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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

TIMOTHY CUSICK, Petitioner/Appellee,

v.

DANETTE GERTH, Respondent/Appellant.

No. 1 CA-CV 19-0483 FC

Appeal from the Superior Court in Maricopa County

No. FC2019-094484

The Honorable Brian D. Kaiser, Judge Pro Tempore

The Honorable Gregg Gibbons, Judge Pro Tempore

VACATED

APPEARANCE

Danette Gerth, Phoenix

Respondent/Appellant

FILED 3-31-2020
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MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in 

which Judge Kenton D. Jones and Judge D. Steven Williams joined.

B R O W N, Judge:

¶1 Danette Gerth appeals the issuance and affirmance of an 

order of protection and Notice to Sheriff of Positive Brady Indicator 

(“Brady”), 18 U.S.C. § 922(g)(8)(C)(i)–(ii), entered in favor of Timothy 

Cusick and his daughter, R.C. For the following reasons, we vacate the 

order and quash the Brady notice.

BACKGROUND

¶2 Gerth and Cusick were in a romantic relationship that 

appears to have ended a few years ago. The two never married, and as far 

as the record shows, they never lived together. Cusick has a teenage 

daughter, R.C., with whom Gerth became close. After the relationship 

between Gerth and Cusick deteriorated, Cusick filed a petition for an order 

of protection against Gerth for himself and R.C., alleging the following:

4/1/2019 Defendant [provides my] 14 year old daughter with 

a burner cell phone and instructs her to lie to me to arrange 

time for Defendant to spend with my daughter. Defendant 

allows my daughter to smoke marijuana with her daughter. 

My daughter’s counselor has informed me that Defendant is 

undermining my parenting and alienating my relationship 

with my daughter, rendering it impossible for me to parent

my child effectively.

8/17/2018 Defendant attempted to obtain in loco parentis 

rights for custody/placement & third party visitation. I filed 

a motion to dismiss and it was granted (FC2018-002291). Since 

that dismissal was granted (10/23/2018), Defendant has 

continued to contact my child despite my requests that she 

refrain from doing so. Defendant actively counsels my 

daughter to lie to me and deceive me so that Defendant can

spend time with my daughter. This scares me for a number of 

reasons, including the fact that my child is being permitted to 
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Decision of the Court

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smoke marijuana at Defendant’s residence. Defendant also 

says very negative things about me to my daughter making it 

hard to maintain an appropriate parent/child relationship 

with her.

¶3 At the hearing on the petition, the court did not inquire into 

details beyond those in the petition other than asking how R.C. was able to 

get to Gerth’s residence without permission and asking who R.C.’s 

counselors were. After this brief discussion, the court did not specifically 

state what domestic violence offense Gerth had committed or was likely to 

commit, but nonetheless granted the order of protection for Cusick and 

R.C., and included Cusick’s home, work, and R.C.’s school as the protected 

locations. 

¶4 After Gerth was served with the order, she requested a 

hearing. Both parties attended the subsequent hearing, conducted by a 

different judge, and testified about the contents of Cusick’s petition. The 

court found that Cusick had sustained his burden by proving there was 

reasonable cause to believe Gerth had committed an act of domestic 

violence or would commit one in the future, specifically, harassment. The 

court also determined that Brady applies. Gerth timely appealed. 

DISCUSSION

¶5 We review the superior court’s grant and continuance of an 

order of protection for an abuse of discretion, but review questions of law 

de novo. Shah v. Vakharwala, 244 Ariz. 201, 202, ¶ 5 (App. 2018). “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. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 

30, ¶ 14 (App. 2003).

A. The Petition and Initial Hearing Were Insufficient to 

Support an Order of Protection

¶6 Gerth argues the superior court abused its discretion in 

issuing the initial order of protection because the petition did not allege any 

specific domestic violence offense.1 According to A.R.S. § 13-3602(C)(3), 

which lists the procedures for obtaining an order of protection, the petition 

1 Cusick did not file an answering brief, and we could regard this 

failure as a confession of reversible error. Nevertheless, in our discretion, 

we address the substance of Gerth’s appeal. See Cardoso v. Soldo, 230 Ariz. 

614, 616, ¶ 4 n.1 (App. 2012).
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must include a “[s]pecific statement, including dates, of the domestic 

violence alleged.” We agree that Cusick’s broad allegations did not 

specifically refer to any particular domestic violence offense; nor was it 

clear from those allegations whether any such offense had been or was 

likely to be committed. See A.R.S. § 13-3601. Construed in the light most 

favorable to Cusick, his petition arguably alleges harassment under A.R.S. 

