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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 Any protective orders issued are no longer valid.”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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GAL recommendations are nowhere close to being the best way

GAL recommendations are nowhere close to being the best way to determining the child’s best interest.

This post is the thirteenth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

If a guardian ad litem claims to tell the court what a child said, that violates the rule against hearsay and violates the privilege against disclosure of attorney client communications.

When I point out to the court a guardian ad litem’s attempts to proffer hearsay statements, I am either ignored or told that there is a special exception for guardians ad litem (which is not true). When I try to invoke Utah rule of evidence 806 to cross examine a child on the hearsay statements (to determine whether what the child is alleged to have said is actually what the child said), I’m either giving an emperor’s new clothes kind of denial or just ignored. Now you understand that if the judge would question the child directly, there would be little to no need to cross-examine the child in the first place (if the judge questioned the children well, for example). Likewise, if a judge would question a child directly there would rarely, if ever, be a need to appoint a guardian ad litem or custody evaluator for the child’s benefit either. I do not understand why we have guardians ad litem or custody evaluators serve the purpose of “giving the child a voice” when the child has his or her own voice and is perfectly capable of using it, especially in articulating and attempting to advance the child’s own best interest by speaking directly with the court as to the child’s experiences, observations, ceilings, concerns, opinions and desires, without the child’s words being parsed or filtered or misconstrued by second and third hand intermediaries.

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

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How useful are a GAL’s or custody evaluator’s recommendations?

How useful are a GAL’s or custody evaluator’s recommendations?  

This post is the twelfth in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.  

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides. 

Then there’s the nature and quality of the guardian ad litem’s and/or custody evaluator’s recommendations. They are never, never detailed or presented in a manner that subjects them to independent objective verification.  The guardian ad litem makes a recommendation to the court the guardians recommendations are cursory and vague. Things like, “I’ve spoken to my client and he is scared of his father.” While a custody evaluator’s recommendations may include more background information and supporting detail, as I stated previously, the problem with custody evaluator recommendations is that I’ve had more than one custody evaluator confided to me that they are afraid to give their frank assessments and opinions because they fear being reported to their licensing boards and/or being sued if they happen to make recommendations adverse to a parent. So, custody evaluators also end up giving vague, equivocal, and less than completely forthright analyses and recommendations. 

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

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If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?

If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?

 

This post is the seventh in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

 

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

 

I respectfully submit that claiming a child will know or “feel” a painful or harmful difference between an interview conducted by a judge as opposed to an interview by a GAL and/or custody evaluator is patently without merit. There is no independently verifiable proof for the claim that a judge interviewing a child on the subject of child custody issues inherently harms a child or exposes a child to a risk of harm. And when you think about, the very idea that a judge talking to a child will cause the child some kind of unwarranted harm—if indeed any real harm at all—is silly on its face.

 

If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, what concerns the child, and what the child’s opinions and desires are, the idea that the best way to do this is through an interview by anyone but the judge is as absurd as it is counterproductive. Worse, to suggest that a guardian ad litem (who got literally a few hours of training in a hotel ballroom seminar and YouTube) or mental health professional thousands of dollars and take weeks or months to provide a milquetoast report and recommendations is indefensible.

 

You may ask why custody evaluators analyses and recommendations are usually so vague and timid. It’s a fair and crucial question. It’s out of fear of being reported to DOPL or sued for malpractice by the parent against whom the evaluator may make adverse recommendations. Knowing this, it is impossible to justify why so many judges and lawyers are so resistant to a judge conducting the interview of the child directly and on the record.

 

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

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