Mota v. Mota , 382 P.3d 1080 ( 2016 )


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    2016 UT App 201
    THE UTAH COURT OF APPEALS
    JENNIFER L. MOTA,
    Appellee,
    v.
    LAWRENCE MOTA II,
    Appellant.
    Memorandum Decision
    No. 20150191-CA
    Filed September 22, 2016
    Fourth District Court, Provo Department
    The Honorable Samuel D. McVey
    No. 124401367
    Shirl Don LeBaron, Attorney for Appellant
    D. Grant Dickinson and Justin Caplin, Attorneys
    for Appellee
    JUDGE DAVID N. MORTENSEN authored this Memorandum
    Decision, in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L.
    ROTH concurred.
    MORTENSEN, Judge:
    ¶1    Lawrence Mota II appeals the district court’s denial of his
    request to dismiss a protective order that his ex-wife, Jennifer L.
    Mota, obtained against him. We affirm.
    ¶2   In April 2011, Jennifer 1 was at home holding the parties’
    youngest child when Lawrence threatened to commit suicide
    1. In this decision, “[b]ecause the parties still share a last name,
    we refer to them by their first names for clarity, with no
    disrespect intended by the apparent informality.” Earhart v.
    Earhart, 
    2015 UT App 308
    , ¶ 2 n.1, 
    365 P.3d 719
    .
    Mota v. Mota
    and picked up a handgun. Jennifer attempted to call 911.
    Lawrence then pointed the gun at Jennifer and the child and
    said, “If you dial that last number it will be the last thing you
    ever do.” Based in part on this event, in June 2012 Jennifer filed a
    request for, and the district court granted, an ex parte temporary
    protective order. 2
    ¶3     On June 27, 2012, the district court held a hearing to
    determine whether the temporary protective order should be
    made permanent. Despite being properly served, Lawrence did
    not appear at the hearing. The district court therefore entered a
    permanent protective order. No appeal followed. Instead, over
    the next three months, Lawrence repeatedly but unsuccessfully
    attempted to obtain a dismissal of the protective order. Lawrence
    did not appeal any of the orders denying these attempts.
    ¶4     In August 2014, after the permanent protective order had
    been in effect for more than two years, Lawrence again filed a
    request to dismiss the protective order, this time under section
    78B-7-115 of the Utah Code. See Utah Code Ann. § 78B-7-115(1)
    (LexisNexis Supp. 2016) 3 (allowing a district court to dismiss “a
    protective order that has been in effect for at least two years” if
    “the petitioner no longer has a reasonable fear of future abuse”).
    At a hearing held on September 30, 2014, the district court
    commissioner indicated that “the Utah State legislature I think
    2. These are the facts that supported the initial grant of the
    protective order from which Lawrence did not appeal. On
    appeal, we consider the facts in a light most favorable to the
    district court’s ruling, including its findings. Sheeran v. Thomas,
    
    2014 UT App 285
    , ¶ 2 n.1, 
    340 P.3d 797
    .
    3. Any amendments to this statute since the events relevant to
    this case do not affect the outcome of this appeal. We therefore
    cite the most recent version of the Code for convenience.
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    Mota v. Mota
    has adopted a reasonable man standard” and determined that
    Jennifer “has a reasonable fear” sufficient to keep the protective
    order in place. The commissioner reasoned:
    [I]f and when someone pulls out a gun and points
    it at me I don’t know that I can predict that at any
    time in the future I will not have a reasonable fear
    of that person if they pulled it out, pointed it at me
    and made a threat to kill me with it.
    Thus, the protective order remained in place, with minor
    amendments agreed to by the parties. Lawrence did not object to
    the commissioner’s recommendation, but he timely filed a notice
    of appeal after the district court judge signed the final version of
    the amended protective order in May 2015.
    ¶5     On appeal, we must decide whether the district court
    erred in denying Lawrence’s request to dismiss the protective
    order. In deciding this issue, we consider three arguments
    advanced by Lawrence. First, Lawrence argues that the district
    court misinterpreted subsection (1)(f) of section 78B-7-115 of the
    Utah Code (subsection (f)), which allows taking into account
    “any other factors the court considers relevant” in “determining
    whether the petitioner no longer has a reasonable fear of future
    abuse.” See 
    id.
     Second, Lawrence contends that the commissioner
    never found that Jennifer subjectively had a reasonable fear of
    future abuse. And third, Lawrence challenges the factual basis
    upon which the protective order was initially granted.
