Miller v. Dasilva

2022 UT App 15

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.
Miller v. Dasilva

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.

1. It appears the commissioner may have mistakenly assessed
whether there was sufficient evidence to issue a civil stalking
injunction, rather than a cohabitant abuse protective order. To
prove stalking for purposes of a civil stalking injunction, the
petitioner must show that the respondent has intentionally or
knowingly engaged in “two or more acts directed at or toward a
specific person” and “knows or should know that the course of
conduct would cause a reasonable person” to fear for their own
or another’s safety or suffer other emotional distress. See Utah
Code Ann. § 76-5-106.5(1)(a), (2) (LexisNexis Supp. 2020). In
contrast, a cohabitant abuse protective order may be issued on a
showing that the cohabitant “has been subjected to abuse or
domestic violence” or where there “is a substantial likelihood of
domestic violence.” Id. § 78B-7-602(1). Despite this apparent
error, we cannot accept Miller’s invitation to reverse the
commissioner’s recommendation because that recommendation
is not a final order subject to appeal. Any errors in the
commissioner’s analysis must be raised at the hearing on Miller’s
objection.

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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

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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-7-
604(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

2. Effective May 5, 2021, the statute now provides that an
objection must be filed within fourteen days and that the
assigned judge must hold a hearing within twenty-one days
after the objection is filed. Utah Code Ann. § 78B-7-604(1)(f)
(LexisNexis Supp. 2021).

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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.

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