State v. Hegbloom

2014 UT App 213
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH ,
Plaintiff and Appellee,
v.
KARL MARTIN HEGBLOOM ,
Defendant and Appellant.

Opinion
No. 20120264-CA
Filed September 11, 2014

Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 111903279

Peter A. Daines, Isaac E. McDougall, and John B.
Plimpton, Attorneys for Appellant

Sean D. Reyes and John J. Nielsen,
Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE JOHN A. PEARCE and SENIOR JUDGE JUDITH M. BILLINGS
concurred.1

VOROS, Judge:

¶1 Karl Martin Hegbloom appeals from his conviction after
entering a conditional guilty plea to two counts of attempted
violation of a protective order. He contends on appeal that the
protective order he disobeyed was issued in violation of his due
process rights and thus void. And because it was void, he argues,

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
State v. Hegbloom

he may challenge it collaterally in this criminal proceeding. We
affirm.

BACKGROUND

¶2 Hegbloom and K.M. shared custody of their child, but
custody exchanges proved difficult for both parents. K.M.
eventually obtained an ex parte civil protective order against
Hegbloom.

¶3 Before the hearing on the protective order, Hegbloom filed
a written response. Both parents appeared pro se at the hearing.
Hegbloom brought evidence, some of it unknown to K.M., to
present at the hearing. Rather than receive the evidence, the
commissioner proceeded by proffer. Hegbloom then orally
requested a “formal evidentiary hearing.” The commissioner
responded, “Once I make my ruling, if there’s an objection you . . .
can object and take it before the judge . . . [who] can decide whether
there [will] be a full formal evidentiary hearing.” Insisting that
without the rejected evidence he “ha[d] no case,” Hegbloom again
requested a formal evidentiary hearing; the commissioner again
denied the request.

¶4 At the conclusion of the hearing, the commissioner asked
Hegbloom if he agreed to the terms the guardian ad litem had
proposed for his protective order. He replied, “I . . . agree to those
terms.” (Omission in original.) The commissioner then stated that
she would recommend an extension of the protective order against
Hegbloom on those terms. However, Hegbloom again requested an
evidentiary hearing. The commissioner responded, “You can object
to my recommendations if you believe that they were
inappropriate. That will go to the judge and you can make that
request . . . .” Hegbloom specifically asked if his objection needed
to be in writing, to which the commissioner replied that it did.
Hegbloom then told the commissioner that his written submissions
included a request for a formal evidentiary hearing. The
commissioner responded that she had already denied that, adding,

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State v. Hegbloom

“You may now object and we’ll make that request,” but that his
objection “need[ed] to be in writing.”

¶5 Hegbloom did not file a written objection to the
commissioner’s recommendation. Without holding an evidentiary
hearing, the district court followed the recommendation and
entered a permanent protective order against Hegbloom.
Hegbloom did not appeal.

¶6 A few months later, K.M. reported Hegbloom to the police
for multiple violations of the order. She alleged that he had sent her
multiple text messages and had come to her apartment “dressed as
a clown.” He was charged with nine violations of the protective
order, all third degree felonies.

¶7 In the criminal court, Hegbloom contended that the
protective order had been entered in violation of his due process
rights, rendering it void. The court ruled that Hegbloom’s oral
objection to the commissioner’s recommendation was not a valid
objection and that the entry of the order did not violate his due
process rights. The court stated, “The problem here is that Mr.
Hegbloom did not follow the statutory requirements . . . even
though the commissioner repeatedly gave him that information.”
The criminal court concluded that the commissioner had explained
to Hegbloom how to object to the commissioner’s recommendation
but that Hegbloom had failed to do so.

¶8 Hegbloom entered conditional guilty pleas to two counts of
attempted violation of a protective order, class A misdemeanors,
reserving the right to appeal the district court’s ruling denying his
motion to declare the protective order void.

