Meyer v. Aposhian

2016 UT App 47

THE UTAH COURT OF APPEALS

NATALIE NEWELL MEYER,
Appellant,
v.
WINTON CLARK APOSHIAN,
Appellee.

Opinion
No. 20140166-CA
Filed March 10, 2016

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 134902809

Mitchell J. Olsen and Beau J. Olsen, Attorneys
for Appellant
J. Morgan Philpot, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE JAMES Z.
DAVIS concurred. 1

VOROS, Judge:

¶1 Natalie Meyer appeals the district court’s denial of her
petition for a domestic protective order against her ex-husband,
Winton Clark Aposhian. 2 The district court ruled that Meyer

1. Senior Judge James Z. Davis began his work on this case as a
member of the Utah Court of Appeals. He retired from the court,
but thereafter became a Senior Judge. He completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 11-201(6).

2. Appellee Aposhian did not file a brief on appeal.
Meyer v. Aposhian

failed to show that she is a victim of abuse or domestic violence,
as required for a protective order under the Cohabitant Abuse
Act (the Act). See Utah Code Ann. § 78B-7-103(1) (LexisNexis
2012). We affirm.

BACKGROUND

¶2 Meyer sought a protective order in May 2013, citing a
number of encounters with Aposhian beginning in 2008. Both
Meyer and Aposhian testified at the protective order hearing;
she described a series of threatening actions, he a series of
innocuous encounters. For example, Meyer, a high school
teacher and tennis coach, testified that Aposhian would come to
the tennis courts when she was coaching. She told her principal
that she was going through a contentious divorce. The principal
arranged for the school resource officer to “keep the peace” at
the tennis courts. Aposhian testified that he would pick up their
daughter from her school and, at the daughter’s request, walk
with her to the tennis courts.

¶3 The encounters culminated in May 2013, when Aposhian
drove his large, military-style truck through the neighborhood,
sounded its horn, and backed it onto Meyer’s driveway.
Aposhian testified that he was celebrating a holiday weekend,
that he still had friends living in the neighborhood who enjoyed
seeing his truck, and that Meyer’s driveway was the only
location to turn the truck around. He also testified that he
carefully backed into the driveway, assisted by two neighbors.

¶4 Meyer testified that she was in her home with their
daughter when she “heard the sound of an army truck and . . . a
blaring horn.” She watched through the window as Aposhian
talked with neighbors and then backed the truck into her
driveway to leave the cul-de-sac. She testified that she thought
Aposhian was going to hit her car, that their daughter was

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“upset,” and that her “heart [was] racing.” She also testified that
the two did not communicate during the incident.

¶5 Meyer’s current husband testified that he came home
after Aposhian had driven away and found Meyer and her
daughter “shaken and scared.” Mr. Meyer testified that he called
Aposhian and asked him not to back his truck into the Meyers’
driveway again. Mr. Meyer testified that after the call ended,
Aposhian called him back and said that he would come to the
house and “bury you, I’ll end you,” to which Mr. Meyer
responded, “Bring it, bitch.” Mr. Meyer testified that he reported
Aposhian’s threats to the police.

¶6 Aposhian testified that he returned to the Meyers’ house
in a different truck to see if the military-style truck had damaged
the driveway. Two police officers were there when he arrived
and both testified that Aposhian was “agitated.” They testified
that when they asked him to get out of his truck, Aposhian
informed them that he was armed; they initially allowed him to
keep his gun, but eventually disarmed him and arrested him for
trespassing.

¶7 After the truck incident, Meyer petitioned the court for a
protective order, and Mr. Meyer petitioned the court for a civil
stalking injunction. A different district court judge heard and
granted Mr. Meyer’s petition for a civil stalking injunction.

¶8 The district court denied Meyer’s petition. The court
stated that the “remedy of a Domestic Protective Order is
deliberately narrow. It requires that a cohabitant seeking such an
order ‘has been subjected to abuse or domestic violence’ or that
there is a ‘substantial likelihood of abuse or domestic violence.’”
(Quoting Utah Code Ann. § 78B-7-103 (LexisNexis 2012).) The
court specifically considered abuse and two implicated
categories of domestic violence—criminal trespass and stalking.
The court found that Meyer was not the victim of abuse or

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Meyer v. Aposhian

domestic violence and that Aposhian posed no imminent threat
of abuse or domestic violence to Meyer. Meyer timely appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Meyer first contends that the district court erred in
finding no reasonable basis for her to fear as a result of
Aposhian’s actions. She next contends that the district court
erred by “not tak[ing] into account [her] fear for her husband.”
She also contends that the district court “applied the wrong
standard in determining emotional distress.” Finally, she
contends that she is entitled to attorney fees incurred during
both the district court proceedings and this appeal.

