Dennis Raber v. Karyl Lynn Wagner

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

DENNIS RABER,
Petitioner/Appellee,

v.

KARYL LYNNE WAGNER, FKA
KARYL LYNNE RABER,
Respondent/Appellant.

No. 2 CA-CV 2024-0301
Filed May 8, 2025

Appeal from the Superior Court in Maricopa County
No. FC2024070932
The Honorable Casey Newcomb, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Dennis R. Raber, Happy Jack
In Propria Persona

Law Offices of Kimberly A. Eckert, Tempe
By Kimberly A. Eckert
Counsel for Respondent/Appellant
 RABER v. WAGNER
Opinion of the Court

OPINION

Presiding Judge Eckerstrom authored the opinion of the Court, in which
Judge Vásquez and Judge Sklar concurred.

E C K E R S T R O M, Presiding Judge:

¶1 Karyl Wagner appeals from the trial court’s order affirming
an order of protection obtained against her by Dennis Raber. We vacate the
order’s firearm restriction and remand the case for the court to modify the
order consistent with this opinion.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the
trial court’s ruling. Michaelson v. Garr, 234 Ariz. 542, n.1 (App. 2014). The
parties were previously married and share a child who was a minor at the
time of the events underlying this appeal. In July 2024, Raber filed a
petition seeking an order of protection against Wagner. He alleged that
starting in March 2024, Wagner had undertaken a “campaign to attack [his]
reputation and [his] character as well as trying to get [him] fired at [his]
work.” He listed a series of instances in which Wagner had allegedly sent
electronic messages to a range of individuals, including Raber’s friends and
his employer, accusing him of various acts of misconduct.

¶3 On July 9, 2024, the trial court entered an ex parte order of
protection requiring that Wagner have no contact with Raber other than
through a particular co-parenting messaging tool and prohibiting her from
going to or near Raber’s residence or workplace. It further found that
Wagner “pose[d] a credible threat to the physical safety of” Raber and,
pursuant to A.R.S. § 13-3602(G)(4), ordered that Wagner could not possess
firearms and was required to surrender any firearms to designated
locations within twenty-four hours of receiving service of the order.

¶4 Wagner requested a hearing to contest the order of protection.
On July 26, the trial court held an evidentiary hearing at which both parties
testified and two of Raber’s proffered exhibits were admitted into evidence.
At the conclusion of the hearing, the court orally pronounced that it would
affirm the order of protection “with the modification that the workplace is
a protected place only to Mr. Raber.” It further clarified that this
modification meant Wagner could “facilitate whatever contact” she needed

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Opinion of the Court

with Arizona Public Service (APS)—also her former employer—“as it
relates to whatever benefits and retirement” funds she had, but that she
should have “no contact with APS related to Mr. Raber at all, unless it has
to do specifically with the benefit.”

¶5 The same day, the trial court issued an order of protection in
which it checked the box stating, “The protective order listed above [issued
July 9, 2024] remains in effect.” On the new order, the court did not check
the box indicating an intent to modify the July 9 order.

¶6 In a minute entry issued after the evidentiary hearing, the trial
court found by a preponderance of the evidence that Wagner “may commit
an act of domestic violence or has committed an act of domestic violence
within the last year,” that good cause existed to affirm the July 9 order of
protection, and that the original order would “remain in full force and
effect.” The minute entry also ordered that Wagner “may have contact with
Arizona Public Service (APS) only as it relates to former employment
and/or retirement benefits” and that none of her “communication with
APS shall reference” Raber.

¶7 This appeal followed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(5)(b).1 See also Ariz. R. Protective Order P. 42(a)(2)
(orders of protection affirmed or modified “after a hearing at which both
parties had an opportunity to appear” appealable).

Discussion

¶8 Wagner contends the evidence presented at the evidentiary
hearing was insufficient to support the trial court’s affirmance of the order
of protection. In particular, she challenges the order’s provisions revoking
her right to possess firearms and restricting her from contacting or visiting
APS. Underlying these arguments is Wagner’s contention that the order
affirming the order of protection is inconsistent with the court’s oral
pronouncements during the evidentiary hearing.

¶9 We review injunctions, including those affirming orders of
protection, for an abuse of discretion. See Mahar v. Acuna, 230 Ariz. 530,

1See also Moreno v. Beltran, 250 Ariz. 379, ¶ 11 (App. 2020) (orders of

protection appealable under § 12-2101(A)(5)(b) “without regard to whether
it involves a firearms prohibition” and without certification of finality
under Ariz. R. Fam. Law P. 78).

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Opinion of the Court

¶14 (App. 2012). We will affirm unless the record “is devoid of competent
evidence to support the decision.” Id. (quoting Hurd v. Hurd, 223 Ariz. 48,
¶ 19 (App. 2009)).

¶10 After a contested hearing, “[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.” Ariz. R. Protective
Order P. 38(g)(3). At the conclusion of such hearing, the court must “state
the basis for continuing, modifying, or revoking the protective order.”
Ariz. R. Protective Order P. 38(g)(4).

