Factors Considered in Dismissing A Protective Order

Dismissing A Protective Order and the Mota Case

Factors considered in dismissing a protective order.
In Mota v. Mota, the Utah Court of Appeals addressed dismissing a protective order.

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.

2 comments on “Factors Considered in Dismissing A Protective Order

First thing, if this man really had the intent and wanted to harm his wife and child, a piece of paper saying not to isn’t really going to stop him from doing so. For the reasoning given of what might happen if the court order wasn’t in place is a ridiculous train of thought at best. I’m not informed enough on their case to give an opinion on dismissing the P.O. but from what I read it would seem as if the respondent had never stopped trying to clear his name which in turn leads me to believe that his claims of the untrue reasoning given for the P.O. being originally placed may hold some merit. This whole protective order process is the most unconstitutional and unjust process there is. Something needs to be done about it. The fact that a person is guilty until the slim chance of proving themselves innoncent and it happening without a shred of any evidence except the petitioners side of a story that they tell to a judge. This can have a dramatically negative impact on the other person’s emotional state, financial security, overall quality of life in general and that’s not including the disruption of family life. This all happening without the respondent getting to speak on their own behalf is ridiculously absurd and unlawful. Sure they get a hearing to be heard but you’re already guilty in the courts eyes despite the actual happenings. Having been through it, makes it hard to be unbiased but I do know that you can’t measure a person’s level of fear. You can however measure the amount of incidents happening after the order was placed. If there hasn’t been any, the guy in this case has proven he’s more than capable of not being involved with the wife and shouldn’t be continually punished for something that can’t even be proved for or against. In any other type of anything involving the judicial system, there needs to be beyond a reasonable doubt of proof for conviction so why is this any different?

I filed for a protective order and granted the temporary order and went to court and the commissioner dismissed my protective order then when my husband took the kids his second week visitation he went down to the courts and filed a protective order on the same allegations but switched the names around it was granted and i went to court and the commissioner granted the permanent order and then when I went to trial for the allegations the jury found me not guilty but the victim in self defense so after the trial I went to the courts with the information I was given but the courts for the trial along with my husband’s current pending charges or aggravated assault and 3 domestic in presence of a child with his new girlfriend almost exactly a year later for the assault I went to trial for for defending myself. Commissioner DENIED my request to dismiss the protective order so I could see my kids but knowing I had my son due toy husband abusing him and kicking him out at the age 9 modified the order and took the kids schools off so I could place son in school well I ended up getting picked up on a revoked bail due to not going to court cause that was the day I had my son and so I was worried about his safety and the officers took my son to the Christmas Box House and assured me and the bondsman that my mom would be a to pick him up and well they lied and so now due to the protective order the courts won’t allow the state to release my son to me and I did as they advised me to do and filed a motion to modify the protective order and take the kids off the order due to the state DCFS and CPS wanting to place the kids in my custody and once again the judge denied my request and so the DCFS and CPS case workers have been trying to do what they can to help me and I have court October 1st and October 2nd. And the whole reason my husband got the protective order is cause I filed for divorce and he couldn’t control me and take my kids from me and Force me to be with him so the next best way to control me was to file the protective order and have the court order what he wanted in order to show me he has control and he has slandered my name and I can’t do nothing about it. Dr. ***** is what I named him and he has made it fit to his image

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