¶10 “When reviewing challenges to a district court’s decision
regarding a protective order under the Cohabitant Abuse Act,
the ‘appellate court is entrusted with ensuring legal accuracy
and uniformity and should defer to the trial court on factual
matters.’” Richardson v. Rupper, 2014 UT App 11, ¶ 7, 318 P.3d
1218 (quoting Bailey v. Bayles, 2002 UT 58, ¶ 19, 52 P.3d 1158). We
“review the trial court’s findings of fact for clear error, reversing
only where [a] finding is against the clear weight of the
evidence, or if we otherwise reach a firm conviction that a
mistake has been made.” Zappe v. Bullock, 2014 UT App 250, ¶ 4,
338 P.3d 242 (alteration in original) (citation and internal
quotation marks omitted).

ANALYSIS

¶11 To obtain a protective order under the Cohabitant Abuse
Act, “a petitioner must prove that he or she is (1) a ‘cohabitant’
(2) ‘who has been subjected to abuse or domestic violence, or to
whom there is a substantial likelihood of abuse or domestic
violence.’” Patole v. Marksberry, 2014 UT App 131, ¶ 12, 329 P.3d
53 (quoting Utah Code Ann. § 78B-7-103 (LexisNexis Supp.

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Meyer v. Aposhian

2015)). The Act incorporates the definition of “domestic
violence” from section 77-36-1. See Utah Code Ann. § 78B-7-
102(5) (LexisNexis Supp. 2015). That definition of “domestic
violence” includes “commission or attempt to commit, . . . by
one cohabitant against another . . . stalking.” Id. § 77-36-1(4)(i).
Stalking, in turn, is defined in section 76-5-106.5:

A person is guilty of stalking who intentionally or
knowingly engages in a course of conduct directed
at a specific person and knows or should know that
the course of conduct would cause a reasonable
person: (a) to fear for the person’s own safety or
the safety of a third person; or (b) to suffer other
emotional distress.

Id. § 76-5-106.5(2) (LexisNexis 2012). Emotional distress “means
significant mental or psychological suffering, whether or not
medical or other professional treatment or counseling is
required.” Id. § 76-5-106.5(1)(d).

¶12 The district court applied these definitions in ruling that
“Ms. Meyer has not been the victim of abuse or domestic
violence by Mr. Aposhian, and there is no imminent threat of
abuse or domestic violence by him.” Meyer challenges these
rulings on appeal, arguing in effect that the court erred in
finding that Aposhian’s “explanation of the events was
credible.”

¶13 “Findings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.” Utah R. Civ. P. 52(a).
“Credibility determinations are within the province of the
[district court] judge, who is uniquely equipped to make factual
findings based exclusively on oral testimony due to his or her
opportunity to view the witnesses firsthand, to assess their
demeanor, and to consider their testimonies in the context of the

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Meyer v. Aposhian

proceedings as a whole.” Kidd v. Kidd, 2014 UT App 26, ¶ 34, 321
P.3d 200 (citation and internal quotation marks omitted).
Furthermore, “judges, by virtue of the duties of their office, are
regularly exposed to evidence of incidents of domestic violence
and the persons involved in such incidents.” M.K. v. Doyle, 2014
UT App 160, ¶ 8, 330 P.3d 1278. A court does not “view the
incidents in isolation when determining whether a reasonable
person in [the petitioner’s] position would fear for her safety.
Rather, [it] evaluate[s] whether the course of conduct considered
in the context of the circumstances would cause a reasonable
person to fear for her safety.” Butters v. Herbert, 2012 UT App
329, ¶ 18, 291 P.3d 826 (citations and internal quotation marks
omitted).

¶14 Meyer claims that in finding Aposhian’s testimony
credible, the district court “misconstrue[d] the significance of
[his] acts and fail[ed] to acknowledge that [his] actions go over
and above the circumstances divorcing parties tend to engage
in.” She also claims that the court incorrectly concluded “that
there was no indication that physical violence would occur.” She
argues that under the stalking statute, “the petitioner needs to
only fear.”

¶15 At the protective order hearing, the district court “heard
testimony concerning a number of events that [Meyer] claim[ed]
justify a conclusion that she is in imminent threat of physical
violence from [Aposhian].” After considering the testimony of
both parties, the court “found Mr. Aposhian’s version of these
events credible” and “did not find credible Ms. Meyer’s claims
that Mr. Aposhian’s presence . . . would cause a reasonable
person to suffer significant emotional distress.”

