Mota v. Mota

2016 UT App 201

THE UTAH COURT OF APPEALS

JENNIFER L. MOTA,
Appellee,
v.
LAWRENCE MOTA II,
Appellant.

Memorandum Decision
No. 20150191-CA
Filed September 22, 2016

Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 124401367

Shirl Don LeBaron, Attorney for Appellant
D. Grant Dickinson and Justin Caplin, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L.
ROTH concurred.

MORTENSEN, Judge:

¶1 Lawrence Mota II appeals the district court’s denial of his
request to dismiss a protective order that his ex-wife, Jennifer L.
Mota, obtained against him. We affirm.

¶2 In April 2011, Jennifer 1 was at home holding the parties’
youngest child when Lawrence threatened to commit suicide

1. In this decision, “[b]ecause the parties still share a last name,
we refer to them by their first names for clarity, with no
disrespect intended by the apparent informality.” Earhart v.
Earhart, 2015 UT App 308, ¶ 2 n.1, 365 P.3d 719.
Mota v. Mota

and picked up a handgun. Jennifer attempted to call 911.
Lawrence then pointed the gun at Jennifer and the child and
said, “If you dial that last number it will be the last thing you
ever do.” Based in part on this event, in June 2012 Jennifer filed a
request for, and the district court granted, an ex parte temporary
protective order. 2

¶3 On June 27, 2012, the district court held a hearing to
determine whether the temporary protective order should be
made permanent. Despite being properly served, Lawrence did
not appear at the hearing. The district court therefore entered a
permanent protective order. No appeal followed. Instead, over
the next three months, Lawrence repeatedly but unsuccessfully
attempted to obtain a dismissal of the protective order. Lawrence
did not appeal any of the orders denying these attempts.

¶4 In August 2014, after the permanent protective order had
been in effect for more than two years, Lawrence again filed a
request to dismiss the protective order, this time under section
78B-7-115 of the Utah Code. See Utah Code Ann. § 78B-7-115(1)
(LexisNexis Supp. 2016) 3 (allowing 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”).
At a hearing held on September 30, 2014, the district court
commissioner indicated that “the Utah State legislature I think

2. These are the facts that supported the initial grant of the
protective order from which Lawrence did not appeal. On
appeal, we consider the facts in a light most favorable to the
district court’s ruling, including its findings. Sheeran v. Thomas,
2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.

3. Any amendments to this statute since the events relevant to
this case do not affect the outcome of this appeal. We therefore
cite the most recent version of the Code for convenience.

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has adopted a reasonable man standard” and determined that
Jennifer “has a reasonable fear” sufficient to keep the protective
order in place. The commissioner reasoned:

[I]f and when someone pulls out a gun and points
it at me I don’t know that I can predict that at any
time in the future I will not have a reasonable fear
of that person if they pulled it out, pointed it at me
and made a threat to kill me with it.

Thus, the protective order remained in place, with minor
amendments agreed to by the parties. Lawrence did not object to
the commissioner’s recommendation, but he timely filed a notice
of appeal after the district court judge signed the final version of
the amended protective order in May 2015.

¶5 On appeal, we must decide whether the district court
erred in denying Lawrence’s request to dismiss the protective
order. In deciding this issue, we consider three arguments
advanced by Lawrence. First, Lawrence argues that the district
court misinterpreted subsection (1)(f) of section 78B-7-115 of the
Utah Code (subsection (f)), which allows taking into account
“any other factors the court considers relevant” in “determining
whether the petitioner no longer has a reasonable fear of future
abuse.” See id. Second, Lawrence contends that the commissioner
never found that Jennifer subjectively had a reasonable fear of
future abuse. And third, Lawrence challenges the factual basis
upon which the protective order was initially granted.

