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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

RACHAEL ARAGON, Petitioner/Appellee,

v.

JESSE EULATE, Respondent/Appellant.

No. 1 CA-CV 18-0742 FC

Appeal from the Superior Court in Maricopa County

No. FC2018-007444

The Honorable Margaret Benny, Judge Pro Tempore

VACATED 

COUNSEL

Jesse Eulate, Gilbert

Respondent/Appellant

FILED 10-1-2019
ARAGON v. EULATE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in 

which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.

J O N E S, Judge:

¶1 Jesse Eulate (Father) appeals from the trial court’s order 

upholding an order of protection that limits his contact with his minor 

daughter (Child). For the following reasons, we vacate the order.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2018, Rachel Aragon (Mother) petitioned the trial 

court for an order of protection against Father, alleging he was physically 

harming Child and threatening not to return her following his courtordered parenting time. At the time, a separate domestic relations matter 

was pending before the family court. After a contested hearing, the trial 

court found that Father “had committed an act of domestic violence against 

[Mother] within the last year or may commit an act of domestic violence in 

the future.”1 The court entered an order of protection “pertain[ing] to the 

child only” that limited Father’s contact with Child to prescheduled 

telephone calls. Father timely appealed the final order, and we have 

jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-

120.21(A)(1),2 -2101(A)(5)(b), and Arizona Rule of Protective Order 

Procedure 42.

DISCUSSION

¶3 Father first argues he was not properly served with notice of 

the hearing and did not have an adequate opportunity to prepare for it. 

 

1 Father asks this Court to take judicial notice of contrary findings 

entered by the family court in April 2019. Those findings, made by a 

different judicial officer six months after the protective order entered, do 

not provide a basis for reversal. See Vera v. Rogers, 246 Ariz. 30, 35-36, ¶¶ 20-

22 (App. 2018). Accordingly, we deny the request.

2 Absent material changes from the relevant date, we cite the current 

version of rules and statutes.
ARAGON v. EULATE

Decision of the Court

3

However, “[t]here is no statutory requirement for personal service of the 

hearing notice.” Ariz. R. Protective Order P. 38(c). Moreover, having

personally appeared at the hearing and participated without objection, 

Father waived these claims of error. See Shah v. Vakharwala, 244 Ariz. 201, 

203, ¶ 8 (App. 2018) (citations omitted); Cardoso v. Soldo, 230 Ariz. 614, 619, 

¶ 18 (App. 2012) (citing Englert v. Carondelet Health Network, 199 Ariz. 21, 26, 

¶ 13 (App. 2000)).

¶4 Father next argues the trial court erred by designating Child 

a person protected by the order. “We review a protective order for an abuse 

of discretion.” Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014) (citing 

Cardoso, 230 Ariz. at 619, ¶¶ 15-16). “An abuse of discretion occurs when 

the court commits an error of law that underlies its exercise of discretion.”

Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018) (citing Kohler v. 

Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)).

¶5 Pursuant to Arizona Rule of Protective Order Procedure 

5(b)(1), “[a] judicial officer cannot include a defendant’s child in a protective 

order unless there is reasonable cause to believe . . . physical harm may 

result or has resulted to the child, or . . . the alleged acts of domestic violence 

involved the child.” “A separate reasonable cause determination must be 

made as to . . . any child with whom the defendant has a legal relationship.” 

Ariz. R. Protective Order P. 23(e)(2). Additionally:

Before granting a protective order prohibiting contact with a 

child with whom the defendant has a legal relationship, the 

judicial officer must consider:

(1) whether the child may be harmed if the defendant is 

permitted to maintain contact with the child; and

(2) whether the child may be endangered if there is contact 

outside the presence of the plaintiff.

Ariz. R. Protective Order P. 35(b). Where, as here, a domestic relations case 

involving the parties is already pending, the court that finds a parent has 

committed an act of domestic violence “should refer to the options in A.R.S. 

§ 25-403.03(F)” when determining the bounds of the protective order. Ariz. 

R. Protective Order P. 35(b) cmt.; see also Courtney v. Foster ex rel. Cty. of 

Maricopa, 235 Ariz. 613, 616, ¶ 11 (App. 2014) (recognizing “the primacy of 

[A.R.S.] § 25-403.03(F) in parenting time decisions”). These options include 

ordering parenting time be supervised, requiring the offending parent to

post a bond for the child’s safe return, restricting the offending parent’s

alcohol or controlled substance use during parenting time, and 
ARAGON v. EULATE

Decision of the Court

4

“[i]mpos[ing] any other condition that the court determines is necessary to 

protect the child.” A.R.S. § 25-403.03(F).

¶6 “Although we presume that the trial court knows the law and 

applies the correct standard, that presumption may be rebutted by the 

record.” Hart v. Hart, 220 Ariz. 183, 188, ¶ 18 (App. 2009) (citing Fuentes v. 

Fuentes, 209 Ariz. 51, 58, ¶ 32 (App. 2004); Frederickson v. McIntyre, 52 Ariz. 

61, 64 (1938); and Brewer v. Peterson, 9 Ariz. App. 455, 458 (1969)). Here, the 

trial court found only that Father had committed or was likely to commit 

an act of domestic violence against Mother. The trial court did not find an 

act of domestic violence against Child, did not make a separate 

determination that reasonable cause existed to believe Child was at risk, and 

did not make any findings indicating it considered the effect of Father’s 

behavior on Child before limiting his contact with her. Nor is there any 

indication that the court referred to the options set forth in A.R.S. § 25-

403.03(F).

¶7 Given the fundamental right to parent at stake here, see Kent 

K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 

U.S. 745, 753 (1982), and Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 

248, ¶ 11 (2000)), Father presents a debatable issue regarding whether the 

trial court complied with due process, protective order procedure, and 

Arizona statutes, see Savord, 235 Ariz. at 259-60, ¶ 16 (confirming that due 

process protections apply to protective order proceedings). Under these 

circumstances, we consider Mother’s failure to file an answering brief as a 

confession of reversible error. See Adkins v. Adkins, 39 Ariz. 530, 532 (1932) 

(“[A] failure to file an answering brief is equivalent to a confession of error 

by the appellee, and . . . when on examination of the record it appears a 

debatable question is raised by the appellant and no reasonable cause is 

shown for appellee’s failure to file a brief, we will reverse the case.”)

(collecting cases); ARCAP 15(a)(2) (“If the appellee does not timely file an 

answering brief, the appellate court may deem the appeal submitted for 

decision based on the opening brief and the record.”). Accordingly, we find 

the trial court abused its discretion when it entered an order of protection 

limiting contact between Father and Child without making a separate 

reasonable cause determination, considering the factors identified within 

Arizona Rule of Protective Order Procedure 35(b), or referring to the less 

restrictive options detailed in A.R.S. § 25-403.03(F).
ARAGON v. EULATE

Decision of the Court

5

CONCLUSION

¶8 The order of protection is vacated.