¶16 The court also found that “[d]espite a lengthy and
contentious divorce, Ms. Meyer is unable to testify to any single
instance where Mr. Aposhian committed any physical violence
or overtly threatened physical violence to her.” The court found

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Meyer v. Aposhian

that Meyer “has found her interactions with Mr. Aposhian since
her separation upsetting, intimidating, and annoying,” but
determined that such feelings “do[] not lead to a conclusion that
they will escalate to violence.” The court finally found that,
although “[c]ontentious divorces, by nature, cause emotional
distress,” “Meyer’s claims that Mr. Aposhian’s [behavior] would
cause a reasonable person to suffer significant emotional
distress” were not credible. These credibility determinations are
not against the clear weight of the evidence, nor do we have a
definite and firm conviction that a mistake has been made. On
the contrary, because the district court judge was “uniquely
equipped” to make credibility determinations, see Kidd, 2014 UT
App 26, ¶ 34, we defer to the credibility findings of the district
court—specifically that Aposhian’s testimony was credible and
that a reasonable person would not fear Aposhian’s actions as he
described them.

¶17 Meyer next contends that the district court “completely
dismissed the fear that [Meyer] had for her husband and did not
take it into account when denying the protective order.”

¶18 A person may be guilty of the predicate crime of stalking
if that person knowingly or intentionally engages in a course of
conduct “directed at a specific person and knows or should
know that the course of conduct would cause a reasonable
person . . . to fear for the person’s own safety or the safety of a
third person.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2012)
(emphasis added). Meyer is thus correct as a matter of law that a
domestic protective order may be based on the petitioner’s fear
for the safety of a third person.

¶19 But this case presents an atypical twist: the third person
for whose safety Meyer feared had already obtained a civil
stalking injunction against Aposhian. The court here did not
”dismiss[] the fear” Meyer had for her husband; it simply
included Mr. Meyer’s civil stalking injunction in the reasonable-

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person calculus. And it in effect concluded that, looking at both
the stalking injunction and the other facts of this case—bearing
in mind the court accepted Aposhian’s version of events—a
reasonable person in Meyer’s position would not fear for Mr.
Meyer’s safety. In so doing, the district court acted reasonably
and in keeping with the statute.

¶20 Next, Meyer contends that the district court “applied the
wrong standard in determining emotional distress.” Meyer
argues that the court misinterpreted and misapplied two
standards in the stalking statute: the reasonable person standard
and the emotional distress standard.

¶21 Meyer first argues that the district court misapplied the
reasonable person standard. It erred, she maintains, in finding
“that a reasonable person would not have experienced emotional
distress [or fear] as a result of [Aposhian’s] actions.” She argues
that the “appropriate standard under Utah law is if a reasonable
person, under the same situation and circumstances as [Meyer],
would have suffered emotional distress from [Aposhian’s]
conduct.” “The proper interpretation and application of a statute
is a question of law which we review for correctness, affording
no deference to the district court’s legal conclusion[s].” Ellison v.
Stam, 2006 UT App 150, ¶ 16, 136 P.3d 1242 (alteration in
original) (citation and internal quotation marks omitted).

¶22 The “offense of stalking does not focus on the particular
emotional distress [a particular victim] suffers, but rather on
how the defendant’s conduct would affect a reasonable person.”
Baird v. Baird, 2014 UT 08, ¶ 24, 322 P.3d 728 (alteration in
original) (citation and internal quotation marks omitted). The
statute defines a “reasonable person” as “a reasonable person in
the victim’s circumstances.” Utah Code Ann. § 76-5-106.5(1)(e).
“By including ‘in the victim’s circumstances’ as part of the
‘reasonable person’ definition, [section 76-5-106.5] provides for
an individualized objective standard. Under this standard, a

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court must consider the entire context surrounding defendant’s
conduct.” Baird, 2014 UT 08, ¶ 26 (citation omitted). However,
“courts must avoid succumbing to a purely subjective analysis,
which is inconsistent with the objective standard’s intent to
protect[] against criminalizing conduct that only an
unreasonably sensitive or paranoid victim would find harassing
so as to reduce the risk of a truly innocent defendant falling
within the ambit of [a stalking statute].” Id. ¶ 27 (alterations in
original) (citation and internal quotation marks omitted).

