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Understanding legal terms in Utah divorce actions

If you’re anything like I am, you don’t like being ignorant and confused about terms aren’t familiar with and do not understand. If you are contemplating divorce or find yourself in the midst of a divorce, you will encounter a lot of new legal terms. Understanding them correctly will help you work your way through a divorce with more confidence and less worry. These videos will introduce you to the terms you will hear and need to understand. In this first video we will define some of the most common terms you’ll read or hear in the beginning stages of a divorce case in Utah. Subsequent videos will provide you with a glossary of other terms in alphabetical order.

Most of the definitions I’ll share with you come from Black’s Law Dictionary.

divorce

divorce is the legal ending of a marriage; specifically, the legal dissolution of a marriage by a court. Also termed marital dissolution; dissolution of marriage. A divorce is not the same as an annulment.

divorce action

a divorce action is a lawsuit initiated in court by means of a spouse filing a complaint or petition for a dissolution of the marriage. Sometimes “divorce” is used as an abbreviated form of “divorce action,” such as, “the divorce was filed today” or “the divorce is proceeding in Salt Lake County.”

petition or complaint for divorce

The initial pleading that starts a divorce action and states the basis for the court’s jurisdiction, the basis for the petitioner’s claim, and the relief requested.

pleading

a formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses.

verified complaint or petition

a complaint or petition for divorce that is signed under oath or affirmation by the petitioner attesting to the truth of the factual allegations in the complaint.

summons

a document that is served on the respondent (see the definition for “service of process”) requiring the respondent to appear and answer a complaint/petition for divorce.

service of process

the formal delivery of a writ, summons, or other legal process, pleading, or notice to a litigant or other party interested in litigation; the legal communication of a judicial process

petitioner

a party to a divorce action who presents a petition or complaint to a court seeking relief

respondent

the party against whom a divorce petition or complaint is filed in court. The respondent “responds” to the petition or complaint for divorce.

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

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In Re L.L.B. – 2023 UT App 66 – Termination of Parental Rights Reversed

In re L.L.B. – 2023 UT App 66

THE UTAH COURT OF APPEALS

IN THE INTEREST OF L.L.B.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

C.B. AND H.B.,

Appellees,

v.

J.B.,

Appellant.

Opinion

No. 20210942-CA

Filed June 15, 2023

Eighth District Court, Vernal Department

The Honorable Clark A. McClellan

No. 182800015

Emily Adams, Sara Pfrommer, Melissa Jo Townsend,

and Freyja Johnson, Attorneys for Appellant

Michael D. Harrington and Cameron M. Beech,

Attorneys for Appellees

  1. Erin Bradley Rawlings, Guardian ad Litem

JUDGE AMY J. OLIVER authored this Opinion, in which

JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1 C.B. (Mother) and H.B. (Stepfather) filed a petition seeking termination of J.B.’s (Father) parental rights to L.L.B. (Child) and adoption by Stepfather. After a one-day bench trial, the district court found four statutory grounds for termination. The court also concluded it was in Child’s best interest to terminate Father’s parental rights and that doing so was strictly necessary so Child could be adopted by Stepfather. Father appeals the district court’s conclusion that termination of his parental rights was in Child’s best interest, arguing it was not supported by clear and convincing evidence. We agree with Father that the evidence was insufficient and, therefore, reverse the district court’s ruling terminating Father’s parental rights.

BACKGROUND

¶2        Child was born in September 2009. Less than a week after her birth, Father relapsed on controlled substances and left Child and Mother. Shortly thereafter, Child and Mother moved from the Salt Lake City area to Vernal, Utah. In the months after Mother and Child moved to Vernal, Father saw Child twice—in December 2009 and in April 2010.

¶3        In April 2010, Mother and Father entered into a stipulated agreement of paternity. The decree awarded primary physical custody and sole legal custody to Mother with Father awarded parent-time. It also permitted Mother to request that Father submit to random urinalysis drug testing up to eighteen times a year.

