Caudill v. Nelson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LACEY CAUDILL, Petitioner/Appellee,

v.

BRENT NELSON, Respondent/Appellant.

No. 1 CA-CV 24-0258 FC
FILED 02-25-2025

Appeal from the Superior Court in Maricopa County
No. FC2023-095134
The Honorable Dawn Walton, Judge Pro Tempore (Retired)

AFFIRMED

COUNSEL

Law Offices of Kamille Dean, P.C., Phoenix
By Kamille R. Dean
Counsel for Respondent/Appellant
 CAUDILL v. NELSON
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Brent Nelson (“Father”) appeals a protective order issued
against him. For reasons that follow, we affirm.

BACKGROUND

¶2 Father and Lacey Caudill (“Mother”) divorced after a six-
month marriage. They share a ten-year-old child. Under their current
California custody orders, the child lives with Father in California and
attends school there. Mother has parenting time three weekends each
month in Arizona where Mother now lives. The parenting time exchanges
sometimes take place in California where Father lives, sometimes in
Arizona where Mother lives, and sometimes at a location in between.

¶3 In December 2023, Mother petitioned the superior court for
an ex parte order of protection for both her and the child, alleging five
separate incidents where Father engaged in verbally abusive or harassing
behavior that made Mother feel unsafe during parenting time exchanges.
The superior court issued the order, but did not include the child as a
protected party. Once served, Father requested a hearing to challenge the
order.

¶4 After an evidentiary hearing two months later, the superior
court concluded that only one of Mother’s five alleged incidents warranted
keeping the order of protection in place—an incident on October 27, 2023,
where Father reported to police the child was missing when Father knew
the child was with Mother. The court found that Father “called the police
for [] a missing child with the intent of harassment” towards Mother.
Consequently, the court kept the order of protection in place.

¶5 Father timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(5)(b).

2
 CAUDILL v. NELSON
Decision of the Court

DISCUSSION

¶6 Father raises two arguments on appeal: (1) the superior court
lacked personal jurisdiction to issue an order of protection against him, and
(2) a single event does not constitute harassment justifying the issuance of
an order of protection. Though Mother failed to file an answering brief, we
decline to treat that failure as a concession of reversible error because no
“debatable question is raised by the appeal.” Navarro v. State, 32 Ariz. 119,
120 (1927).

¶7 We review de novo whether a court has personal jurisdiction
over a party. Ariz. Tile, L.L.C. v. Berger, 223 Ariz. 491, 493, ¶ 8 (App. 2010).
We otherwise review a protective order for abuse of discretion, Savord v.
Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014), and defer to the superior court’s
factual findings and credibility determinations unless clearly erroneous,
Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998); Ariz. R. Civ. P.
52(a)(6).

I. Personal Jurisdiction

¶8 The Due Process Clause limits state court jurisdiction over
non-resident defendants to those defendants who purposefully establish
“minimum contacts” with the forum state. Williams v. Lakeview Co., 199
Ariz. 1, 3, ¶ 5 (2000); see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945); Burger King Corp. v. Rodzewicz, 471 U.S. 462, 471–72 (1985). A party
wishing to contest personal jurisdiction must raise the challenge by motion
or in the first responsive pleading in the trial court. Ariz. R. Civ. P. 12(h);
see also Ariz. R. Fam. P. 29(g). If a responsive pleading is not required, the
challenge must be made at trial. Ariz. R. Civ. P. 12(b); Ariz. R. Fam. P. 29(b).
Failure to raise personal jurisdiction in the trial court results in waiver. Shah
v. Vakharwala, 244 Ariz. 201, 203, ¶ 8 (App. 2018).

¶9 Father concedes he did not raise a personal jurisdiction
challenge in the superior court. Nevertheless, Father argues Martinez v.
Zuniga, 257 Ariz. 225 (App. 2024) supports his position that this court
should dismiss the order of protection for lack of personal jurisdiction. We
disagree.

¶10 Like Father’s situation, the defendant in Martinez was a non-
Arizona resident whom the superior court issued an ex parte order of
protection against for incidents that occurred outside of Arizona. Id. at 226,
¶ 2. And though this court ultimately vacated the order of protection for
lack of personal jurisdiction, Id. at 228, ¶ 11, the Martinez defendant
challenged personal jurisdiction in the superior court, rather than waiting

3
 CAUDILL v. NELSON
Decision of the Court

to raise that challenge for the first time on appeal. Because Father did not
challenge personal jurisdiction in the superior court, he has waived that
argument here. Shah, 244 Ariz. 203, ¶ 8 (explaining that a non-Arizona
resident who “appeared and submitted to the court process; [who] was
served with [an] ex parte protective order as required by statute . . . and
requested a hearing . . . without raising any objections as to the court’s
jurisdiction to grant the ex parte protective order” waived any personal
jurisdictional challenge).

II. Single Event as Harassment Justifying an Order of Protection

¶11 Father also contends a single event cannot constitute
harassment under A.R.S. §§ 13-3601 and -2921, and as such, no act of
domestic violence was committed that justified the court issuing an order
of protection against him.

¶12 Section 13-3601(A) defines domestic violence as any one of
more than thirty offenses when, inter alia, the “victim and the defendant
have a child in common.” A.R.S. § 13-3601(A)(2). “Harassment” is included
within the list of statutorily defined offenses and occurs either: (1) “if the
person knowingly and repeatedly commits an act or acts that harass
another person” or (2) “the person knowingly commits [a singular act] in a
manner that harasses.” A.R.S. § 13-2921(A). One such singular act that
constitutes harassment is “[m]ak[ing] a false report to a law enforcement
[] agency against another person.” A.R.S. § 13-2921(A)(4).

¶13 When questioned by the court, Father admitted he did not
actually think the child was missing when he reported the same to police.
Rather, Father contacted police because Mother was not telling him what
he wanted to know. Later, at the conclusion of the evidentiary hearing, the
court explained to Father that “I don’t find your testimony credible that you
didn’t know where [the child] was. You testified to me that you knew that
[Mother] was picking the child up from school that day, so for you to say
also that you thought that she was missing is just not credible to me.” The
court continued, “I think that you called the police for [] a missing child
with the intent of harassment.” Record evidence supports the court’s
finding. Gutierrez, 242 Ariz. at 423–24, ¶ 13 (deferring to the superior court’s
“determination of witnesses’ credibility and the weight to give conflicting
evidence”).

¶14 Because record evidence supports the court’s finding that a
single act of harassment occurred, the court was justified in keeping the
order of protection in place. A.R.S. § 13-3602(E)(2) (“The court shall issue

4
 CAUDILL v. NELSON
Decision of the Court

an [ex parte] order of protection . . . if the court determines that there is
reasonable cause to believe . . . [t]he defendant has committed an act of
domestic violence within the past year.”); A.R.S. § 13-3602(L)(“After [a]
hearing [requested by a party who is restrained from contacting the other
party], the court may modify, quash or continue the order.”). On this
record, Father has shown no error.

CONCLUSION

¶15 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

5