Mota v. Mota

Decision Date22 September 2016
Docket NumberNo. 20150191–CA,20150191–CA
Citation382 P.3d 1080,2016 UT App 201
Parties Jennifer L. Mota, Appellee, v. Lawrence Mota II, Appellant.
CourtUtah Court of Appeals

Shirl Don LeBaron, American Fork, Attorney for Appellant.

D. Grant Dickinson, Provo 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.

Memorandum Decision

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, Jennifer1 was at home holding the parties' youngest child when Lawrence threatened to commit suicide 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 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, 378 P.3d 1261. Therefore, because the statute is permissive, we review the court's ultimate decision—whether to grant or deny 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.

¶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”).

¶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

¶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;
(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 ...

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