¶4        For several years Father consistently exercised his rights to parent-time. Because Mother lived in Vernal with Stepfather, whom she married in 2013, and Father lived in Salt Lake City, the parties met in Fruitland, Utah to exchange Child. In July 2015, however, Mother and Father got into an argument during an exchange and Child immediately returned to Vernal with Mother and Stepfather. Mother testified that the same month as the confrontation in Fruitland, Child and Father were involved in a four-wheeler accident. For the next several weeks, Mother refused to permit Child to spend parent-time with Father because she was concerned Father had been drinking at the time of the accident. Parent-time resumed after Father sought an order to show cause in the paternity matter.[1] Beginning in April 2016, the parent-time was supervised by Father’s mother because Mother was concerned that Father was using drugs and alcohol around Child.

¶5        In August 2016, Mother and Father discussed the possibility of Father voluntarily relinquishing his parental rights. Mother testified Father was “on the fence” about the idea, and Father admitted he considered it for approximately two months. However, the parties were unable to reach a voluntary agreement. In 2018, Mother and Stepfather filed a Petition for Adoption/Termination of Parental Rights in district court. The petition listed the following grounds supporting the termination of Father’s parental rights: (1) Father abandoned Child, (2) Father neglected Child, (3) Father was an unfit parent, and (4) Father made only token efforts to be a fit parent. Father filed a handwritten response opposing the petition and later filed a counseled answer.

¶6        The district court held a one-day bench trial on November 5, 2021. Mother, Father’s ex-girlfriend (Ex-Girlfriend), Father’s mother, Father’s brother, and Father testified. A guardian ad litem (the GAL) appointed by the district court represented Child.

¶7        Mother’s testimony centered on Father’s lengthy absences from Child’s life, his history of failing to provide financial support for Child, and his past substance abuse. She testified that in February 2017, she asked Father to take a drug test, but he refused. In the months after that refusal, Father attempted to contact Child only twice—once in May 2017 and once more in December 2017. Nearly a year passed until Mother heard from Father again. As to Father’s history of supporting Child, evidence was presented that he made court-ordered child-support payments from 2010 through 2016, but the payments were not for the full amounts ordered. From 2017 forward, Father’s child-support payments totaled seventy-two dollars, and as of September 1, 2021, he was $51,011.25 in arrears. Mother testified that Father had never followed through with his many promises to pay child support, refrain from using drugs and alcohol, and re-establish a relationship with Child. She also testified he had never been involved in Child’s education. Mother admitted, however, that since the termination petition was filed, she had not responded to Father’s requests to see Child and had not told Child about the requests.

¶8        Ex-Girlfriend testified that she and Father dated from 2009 until 2016. She described his alcohol consumption during that period as progressing from weekends to daily. Ex-Girlfriend also testified that Father told her either in 2015 or 2016 that he was using crack cocaine and she found illegal substances in their home and car in 2016. She also confirmed Father was drinking the day he and Child were involved in the four-wheeler accident in July 2015. Ex-Girlfriend testified she now communicates with Father only to discuss matters concerning their daughter, Child’s half-sister (Half-Sister). According to Ex-Girlfriend, Father spends parent-time with Half-Sister and has “a strong relationship” with her. She also testified that Child and Half-Sister have a good relationship that is facilitated and encouraged by her and Mother.

¶9        Father’s mother testified about Father’s relationship with Half-Sister, describing it as a “great relationship” and calling him “a wonderful father.” She testified that she tries to stay in contact with Child, but recently has had difficulty getting responses from Mother. According to Father’s mother, Father’s family last saw Child at a family reunion in the summer of 2020. She stated that Father had substance abuse issues “off and on” from 2009 through 2019 but she was not aware of any substance abuse since 2019.

¶10      Father’s brother testified that “since [Father] put his life back together,” Father has been an “incredible father” and an “incredible uncle.” He also testified about the family reunion, stating Child attended the reunion and he saw her interact with Father. He stated they “spent a lot of time together and had a lot of fun.”

