court imposed them without making
firearms-related inquiries at the contested hearing.

¶22 Under Arizona Rule of Protective Order Procedure 23(i)
("Rule 23(i)"), the superior court "must 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." An Arizona Firearms Law restriction always requires
a finding that the defendant is a credible threat to the physical safety of the
plaintiff. Flynn, 256 Ariz. at 549, ¶ 13. A "higher standard of review applies
when a court's order implicates a defendant's right to possess firearms."
Savord v. Morton, 235 Ariz. 256, 260, ¶¶ 20, 22 (App. 2014) (emphasizing that
a "restriction against firearms does not automatically follow an order of
protection").

¶23 Here, the superior court issued Arizona Firearms Law
restrictions and a Brady Indicator even though Wife's amended petition did
not request firearms restrictions, and the court did not inquire about
firearms during the hearing. Neither party presented testimony regarding
firearms. We therefore find that debatable issues exist as to whether Wife
requested firearms restrictions and whether the court conducted a sufficient
Rule 23(i) inquiry. See Mahar v. Acuna, 230 Ariz. 530, 534–35, ¶¶ 15–17 (App.
2012) (holding that the superior court erred by issuing a Brady Indicator
because it failed to make necessary findings under both the Arizona
Firearms Law and 18 U.S.C. § 922 underlying the Brady Indicator). We treat
Wife's failure to address these issues as an implied confession of reversible
error. See Matter of Mayberry, 2024 WL 1282653, at *1, ¶¶ 3–4 (enforcing an
implied confession of error based on appellee's failure to file an answering
brief when debatable issues existed).

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CONCLUSION

¶24 For the foregoing reasons, we affirm the continued protection
order but vacate the Arizona Firearms Law restrictions therein, and vacate
the Brady Indicator in its entirety.

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

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