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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KIDIST CHEREKA, Plaintiff/Appellee,
v.
WORKINEHE GADISSA, Defendant/Appellant.
No. 1 CA-CV 16-0188 FC
FILED 1-31-2017
Appeal from the Superior Court in Maricopa County
No. FC2016-001111
The Honorable Michael S. Mandell, Commissioner
AFFIRMED
COUNSEL
Kidist Chereka
Plaintiff/Appellee Pro Se
Workinehe Gadissa, Laveen
Defendant/Appellant Pro Se
CHEREKA v. GADISSA
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.
M c M U R D I E, Judge:
¶1 Workinehe Gadissa appeals the superior court’s affirmation
of an Order of Protection entered against him for the protection of Kadist
Chereka. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND1
¶2 Chereka obtained an Order of Protection against Gadissa on
February 1, 2016, in a municipal court. In her petition, Chereka alleged
Gadissa “openly [and] repeatedly” threatened her life. Chereka and
Gadissa have a child together.
¶3 A hearing on the Order of Protection was requested by
Gadissa. Because there was a family matter pending in the superior court,
the case was transferred. On March 7, 2016, the superior court held a
hearing on the Order of Protection. Chereka testified. Gadissa was
represented by an attorney and chose not to testify. Gadissa’s counsel did
offer exhibits on his behalf. The superior court affirmed the Order of
Protection finding Gadissa committed an act of domestic violence against
Chereka.
¶4 Gadissa timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes section 12-120.21(A)(1) and -2101(A)(1) (2016).2
1 We view the facts “in the light most favorable to upholding the
[superior] court’s ruling.” Mahar v. Acuna, 230 Ariz. 530, 532, ¶ 2 (App.
2012).
2 We cite to the current version of applicable statutes absent any
change material to this decision.
2
CHEREKA v. GADISSA
Decision of the Court
DISCUSSION
¶5 “We review an order of protection for an abuse of discretion.”
Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014) (citation omitted). “An
abuse of discretion exists when the record, viewed in the light most
favorable to upholding the trial court’s decision, is devoid of competent
evidence to support the decision.” State ex rel. Dept’ of Econ. Sec. v. Burton,
205 Ariz. 27, 30, ¶ 14 (App. 2003) (citation omitted).
A. Due Process Violation.
¶6 Gadissa appears to argue he was denied due process because
he accepted the advice of his counsel not to testify.3 According to Arizona
Rule of Protective Order Procedure 38(e), in a contested hearing on an order
for protection, a “judicial officer must ensure that both parties have an
opportunity to be heard, to present evidence, and to call and examine and
cross-examine witnesses.”
¶7 Here, Gadissa was present at the hearing and had an
opportunity to testify. He was represented by an attorney, who presented
statements and evidence to the court on behalf of Gadissa, with an
opportunity to cross-examine Chereka. Gadissa, through counsel,
purposefully and specifically exercised his right not to testify. Accordingly,
we find no due process violation.
B. Sufficiency of Evidence.
¶8 We also construe Gadissa’s opening brief as contending the
superior court erred by finding sufficient evidence existed to support the
3 Gadissa’s opening brief fails to clearly identify or discuss any
specific legal grounds or arguments for reversing the superior court’s Order
of Protection. Furthermore, the opening brief fails to include citations to the
record. This lack of reference to legal authority and the record could be
considered abandonment and waiver of his claim. See ARCAP 13(a)(7)(A)
(requiring appellant’s brief to contain arguments with “citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies.”); State v. Carver, 160 Ariz. 167, 175 (1989)
(“Failure to argue a claim usually constitutes abandonment and waiver of
that claim.”) (citation omitted). However, in our discretion, we decide this
appeal on its merits based on our own review of the record. See Adams v.
Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (recognizing that
courts prefer to decide each case upon its merits rather than dismissing on
procedural grounds).
3
CHEREKA v. GADISSA
Decision of the Court
Order of Protection. When evidence conflicts, we defer to the trial court’s
“determination of witnesses’ credibility and the weight to give conflicting
evidence.” Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998). At the
hearing, Chereka testified regarding the allegations in her petition. Gadissa
submitted nine exhibits for the court’s consideration. Because Gadissa did
not provide us with a transcript of the proceeding, we must presume the
superior court found every fact necessary to affirm the Order of Protection.
See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995) (“A party is responsible for
making certain the record on appeal contains all transcripts or other
documents necessary for us to consider the issues raised on appeal.”)
(citation omitted); see also ARCAP 11. Thus, the superior court did not abuse
its discretion. See Gutierrez, 193 Ariz. at 347, ¶ 13.
CONCLUSION
¶9 For the foregoing reasons, we affirm the superior court’s
order.
AMY M. WOOD • Clerk of the Court
FILED: AA
4