¶11      Father testified he saw Child “a lot” during the first five years of her life and had a good relationship with her. Thereafter, he saw Child off-and-on until August 2016, after which time he did not see her again until 2020 at the family reunion. He admitted their interactions at the reunion were “a little awkward at first” but testified they “ended up having a blast.” He testified he admitted to Child during the reunion that he had not been the best parent and apologized. According to Father, Child responded well to his apology and gave him a hug. Father testified he had not seen Child since the reunion, although he had written letters to Mother, sent a gift, and emailed Child.

¶12      Father admitted he had relapsed on controlled substances three or four times between 2009 and 2019, but testified he has been clean and sober since he went to jail in January 2019. Father testified he participated in drug court after a term of incarceration, calling it “awesome” and “one of the best things” he ever did. As part of drug court, he participated in outpatient treatment, community service, and drug testing. He testified he now works with at-risk children as a boxing coach and was now paying child support.

¶13 The GAL stated Child does not have a relationship with Father because he “wasted that relationship and allowed it to shrivel by his absence and his lack of effort to nourish it.” The GAL described Stepfather as “an excellent father” to Child and stated the two have “a great bond” and “a very close relationship.”

¶14 The district court entered detailed Findings of Fact and Conclusions of Law on December 3, 2021. The court concluded four statutory grounds for termination existed and the bulk of its ruling addressed those grounds. The court found Father abandoned Child by failing to maintain contact with her, neglected Child by not paying child support, and made only token efforts to support Child or communicate with her. Although the court found that Father was “a fit and proper parent” at the time of the hearing, it nevertheless concluded Father was unfit or incompetent for purposes of the statutory grounds for termination because he was unfit and incompetent for much of Child’s life.

¶15      The district court’s best-interest analysis was considerably shorter than its analysis of the statutory grounds for termination. The court identified and examined three factors: (1) whether another person was available to step into the parental role, (2) whether there was evidence Child had been harmed by her relationship with Father, and (3) whether Father’s extended family was a positive influence in Child’s life. Based on that analysis, the court ruled as follows: “The Child desires and deserves to have [a] healthy, stable family relationship with the person that has been and acts as her father figure. The Child’s interest will best be served if the adoption is allowed to move forward. . . . Because the adoption cannot occur without the termination of Father’s parental rights, the Court finds by clear and convincing evidence that it is ‘strictly necessary’ that Father’s rights be terminated.”

ISSUE AND STANDARD OF REVIEW

¶16 Father challenges the district court’s conclusion that termination of his parental rights was in Child’s best interest. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. A lower court’s best-interest ruling is reviewed deferentially but “we will not only consider whether any relevant facts have been left out but assess whether the . . . court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867 (cleaned up).

ANALYSIS

¶17 A court must make two findings before terminating a parent-child relationship:

First, a trial court must find that one or more of the statutory grounds for termination are present. . . . Second, a trial court must find that termination of the parent’s rights is in the best interests of the child. . . . The trial court must make both of these findings not merely by a preponderance of the evidence, but by clear and convincing evidence and the burden of proof rests with the petitioner.

In re B.T.B. (BTB I), 2018 UT App 157, ¶ 13, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827 (cleaned up). “A court may . . . terminate parental rights only when it concludes that a different option is in the child’s best interest and that termination is strictly necessary to facilitate that option.” In re B.T.B. (BTB II), 2020 UT 60, ¶ 66, 472 P.3d 827.

¶18 Mother and Stepfather argue that a district court is not required to undertake the strictly necessary part of the analysis when a petition is filed under the Adoption Act rather than the Termination of Parental Rights Act. Compare Utah Code § 78B-6-112(5)(e) (“The district court may terminate an individual’s parental rights in a child if . . . the individual’s parental rights are terminated on grounds described in Title 80, Chapter 4, Termination and Restoration of Parental Rights, and termination is in the best interests of the child.”), with Utah Code § 80-4-301(1) (“[I]f the juvenile court finds termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court may terminate all parental rights with respect to the parent . . . .”) (formerly codified at § 78A-06-507(1)). But we need not address Mother and Stepfather’s argument, because even without considering the strictly necessary part of the best-interest analysis dictated by the Termination of Parental Rights Act, we conclude, below, that there is not clear and convincing evidence supporting the district court’s conclusion that termination of Father’s parental rights was in Child’s best interest.

