Smith v. Smith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KEELEY SMITH, Petitioner/Appellee,

v.

MICHELET MICHAEL SMITH, Respondent/Appellant.

No. 1 CA-CV 25-0696 FC
FILED 03-23-2026

Appeal from the Superior Court in Maricopa County
No. FC2025-092515
The Honorable Lisa C. Boddington, Judge Pro Tempore

AFFIRMED

APPEARANCES

Michelet Michael Smith, Mesa
Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Veronika Fabian and Vice Chief Judge David D. Weinzweig
joined.

B R O W N, Judge:

¶1 Michelet Michael Smith (“Michelet”) argues the superior
court erred by denying his motions directed at challenging an order of
protection obtained by his former wife, Keeley Smith (“Keeley”).1
Although Keeley did not file an answering brief, we affirm because
Michelet has not raised any debatable issues.

BACKGROUND

¶2 In June 2025, Keeley petitioned for an order of protection,
alleging Michelet left a note on her car referencing a prior, expiring order
of protection. The note stated in part, “enjoy today as it is your last, the
only mistake the devil made was to let his existence known, sex is a simple
transaction.” Keeley also alleged Michelet (1) owned or carried a firearm
and (2) mailed a letter to her home in violation of the earlier order of
protection.

¶3 The superior court granted Keeley’s petition, ordering
Michelet to have no contact with her except for email to discuss parenting
issues, or through attorneys, legal processes, and court hearings. The court
determined Michelet posed a credible threat to Keeley’s physical safety and
ordered him not to possess firearms under A.R.S. § 13-3602(G)(4).

¶4 Michelet objected, claiming the language used in his note was
“philosophical and metaphorical,” and not meant to threaten or harass. He
asserted the order of protection was a “continuation of retaliatory actions
amid civil and family legal proceedings” and the “firearm restriction
[against him] lack[ed] a factual nexus to any credible threat.” Several days

1 This court recently affirmed the superior court’s decree dissolving
the parties’ marriage. See In re Marriage of Smith & Smith, 2 CA-CV 2025-
0101-FC, 2026 WL 146663, at *1, ¶ 1 (Ariz. App. Jan. 20, 2026) (mem.
decision). For ease of reference here, we use the parties’ first names.

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later, Michelet requested a hearing on the order of protection. The superior
court granted his request and set a contested hearing for August 7, 2025, at
8:30 a.m. Court staff personally served Michelet with the hearing notice.

¶5 Michelet failed to appear at the scheduled time and did not
contact the court to explain his absence. According to the minute entry,
court staff checked outside the courtroom several times for Michelet, and
the court waited until 8:36 a.m. to start the hearing. After the court heard
sworn testimony from Keeley, the hearing ended at 8:48 a.m. The court
continued the order of protection and amended it to include a Brady
Indicator. See 18 U.S.C. § 922(g)(8).

¶6 Michelet filed a notice of appeal and moved to modify the
order of protection, asserting he had arrived for the hearing at 9:00 a.m. The
court denied the motion, explaining only plaintiffs can seek modification,
Michelet had actual notice of the hearing, and he failed to provide good
cause for his absence. After Michelet unsuccessfully sought clarification
and reconsideration, he filed an amended notice of appeal. We have
jurisdiction under A.R.S. § 12-2101(A)(1), (5)(b).

DISCUSSION

¶7 Among other things, Michelet argues the superior court erred
by denying him a chance to be heard at the order of protection hearing. We
will uphold an order of protection absent an abuse of discretion. Savord v.
Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014).

¶8 Applying that standard of review, we analyze Michelet’s
arguments through the lens of Keeley’s failure to file an answering brief.
See Tiller v. Tiller, 98 Ariz. 156, 157 (1965). When an appellant raises
debatable issues and the appellee fails to respond without good cause, we
generally construe that failure as a confession of reversible error. See Nelson
v. Nelson, 91 Ariz. 215, 217 (1962). Debatable issues include circumstances
when the opening brief claims error with supporting authority, it would
require significant work to refute the opening brief, Merrill v. Wheeler, 17
Ariz. 348, 350 (1915), or there is “at least grave doubt” about the superior
court’s order, Adkins v. Adkins, 39 Ariz. 530, 532 (1932). A matter is not
debatable, however, when the answer is clear from the record. Honsey v.
Honsey, 126 Ariz. 336, 337 (App. 1980).