§ 13-2921, based on Gerth’s contact with R.C. 

¶7 Before granting the order of protection, the superior court was 

required to find reasonable cause to believe that Gerth had committed, or 

may commit, an act of harassment. See Ariz. R. Protective Order P. 23(e). 

The court was required to “review the petition, any other pleadings on file 

and any evidence offered by the plaintiff, including any evidence of 

harassment by electronic contact or communication.” A.R.S. § 13-3602(E). 

Cusick presented no additional pleadings or evidence at the initial hearing. 

¶8 To establish the domestic violence act of harassment under 

A.R.S. § 13-2921, Cusick was required to show that Gerth acted in violation 

of the provisions outlined in Arizona’s harassment statute: specifically, that 

Gerth had the “intent to harass or . . . knowledge that [she was] harassing 

another person” and “communicate[ed] or caus[ed] a communication with 

another person . . . in a manner that harasses,” or “[r]epeatedly commit[ted] 

an act or acts that harass another person.” A.R.S. § 13-2921(A)(1), (A)(3). 

Additionally, the Rules of Protective Order Procedure provide that 

harassment for the purposes of a protective order “means conduct that is 

directed at a specific person and that would cause a reasonable person to 

be seriously alarmed, annoyed, or harassed and the conduct in fact 

seriously alarms, annoys, or harasses the person.” Ariz. R. Protective Order 

P. 3(e). Thus, Cusick had the burden to establish that he was objectively 

and subjectively harassed. 

¶9 The petition’s brief statement and the comments made at the 

initial hearing did not develop Cusick’s allegations of harassment into 

specifics that provided reasonable cause to show Gerth’s actions fell within 

the description of the statute. See A.R.S. § 13-2921(A)(1), (A)(3). Cusick’s 

claims that Gerth “continued to contact my child,” are clearly drawing on 

specific instances, and yet he did not provide dates, specific descriptions, 

or other evidence of such contact. Given the lack of evidence, the court 

erred in granting Cusick’s petition.
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B. The Second Hearing Does Not Establish that Cusick Was 

Harassed

¶10 Despite the issues with the petition and first hearing, the

second hearing offered Cusick an opportunity to further develop and prove 

his allegations of harassment. The superior court was required to find 

reasonable cause to believe Gerth had committed or would commit an act 

of harassment and that the act of harassment would both objectively harass 

a reasonable person and subjectively harass Cusick. See Ariz. R. Protective 

Order P. 3(e), 23(e). Gerth contends the second hearing did not reveal 

sufficient evidence to establish a domestic violence offense. 

¶11 Cusick alleged in the petition that Gerth continued to contact 

R.C. despite his request not to, and he testified in the second hearing that

Gerth was informed that he “unequivocally” did not want contact between 

the two. However, he also acknowledged having facilitated two gettogethers between R.C. and Gerth in the months after his declaration that 

he did not want contact between them. And, after allowing R.C. and Gerth 

to meet, Cusick testified he did not reiterate to Gerth that she was to have 

no contact with R.C., but rather, only told R.C. not to contact Gerth. 

Cusick’s claims that at one moment Gerth’s contact with R.C. is permissible

but at the next moment Gerth knew she was harassing Cusick by her contact 

with R.C. are inconsistent; such claims do not establish that Cusick was 

subjectively harassed. See Ariz. R. Protective Order P. 3(e). Nor do they 

establish that Gerth knowingly or intentionally harassed Cusick. See A.R.S. 

§ 13-2921(A). As a result, the record lacks support for the superior court’s 

order upholding the order of protection.2 

2 We also note that the superior court’s decision to issue a Brady notice 

is not supported by the record. “The judicial officer must ask the plaintiff 

about the defendant’s use of or access to firearms to determine whether the 

defendant poses a credible threat to the physical safety of the plaintiff or 

other protected persons.” Ariz. R. Protective Order P. 23(i); see A.R.S. § 13-

3602(G)(4); Savord v. Morton, 235 Ariz. 256, 260, ¶ 20 (App. 2014). Only then 

may the court include a Brady notice restricting a defendant’s access to 

firearms. A.R.S. § 13-3602(G)(4). The court made no such inquiry here, so 

Brady cannot apply.
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CONCLUSION

¶12 We vacate the order of protection and quash the Brady notice.