¶23 Meyer argues that “[t]here is nothing in the record that
establishes that the trial court looked at the totality of the
circumstances from a reasonable person in [Meyer’s] position
and how [Aposhian’s] actions would have affected a reasonable
person in [Meyer’s] circumstances.” We disagree.

¶24 The district court, after summarizing all the incidents in
question, stated that it did “not view these incidents in isolation,
but consider[ed] all of the incidents, taken as a whole, as to
whether they amount to a course of conduct directed at Ms.
Meyer that would cause a reasonable person to suffer significant
emotional distress.” It concluded that such incidents “may be
annoying, painful, or intimidating, but to make the leap from
there to ‘significant emotional distress’ under the stalking
statutes would transform every unpleasant divorce into a
potential stalking action.” The district court therefore correctly
applied the “reasonable person” standard in this case.

¶25 Meyer next argues that the district court misapplied the
emotional distress standard. She maintains that the court
incorrectly concluded that “the behavior of [Aposhian] had to
involve behavior so outrageous as to reasonably result in
significant emotional distress.” Meyer argues that “[t]his
determination is inappropriate because ‘outrageous behavior’
should not be read into the statute.”

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¶26 This argument was not preserved. “The purpose of the
preservation requirement is to put the district court on notice of
an issue and provide it with an opportunity to rule on it.”
Donjuan v. McDermott, 2011 UT 72, ¶ 20, 266 P.3d 839. “To
properly preserve an issue for appellate review, the issue must
be raised in the district court. Additionally, the issue must be
specifically raised, in a timely manner, and must be supported
by evidence and relevant legal authority.” Id.; see also State v.
McNeil, 2016 UT 3, ¶ 24.

¶27 Meyer has not identified a point in the record where she
presented this argument to the district court. See Utah R. App. P.
24(a)(5) (requiring an appellant’s brief to provide either a
“citation to the record showing that the issue was preserved in
the trial court” or a “statement of grounds for seeking review of
an issue not preserved”). Nor has our review of the record
revealed any such presentation. See Wohnoutka v. Kelley, 2014 UT
App 154, ¶ 6, 330 P.3d 762 (“An appellate court should not be
asked to scour the record to save an appeal by remedying the
deficiencies of an appellant’s brief. We have nonetheless
reviewed the record designated on appeal . . . .”).

¶28 Because Meyer did not raise this issue in the district court,
she did not preserve it. Because she did not preserve it, we
decline to consider it. See Hale v. Big H Constr., Inc., 2012 UT App
283, ¶ 55, 288 P.3d 1046. However, we note that the supreme
court addressed the stalking statute’s emotional distress
standard in Baird v. Baird, 2014 UT 08, 322 P.3d 728, a case
decided after the district court entered the order at issue here.
The supreme court held that, as amended in 2008, “[t]he statute
leaves no room for a requirement of proof of outrageous and
intolerable conduct.” Id. ¶ 38 (internal quotation marks omitted).

¶29 The district court recognized that, at the time of the
hearing, the emotional distress “standard . . . is a bit up in the
air” and informed the parties that the standard “was interpreted

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to equate to the tort standard at one point, then the standard for
the statute was amended.” The court further explained, “There’s
a dispute among folks about whether it . . . was intended to
amend the appellate court interpretation or not. I tend to be on
the spectrum of it needs to be significant emotional distress, i.e.,
something like the requirement for tortious infliction of
emotional distress.” The court then invited the parties “to brief
it.” Despite this information and invitation, Meyer did not brief
the emotional distress standard for the district court, and
therefore did not preserve her argument for appeal. 3

¶30 Finally, Meyer contends that we should award her
attorney fees resulting from this appeal. “A party seeking to
recover attorney’s fees incurred on appeal shall state the request
explicitly and set forth the legal basis for such an award.” Utah
R. App. P. 24(a)(9). Further, “only the prevailing or successful
party is entitled to an award of attorney fees.” Olsen v. Lund,
2010 UT App 353, ¶ 6, 246 P.3d 521. Meyer does not cite any
legal basis for an award of attorney fees and has not prevailed
on appeal. We therefore deny her request for fees.

¶31 The judgment of the district court is affirmed.

3. Even if Meyer had preserved this argument in the district
court, it would not have changed the outcome on appeal. The
district court found that the behaviors at issue in this case were
common in “contentious divorces.” Given the court’s findings,
we agree that “to make the leap from there to ‘significant
emotional distress’ under the stalking statutes would transform
every unpleasant divorce into a potential stalking action.’”

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