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In re Peacock

Court of Appeals of Arizona, First Division, Department E

October 8, 2013

In re the Matter of: LESLIE PEACOCK, Plaintiff/Appellee,
v.
DOMINIC ROBERT AFFUSO, Respondent/Appellant.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause Nos. FC2004-010565 & FC2004-094342 (Consolidated) The Honorable Jaime B. Holguin, Judge Pro Tem

Mueller & Drury PC Scottsdale By James P. Mueller Joel M. Mueller Attorneys for Plaintiff/Appellee

Law Office of David Michael Cantor PC Phoenix By Elizabeth M. Mullins Attorneys for Respondent/Appellant

MEMORANDUM DECISION

MARGARET H. DOWNIE, Judge

¶1 Dominic Robert Affuso ("Father") appeals from an order continuing an order of protection ("OOP") against him. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Leslie Peacock ("Mother") divorced in January 2005 and were awarded joint custody of D.A., born in September 2002. In December 2008, the family court found that Father was "sometimes . . . unable to control his frustrations" and engaged in "inappropriate verbal exchanges" with D.A. The court ordered him to attend a parenting class "directed at controlling and redirecting his frustration" and three sessions with a certain doctor regarding the same issues within 60 days ("Parenting Class").

¶3 In September 2011, Mother filed a Motion for Post-Decree Temporary Order Without Notice for Modification of Child Custody and a separate Petition to Modify Child Custody, Parenting Time and Child Support. Noting three Child Protective Services ("CPS") reports filed against Father, Mother alleged D.A. was in danger and asked the court to award her sole custody until Father completed the Parenting Class ordered in 2008. The court denied the request for temporary orders but set an evidentiary hearing and ordered Father to provide proof of completion of the Parenting Class. Father completed the class in November 2011.

¶4 In February 2012, Mother filed a Motion to Modify Parenting Time Based on New Substantiated Evidence, seeking supervised parenting time for Father until the scheduled evidentiary hearing concluded. She attached a January 2012 letter from CPS stating that it had investigated and substantiated a report of physical abuse by Father against D.A. Father opposed Mother's motion, which the court denied pending the evidentiary hearing.

¶5 On June 22, 2012, D.A. was crying "uncontrollably" when Mother picked him up after a two-day visit with Father ("June Visit"). D.A. told Mother that Father had threatened to drop him at school, which was not in session, and not tell Mother where he was if Mother failed to arrive at the drop off location. D.A. also said Father "was very angry and was waving a knife around" and told D.A., "Fuck You, Fuck your Mom, Fuck [Mother's current husband, "R.B."], and Fuck the Courts" and that D.A. could "go to hell." During a subsequent telephone conversation with R.B., Father began cursing, threatened "to kick [R.B.'s] ass, " "raged on with the threats, " and said he was "going to kill [R.B.] and [his] bitch whore wife."

¶6 R.B. and Mother called the police, and Mother sought an OOP against Father. Her petition detailed events of the June Visit and stated Father had been arrested for domestic violence during the marriage. The court issued an OOP on an ex parte basis, preventing Father from contacting Mother and D.A. or going to their home, Mother's work, or D.A.'s school.

¶7 On June 27, Father's counsel requested a hearing on the OOP. Father thereafter accepted service of the OOP and filed a notice of acceptance of service on July 2. On July 17, Father filed a pro se request for hearing on the OOP. The court set a July 31 hearing. Father later moved to dismiss the OOP, alleging it violated Rules 1(F), 4(B), and 8, Arizona Rules of Protective Order Procedure ("Rule"). The court denied the motion and affirmed the July 31 hearing.

¶8 During the July 31 hearing, Mother testified that D.A. was extremely scared and traumatized when she picked him up from the June Visit. Mother testified that D.A. told her Father brandished a knife while telling D.A. to "[g]et the fuck over here." Mother also testified about past physical, mental, and verbal abuse by Father, including the 2011 incident substantiated by CPS, where Father slapped D.A. According to Mother, Father's anger had escalated, and she feared for D.A.'s safety. R.B. testified that D.A. was "very emotionally upset, " crying, shaky, ...


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