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Tag: hearing

Is there a difference between hearings and trials in Utah divorce cases?

Yes. A hearing is not the same as a trial. While there may be some similarities, they are not the same thing and do not accomplish the same objectives.

The primary difference between a trial and a hearing is that a trial disposes of the law suit after the parties present evidence to the judge for a final ruling on the case. The trial is the end of the case (unless there is an appeal after trial, but that’s a different subject for another blog).

Hearings take place before trial, are usually shorter than a trial, and are used to resolve issues that arise during the pendency of the case before trial. You can and likely will have multiple hearings in your case, while there is just one trial.

Hearings usually take minutes or hours. Trials take longer, usually several days or weeks.

Hearings take place before trial.

Your first experience with the courtroom (whether in the courtroom or whether you participate via remote video conference) will almost surely be in a hearing, not trial.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What happens to a restraining order respondent who misses the hearing?

What happens if you’re a restraining order respondent and you miss the hearing?

There are a few possibilities, and I will address them in the order of what I think would be most likely to occur if A) the restraining order can legally and lawfully be extended; B) the request to extend the restraining order was properly made in compliance with the applicable laws and rules; C) you received proper notice of the hearing; D) you did not appear at your hearing; and E) you are unable to prove that your absence was due to circumstances utterly beyond your control: 

  • the request to extend the restraining order would be granted; or 
  • the court may (but likely won’t) continue the hearing to a later date to give you a second chance to appear; 
  • if you are ordered to appear at the hearing and don’t appear, that could constitute contempt of court, which would Authorize the court to issue a warrant for your arrest to compel you to appear at the hearing (After it is rescheduled to a later date). I’ve never seen a court issue a warrant to compel someone to appear at a hearing for a restraining order or to renew or extend a restraining order because it’s easier for the court simply to renew and extend the protective order than to go to the trouble of having a warrant issued to track you down and compel you to appear in court. And the court can easily justify the decision to extend the protective order due to your failure to appear: 1) you didn’t appear to challenge the request, so one can infer that you have no objection the request; and 2) if you don’t appear in court to defend yourself and/or make objections to the request, then you’ve forfeited that opportunity, and you can’t be surprised if and when the court grants the request. 

I am amazed at the number of people who believe missing hearings is no big deal. If I were ordered or directed to appear in court for a hearing that could have as profound an effect upon me as a restraining order, wild horses couldn’t drag me away from appearing in court, and not just on time, but appearing a few minutes early, to ensure that nothing happened or happened to me in my absence. For two reasons: 

  • A restraining order can have dire effects on your rights to free association and travel and other rights. You want to ensure that you defend those rights to the extent that the state has no valid basis to infringe and interfere with them. 
  • If the restraining order is not only extended but also modified or amended in ways you’re not aware of (because you weren’t there to hear about it), you could innocently find yourself violating the modified/amended order but still being sanctioned or even criminally prosecuted for doing so. You wouldn’t be able to use ignorance of the law (or in this case ignorance of the court’s orders provisions) as a defense.

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/In-Indiana-what-happens-if-you-re-the-respondent-in-a-restraining-order-hearing-and-you-miss-it-Just-the-hearing-to-extend-it-or-not/answer/Eric-Johnson-311

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2022 UT App 15 – Miller v. DaSilva – protective order objections

2022 UT App 15 – Miller v. DaSilva

http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Miller v. Dasilva20220203_20200719_15.pdf

THE UTAH COURT OF APPEALS

LISA M. MILLER,
Appellant,
v.
AMY ELIZABETH DASILVA,
Appellee.

Opinion

No. 20200719-CA

Filed February 3, 2022

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 204904364

Steve S. Christensen and Clinton Brimhall, Attorneys
for Appellant

Amy Elizabeth Dasilva, Appellee Pro Se

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

HAGEN, Judge:

¶1        A final judgment on a petition for a cohabitant abuse protective order cannot be entered based on a commissioner’s recommendation until the parties are afforded their statutory right to object. If a timely objection is filed, the objecting party is entitled to a hearing before the district court. In this case, once the commissioner recommended that the protective order be denied and the case dismissed, a final order was immediately entered and the petitioner’s timely objection was subsequently denied without a hearing. Because a final judgment was entered before the time for filing an objection had passed and without holding a hearing on the objection, we vacate the final judgment and remand to the district court to hold the required hearing.

BACKGROUND

¶2        Lisa Miller petitioned the district court for a cohabitant abuse protective order against her former friend and tenant, Amy Dasilva. A temporary protective order was issued, and a hearing was scheduled before a commissioner. At the conclusion of the hearing, the commissioner made the following findings:

I cannot find that there is sufficient evidence to support a finding that Ms. Da[s]ilva has been stalking Ms. Miller. And I cannot find a fear of ongoing physical harm.[1] And, therefore, I am going to respectfully dismiss the protective order.

A minute entry reflected that the “Commissioner recommends” that the petition “be DENIED and this case be dismissed” because “[t]he evidence does not support the entry of a protective order.”

¶3        That same day, at the direction of a district court judge, the court clerk entered a final order that stated: “This case is dismissed. Any protective orders issued are no longer valid.”

