Koehler v. Allen, 050720 UTCA, 20190395-CA

Docket Nº:20190395-CA
Opinion Judge:HAGEN, JUDGE
Party Name:Alicia W. Koehler, Appellee, v. Mark Stewart Allen, Appellant.
Attorney:Scott N. Weight, Attorney for Appellant Albert N. Pranno and Justin T. Ashworth, Attorneys for Appellee
Judge Panel:Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.
Case Date:May 07, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 73

Alicia W. Koehler, Appellee,

v.

Mark Stewart Allen, Appellant.

No. 20190395-CA

Court of Appeals of Utah

May 7, 2020

Fourth District Court, Provo Department The Honorable M. James Brady No. 160400655

Scott N. Weight, Attorney for Appellant

Albert N. Pranno and Justin T. Ashworth, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

OPINION

HAGEN, JUDGE

¶1 The district court found Mark Stewart Allen in contempt for violating a civil stalking injunction when he contacted Alicia W. Koehler via email. On appeal, Allen argues that insufficient evidence supported the district court's findings that (1) he knew that he was subject to a civil stalking injunction, and (2) he intentionally violated the civil stalking injunction. Although we reject his first argument, we reverse on the second and remand for the district court to enter an explicit finding as to whether Allen acted intentionally.

BACKGROUND1

¶2 Allen and Koehler met in 2011 on Facebook. Whatever relationship developed between the two apparently deteriorated because Koehler requested that Allen "discontinue contact" with her in July 2013. But Allen continued to contact Koehler by emailing her, reaching out through third parties, sending Koehler and her family gifts, and entering Koehler's home while she was not there. After contacting the police in 2014 and 2015, Koehler sought a civil stalking injunction in April 2016.

¶3 The district court granted Koehler a temporary civil stalking injunction (the injunction) on May 2, 2016. The injunction prohibited Allen from contacting Koehler and specifically advised him not to "contact, phone, mail, e-mail, or communicate in any way with [Koehler] . . . either directly or indirectly." In bolded italics, the order stated that "[t]his order ends 3 years after it is served." In a section titled "Warnings to the Respondent," the injunction stated "[t]his is an official court order" and "[n]o one except the court can change it." The injunction further warned that if Allen "disobey[ed] this order, the court [could] find [him] in contempt." The injunction notified Allen of his right to a hearing but warned that if he did not ask for a hearing within 10 days, the order would last for three years after the date of service.

¶4 Allen was served with the injunction on May 13, 2016. Because a hearing was not requested within ten days, "the ex parte civil stalking injunction automatically [became] a civil stalking injunction without further notice to [Allen] and expire[d] three years from the date of service." See Utah Code Ann. § 77-3a-101(9) (LexisNexis 2017).

¶5 Allen requested a hearing on May 26, 2016. Because the request was made more than ten days after service of the injunction, the burden shifted to Allen "to show good cause why the civil stalking injunction should be dissolved or modified." See id. § 77-3a-101(10). The matter was set for a one-day bench trial, but Allen's attorney moved to continue the hearing for additional discovery. For reasons not clear from the record, no hearing was ever held. No court orders were entered revoking or modifying the injunction.

¶6 On December 21, 2018, less than three years after service of the injunction, Allen contacted Koehler via email at 7:01 p.m. The email stated, in part, "Why you have despised me and ruined my hope for happiness, unknown, but I do desire peace between our hearts . . . if you are willing."

¶7 Koehler moved for an order to show cause why Allen should not be held in contempt for contacting her in contravention of the injunction. At the hearing on the motion, Allen testified that he had been served with the injunction in 2016 but had asked his attorney to request a hearing, believing that the injunction would last only until a hearing was held. According to Allen, his attorney later informed him that the hearing was canceled because the case had been dismissed. Allen testified that, after speaking with his attorney, he believed the injunction was no longer in effect, but he admitted that he had never received any official court documents suggesting that the injunction had been dismissed or modified in any way.

¶8 Allen also admitted that he had been criminally charged with violating the injunction in June 2017 and had pled "no contest" pursuant to a plea-in-abeyance agreement.2 During that plea hearing, Allen claimed that he "wasn't aware there . . . was an injunction in place" because his "former counsel...

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