Kamma v. Gaun

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:
RACHEL KAMMA (f.k.a. GAUN), Petitioner/Appellee,

v.

AUSTIN MICHAEL GAUN, Respondent/Appellant.

No. 1 CA-CV 25-0197 FC
FILED 12-18-2025

Appeal from the Superior Court in Coconino County
No. SO300PO202400044
The Honorable Ted Stuart Reed, Judge

VACATED AND REMANDED

COUNSEL

Aspey, Watkins & Diesel, PLLC, Flagstaff
By Isabel M. Humphrey, Zacharias N. Hope
Counsel for Petitioner/Appellee

Harris & Winger, P.C., Flagstaff
By Chad Joshua Winger
Counsel for Respondent/Appellant
 KAMMA v. GAUN
Opinion of the Court

OPINION

Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Austin Michael Gaun (“Father”) appeals from a protective
order prohibiting contact with his child. We hold that the court improperly
applied the “reasonable cause to believe” standard applicable to an ex parte
protective order rather than the preponderance of the evidence standard
applicable to determining a contested protective order. We vacate and
remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶2 Rachel Kamma (“Mother”) petitioned the superior court for a
protective order against Father for herself and Bailey (a pseudonym), their
shared child. She feared Father’s retaliation after receiving temporary
parenting time and decision-making for Bailey, given a police and
Department of Child Safety investigation of Father for sexual abuse
allegations against Bailey. The court granted the protective order ex parte,
prohibiting Father from having contact with Bailey or Mother.

¶3 Mother petitioned for parenting time and legal
decision-making, and Father contested the protective order. The court
considered both matters at a consolidated hearing. After both parties
presented evidence, the court found reasonable cause to believe Father
committed an act of domestic violence by molesting Bailey, and that
Father’s actions did not fall within the caretaker exception to sexual contact.
See A.R.S. § 13-1401(3)(b) (Objectively reasonable caretaking is exempted
from “sexual contact.”); § 13-1410 (Molestation is sexual contact with a
minor under fifteen.); §§ 13-3601(A) & 13-705(T)(1)(a)(iv) (Child
molestation is an act of domestic violence.). The court continued the
protective order as to Bailey but dismissed it as to Mother. Father appealed
the modified order, and we have jurisdiction under the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
§ 12-2101(A)(1).

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Opinion of the Court

DISCUSSION

¶4 We review the decision to continue a protective order for an
abuse of discretion. Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5 (App. 2014);
Mahar v. Acuna, 230 Ariz. 530, 534, ¶ 14 (App. 2012). We review questions
of law, including the interpretation of rules and statutes, de novo. Garr, 234
Ariz. at 544, ¶ 5 (questions of law); Vera v. Rogers, 246 Ariz. 30, 33, ¶ 11
(App. 2018) (rules and statutes).

¶5 The superior court must grant a protective order ex parte if
there is “reasonable cause to believe” the defendant may commit an act of
domestic violence in the future or has committed an act of domestic
violence in the last year (or longer, good cause existing). See A.R.S.
§ 13-3602(E); see also Ariz. R. Protect. Ord. P. 23(e)(1) & (2). After the court
grants a protective order, the defendant has a right to a hearing (on written
request), where the order will be upheld if the plaintiff “prove[s] the case
by a preponderance of the evidence.” Ariz. R. Protect. Ord. P. 38(g)(3); see
also A.R.S. § 13-3602(L). In other words, at a contested hearing, the plaintiff
must prove by a preponderance of evidence either that the defendant has
committed an act of domestic violence or that the defendant will likely
commit one in the future. See. Garr, 234 Ariz. at 544, ¶ 6.

¶6 Father argues that the court erred by applying the
“reasonable cause” standard at the contested hearing. Mother claims Father
waived this argument by failing to raise it in the superior court. The
Arizona Rules of Protective Order Procedure are silent on whether Father
could have raised the argument in a reconsideration motion. Still, the
protective order rules incorporate nonconflicting civil or family rules,
depending on the type of case. Ariz. R. Protect. Ord. P. 2. Both the civil and
family rules allow a motion for reconsideration. See Ariz. R. Civ. P. 7.1(e);
Ariz. R. Fam. L.P. 35.1. Father could have moved for reconsideration,
raising the issue.