¶19 Father first argues the court erred in finding he was an unfit or incompetent parent as a ground for termination because, in his view, the statute requires a finding based on current ability rather than past conduct, and the court found him to be a fit parent at the time of the trial. But Father concedes that three other statutory grounds for termination exist. Because the finding of just one statutory ground for termination is sufficient, it is unnecessary to address Father’s argument as to the fitness ground. See id. § 80-4-301(1); In re S.M., 2017 UT App 108, ¶ 4, 400 P.3d 1201 (per curiam) (“[T]he finding of a single ground will support termination of parental rights.”).

¶20      Father next argues that Mother and Stepfather—the parties seeking termination of his parental rights—failed to present clear and convincing evidence that termination of his parental rights was in Child’s best interest. See BTB II, 2020 UT 60, ¶ 52. He does not challenge any of the district court’s findings as clearly erroneous, but asserts that those findings and the evidence underpinning them do not support the court’s ruling. In Father’s view, the only support for the district court’s ruling was Mother’s testimony that Stepfather and Child love and care for each other and the report of the GAL stating that Child (1) was not comfortable around Father, (2) had a close relationship with Stepfather, and (3) wanted to be adopted by Stepfather.

¶21 The best-interest inquiry “is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation.” Id. ¶ 29 (cleaned up). The lower court must consider the “physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” BTB I, 2018 UT App 157, ¶ 47 (cleaned up). The analysis is undertaken from the child’s point of view. BTB II, 2020 UT 60, ¶ 64. In making the best-interest determination in this matter, the district court analyzed whether there was (1) another person available to step into the parental role, (2) evidence Child had been harmed by the relationship with Father, and (3) a positive role that Father’s extended family played in Child’s life. After considering these three factors,[2] the district court concluded that termination of Father’s parental rights and adoption by Stepfather was in Child’s best interest because she “desires and deserves to have a healthy, stable family relationship with the person that has been and acts as her father figure.” But the record does not contain clear and convincing evidence supporting this conclusion that termination of Father’s parental rights was in Child’s best interest.

¶22      As to whether another person was available to step into the parent role, the district court detailed evidence showing Child loves Stepfather and Stepfather has been a positive presence in Child’s life for many years. It was undisputed that Child has lived with Mother and Stepfather since 2013. The GAL told the district court that Child “is consistent in her desire to be adopted” by Stepfather, has a close relationship with him, and does not view Father as a father figure. The court found Child wants to be adopted by Stepfather and the two have an excellent relationship. But there was no evidence that this relationship will not continue if Father’s rights are not terminated and the adoption does not occur.

¶23 Mother and Stepfather suggest that “failing to terminate Father’s parental rights so that Stepfather can adopt inherently leaves the Child’s relationship with Stepfather, and possibly the Child’s siblings and extended family, vulnerable to termination at any time by . . . Mother’s death.” But such a concern is present in many termination cases, and it does not necessarily lead to the conclusion that termination of a parent’s rights is in the child’s best interest. As our supreme court has explained, “categorical concerns” about the lack of permanence of an option other than adoption are not enough, otherwise “termination and adoption would be strictly necessary across the board.” In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606.

¶24      When considering whether Child had been harmed by the relationship with Father, the court found that Child does not have a relationship with Father and noted Child has expressed some concern for her safety when she is with him. There was no finding, however, that Father’s presence in her life has affirmatively harmed Child. The GAL told the court that Child does not have a comfortable relationship with Father and “there’s a certain level of fear.” But the GAL did not explain or expound on the root of this fear. Further, there was no finding detailing how Child’s life was negatively affected or disrupted by Father’s attempts to exercise his parental rights. There is evidence Father has emailed Child a handful of times since the termination petition was filed, but there was no testimony or other evidence that these emails had any negative effect on Child’s general welfare or happiness.[3] Father also sent communications to Mother asking for an opportunity to meet with Child, but Mother testified she did not respond and did not put Father in contact with Child because Child would not be receptive. Mother’s testimony, however, did not discuss the effects Father’s past attempts at reconciliation had on Child or provide an explanation of why she believed Child would not want to see Father. In short, there is no evidence showing Father’s presence in Child’s life has a negative effect on her happiness and well-being.