¶6 “A district court’s interpretation of a statute is a question
of law, which we . . . review for correctness.” Alliant Techsystems,
Inc. v. Salt Lake County Board of Equalization, 2012 UT 4, ¶ 17, 270
P.3d 441. However, a statute’s use of the word “may” indicates a
court’s discretionary power, the exercise of which we review for
an abuse of discretion. State v. Draper-Roberts, 2016 UT App 151,
¶ 14 & n.5. Therefore, because the statute is permissive, we
review the court’s ultimate decision—whether to grant or deny

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Lawrence’s request to dismiss the protective order—for an abuse
of discretion. See Utah Code Ann. § 78B-7-115(1) (indicating that
“a protective order that has been in effect for at least two years
may be dismissed” (emphasis added)). 4 We review the
commissioner’s factual findings, which were adopted by the
district court, for clear error. Meyer v. Aposhian, 2016 UT App 47,
¶ 10, 369 P.3d 1284.

¶7 As a threshold matter, we consider whether Lawrence
properly preserved his arguments for appeal. To preserve an
issue for appeal, “[t]he appellant must present the legal basis for
[a] claim to the trial court, not merely the underlying facts or a
tangentially related claim.” Prime Ins. Co. v. Graves, 2016 UT App
23, ¶ 10, 367 P.3d 1029 (alterations in original) (citation and
internal quotation marks omitted). Issues that are not raised
below are usually deemed waived. Wohnoutka v. Kelley, 2014 UT
App 154, ¶ 3, 330 P.3d 762.

¶8 Jennifer contends that Lawrence failed to preserve the
issues raised because he failed to object to the commissioner’s
recommendation that the protective order remain in place. See
Utah R. Civ. P. 108 (setting forth the process for objecting to a
commissioner’s recommendation). Lawrence counters that he
was not required to object because rule 108 provides only an
optional mechanism through which to challenge a
commissioner’s recommendation. We agree with Lawrence.

4. The parties disagree as to what standard of review applies to
this issue. Our own case law provides only that “[w]hen
reviewing challenges to a district court’s decision regarding a
protective order, ‘the appellate court is entrusted with ensuring
legal accuracy and uniformity and should defer to the trial court
on factual matters.’” Snyder v. Snyder, 2010 UT App 130U, para. 2
(per curiam) (quoting Bailey v. Bayles, 2002 UT 58, ¶ 19, 52 P.3d
1158).

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¶9 Rule 108 establishes that “[a] recommendation of a court
commissioner is the order of the court until modified by the
court.” Id. R. 108(a). “A party may file a written objection to the
recommendation within 14 days after the recommendation is
made in open court.” Id. (emphasis added). But, if no objection is
filed, no modification can occur, and the original recommendation
remains “the order of the court.” Id. Thus, Lawrence is correct
that the procedure outlined in rule 108 is optional. And there is
nothing in the plain language of the rule that makes the filing of
an objection a prerequisite to the filing of an appeal or a
necessary step to preserve any particular challenge to the entry
of the order. See Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370
(“We interpret court rules, like statutes and administrative rules,
according to their plain language.”). Instead, the question of
whether a specific issue has been preserved for appeal turns on
whether a party timely and clearly presented an issue below—
either to the commissioner or the district court judge, depending
on whether an objection has been filed. 5 See Normandeau, 2009
UT 44, ¶ 23, 215 P.3d 152; cf. Wolferts v. Wolferts, 2013 UT App
235, ¶ 14, 315 P.3d 448 (explaining that where a party “did not
object or otherwise inform the district court of any dissatisfaction
with” contempt proceedings conducted by a commissioner, we
could not “conclude that [the party] was denied an opportunity
to fully address the contempt allegations against her”).

5. A similar rule applies to the presentation of new evidence in
an objection hearing before the district court: “any evidence,
whether by proffer, testimony or exhibit, not presented to the
commissioner shall not be presented to the judge.” Utah R. Civ.
P. 108(c). However, “[i]f there has been a substantial change of
circumstances since the commissioner’s recommendation, the
judge may, in the interests of judicial economy, consider new
evidence.” Id.