    ¶6      “A district court’s interpretation of a statute is a question
    of law, which we . . . review for correctness.” Alliant Techsystems,
    Inc. v. Salt Lake County Board of Equalization, 
    2012 UT 4
    , ¶ 17, 
    270 P.3d 441
    . However, a statute’s use of the word “may” indicates a
    court’s discretionary power, the exercise of which we review for
    an abuse of discretion. State v. Draper-Roberts, 
    2016 UT App 151
    ,
    ¶ 14 & n.5. Therefore, because the statute is permissive, we
    review the court’s ultimate decision—whether to grant or deny
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    Lawrence’s request to dismiss the protective order—for an abuse
    of discretion. See Utah Code Ann. § 78B-7-115(1) (indicating that
    “a protective order that has been in effect for at least two years
    may be dismissed” (emphasis added)). 4 We review the
    commissioner’s factual findings, which were adopted by the
    district court, for clear error. Meyer v. Aposhian, 
    2016 UT App 47
    ,
    ¶ 10, 
    369 P.3d 1284
    .
    ¶7      As a threshold matter, we consider whether Lawrence
    properly preserved his arguments for appeal. To preserve an
    issue for appeal, “[t]he appellant must present the legal basis for
    [a] claim to the trial court, not merely the underlying facts or a
    tangentially related claim.” Prime Ins. Co. v. Graves, 
    2016 UT App 23
    , ¶ 10, 
    367 P.3d 1029
     (alterations in original) (citation and
    internal quotation marks omitted). Issues that are not raised
    below are usually deemed waived. Wohnoutka v. Kelley, 
    2014 UT App 154
    , ¶ 3, 
    330 P.3d 762
    .
    ¶8     Jennifer contends that Lawrence failed to preserve the
    issues raised because he failed to object to the commissioner’s
    recommendation that the protective order remain in place. See
    Utah R. Civ. P. 108 (setting forth the process for objecting to a
    commissioner’s recommendation). Lawrence counters that he
    was not required to object because rule 108 provides only an
    optional mechanism through which to challenge a
    commissioner’s recommendation. We agree with Lawrence.
    4. The parties disagree as to what standard of review applies to
    this issue. Our own case law provides only that “[w]hen
    reviewing challenges to a district court’s decision regarding a
    protective order, ‘the appellate court is entrusted with ensuring
    legal accuracy and uniformity and should defer to the trial court
    on factual matters.’” Snyder v. Snyder, 2010 UT App 130U, para. 2
    (per curiam) (quoting Bailey v. Bayles, 
    2002 UT 58
    , ¶ 19, 
    52 P.3d 1158
    ).
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    ¶9      Rule 108 establishes that “[a] recommendation of a court
    commissioner is the order of the court until modified by the
    court.” 
    Id.
     R. 108(a). “A party may file a written objection to the
    recommendation within 14 days after the recommendation is
    made in open court.” 
    Id.
     (emphasis added). But, if no objection is
    filed, no modification can occur, and the original recommendation
    remains “the order of the court.” 
    Id.
     Thus, Lawrence is correct
    that the procedure outlined in rule 108 is optional. And there is
    nothing in the plain language of the rule that makes the filing of
    an objection a prerequisite to the filing of an appeal or a
    necessary step to preserve any particular challenge to the entry
    of the order. See Burns v. Boyden, 
    2006 UT 14
    , ¶ 19, 
    133 P.3d 370
    (“We interpret court rules, like statutes and administrative rules,
    according to their plain language.”). Instead, the question of
    whether a specific issue has been preserved for appeal turns on
    whether a party timely and clearly presented an issue below—
    either to the commissioner or the district court judge, depending
    on whether an objection has been filed. 5 See Normandeau, 
    2009 UT 44
    , ¶ 23, 
    215 P.3d 152
    ; cf. Wolferts v. Wolferts, 
    2013 UT App 235
    , ¶ 14, 
    315 P.3d 448
     (explaining that where a party “did not
    object or otherwise inform the district court of any dissatisfaction
    with” contempt proceedings conducted by a commissioner, we
    could not “conclude that [the party] was denied an opportunity
    to fully address the contempt allegations against her”).
    5. A similar rule applies to the presentation of new evidence in
    an objection hearing before the district court: “any evidence,
    whether by proffer, testimony or exhibit, not presented to the
    commissioner shall not be presented to the judge.” Utah R. Civ.
    P. 108(c). However, “[i]f there has been a substantial change of
    circumstances since the commissioner’s recommendation, the
    judge may, in the interests of judicial economy, consider new
    evidence.” 
    Id.
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    Mota v. Mota
    ¶10 But the decision not to object to a commissioner’s
    recommendation, while not precluding an appeal, has
    consequences. Lawrence’s failure to object limits his ability to
    now challenge the factual basis of the commissioner’s
    determinations. Where, as here, the hearing before the
    commissioner was conducted based on the pleadings, the
    proffered evidence, and the arguments of counsel, the only
    opportunity to more completely develop the factual record was
    through an evidentiary hearing on an objection to the district
    court, which Lawrence never sought. See Utah R. Civ. P.
