Filed: May 29, 2014
Latest Update: May 29, 2014
Summary: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. MEMORANDUM DECISION SWANN, Judge: 1 Kevin Crawford ("Father") and Tracy Crawford ("Mother") are the divorced parents of two minor children ("the Children"). In March 2013, Father obtained an order of protection that prohibited Mother's live-in partner, Greg Terry, from having contact with the Children. Terry thereafter requested a he
Summary: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. MEMORANDUM DECISION SWANN, Judge: 1 Kevin Crawford ("Father") and Tracy Crawford ("Mother") are the divorced parents of two minor children ("the Children"). In March 2013, Father obtained an order of protection that prohibited Mother's live-in partner, Greg Terry, from having contact with the Children. Terry thereafter requested a hea..
More
NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
MEMORANDUM DECISION
SWANN, Judge:
¶ 1 Kevin Crawford ("Father") and Tracy Crawford ("Mother") are the divorced parents of two minor children ("the Children"). In March 2013, Father obtained an order of protection that prohibited Mother's live-in partner, Greg Terry, from having contact with the Children. Terry thereafter requested a hearing on the order, and his request was granted.
¶ 2 At the hearing, Father testified as to what the Children had told him about Terry and Terry's minor son's treatment of them. Terry then sought to cross-examine Father, but the court did not allow him to do so:
THE COURT: I'm now going to rest your [Father's] case for you, your case in chief, over again your objection — anticipated objection. Mr. Terry, it's now your turn. Mr. Terry, there were three different dates articulated. Do you wish to — earlier you said you didn't want to testify. If you choose not to testify, that is your choice. I will respect that, and I will rule. How do you want to go forward? MR. TERRY: What I would — well, obviously, I have a chance to cross-examine [Father] first. I suppose it would depend —
THE COURT: Well, we're going to do this on — informally at this point in time.
MR. TERRY: Okay.
THE COURT: What is your side of the story, Mr. Terry?
MR. TERRY: My — my — what I would prefer to do is call witnesses.
. . . .
MR. TERRY: Okay. So I would — I'm — just a question, I would discuss things with [my witness] before I talk to [Father], before I had a chance to cross-examine — or [Father]?
THE COURT: Well, I'm not even — I'm not even sure I'm going to allow cross-examination.
MR. TERRY: Okay.
THE COURT: And again, I'm citing 611 and 614 of the rules of evidence.
Terry then called Mother to testify about the incidents Father had described, and Father cross-examined Mother. At the conclusion of the testimony, the court affirmed the order of protection.
¶ 3 Terry timely filed a notice of appeal. Though the order of protection expired before the appeal came before this panel, see A.R.S. § 13-3602(K), the appeal is not moot. "Because expired orders of protection carry with them significant collateral legal and reputational consequences, . . . they are not moot for purposes of appellate review." Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 14, 277 P.3d 811, 816 (App. 2012).
¶ 4 We conclude that the court committed reversible error by denying Terry the opportunity to cross-examine Father. To be sure, the superior court has discretion to control the examination of witnesses so as to promote efficiency and protect witnesses from harassment and undue embarrassment. Ariz. R. Evid. 611(a). But this discretion is not without limits. A litigant is entitled to due process under the Fourteenth Amendment of the United States Constitution and Article 2, Section 4 of the Arizona Constitution, and "[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." Goldberg v. Kelly, 397 U.S. 254, 269 (1970). Consistent with this constitutional guarantee, Rule 8(D) of the Arizona Rules of Protective Order Procedure provides that at a hearing on a contested order of protection, "[t]he judicial officer shall ensure that both parties have an opportunity to be heard, to present evidence and to call and examine and cross-examine witnesses." (Emphasis added.) See also Ariz. R. Evid. 614(a) ("The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness."). By preventing Terry from cross-examining Father, the court denied him due process.
¶ 5 Father contends that Terry was not prejudiced because he was allowed to present Mother's testimony and her testimony corroborated Father's. Father mischaracterizes Mother's testimony. Mother described some of the same events as Father, but her version of those events was materially different from Father's and painted Terry in a considerably more favorable light. Mother's testimony in no way substituted for Terry's right to cross-examine Father. Terry has sufficiently demonstrated that he was prejudiced by the denial of that right: he asserts that he would have questioned Father about a number of matters relevant to Father's motives and the veracity of his accusations, including the Children's truthfulness and Father's conduct before and after the order of protection was entered.
¶ 6 We vacate the order of protection for the reasons set forth above. Because the order of protection has expired, we do not remand for further proceedings concerning its merits.
