On September 22, 2016, the Utah Court of Appeals issued its decision in the protective order case of Mota v. Mota. Here is the link to the court’s entire decision:
The protective order respondent sought to dismiss a permanent protective order after two years, as the protective order statute permits. That statute provides, in pertinent part:
Utah Code § 78B-7-115. Dismissal of protective order.
(1) Except as provided in Subsection (6), a protective order that has been in effect for at least two years may be dismissed if the court determines that the petitioner no longer has a reasonable fear of future abuse. In determining whether the petitioner no longer has a reasonable fear of future abuse, the court shall consider the following factors:
(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.
The district court domestic relations commissioner denied the respondent’s motion.
The respondent did not object to the commissioner’s recommendation under Utah Rules of Civil Procedure, Rule 108. The respondent simply appealed the ruling of the district court.
The Court of Appeals affirmed the district court. The Court of Appeals found that the procedure in rule 108 for objecting to a commissioner’s recommendations is optional. Nothing in the plain language of rule 108 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.
But while the respondent’s decision to not object to the commissioner’s recommendation under Utah R. Civ. P. 108 did not preclude his appeal, it did limit his ability to challenge factual findings made by the commissioner because there was no other evidence on the record that may have come forth as a result of objecting and holding an evidentiary hearing and that might have rebutted the petitioner’s factual claims.
Respondent claimed that conduct that occurred before the protective order was entered two years ago, including the most serious precipitating events, could not be considered at all on a motion to dismiss. Instead, the respondent argued that the focus should be only on conduct that occurred after the protective order was issued. The Court of Appeals disagreed.
Nothing in the protective order statute limits the court’s inquiry to only those facts that have arisen after entry of the protective order. On the contrary, Utah Code § 78B-7-115(1)(f) invites the court to consider “any other factors the court considers relevant to the case before it.” Thus, the commissioner here was free to consider the egregiousness of respondent’s underlying conduct, so long as he considered the egregiousness to be relevant to whether the petitioner still had a reasonable fear of future abuse.
Moreover, 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. As to the respondent’s claims that the court abused its discretion in refusing to dismiss the protective order, the protective 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. Thus, as the Court of Appeals put it, “we cannot say that the district court exceeded this discretion.”
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