¶7 While the general rule is that an issue not raised before the
trial court is waived on appeal, see, e.g., Trantor v. Fredrikson, 179 Ariz. 299,
300 (1994), “neither Trantor nor its progeny has created an unalterable rule
of waiver,” Reid v. Reid, 222 Ariz. 204, 208, ¶ 16 (App. 2009); see also City of
Tempe v. Fleming, 168 Ariz. 454, 456 (App. 1991) (noting waiver rule “is
procedural, not jurisdictional”). Whether to apply a waiver is discretionary,
and we may elect to address the merits of waived issues if, among other
things, “the record contains facts determinative of an issue which will
resolve the action.” Fleming, 168 Ariz. at 456. We decline to apply a waiver
here and address the argument on its merits.

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Opinion of the Court

¶8 Mother needed to prove her case by a preponderance of the
evidence at the contested hearing. Ariz. R. Protect. Ord. P. 38(g)(3). The
superior court, however, never described the burden of proof as a
preponderance of the evidence. Instead, the superior court described its
duty as determining “whether there is reasonable cause to believe that the
defendant . . . has committed an act of domestic violence within the past
year.” And twice, the court stated it found “reasonable cause to believe”
Father committed an act of domestic violence. Although that is the correct
standard when determining whether to grant an order of protection ex parte,
reasonable cause is the incorrect standard for resolving whether the act
occurred at a contested hearing. While we presume a trial court knows and
accurately applies the law, that presumption is rebutted when, as here, the
court applies the incorrect legal standard on the record. See Hart v. Hart, 220
Ariz. 183, 188, ¶ 18 (App. 2009).

¶9 Mother counters that this is not error because reasonable
cause and a preponderance of the evidence are equivalent burdens of proof.
To satisfy a preponderance of the evidence, a fact-finder must find that a
fact’s existence is more probable than not. Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 25 (2005); Maricopa County Juv. Act. No. J-84984 (“Juvenile Action
J-84984”), 138 Ariz. 282, 283 (1983). Mother cites Juvenile Action J-84984 and
JV-111701 v. Superior Court—both juvenile delinquency cases—for the
proposition that the standards of “reasonable grounds to believe” and
“reasonable cause” require a fact to exist “more probably than not.” Juvenile
Action J-84984, 138 Ariz. at 284 (In addressing a transfer from juvenile court
to adult criminal court, the court noted agreement “that the phrases
probable cause and reasonable grounds to believe refer to the same
standard of proof” and that “reasonable grounds to believe” required a
finding that a juvenile court rule’s criteria “exist more probably than not.”);
JV-111701 v. Superior Court, 163 Ariz. 147, 152 (App. 1989) (Based on Juvenile
Action J-84984, the court equated reasonable cause and probable cause.).

¶10 Mother’s interpretation is unpersuasive. For one, the explicit
holding of both cases is that reasonable grounds and reasonable cause equal
probable cause, not a preponderance of the evidence. Juvenile Action J-84984,
138 Ariz. at 284; JV-111701, 163 Ariz. at 152; accord Gortarez ex rel. Gortarez
v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 103 (1984) (For shopkeeper’s
privilege, probable cause and reasonable cause are equivalent.). Probable
cause, unlike a preponderance of the evidence, does not require proof that
the facts are more likely than not. See, e.g., State v. Sisco, 239 Ariz. 532, 535,
¶ 8 (2016); Chalpin v. Snyder, 220 Ariz. 413, 421, ¶ 32 (App. 2008). Thus, even
if we were to adopt Mother’s proposed standards, reasonable cause would

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Opinion of the Court

not be the same as a preponderance of the evidence because probable cause
is not.