ISSUE AND STANDARD OF REVIEW

¶9 Hegbloom challenges his conviction on the ground that the
protective order was void. It was void, he argues, because it was
entered in violation of his due process rights, specifically, his right
to an evidentiary hearing. And because the order was void, he

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State v. Hegbloom

argues, he may challenge it collaterally in this criminal proceeding.
“Constitutional issues, including questions regarding due process,
are questions of law that we review for correctness.” State v.
Martinez, 2013 UT 23, ¶ 6, 304 P.3d 54 (citation and internal
quotation marks omitted). Similarly, “[w]hether a judgment is void
or voidable is a question of law.” Nebeker v. Summit County, 2014
UT App 137, ¶ 9.

ANALYSIS

¶10 The threshold question here is whether Hegbloom may, in
this criminal proceeding, collaterally attack the protective order
entered in the prior civil proceeding. Collateral attacks are
disfavored. “With rare exception, when a court with proper
jurisdiction enters a final judgment . . . that judgment can only be
attacked on direct appeal.” State v. Hamilton, 2003 UT 22, ¶ 25, 70
P.3d 111. An attack “is regarded as collateral if made when the
judgment is offered as the basis of a claim in a subsequent
proceeding.” Olsen v. Board of Educ., 571 P.2d 1336, 1338 (Utah
1977).

¶11 A void judgment “is open to collateral attack.” Farley v.
Farley, 431 P.2d 133, 137 (Utah 1967); 46 Am. Jur. 2d Judgments § 29
(2006). But “[t]he concept of a void judgment is narrowly construed
in the interest of finality.” Brimhall v. Mecham, 494 P.2d 525, 526
(Utah 1972). Two circumstances may render a judgment void. First,
a “judgment [is] void on its face for lack of jurisdiction in the
court.” Bowen v. Olsen, 246 P.2d 602, 605 (Utah 1952). Second, a
judgment is void when the court entering the judgment “acted in
a manner inconsistent with due process of law.” Brimhall, 494 P.2d
at 526. Hegbloom relies on the second basis.2

2. Although Hegbloom nominally mentions the Utah Constitution,
he does not set forth “a unique state constitutional analysis.” See
State v. Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397. Accordingly, we
decline to separately consider any state constitutional claim. See id.

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State v. Hegbloom

¶12 “‘The purpose of due process is to prevent fundamental
unfairness.’” State v. Parker, 872 P.2d 1041, 1048 (Utah Ct. App.
1994) (quoting State v. Maestas, 815 P.2d 1319, 1325 (Utah Ct. App.
1991)); see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) (stating
that the aim of due process is “‘to prevent fundamental
unfairness’” (quoting Lisenba v. California, 314 U.S. 219, 236 (1941))).
Due process cannot be confined to a specific formula but rather is
“‘flexible and calls for such procedural protections as the particular
situation demands.’” Mathews v. Eldridge, 424 U.S. 319, 321 (1976)
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

¶13 At a minimum, due process requires “[t]imely and adequate
notice and an opportunity to be heard in a meaningful way.” Salt
Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 50,
299 P.3d 990 (alteration in original) (citation and internal quotation
marks omitted). The opportunity to be heard in a meaningful way
includes the “opportunity to present evidence and argument on
that issue before decision.” Plumb v. State, 809 P.2d 734, 743 (Utah
1990).

¶14 Hegbloom does not claim that he lacked actual notice of the
protective-order proceeding. Rather, he contends that he was
denied the opportunity to be heard. This denial, he reasons, took
the form of a requirement that he file a written objection to the
commissioner’s recommendation after the conclusion of the
hearing before the commissioner. And because the district court
entered the protective order in violation of his due process rights,
Hegbloom may, he asserts, collaterally attack it.3

¶15 We do not agree that the civil protective order is subject to
collateral attack. To begin with, the case law does not support
Hegbloom on this point. Hegbloom cites many Utah cases stating

3. Hegbloom does not assert that, had he objected to the
commissioner’s finding in the manner she prescribed, the district
court would have denied him an evidentiary hearing. Nor does he
assert that the alleged procedural error would not have been
corrected on appeal had he appealed.

