Pence v. Pence

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally, Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 23
_________________________________________________________
THE UTAH COURT OF APPEALS
SHERI PENCE,
Petitioner and Appellee,
v.
RORY D. PENCE,
Respondent and Appellant.
Per Curiam Decision
No. 20130753-CA
Filed January 30, 2014
Sixth District Court, Richfield Department
The Honorable Paul D. Lyman
No. 134600023
David W. Brown, Attorney for Appellant
Douglas L. Neeley, Attorney for Appellee
Before JUDGES JAMES Z. DAVIS, J. FREDERIC VOROS JR., and
RUSSELL W. BENCH.1
PER CURIAM:
¶1 Rory D. Pence (Husband) appeals the district court’s order
making a previously entered temporary protective order
permanent. This matter is before the court on Husband’s motion
for summary reversal.
¶2 Utah Code section 78B-7-107(b) states that ex parte
temporary protective orders may not be extended beyond the
initial twenty-day period unless:

Pence v. Pence
20130753-CA 2 2014 UT App 23
(i) the petitioner is unable to be present at the
hearing;
(ii) the respondent has not been served;
(iii) the respondent has had the opportunity to
present a defense at the hearing;
(iv) the respondent requests that the ex parte
order be extended; or
(v) exigent circumstances exist.
Utah Code Ann. § 78B-7-107(b) (LexisNexis 2012). Here, a hearing
was scheduled after entry of the initial ex parte protective order.
However, at that hearing the parties agreed that no permanent
order should be entered until a guardian ad litem was appointed
for the children and some of the allegations made against Husband
were investigated by the proper authorities. Accordingly, the
parties agreed to extend the temporary protective order, with some
changes to reflect the visitation rights of Husband. The parties
contemplated that a hearing could be conducted after an
investigation was made of certain allegations. At no point during
the hearing was Husband given the opportunity to present a
defense to the underlying allegations made in the petition for a
protective order. Accordingly, the district court erred in entering
a permanent protective order because Husband was not allowed to
present a defense at the hearing and he did not stipulate to the
entry of a permanent protective order.
¶3 We therefore vacate the July 17, 2013 order making the
protective order permanent. The provisions of the protective order,
however, will remain in effect until an evidentiary hearing is
conducted and a new order is entered.