Robledo v. Robledo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL A. ROBLEDO, Petitioner/Appellee,

v.

MOESHA ROBLEDO, Respondent/Appellant.

No. 1 CA-CV 24-0717 FC
FILED 04-29-2025

Appeal from the Superior Court in Yuma County
No. S1400PO202400555
The Honorable Nathaniel T. Sorenson, Judge

AFFIRMED IN PART, VACATED IN PART

COUNSEL

LiseLaw, LLC, Mesa
By Lise R. Witt
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

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

P E R K I N S, Judge:

¶1 Moesha Robledo appeals the superior court’s continuance of
an order of protection issued in favor of Michael Robledo, and the issuance
of a Notice of Brady Indicator restricting her right to purchase or possess
firearms. For the following reasons, we affirm the order of protection but
vacate the Brady Indicator.

FACTS AND PROCEDURAL BACKGROUND

¶2 Michael and Moesha Robledo were married and lived
together at Marine Corps Air Station Yuma, where Michael worked in
aircraft maintenance. In July 2024, Moesha petitioned for divorce. Michael
sought an order of protection against Moesha a few days after he was
served with the divorce petition.

¶3 Michael alleged that Moesha: (1) systematically turned his
family and friends against him; (2) cornered him daily to belittle and
threaten him; (3) repeatedly appeared at his home unannounced; (4)
trapped him in a bathroom for two hours despite him asking her to leave;
(5) tracked his cell phone’s location; (6) sexually assaulted him; (7)
repeatedly contacted his commanding officers to jeopardize his career; (8)
contacted him daily for weeks straight; (9) stalked him to a restaurant, a
therapy appointment, and his barracks; (10) slapped him on two occasions;
and (11) caused “random people” to harass him about their marital
troubles. Michael did not allege that Moesha owned or carried a firearm or
other weapons, and did not request a firearms restriction in his petition.

¶4 The superior court issued the order of protection ex parte.
Moesha timely requested a hearing to challenge it.

¶5 At the hearing, Michael testified about each allegation set
forth above. He introduced evidence of a disciplinary record from his
employer to show how his problems with Moesha were affecting his work,
and text messages between Moesha and one of the couple’s mutual friends
to demonstrate that she turned his friends against him. Moesha denied each

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of Michael’s allegations. She introduced evidence of text messages to
support her assertion that communications between she and Michael were
mutual and consensual, and call logs to support her testimony that she did
not stalk Michael.

¶6 The superior court found that Moesha had committed acts of
domestic violence against Michael in the form of harassment and continued
the order of protection. The court also issued a Notice of Brady Indicator
under 18 U.S.C. § 922(g)(8) prohibiting Moesha from possessing a firearm.

¶7 Moesha timely appealed and we have jurisdiction. A.R.S. §§
12-2101(A)(1), 12-2101(A)(5)(b).

DISCUSSION

¶8 Moesha argues the superior court erred in upholding the
order of protection because the evidence did not support a finding of
domestic violence. Moesha also asserts the Brady Indicator was
inappropriate because the superior court did not inquire about Moesha’s
use of or access to firearms, or find that Moesha posed a credible threat to
Michael’s safety.

¶9 Michael did not file an answering brief in this appeal. When
an appeal raises debatable issues unrelated to a child’s best interests, we
“will assume that the failure to file an answering brief is a confession of
reversible error on the part of the appellee.” Tiller v. Tiller, 98 Ariz. 156, 157
(1965); 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). “Our courts have not established a definitive
test for [what constitutes] a ‘debatable issue.’” Luna v. Peinado, 1 CA-CV 23-
0634 FC, 2024 WL 2207309, at *3, ¶ 17 (Ariz. App. May 16, 2024) (mem.
decision). But generally, a debatable issue exists when (1) the opening brief
claims error with supporting authority and it would “require much
industry and independent research” to refute the 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) when an appeal raises novel legal questions, see Luna, 2024 WL
2207309, at *3, ¶ 17 (collecting cases). “[A]n issue is not debatable when the
record ‘clearly’ resolves the question raised.” Id. (collecting cases).

¶10 We address the merits of Moesha’s arguments, applying
confession of reversible error to any debatable issues.

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I. Order of Protection

¶11 “We review an order of protection for an abuse of discretion.”
Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014). To issue an order of
protection, a superior court must find “reasonable cause to believe . . . the
defendant may commit an act of domestic violence,” or that “the defendant
has committed an act of domestic violence within the past year.” A.R.S. §
13-3602(E). “For a protective order to remain in effect as originally issued .
. . the plaintiff must prove the case by a preponderance of the evidence.”
Ariz. R. Prot. Order P. 38(g)(3).

¶12 Here, the superior court continued the order of protection
based on its finding “that the plaintiff has met the burden of proving that
some acts of domestic violence ha[d] occurred as alleged in his petition . . .
specifically, the plaintiff has felt harassed by the defendant.” “Domestic
violence” under Section 13-3602(E) includes the statutory offense of
harassment. A.R.S. § 13-3601(A). Because the superior court based its
continuance of the order of protection on a finding of harassment, we do
not address Michael’s allegations relating to any other statutory offenses
which may qualify as domestic violence under Section 13-3601(A).

¶13 “A person commits harassment if the person knowingly and
repeatedly commits an act or acts that harass another person.” A.R.S. § 13-
2921(A). To “harass” is to direct conduct at a specific person “that would
cause a reasonable person to be seriously alarmed, annoyed, humiliated, or
mentally distressed and the conduct in fact seriously alarms, annoys,
humiliates or mentally distresses the person.” A.R.S. § 13-2921(E).