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in the abstract the rule that a denial of due process renders a
judgment void and hence subject to collateral attack. But none of
these cases address the situation before us here: the wrongful
denial of an evidentiary hearing.4

4. See, e.g., State v. Candland, 2013 UT 55, ¶¶ 13, 25, 309 P.3d 230
(rejecting, on direct appeal, a challenge to guilty plea); In re
Adoption of Baby E.Z., 2011 UT 38, ¶¶ 37, 44, 266 P.3d 702 (holding,
on direct appeal, that the federal Parental Kidnapping Prevention
Act does not deprive Utah courts of subject matter jurisdiction
where another state first exercised jurisdiction over the adoption);
Garcia v. Garcia, 712 P.2d 288, 291 n.5 (Utah 1986) (holding that
divorce decree entered without effective service on respondent
should be set aside under rule 60(b) of the Utah Rules of Civil
Procedure); Brimhall v. Mecham, 494 P.2d 525, 526 (Utah 1972)
(refusing rule 60(b) relief to a wife who asserted the judgment
against her was void on the ground that the appearance of the
attorney employed by her husband was unauthorized to represent
her interests); Utah Power & Light Co. v. Richmond Irrigation Co., 13
P.2d 320, 324 (Utah 1932) (holding, on direct appeal, that the mere
fact that a judgment may be erroneous does not render it void);
Bangerter v. Petty, 2010 UT App 49, ¶ 14, 228 P.3d 1250 (holding that
an incorrect property description in a sheriff’s deed is a “minor
irregularity” that did not render the sale void and thus subject to
collateral attack); State v. Rawlings, 893 P.2d 1063, 1071 (Utah Ct.
App. 1995) (holding that because the defendant was not given
proper notice of a probation extension hearing, the district court
lacked the authority to extend the defendant’s probation); Jenkins
v. Weis, 868 P.2d 1374, 1383 (Utah Ct. App. 1994) (holding void, on
direct appeal, a district court’s sua sponte dismissal of a cause of
action without notice or hearing); Richins v. Delbert Chipman & Sons
Co., 817 P.2d 382, 385 (Utah Ct. App. 1991) (affirming, on direct
appeal, the denial of relief under rule 60(b)(5) on the ground that
“[n]othing in the record indicates that the court lacked jurisdiction
over the subject matter or over the parties or was otherwise
incompetent to render judgment”); Workman v. Nagle Constr., Inc.,
802 P.2d 749, 753 (Utah Ct. App. 1990) (holding void, on direct
(continued...)

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State v. Hegbloom

¶16 Indeed, Hegbloom cites no Utah case upholding a collateral
attack. He does cite a Utah case allowing a challenge to a void
judgment under rule 60(b)(5) of the Utah Rules of Civil Procedure,
but that case involved lack of service, not lack of an evidentiary
hearing. See Garcia v. Garcia, 712 P.2d 288, 291 & n.5 (Utah 1986)
(holding that a divorce decree entered without effective service on
the respondent should be set aside under rule 60(b)(5)). Hegbloom
cites one non-Utah case permitting collateral attack on due process
grounds, but its rationale relies on lack of notice, not lack of an
evidentiary hearing. See Olson v. State, 77 P.3d 15, 16–18 (Alaska Ct.
App. 2003) (holding that a defendant who had “never received
notice of the hearing” on a petition for a long-term protective order
could not be convicted for violating it).

¶17 Hegbloom attempts to frame his denial of an evidentiary
hearing as a denial of notice. But he received notice of both the ex
parte order and the extension of that order. He attended the
hearing and even challenged the grounds for the order to the
extent possible without calling witnesses. But he did not seek an
evidentiary hearing in district court as instructed by the
commissioner. Hegbloom now contends that the commissioner’s
instructions were erroneous under rule 7 of the Utah Rules of Civil
Procedure and section 78B-7-107(1)(f) of the Utah Code. But even
if Hegbloom is correct, we cannot agree that the error denied him
notice. We thus reject his argument that “the fact that he was
deprived of an opportunity to be meaningfully heard meant that he
never received sufficient notice and the issuing court lacked
jurisdiction.”