I. Sufficiency of Evidence to Support Protective Order

¶11 Wagner first argues the evidence presented at the hearing was
insufficient to support the trial court’s finding that she had engaged in
harassing behavior. Orders of protection “may be granted to prevent a
person from engaging in acts of domestic violence” and are generally
governed by § 13-3602. Ariz. R. Protective Order P. 4(a). Acts of domestic
violence include, as relevant here, harassment and use of electronic
communications to harass. See A.R.S. §§ 13-2916(A)(3), 13-2921(A)(1),
13-3601(A)(1), (2). A person commits harassment if she “knowingly and
repeatedly commits an act or acts that harass another person” or if, “in a
manner that harasses,” she knowingly “[c]ontacts or causes a
communication with another person by . . . electronic . . . means.”
§ 13-2921(A)(1). Harassment by use of an electronic communication also
occurs when a person “disturb[s] by repeated . . . unwanted or unsolicited
electronic communications the peace, quiet or right of privacy of the person
at the place where the communications were received.” § 13-2916(A)(3).

¶12 At the hearing, Raber presented both testimonial and
documentary evidence that Wagner had repeatedly sent texts and emails to
his relatives, work colleagues, and other contacts. Several of those exhorted
the recipients to communicate with or engage directly with Raber on
Wagner’s behalf. For example, Raber testified that in April of 2024, Wagner
had contacted a family friend and stated that “she was going to call the
cops” on Raber if he did not contact Wagner by that evening. He also
presented evidence that, in March and June of 2024, Wagner had sent text
messages to Raber’s relatives requesting that they “check on him” and
urging them to report what Raber had been saying about her. Wagner also
sought to communicate with Raber through his workplace contacts. In June
2024, she sent an email suggesting Raber’s colleagues “knock some sense
into” him, requesting that Raber’s former boss serve as a mediator in the
parties’ dispute regarding issues involving their minor child, and generally

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Opinion of the Court

suggesting that Raber’s colleagues should “speak to” him about his
parenting decisions. Raber testified that these communications had
“invad[ed] [his] privacy” and that he wished to “[l]ive [his] life in peace and
move on.” Together, this evidence supports the trial court’s finding that
Wagner had harassed Raber by disturbing his peace and privacy through
repeated, unwanted electronic communications. See §§ 13-3601(A)(1),
(2), 13-2916(A)(3), 13-2921(A)(1).2

¶13 In so holding, we take no issue with our previous decisions
that have vacated protective orders on the ground that a defendant’s
communications were directed toward third parties rather than directly at
the victims. See, e.g., LaFaro v. Cahill, 203 Ariz. 482, ¶¶ 2, 11-13, 24 (App.
2002) (analyzing A.R.S. § 12-1809); Wineberg v. Buonsante, No. 2 CA-CV
2024-0090, ¶¶ 1, 6-9, 11, 17-21 (Ariz. App. Oct. 15, 2024) (mem. decision)
(analyzing § 13-2921(E)). Although those cases each found specific
communications with third parties insufficient to support a charge of
harassment, neither held that such communications could never constitute
harassment. See LaFaro, 203 Ariz. 482, n.3 (“Our conclusion is based on the
facts of this case. We are not suggesting that a third-party conversation
could never constitute ‘directed at’ harassment pursuant to A.R.S.
§ 12-1809.”). Notably, § 13-2921 expressly contemplates that harassment
can occur through communications to third parties when that
communication, as here, is designed to trigger actions directed at the victim.
See § 13-2921(A)(4) (harassment when person makes false report to “law
enforcement, credit or social service agency” against another), (A)(5)
(harassment to interfere with delivery of utility to another person). Here,
the record supports a determination that Wagner, through her
communications with third parties including Raber’s relatives and work
colleagues, sought to initiate direct actions toward, and communications
with, Raber. See § 13-2921(A)(1). Finally, the email to APS disturbed
Raber’s “peace, quiet or right of privacy” at his workplace, a “place where
the communications were received.” § 13-2916(A)(3).

II. Firearms Restriction

¶14 Upon entering an order of protection, a court may “prohibit
the defendant from possessing or purchasing a firearm for the duration of
the order.” § 13-3602(G)(4). However, such prohibition is contingent on

2Although Wagner complains that “the record is not clear as to what

the trial court actually considered,” we conclude the court’s finding was
amply supported by the admitted evidence alone.

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the court finding “that the defendant is a credible threat to the physical
safety of the plaintiff” or other individuals designated by the protective
order. Id. Any court “orders concerning firearms should be based on a
court’s assessment of credible threats of physical harm by the specific
person whose rights would be affected by the order.” Mahar, 230 Ariz. 530,
¶ 20. Additionally, to grant such an order, the 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” people protected
by the order. Ariz. R. Protective Order P. 23(i)(1).

