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Fitzwilliams v. Tack

Court of Appeals of Arizona, Second Division

December 6, 2013

Thomas M. Fitzwilliams and /or on behalf of T.F., a minor, Plaintiff/Appellee,
v.
Lowell W. Tack, Defendant/Appellant.

Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).

Appeal from the Superior Court in Pinal County No. S1100DO201202268 The Honorable Dwight P. Callahan, Judge Pro Tempore

Burke Panzarella Rich, P.C., Phoenix By Heather A. Cornwell Counsel for Plaintiff/Appellee

Broening Oberg Woods & Wilson, P.C., Phoenix By Terrence P. Woods Counsel for Defendant/Appellant

Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

MEMORANDUM DECISION

KELLY, Presiding Judge

¶1 In this appeal from the trial court's issuance of an order of protection against him, appellant Lowell Wayne Tack argues that the court erred in its admission of certain evidence and that the remaining evidence did not support the order requested by appellee Thomas Fitzwilliams. Because we conclude the court did not abuse its discretion in admitting hearsay evidence, we affirm.

Factual and Procedural Background

¶2 "We view the evidence in the light most favorable to upholding the trial court's ruling." Mahar v. Acuna, 230 Ariz. 530, 2, 287 P.3d 824, 826 (App. 2012). Fitzwilliams sought and obtained an order of protection from the trial court in December 2012 at an ex parte proceeding.[1] The order prohibited Tack from contact with Fitzwilliams and his daughter, T.F., a minor. After Tack was served with the order, he requested a hearing. Following the hearing in January 2013, the court affirmed its order, with a modification that is not pertinent to this appeal. Tack argues the court erred in entering the order because no admissible evidence supported its entry and the evidence that was properly admitted established the order should not have been entered. We have jurisdiction pursuant to Rule 9(B)(2), Ariz. R. Prot. Order P., and A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).

Discussion

¶3 Tack argues there was no admissible evidence to support the trial court's findings of a domestic relationship and sexual conduct between Tack and T.F., and the order of protection therefore was not warranted. We review the trial court's issuance of an order of protection for an abuse of discretion. Cardoso v. Soldo, 230 Ariz. 614, ¶ 16, 277 P.3d 811, 816 (App. 2012). Under this standard, we will uphold the order if there is any reasonable evidence in the record to sustain it. See State v. Morris, 215 Ariz. 324, ¶ 77, 160 P.3d 203, 220 (2007). Because the trial court is in the best position to judge the credibility of witnesses and evaluate conflicts in the evidence, we generally defer to its findings. See Goats v. A.J. Bayless Mkts., Inc., 14 Ariz.App. 166, 169, 171, 481 P.2d 536, 539, 541 (1971). We also review for an abuse of discretion the trial court's admission of evidence. State v. McGill, 213 Ariz. 147, ¶ 30, 140 P.3d 930, 937 (2006).

¶4 At the hearing on the protective order, Fitzwilliams testified that his daughter, T.F., who was sixteen years old at the time of the hearing, had told him that Tack, a family friend, had raped her numerous times-the first time when she was fourteen. Fitzwilliams testified that Tack's conduct began after T.F. revealed she was a lesbian. He claimed Tack had told T.F. that he would show her what "a real man is like" and that she "should be with a man." And, according to T.F., "[Tack] kept coming back, he kept trying to show her what she had to know." Fitzwilliams stated Tack had been indicted for sexual assault, sexual abuse, and kidnapping the previous year and had spent a year in jail awaiting trial before the charges were dismissed.[2] Fitzwilliams also explained that T.F. was attending school out of state and that an order of protection would allow her peace of mind so she could return to Tucson.

¶5 In addition to Fitzwilliams's testimony, two documents provided by Fitzwilliams were admitted. The first of the two exhibits admitted at the hearing was an excerpt from a police report which contained transcribed text messages between T.K. and a man identified as Wayne. Tack, whose middle name is Wayne, had no objection to their admission. The second consisted of written statements of two people who knew both the Tack and Fitzwilliams families through scouting activities. According to Fitzwilliams, both witnesses had prepared the statements at the request of a police detective.

¶6 Tack objected to the admission of these statements on the grounds that they were "twice hearsay." The court acknowledged both statements were hearsay, concluded they were reliable for the purpose of showing the relationship between T.F. and Tack, and admitted them for that purpose only. The court stated the hearsay evidence was ...


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