¶9 Michelet contends he was denied due process because the
superior court conducted the order of protection hearing without him.
When a plaintiff appears for a contested hearing and the defendant fails to
appear after receiving actual notice, “the protective order will remain in

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effect.” Ariz. R. Prot. Ord. P. (“ARPOP”) 38(f)(1). Actual notice is “[n]otice
given directly to, or received personally by, a party.” See Nelson v. Torres, 2
CA-CV 2023-0169, 2024 WL 940100, at *1, ¶ 6 (Ariz. App. Mar. 5, 2024)
(mem. decision) (quoting Notice, Black’s Law Dictionary (11th ed. 2019)).
Michelet does not dispute that he was personally served with notice of the
hearing. Nor has he offered any reason for his absence; instead, he merely
notes he arrived at 9:00 a.m. Also, because Michelet has not provided a
transcript of the hearing, we presume the court acted within its discretion
to proceed in his absence. See ARCAP 11(c); Myrick v. Maloney, 235 Ariz.
491, 495, ¶ 11 (App. 2014).

¶10 Michelet asserts the court failed to include specific findings
supporting its Brady Indicator, which prohibits an individual subject to a
protective order from having a firearm when the order “includes a finding
that [the] person represents a credible threat to the physical safety of [an]
intimate partner.” 18 U.S.C. § 922(g)(8)(C); see also A.R.S. § 13-3602(G)(4).
In both the original and amended orders of protection, the court found that
Michelet “pose[d] a credible threat to the physical safety of [Keeley].” And
in its minute entry, the court determined it was appropriate to amend the
order of protection to include the Brady Indicator. Michelet has cited no
authority suggesting any other findings were necessary. Even so, he cannot
prevail on this issue because we presume the missing transcript supports
the court’s ruling. See ARCAP 11(c); Myrick, 235 Ariz. at 495, ¶ 11.

¶11 Michelet contends the court erred in denying his motion to
modify the order of protection. But plaintiffs, not defendants, have a right
to request protective order modifications. ARPOP 40(a). And Michelet
erroneously relied on Arizona Rule of Family Law Procedure (“ARFLP”)
84(a) for his motion for clarification and reconsideration, given that this
order of protection case was not held in conjunction with a pending family
law proceeding. See ARPOP 2 (stating ARFLP applies to an order of
protection case when the case is heard along with a pending family law case
and ARFLP is not inconsistent with ARPOP).

¶12 We reject Michelet’s contention that the order of protection
violated his right to due process because the court failed “to provide a
practical and lawful service mechanism” for him to serve Keeley. Arizona
Rule of Civil Procedure 5(c)(2)(D) permits service delivered “by any other
means, including electronic means . . . if the court orders service in that
manner.” The order of protection prohibits Michelet from contacting
Keeley except through attorneys, legal process, and court hearings. The
order permits Michelet to contact Keeley by email but only “to discuss
parenting issues involving the children.” As best we can tell, Michelet

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believes he violated the order of protection by emailing Keeley and thus
Keeley was not properly served. But the court confirmed that she was
served. Even so, Michelet has not shown how the court’s email restriction
deprived him of due process in this case. If the issue arises in future non-
parenting proceedings, Michelet may seek clarification on the conditions by
which he is permitted to accomplish service.

¶13 Finally, Michelet argues the court’s cumulative procedural
errors violated his due process rights. Because he has not raised any
debatable issue on whether the superior court abused its discretion,
Michelet has not demonstrated a due process violation occurred.

CONCLUSION

¶14 We affirm.

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

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