¶15 The record contains no evidence to support the trial court’s
firearms prohibition. See Mahar, 230 Ariz. 530, ¶ 14. Nothing in the
transcript suggests that Raber alleged, or that the court found, that Wagner
posed any threat to Raber’s physical safety. Instead, Raber’s testimony was
limited to allegations that Wagner had invaded his privacy, attacked his
character by accusing him of being a bad person and a bad father, and
generally attempted to ruin his reputation at his workplace and prevent
him from being happy in his life. He ended his testimony with the comment
that he wanted to “be left alone” and “to live [his] life in peace and move
on.” Although, as we address above, this evidence supports the court’s
finding that Wagner had engaged in harassment, it does not support a
finding that Wagner was a threat to Raber’s physical safety. Further, the
record does not reflect that the court made any inquiry as to Wagner’s
possession or use of weapons or firearms. See Ariz. R. Protective Order P.
23(i)(1). Therefore, the court abused its discretion in affirming the original
July 9 protective order’s prohibition against Wagner’s possession of
firearms.3

III. Contact with APS

¶16 Wagner also argues the July 26 order of protection is
inconsistent with the trial court’s oral pronouncements and its minute entry
issued after the evidentiary hearing, potentially resulting in an overly broad
restriction of her free speech rights. We agree that these rulings conflict to
some extent with regard to Wagner’s communications with APS. In
particular, the original July 9 order of protection directed Wagner to “not
go to or near” APS, Raber’s place of employment. In its oral
pronouncement at the conclusion of the hearing, the court stated on the

3Notwithstanding our reasoning vacating the state firearms
prohibition, we note that Wagner may still be subject to federal firearms
restrictions. See, e.g., 18 U.S.C. § 922(g)(8).

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Opinion of the Court

record that it intended to “affirm the order of protection with the
modification that the workplace is a protected place only to Mr. Raber.” As
noted above, the court’s minute entry similarly clarified that Wagner could
contact APS only in relation to her own prior employment or retirement
benefits and that she could not reference Raber in any such communication.
However, in the July 26 order of protection, the court did not check the box
to indicate that it intended to modify the original order of protection.

¶17 Thus, the July 26 order of protection conflicts with the trial
court’s oral pronouncement and its minute entry because that order does
not indicate that it modifies the July 9 order by narrowing the scope of
prohibited communications between Wagner and APS. Considering this
record, we conclude the oral pronouncement and minute entry together
indicate the court intended to modify the order of protection, and the July
26 order should have so indicated. Compare State v. Ovante, 231 Ariz. 180,
¶ 38 (2013) (when oral pronouncement of sentence conflicts with written
minute entry, oral pronouncement controls), with Flynn v. Cornoyer-Hedrick
Architects & Planners, Inc., 160 Ariz. 187, 193 (App. 1988) (“Where there is a
conflict between a minute entry and the judgment, the terms of the
judgment will control.”). Therefore, to effect clarity for the parties and
consistency with the record, on remand the court’s order of protection shall
reflect that it modifies the July 9 order.4

¶18 Further, to the extent the trial court’s order may be interpreted
as restricting Wagner from communicating with any APS employee about
any matter other than her own employment benefits, such interpretation
constitutes an unconstitutionally broad restriction on Wagner’s free speech
rights. Although harassing speech is not a form of constitutionally
protected communication, see State v. Brown, 207 Ariz. 231, ¶ 8 (App. 2004),
the court’s order appears to restrict more communications than authorized
by statute. See § 13-3602(G) (listing remedies that may be included in order

4We disagree with Wagner’s contention that the trial court’s narrow

language proscribing her from contacting APS about Raber overbroadly
prohibits her “from contacting a friend [who works at APS] for lunch” or
from otherwise socializing with APS employees outside the boundaries of
the workplace. As the court clearly articulated at the evidentiary hearing,
and as Wagner apparently understood at that time, the order prohibits
Wagner from communicating about Raber with APS employees in their
professional capacities, not from continuing her unrelated personal
contacts with those employees.

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of protection). On remand, the order of protection should be narrowly
tailored to preclude only communications with APS employees that are
substantively directed at Raber and that fall within the purview of our
harassment statutes. See §§ 13-2916(E)(3), 13-2921(E).

IV. Costs and Attorney Fees

¶19 Wagner requests her costs and attorney fees on appeal.
Because she has partially prevailed on appeal, Wagner is entitled to her
costs, subject to her compliance with Rule 21(b), Ariz. R. Civ. App. P. See
A.R.S. § 12-341. However, because Wagner cites no authority to support an
award of attorney fees other than Rule 21, we deny that request. See
Zambrano v. M & RC II LLC, 254 Ariz. 53, ¶ 49 (2022); see also Ariz. R. Civ.
App. P. 21(a)(2).

Disposition

¶20 For the foregoing reasons, we vacate the order as to the
firearms provision. We remand to the trial court so it may enter a new order
consistent with this opinion.

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