¶14 The evidence presented at the hearing was conflicting.
Michael testified that Moesha tracked his location; Moesha testified that
they shared locations with each other, and that Michael could have disabled
his location at any time. Michael testified that Moesha would “always
surprisingly show[] up at the house,” but conceded that the house was a
marital home that Moesha had every right to enter. Michael testified that
Moesha trapped him in the bathroom for two hours; Moesha testified they
had a 30-minute conversation through the bathroom door at his request.
Michael testified that Moesha would contact his commanding officers “over
and over”; Moesha testified that she called Michael’s boss once to ask about
a health insurance matter for her daughter. Michael alleged Moesha stalked
him to a therapy appointment; Moesha testified she was on base for her
own therapy appointment and introduced a letter from the therapist
confirming her appointment. Michael testified Moesha stalked him to a
restaurant; Moesha testified she frequented this restaurant, went there to

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pick up food for herself, and did not know Michael would be there. Michael
alleged that Moesha repeatedly contacted him against his wishes; Moesha
introduced text messages showing that the communications were mutual.

¶15 When the evidence consists of conflicting testimony, the
superior court is in the best position to judge witness credibility and resolve
conflicting evidence. See Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 17 (App.
2012). “Our duty on review does not include re-weighing conflicting
evidence . . . . Even though conflicting evidence may exist, we affirm the
[superior] court’s ruling if substantial evidence supports it.” Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). Because we do not re-weigh conflicting
evidence, and because the record supports the superior court’s ruling,
Moesha has not raised a debatable issue. See Luna, 2024 WL 2207309, at *3,
¶ 17 (“[A]n issue is not debatable when the record ‘clearly’ resolves the
question raised.”). The superior court did not abuse its discretion and we
affirm the order of protection.

II. Brady Indicator

¶16 Moesha challenges the Brady Indicator, arguing it is improper
because the superior court did not make firearms-related inquiries at the
contested hearing or find that Moesha posed a credible threat to Michael.

¶17 A Brady Indicator is a federal firearm restriction prohibiting
a person subject to a protective order from purchasing or possessing a
firearm when the protective order (1) “includes a finding that [the] person
represents a credible threat to the physical safety of [an] intimate partner or
child,” or (2) “by its terms explicitly prohibits the use, attempted use, or
threatened use of physical force against such intimate partner or child that
would reasonably be expected to cause bodily injury.” 18 U.S.C. §
922(g)(8)(C)(i)–(ii). These are disjunctive requirements—a credible-threat
finding is sufficient to impose a Brady Indicator, but not necessary if the
order of protection contains language prohibiting physical force against an
intimate partner. See Flynn v. Flynn, 257 Ariz. 1, 6, ¶ 13 (App. 2024). Here,
the superior court did not make a credible-threat finding, but the order of
protection contained language prohibiting the use of physical force against
an intimate partner. The requirements of Section 922(g)(8)(C)(ii) have at
least been facially met.

¶18 But “while federal laws [generally] control the substantive
aspects of federal claims adjudicated in state courts, state rules of procedure
. . . apply unless the state rules would affect the substantive federal right.”
Shotwell v. Donahoe, 207 Ariz. 287, 290, ¶ 6 (2004); cf. Mills v. Rogers, 457 U.S.

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291, 300 (1982) (“[A] State may confer procedural protections of liberty
interests that extend beyond those minimally required by the Constitution
of the United States.”).

¶19 The Arizona Rules of Protective Order Procedure require a
superior court to “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.” Ariz. R. Prot.
Order P. 23(i)(1). Only “[u]pon finding that the defendant is a credible
threat to the physical safety of the plaintiff” can the superior court “prohibit
the defendant from possessing, purchasing, or receiving firearms.” Ariz. R.
Prot. Order P. 23(i)(2)(A). Thus, while the order of protection in this case
may satisfy the federal statute’s requirements, the superior court’s failure
to make the requisite inquiries or credible-threat finding may run afoul of
our state’s procedural rules. Compare Savord, 235 Ariz. at 260, ¶¶ 22–23
(quashing Brady Indicator for failure to conduct Rule 23(i) inquiry or make
credible-threat finding), with Flynn, 257 Ariz. at 7, ¶ 19 (superior court’s
failure to follow Rule 23(i) procedures did not result in reversible error).

¶20 In light of this conflict, Moesha has raised a debatable issue
about whether the superior court conducted a sufficient Rule 23(i) inquiry.
By failing to file an answering brief, Michael has confessed reversible error
on this issue. Accordingly, we vacate the Brady Indicator. Tiller, 98 Ariz. at
157.

ATTORNEY FEES ON APPEAL

¶21 Moesha requests attorney fees on appeal under ARCAP 21(a).
A party claiming fees must “specifically state the statute, rule, decisional
law, contract, or other authority for an award of attorneys’ fees.” ARCAP
21(a)(2). Moesha’s brief provides only a bare citation to Kimicata v. McGee, 230 Ariz. 6 (App. 2012). Kimicata addresses fees for injunctions against
harassment under Section 12-1809. 230 Ariz. at 6, ¶ 1. It is not an appropriate
authority for awarding fees in this appeal from an order of protection under
Section § 13-3602. We decline to award fees because Moesha has failed to
state an authority for doing so. See ARCAP 21(a)(2); Vanwormer v. Lopez, 562
P.3d 420, 423, ¶¶ 14–16 (Ariz. App. 2025).

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CONCLUSION

¶22 For the foregoing reasons, we affirm the order of protection
and vacate the Brady Indicator.

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

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