    108(d)(2) (“If the hearing before the commissioner was held
    under . . . Utah Code Title 78B, Chapter 7, Protective Orders, . . .
    any party has the right, upon request, to present testimony and
    other evidence on genuine issues of material fact.”). Thus, for
    example, the description of Lawrence’s conduct in the protective
    order, on which Jennifer based her contention that she still had a
    reasonable fear of future abuse, remained essentially unrebutted
    because he did not seek an evidentiary hearing before the district
    court. And because Lawrence sought no such hearing, the
    commissioner could only consider the facts already established
    in the record. Accordingly, we will not consider Lawrence’s
    arguments that some of the bases for the original grant of the
    protective order are factually untrue or inadequate to support
    keeping the protective order in place. 6
    6. Beyond these arguments being unpreserved, they also appear
    to be of little importance. The commissioner based his
    recommendation on the one incident recounted above, when
    Lawrence pointed a gun at Jennifer. And even if the other
    incidents factored into the commissioner’s determination,
    Lawrence fails to show any sort of legal error in hearing
    evidence regarding those incidents; instead, he argues how the
    evidence might be viewed differently, in a way that would
    support dismissing the protective order. But we have repeatedly
    explained that “[w]hen a foundation for the court’s decision
    (continued…)
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    Mota v. Mota
    ¶11 We therefore focus our attention on the claims that were
    preserved for our review. To begin, we consider whether the
    commissioner misinterpreted subsection (f), the catch-all
    provision of the relevant statute, which allows a court to take
    into account “any other factors the court considers relevant to
    the case before it” in deciding “whether the petitioner no longer
    has a reasonable fear of future abuse.” Utah Code Ann. § 78B-7-
    115(1) (LexisNexis Supp. 2016). Lawrence argues the
    commissioner “overreached the bounds of” this provision when
    he “considered the severity of the incident as a relevant factor.”
    ¶12 Subsection (f) is the last in a list of factors that a court
    must consider when “determining whether the petitioner no
    longer has a reasonable fear of future abuse” for purposes of
    deciding whether to dismiss “a protective order that has been in
    effect for at least two years.” Id. These factors are
    (a) whether the respondent has complied with
    treatment recommendations related to domestic
    violence, entered at the time the protective
    order was entered;
    (b) whether the protective order was violated
    during the time it was in force;
    (c) claims of harassment, abuse, or violence by
    either party during the time the protective
    order was in force;
    (d) counseling or therapy undertaken by either
    party;
    (…continued)
    exists in the evidence, an appellate court may not engage in a
    reweighing of the evidence.” In re B.R., 
    2007 UT 82
    , ¶ 12, 
    171 P.3d 435
    .
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    (e) impact on the well-being of any minor children
    of the parties, if relevant; and
    (f) any other factors the court considers relevant to
    the case before it.
    
    Id.
    ¶13 Lawrence contends that subsection (f) “allows a court to
    consider other important factors” but should only be used “to
    allow a court to reach exceptional circumstances.” At oral
    argument Lawrence refined his position, claiming categorically
    that conduct that occurred before the protective order was
    entered, including the most serious precipitating events, could
    not be considered at all. Instead, Lawrence argues, the focus
    should be only on conduct that occurred after the protective
    order was issued.
    ¶14 We disagree. Our inquiry begins with the language of the
    statute, Marion Energy, Inc. v. KFJ Ranch P’ship, 
    2011 UT 50
    , ¶ 33,
    
    267 P.3d 863
    , and we see nothing in the statutory text that would
    limit the court’s inquiry to only those facts that have arisen after
    entry of the protective order. On the contrary, subsection (f)
    invites the court to consider “any other factors the court
    considers relevant to the case before it.” Utah Code Ann. § 78B-
    7-115(1)(f). Thus, the commissioner here was free to consider the
    egregiousness of Lawrence’s underlying conduct—pointing a
    gun at Jennifer and their youngest child and threatening to kill
    her—so long as he considered the egregiousness to be relevant to
    whether Jennifer still had a reasonable fear of future abuse.
    Moreover, when the facts that the commissioner considered
    make the existence of a reasonable fear of future abuse more or
    less likely, such facts are relevant to the commissioner’s
    determination. A person’s actions at a time when he was not
    subject to a court order bear on whether he is likely to engage in
    future abuse if he is again not subject to a court order.