¶25 Regarding Child’s relationship with Father’s extended family, the court found that Child has had a relationship with Father’s mother for all her life and the relationship is important to Child. There was also evidence that Child has a strong bond with Half-Sister. Several witnesses testified about Child’s attendance at Father’s family reunion in the summer of 2020. Mother testified that Child called her and was “begging to stay with her cousins.” Father’s brother testified there was some initial awkwardness between Child and Father at the reunion “but they spent a lot of time together and had a lot of fun.” The district court described the weekend as a “huge success” and “enjoyable and successful.” Based on this evidence, the district court found that Child currently has positive and beneficial relationships with Father’s extended family, including Half-Sister and Father’s mother.

¶26 The district court found that Child’s relationships with Father’s extended family would be adversely affected to some extent if Father’s parental rights were terminated and Child was adopted by Stepfather, and then it purported to compare those effects to the benefits Child would glean from a relationship with Stepfather and his family. But there was no evidence presented identifying those benefits or explaining how Child’s ability to maintain relationships with Stepfather and his family would be negatively affected if she was not adopted.

¶27      Despite the district court’s statement that termination was in Child’s best interest because she deserves to have a healthy and stable family relationship, the court made no finding that Child’s current living situation was not healthy and stable. Nor did the court make any finding that her living situation will change in any way if she is not adopted. See BTB I, 2018 UT App 157, ¶ 56. (“[T]he absence of any proposed change in the child’s custody or living situation is a factor that may weigh against termination in some cases . . . .”).

¶28      In sum, the evidence on which the district court relied does not clearly and convincingly demonstrate that termination of Father’s parental rights was in Child’s best interest.

¶29 Other evidence before the district court further undermines, rather than supports, the district court’s ruling that termination of Father’s parental rights was in Child’s best interest. Most obvious and significant is the court’s finding that “Father is presently fit and capable as a parent.” This finding was based on evidence that Father was clean and sober at the time of the termination trial and had been for more than two years. See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (“In termination cases, the . . . court must weigh a parent’s past conduct with her present abilities.”). Father testified he has made many attempts to communicate with Child since his release from incarceration in 2019 and many of those communications were introduced at trial.

¶30 As we have explained, “in making its best-interest determination, . . . especially in cases (like this one) initiated by private petition, it is important for courts to carefully assess a parent’s efforts to improve and, if the court remains unpersuaded that the parent’s situation has sufficiently changed for the better, to specifically set forth reasons why it remains unpersuaded.” In re J.J.W., 2022 UT App 116, ¶ 30, 520 P.3d 38 (cleaned up). But the district court wasn’t unpersuaded that Father had improved his situation for the better. To the contrary, it was persuaded that Father had successfully addressed his problems with controlled substances and found that “Father is presently fit and capable as a parent.”

¶31 The Utah legislature “has made clear that, as a matter of state policy, the default position is that it is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” BTB II, 2020 UT 60, ¶ 65 (cleaned up). The district court’s order contains no analysis of why it was in the best interest of Child to terminate the parental rights of a fit and capable Father in order to be adopted by Stepfather.

¶32 The record also indicates Father currently considers Child’s needs when he makes decisions on her behalf. For example, the district court’s order contains details surrounding Child’s desire to participate in a religious ceremony with Mother, Stepfather, and their other children. The court found that Father was at first reluctant to consent to Child’s participation but relented when he learned Child strongly desired to participate.