¶11 Reasonable cause and probable cause also carry different
definitions in different contexts. In some contexts, reasonable cause or
reasonable grounds equate to probable cause. See JV-111701, 163 Ariz. at
152 (pretrial juvenile detention); Gortarez, 140 Ariz. at 103 (shopkeeper’s
privilege). But other times, they reflect a lower standard. State ex rel. Goddard
v. W. Union Fin. Servs., Inc., 216 Ariz. 361, 368, ¶¶ 35-36 (App. 2007) (For
racketeering record investigations, reasonable grounds “need not establish
probable cause.”). Similarly, there are at least two definitions of probable
cause. Probable cause can be evidence from which a reasonable person
would pursue a legal claim. In re Est. of Shumway, 198 Ariz. 323, 327,
¶¶ 12-13 (2000) (will contests); Chaplin, 220 Ariz. at 419-20, ¶ 24 (malicious
prosecution). But in the criminal context, probable cause is a reasonable
belief that a crime has been committed by an individual, State ex rel. Collins
v. Superior Court, 132 Ariz. 479, 480 (1982) (returning an indictment), or that
“contraband or evidence of a crime is present,” Sisco, 239 Ariz. at 535, ¶ 8
(quotation omitted) (warrants). Regardless of which probable cause
definition is used, the standard is not equivalent to a preponderance of the
evidence, as noted above. Mother presents no compelling reason why the
definitions from the juvenile delinquency cases are the most applicable
here.

¶12 Thus, we hold that the reasonable cause required at an ex parte
protective order hearing is a different, and lower, standard than the
preponderance of the evidence standard required at a contested hearing.

¶13 Our interpretation tracks principles of textual interpretation.
We read text in context and consider other usages on the same subject.
Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019); Preston v. Kindred Hosps.
W., L.L.C., 226 Ariz. 391, 393, ¶ 8 (2011) (Principles of statutory construction
apply to court rules.). And “[a] cardinal principle of statutory interpretation
is to give meaning, if possible, to every word and provision so that no word
or provision is rendered superfluous.” Nicaise, 245 Ariz. at 568, ¶ 11.

¶14 If, in this context, reasonable cause and a preponderance of
the evidence are the same, then Arizona Rule of Protective Order Procedure
38(g)(3) is superfluous. That rule, which reads, “[f]or a protective order to
remain in effect as originally issued or as modified at a hearing, the plaintiff
must prove the case by a preponderance of the evidence,” would carry no
independent meaning. A plaintiff always bears the burden of proving his
or her case. See, e.g., Yeazell v. Copins, 98 Ariz. 109, 116 (1965) (“The party

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Opinion of the Court

who asserts a fact has the burden to establish the fact.”). Our interpretation
gives meaning to all the terms in the rules and statutes on the burdens and
standards of proof.

¶15 Our interpretation also aligns Rule 38(g)(3) with related rules
and statutes. Under this interpretation, a party may, under A.R.S. § 13-3602
and Rule 23, receive a protective order ex parte with a limited, but verified,
showing. As protective orders arise from domestic violence, this request
must be expedited if there is a threat to the plaintiff’s safety. Ariz. R. Protect.
Ord. P. 17. But once the ex parte order is issued, to protect the defendant’s
due process rights, the defendant may contest the order, and when that
happens, the court must hear the matter “at the earliest possible time.”
A.R.S. § 13-3602(L). At the contested hearing, the order is subject to stricter
scrutiny, actual evidence, and facts contested by adverse parties. See Ariz.
R. Protect. Ord. P. 36-38. In this framework, the preponderance of the
evidence standard acts as one of the heightened requirements protecting
the defendant’s rights once he or she contests the order.

¶16 On the record presented, the superior court did not apply the
preponderance-of-the-evidence standard at the hearing when it continued
the order after receiving evidence. Thus, we vacate the modified protective
order and remand for further proceedings. See Hart, 220 Ariz. at 188, ¶ 19
(Vacatur and remand are appropriate relief for application of the wrong
evidentiary standard.). Because we vacate on this ground, we do not
consider Father’s other arguments.

CONCLUSION

¶17 We vacate and remand for further proceedings consistent
with this opinion. Both parties request their attorney’s fees on appeal under
A.R.S. § 13-3602(T) and Arizona Rule of Protective Procedure 39. Per our
discretion, we decline to award attorney’s fees.

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

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