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    Mota v. Mota
    ¶15 The commissioner’s recommendation acknowledges this
    principle. At the hearing before the commissioner, Lawrence
    meticulously addressed the factors outlined in subsections (a)
    through (e). And, despite a brief suggestion that perhaps
    Lawrence should have been ordered to complete therapy—and
    noting that she herself had received therapy—Jennifer did not
    seriously disagree with Lawrence’s position on those five factors.
    Instead, Jennifer focused on subsection (f). Her attorney argued
    that under that subsection, “one of the factors that should be . . .
    relevant . . . is the severity of the past abuse.” The commissioner
    agreed, and that factor weighed heavily in his recommendation
    not to disturb the protective order.
    ¶16 Specifically, it is apparent on the record that the
    commissioner focused on the prominent factor that Jennifer
    urged: the egregiousness of the underlying conduct. He
    discussed the egregiousness of the conduct, indicating that
    time—or at least the mere two years that had passed in this
    case—would not necessarily erase the fear associated with
    having a gun pointed at a person. The commissioner also
    concluded that such residual fear would be reasonable, given the
    accompanying “threat to kill [the person] with [the gun].”
    ¶17 The commissioner’s explanation of his decision to leave
    the protective order in place, based on the incident with the gun,
    makes clear that he deemed the egregiousness of that incident to
    be “relevant to the case before it.” See Utah Code Ann. § 78B-7-
    115(1)(f) (LexisNexis Supp. 2016). We see no error in this analysis
    and hold it to be legally and factually supported. Thus, we cannot
    say that the commissioner erred in interpreting subsection (f) to
    include prior abuse as relevant to the continuation of the order.
    ¶18 Concluding that the commissioner did not err in his
    interpretation of subsection (f), we are left to decide whether the
    court abused its discretion in leaving the protective order in
    place. It did not.
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    Mota v. Mota
    ¶19 For Lawrence to demonstrate that the district court
    exceeded its discretion, he must show that it “exceeded the
    limits of reasonability when it denied the motion” to dismiss the
    protective order. See Gudmundson v. Del Ozone, 
    2010 UT 33
    ,
    ¶¶ 23–24, 
    232 P.3d 1059
     (deciding whether a district court
    abused its discretion in denying a motion under rule 56(f) of the
    Utah Rules of Civil Procedure). This he cannot do.
    ¶20 The protective order here had been in effect more than
    two years before Lawrence filed his request to dismiss, putting
    his request within the confines of section 78B-7-115(1). Lawrence
    argues that “provisions (a)–(e) give guidance to subjects of
    protective orders as to what behavior is expected of them in
    order to have the protective order eventually dismissed.” In both
    his arguments before the commissioner and his arguments on
    appeal, Lawrence espouses the view that if a respondent
    complies with subsections (a) through (e), the protective order
    should be dismissed. 7 We cannot agree with this interpretation
    of the statute. Of course, there might be times when satisfaction
    of subsections (a) through (e)—or even some of those
    subsections—would be sufficient to allow the district court to
    conclude that the petitioner no longer had a reasonable fear of
    future abuse and to dismiss a protective order. But that does not
    mean the statute must operate in the way Lawrence urges.
    ¶21 The factors outlined in subsections (a) through (e) are all
    mandatory considerations. See Utah Code Ann. § 78B-7-115(1).
    But consideration of these factors hardly mandates a certain
    result. Instead, the statute provides that a protective order may
    be dismissed if the petitioner no longer has a reasonable fear of
    7. At the hearing, Lawrence explicitly stated, “I don’t know other
    than (a) through (e) has been complied with. Therefore
    deductive reasoning from, you know, philosophy 101[:] . . . (a)
    through (e), therefore (f).”
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    Mota v. Mota
    future abuse, and it outlines how a court must come to its
    conclusion of whether the petitioner still has a reasonable fear.
    The statute does not require the court to dismiss the protective
    order under any particular circumstance. Rather, if the court’s
    decision is guided by the statutory factors, it has discretion to
    decide if and when to dismiss a protective order. Under the
    circumstances present here, we cannot say that the district court
    exceeded this discretion. 8
    ¶22 Insofar as Lawrence preserved his arguments for appeal,
    those arguments are unavailing. The commissioner did not err
    when he considered the egregiousness of Lawrence’s original
    conduct in concluding that Jennifer still had a reasonable fear of
    future abuse or when he recommended keeping the protective
    order in place. And the district court did not abuse its discretion
    in adopting that recommendation and denying Lawrence’s
    request to dismiss the protective order.
    ¶23    Affirmed.
    8. We also note that Lawrence has not challenged the court’s
    conclusion that continued fear of a man who pointed a gun at a
    petitioner and her child, threatening to kill her if she called 911,
    is reasonable.
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