¶33      Nearly all the evidence presented at trial was offered in support of the statutory grounds for termination—not the best-interest inquiry. Although the district court was free to consider the evidence supporting the statutory grounds for termination when conducting the best-interest analysis, almost none of that evidence focused on Child’s “physical, intellectual, social, moral, and educational training and general welfare and happiness” as required under the holistic approach. BTB I, 2018 UT App 157, ¶ 47 (cleaned up). And, as explained above, the evidence that did address Child’s best interest largely countered, rather than supported, the conclusion that termination of Father’s parental rights was in her best interest.

¶34      Thus, we are convinced the district court’s conclusion that termination of Father’s parental rights was in Child’s best interest goes against the clear weight of the evidence.

CONCLUSION

¶35      Because the district court’s ruling that termination of Father’s parental rights was in Child’s best interest goes against the clear weight of the evidence, we reverse and remand with instruction to vacate the order terminating Father’s parental rights.

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

[1] Mother testified she permitted Child to spend time with Father after he sought court intervention because she was afraid she “would get put in jail for not allowing the visitations.”

[2] It is unclear why the district court focused exclusively on these three particular factors. Under the required holistic approach, there is no exhaustive list of relevant factors and no one factor deemed relevant by a court is determinative on the question of a child’s best interest. See In re J.P., 2021 UT App 134, ¶ 14, 502 P.3d 1247 (“While courts have identified factors relevant to the best-interest determination, the list is non-exhaustive.”); In re G.J.C., 2016 UT App 147, ¶ 24, 379 P.3d 58 (setting out a non-exhaustive list of factors a court may consider), abrogated on other grounds by In re B.T.B., 2018 UT App 157, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827.

[3] Child responded to only one of Father’s emails. On September 2, 2020, she sent an email simply stating, “Love you.”

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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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Does the respondent get a copy of a restraining order?

Yes, the respondent gets one, as long as the respondent can be found so that he/she can be handed, mailed, or electronically provided with a copy. Indeed, if a respondent is not provided with a copy of the restraining order (or not deemed to have been served with a copy), it can be argued that the restraining order cannot be enforced against the respondent, or at least that the respondent cannot be punished for not complying with an order of which he/she had no notice. However, remember that there are two kinds of “notice”. Actual notice and constructive notice. With constructive notice, it is possible to be “deemed” to be on notice without having any personal possession or knowledge of the notice. 

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

Constructive notice legal definition of constructive notice (thefreedictionary.com) 

Actual Notice legal definition of Actual Notice (thefreedictionary.com) 

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Utah Divorce Case Timeline Summary

Utah Divorce Case Timeline Summary

The greatest influence on how long a divorce case takes is usually how much and how severely the parties fight over the issues. The more they fight and the more things they fight over, the longer and more expensive the divorce process is. But here is a general timeline for a Utah divorce, step by step.

Bottom line: Generally speaking, a contested divorce will likely take between 15 months to 24 months. Bitterly contested divorce cases can take many years. An uncontested divorce can take as little as 45-60 days to complete from the date of filing, if the parties agree on everything.

Timeline

What happens first?

  1. Complaint or petition for divorce is filed (“complaint for divorce” and “petition for divorce” are interchangeable terms). The person who files is the “petitioner”.

What happens next?

  1. Your spouse is served with the summons and a copy of the complaint/petition for divorce. Your spouse is the “respondent”.

When?: The respondent has 21 days to file an “answer” to your complaint. Your spouse will likely not only answer your divorce complaint but also counters through you which is known as a counterclaim.

You will then have 21 days to respond to the counterclaim after it is served on you (and if you have an attorney the counterclaim will be sent to your attorney, and your attorney should provide you with a copy of it).

What happens next?

  1. Financial declaration and initial disclosures. After the complaint have been filed with the court and served on your spouse and after the parties have responded to each other’s respective complaint and counterclaim for divorce they have to exchange what are known as financial declarations and initial disclosures.

Financial declaration. The financial declaration requires you to identify

      • Whether you are employed and if so, by whom and what you earn from employment.
      • Other forms of income other than income from a job (unearned income).
      • Monthly expenses
      • Business interests, if you have any
      • Financial Assets. A description of your financial assets
      • Real Estate. Identifying any interests in real estate that you own
      • Personal Property. A description of your personal property, such as vehicles, boats, trailers, major equipment, furniture, jewelry, and collectibles
      • Debts Owed. A list of your debts and obligations, what you owe, and who your creditors are.