¶18 Hegbloom’s claim finds the strongest support in Wiscombe
v. Wiscombe, 744 P.2d 1024, 1025 (Utah Ct. App. 1987). The basic
facts of Wiscombe are similar to those before us. In Wiscombe, a

4. (...continued)
appeal, a judgment against members of a class in a class action
where “nothing in the record indicates that the members of the
would-be class . . . were notified that this action had been brought
to adjudicate their claims”).

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State v. Hegbloom

divorced couple attended a proffer hearing before a domestic-
relations commissioner. Id. at 1024–25. The husband made no
written objection to the commissioner’s recommendation, but
claimed to have orally objected, a claim the wife challenged. Id. at
1025. The district court found that the husband had failed to
properly object to the recommendation of the commissioner and
entered judgment consistent with the commissioner’s
recommendation. Id. The husband directly appealed to this court.
Id.

¶19 We held, “Given the lack of opportunity for a complete
evidentiary hearing in proceedings before the domestic relations
commissioner, we believe in this case that procedural due process
requires that any doubts about compliance with Rule 8(d) ought to
be resolved in favor of [the husband], who was seeking a full
evidentiary hearing before [the district court].” Id. “One of the
fundamental requisites of due process,” we noted, “is the
opportunity to be fully heard.” Id. at 1025–26. And where “it was
not clear that [the husband] waived his due process right to a full
hearing,” the district court should have granted one. Id. at 1026.

¶20 Our opinion in Wiscombe aids Hegbloom to this extent: we
classified the wrongful denial of an evidentiary hearing on the
protective order as a violation of due process. Crucially, though,
Wiscombe involved a direct appeal. Even in dicta, it never mentions
voidness, jurisdiction, or collateral attacks. And unlike the husband
in Wiscombe, Hegbloom did not appeal the judgment of the district
court in the protective-order case. Instead, he violated the order
and now belatedly seeks to attack it collaterally . We are unwilling
to extend Wiscombe’s holding beyond its facts and its stated
rationale. Wiscombe does ground its holding on due process. But as
explained above, our reading of the cases suggests that not every
due process violation rendering a judgment erroneous necessarily
renders it void as well.

¶21 Had Hegbloom lacked notice of the protective-order
proceeding, we might well agree that the resulting order was void.
A litigant denied notice of a proceeding has no opportunity to

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bring an appellate challenge; to deny such a litigant the right to
collaterally challenge the judgment entered without notice—and
thus without an opportunity to be heard—would indeed be
fundamentally unfair. Denying a collateral challenge to that
judgment would foreclose any opportunity to be heard in
connection with the entry of the order.

¶22 But Hegbloom stands on different footing. He received
notice, attended the hearing before the commissioner, stated his
intention to seek an evidentiary hearing, and was instructed how
to do so. He does not claim that he lacked notice of entry of the
district court judgment or was prevented from bringing a direct
appeal. The husband in Wiscombe appealed the judgment entered
against him. Hegbloom could have done likewise. After all, “[t]he
proper method for contesting an adverse ruling is to appeal it, not
to violate it.” State v. Clark, 2005 UT 75, ¶ 36, 124 P.3d 235. We see
nothing fundamentally unfair in not allowing a litigant to challenge
collaterally a judgment he could have challenged directly had he
chosen to do so.

¶23 In sum, once the protective order was entered against
Hegbloom and with his knowledge, he was obligated either to
appeal it or obey it. He was not free to disobey it and then
challenge it collaterally in the criminal proceeding. Whatever errors
were or were not made by the commissioner or the district court in
the protective-order proceeding did not render the judgment
entered there void and subject to collateral attack.

CONCLUSION

¶24 The judgment of the district court is affirmed.

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