¶4        Miller filed a timely objection to the commissioner’s recommendation, requesting an evidentiary hearing before the district court pursuant to rule 108 of the Utah Rules of Civil Procedure. The next day, the district court denied that objection on the grounds that “dismissal of a protective order . . . is not a matter that is heard by the District Court Judges under Rule 108 as it is not a recommendation of the Commissioner, but rather a final decision.”

¶5        Miller filed a timely notice of appeal.

ISSUE AND STANDARD OF REVIEW

¶6        The dispositive issue before us is whether, under Utah Code section 78B-7-604(1)(f), the district court was permitted to immediately dismiss the case based on the commissioner’s recommendation and thereafter deny Miller’s objection and request for a hearing. “The proper interpretation and application of a statute is a question of law, and we afford no deference to the trial court in reviewing its interpretation.” Patole v. Marksberry, 2014 UT App 131, ¶ 5, 329 P.3d 53 (cleaned up).

ANALYSIS

¶7        Under the Cohabitant Abuse Act, the court may issue a protective order without notice to the other party (an ex parte protective order) if it appears from the petition “that domestic abuse has occurred” or is substantially likely to occur. Utah Code Ann. § 78B-7-603(1)(a) (LexisNexis Supp. 2020). If the court issues an ex parte protective order, it must schedule a hearing and provide notice to the respondent. Id. § 78B-7-604(1)(a). After notice and a hearing, the court may issue a cohabitant abuse protective order, which is effective until further order of the court. Id. § 78B-7-604(1)(e). If such an order is not issued, the ex parte protective order expires unless extended by the court. Id. § 78B-7-604(1)(b).

¶8 A commissioner may conduct the required hearing in cohabitant abuse cases and “[m]ake recommendations to the court.” Utah R. Jud. Admin. 6-401(1)–(2)(D). If the hearing takes place before a commissioner, “either the petitioner or respondent may file an objection within 10 days after the day on which the recommended order [is issued by the commissioner] and the assigned judge shall hold a hearing within 20 days after the day on which the objection is filed.”[2] Utah Code Ann. § 78B-7­604(1)(f).

¶9        Here, the district court denied Miller’s objection to the commissioner’s recommendation without holding a hearing. Miller argues this was a “violation of the mandate in Utah Code Ann. § 78B-7-604(1)(f).” We agree.

¶10 In denying Miller’s objection, the court ruled that “dismissal of a protective order” is not a matter that can be heard by the district court under rule 108 because “it is not a recommendation of the commissioner, but rather a final decision.” Because commissioners are prohibited from making “final adjudications,” Utah R. Jud. Admin. 6-401(4)(A), we assume that the district court was referring not to the commissioner’s recommendation, but to the order dismissing the case entered at the direction of a district court judge immediately after the hearing before the commissioner. Even so, the rule expressly provides that “[a] judge’s counter-signature on the commissioner’s recommendation does not affect the review of an objection.” Utah R. Civ. P. 108(a). Once Miller filed a timely objection to the commissioner’s recommendation and a request for hearing, the district court was statutorily required to hold a hearing within twenty days. See Utah Code Ann. § 78B-7­-604(1)(f). The district court erred by denying the objection without holding such a hearing.

CONCLUSION

¶11 The district court did not have authority to enter a final order dismissing this case before the time for filing an objection to the commissioner’s recommendation had expired. Because Miller filed a timely objection and request for hearing, she was entitled to a hearing before the district court. Accordingly, we vacate the final judgment, reverse the district court’s order denying the objection, and remand for the district court to hold the hearing required by statute.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What are some ways to not appear judgmental as a lay witness?

What are some examples of how to not appear judgmental as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime). 
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed. 
  3. Listen to the questions posed to you, so that you know what information is being elicited from you. 
  4. Simply answer questions, and answer questions simply. 
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.” 
    • Do not, do not, do not try to answer yes/no questions with rambling stories. 
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.” 
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-are-some-examples-of-how-to-not-appear-judgmental-as-a-lay-witness-in-court/answer/Eric-Johnson-311  

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How can I get an emergency hearing for custody and child support?

I will answer this question based upon the law of the jurisdiction where I practice family law (Utah).

So the question is: How can I get an emergency hearing for custody and child support?

The answer: Have a good reason.

A very good reason. A reason that would justify asking the court to address the issue on an emergency basis.

Do such reasons exist? Yes. Are such good reasons easy to establish? Generally, no, unless one tries to obtain emergency child custody through a protective order proceeding (more on why below).

Is it easy to lie about having good reasons for an emergency child custody order and obtain an emergency child custody order under false pretenses? Yes, especially if one tries to obtain emergency child custody through a protective order proceeding (more on why below).

Here are some ways to obtain an order of child custody (and possibly for child support too) in not particular order (with links to the statutes that govern them):

1. By protective order.

Cohabitant Abuse Act protective order

Child protective order (see also Utah Rules of Juvenile Procedure Rule 37)

2. Divorce or parentage action

motion for TRO (ex parte motion for child custody (and child support))

3. Guardianship action

4. “Custody and Visitation for Individuals Other than Parents Act” action

5. “Utah Uniform Child Custody Jurisdiction and Enforcement Act” action

6. Termination of parental rights action

7. “Abuse, Neglect, and Dependency Proceedings” action

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

 

https://www.quora.com/How-can-I-get-an-emergency-hearing-for-custody-and-child-support/answer/Eric-Johnson-311?prompt_topic_bio=1

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