Initial Disclosures. Your initial disclosures require you to disclose:

      • each individual likely to have discoverable information supporting your claims or defenses
      • each fact witness you may call at trial
      • a copy of all documents, data compilations, electronically stored information, and tangible things in your possession or control that you may offer at trial
      • a copy of all documents to which you refer in your pleadings

When?: The petitioner must serve her financial declaration and initial disclosures 14 days after the answer is filed (that’s a lot of work in a fairly short time, so don’t dillydally if you’re the petitioner). The respondent is required to serve his financial declaration and initial disclosures 28 days after the answer is filed.

What happens next?

  1. Temporary orders. After the answer and counterclaim have been filed with the court, it is typical for the parties to request what are known as “temporary orders” from the court. Temporary orders are put in place to ensure that the leaves and affairs of the family are maintained during the pendency of the divorce action. So temporary orders can include things like responsibility for the mortgage and other expenses associated with the house and family. They can include temporary orders of child custody and parent time and child support and spousal support. Temporary orders can include other provisions as well, depending upon the circumstances and needs of your family.

When?: You soonest you could file for temporary orders is when you file your petition/complaint for divorce. Most people file after the petition/complaint for divorce is filed.

After the motions are file the court usually schedules a hearing within 1 to 3 months of the date the motion was filed.

What happens next?

  1. Discovery. Discovery is the process By which the parties request documents and other evidence from each other to help them get a better understanding of the issues, and to determine what issues are really disputed and which ones aren’t or can’t be disputed. Discovery is used to help the parties gain a better understanding of the issues and to help each party build its strongest case against the other party.

When?: You are allowed 180 days for discovery. The discovery period starts the day after the last day that initial disclosures and financial declarations are due from the respondent.

If you have children and you and your spouse are fighting over child custody: a custody evaluation may be ordered. A custody evaluation is supposed to take 4 months. They almost always take longer. Sometimes the custody evaluation won’t be completed by the time discovery closes. Be prepared for this possibility.

What happens next?

  1. Divorce Orientation and Education Courses. If the divorcing couple has minor children then divorce orientation and education courses are mandatory for both parties. You can learn about and sign up for those courses using this link: https://www.utcourts.gov/specproj/dived/

When?: You can take the divorce orientation and education courses any time, even before you file for divorce. Most people sign up for and complete the courses around the time after the answer and the reply to counterclaim have been filed and served.

You cannot obtain a decree of divorce without completing the divorce orientation and education courses or having the requirement to attend them waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Mediation. You must go to mediation before the case can go trial. Most divorce actions settle and most settle in mediation. If neither party wants to go to mediation or there are circumstances (such as domestic violence) that would not make mediation feasible or worthwhile, the parties can move to waive the mediation requirement.

When?: You can go to mediation any time, even before you file for divorce, although if you go to mediation before you or your spouse file(s) for divorce the court may make you go to mediation again before you will be allowed to go to trial.

So bear in mind that you can go to mediation at any point in the case.

You cannot obtain a decree of divorce without engaging in mediation or having the mediation requirement waived (and for most people it’s probably more trouble than it’s worth to try to get the courses waived).

What happens next?

  1. Trial. If the parties do not settle their case (whether in mediation or on their own), then the case goes to trial.

When?: After discovery has closed (after 180-day discovery period has elapsed), then the case can be certified for trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date. All told, it takes about a year to a year and a half to go from filing for divorce to trial.

It usually takes at least 2 or 3 months from the time a party requests a trial date to get a trial date.

All told, it takes about a year to a year and a half to go from filing for divorce to trial.

What happens next?

  1. After trial, the court will make its decisions as to the issues that were argued over and “tried” in court and then the Decree of Divorce is prepared and the court signs it.

When?: Usually 30 to 60 days after trial.

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

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