Factors Considered in Dismissing A Protective Order
Dismissing A Protective Order and the Mota Case
Mota v. Mota, 2016 UT App 201 involved an interesting issue regarding dismissing a protective order. In April 2011, Jennifer Mota was at home holding the parties’ child. Lawrence Mota II threatened to commit suicide and picked up a handgun. When Jennifer attempted to call 911, Lawrence pointed the gun at Jennifer and their child and threatened to kill her if she dialed 911. In June 2012, Jennifer filed a request for an ex parte temporary protective order, which the district court granted. The district court held a hearing and entered a permanent protective order, and no appeal followed. Lawrence repeatedly attempted to obtain a dismissal of the protective order, but he was unsuccessful.
In August 2014, Lawrence filed a request for dismissing a protective order under section 78B-7-115 of the Utah Code, which allows 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. The district court commissioner noted that the Utah State legislature adopted a reasonable man standard; he believed that Jennifer had a reasonable fear sufficient to keep the protective order in place. Therefore, the protective order remained in place. Lawrence did not object to the commissioner’s recommendation, be he timely filed a notice of appeal.
On appeal, Court of Appeals reviewed the district court’s ultimate decision, whether to grant or deny Lawrence’s request for dismissing a protective order, for an abuse of discretion. The court considered Lawrence’s three arguments in determining this issue: (1) the district court misinterpreted subsection (1)(f) of section 78B-7-115 of the Utah Code; (2) the commissioner never found that Jennifer subjectively had a reasonable fear of future abuse; and (3) Lawrence challenges the factual basis upon which the protective order was initially granted.
The court would not consider Lawrence’s third argument 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. First, the court had to consider whether Lawrence properly preserved his arguments for appeal by presenting the legal basis for a claim to the trial court, not merely the underlying facts or a tangentially related claim. Issues that are not raised below are usually considered waived. Thus, the issue was whether he timely and clearly presented an issue. Lawrence’s failure to object the commissioner’s recommendation limited his ability to later challenge the factual basis of the commissioner’s determinations. Lawrence never sought an evidentiary hearing on an objection to the district court, which would have been the only opportunity to more completely develop the factual record. Therefore, the commissioner could only consider the facts already established in the record.
With respect to the claims that were preserved for review, the appellate court concluded that the commissioner did not err in his interpretation of subsection (f). This subsection 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. Lawrence argued that the focus should be on conduct that occurred after the protective order was issued, but this court disagreed. It saw nothing in the statutory text that would limit the court’s inquiry to only those facts that have arisen after entry of the protective order. It was correct for the commissioner to consider the egregiousness of Lawrence pointing a gun at Jennifer and their child and threatening to kill her, so long as he considered that to be relevant to whether Jennifer still had a reasonable fear of future abuse. 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.
The court concluded that the district court did not abuse its discretion in leaving the protective order in place. The statute does not require the court to dismiss the protective order under any particular circumstance. Instead, if the court’s decision is guided by the statutory factors, it has discretion to decide if and when to dismiss a protective order. The lower court’s decision was affirmed.