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¶10 But the decision not to object to a commissioner’s
recommendation, while not precluding an appeal, has
consequences. Lawrence’s failure to object limits his ability to
now challenge the factual basis of the commissioner’s
determinations. Where, as here, the hearing before the
commissioner was conducted based on the pleadings, the
proffered evidence, and the arguments of counsel, the only
opportunity to more completely develop the factual record was
through an evidentiary hearing on an objection to the district
court, which Lawrence never sought. See Utah R. Civ. P.
108(d)(2) (“If the hearing before the commissioner was held
under . . . Utah Code Title 78B, Chapter 7, Protective Orders, . . .
any party has the right, upon request, to present testimony and
other evidence on genuine issues of material fact.”). Thus, for
example, the description of Lawrence’s conduct in the protective
order, on which Jennifer based her contention that she still had a
reasonable fear of future abuse, remained essentially unrebutted
because he did not seek an evidentiary hearing before the district
court. And because Lawrence sought no such hearing, the
commissioner could only consider the facts already established
in the record. Accordingly, we will not consider Lawrence’s
arguments 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. 6

6. Beyond these arguments being unpreserved, they also appear
to be of little importance. The commissioner based his
recommendation on the one incident recounted above, when
Lawrence pointed a gun at Jennifer. And even if the other
incidents factored into the commissioner’s determination,
Lawrence fails to show any sort of legal error in hearing
evidence regarding those incidents; instead, he argues how the
evidence might be viewed differently, in a way that would
support dismissing the protective order. But we have repeatedly
explained that “[w]hen a foundation for the court’s decision
(continued…)

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¶11 We therefore focus our attention on the claims that were
preserved for our review. To begin, we consider whether the
commissioner misinterpreted subsection (f), the catch-all
provision of the relevant statute, which 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.” Utah Code Ann. § 78B-7-
115(1) (LexisNexis Supp. 2016). Lawrence argues the
commissioner “overreached the bounds of” this provision when
he “considered the severity of the incident as a relevant factor.”

¶12 Subsection (f) is the last in a list of factors that a court
must consider when “determining whether the petitioner no
longer has a reasonable fear of future abuse” for purposes of
deciding whether to dismiss “a protective order that has been in
effect for at least two years.” Id. These factors are

(a) whether the respondent has complied with
treatment recommendations related to domestic
violence, entered at the time the protective
order was entered;
(b) whether the protective order was violated
during the time it was in force;
(c) claims of harassment, abuse, or violence by
either party during the time the protective
order was in force;
(d) counseling or therapy undertaken by either
party;

(…continued)
exists in the evidence, an appellate court may not engage in a
reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171
P.3d 435.

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(e) impact on the well-being of any minor children
of the parties, if relevant; and
(f) any other factors the court considers relevant to
the case before it.

Id.

¶13 Lawrence contends that subsection (f) “allows a court to
consider other important factors” but should only be used “to
allow a court to reach exceptional circumstances.” At oral
argument Lawrence refined his position, claiming categorically
that conduct that occurred before the protective order was
entered, including the most serious precipitating events, could
not be considered at all. Instead, Lawrence argues, the focus
should be only on conduct that occurred after the protective
order was issued.

¶14 We disagree. Our inquiry begins with the language of the
statute, Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 33,
267 P.3d 863, and we see 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. On the contrary, subsection (f)
invites the court to consider “any other factors the court
considers relevant to the case before it.” Utah Code Ann. § 78B-
7-115(1)(f). Thus, the commissioner here was free to consider the
egregiousness of Lawrence’s underlying conduct—pointing a
gun at Jennifer and their youngest child and threatening to kill
her—so long as he considered the egregiousness to be relevant to
whether Jennifer still had a reasonable fear of future abuse.
Moreover, when the facts that the commissioner considered
make the existence of a reasonable fear of future abuse more or
less likely, such facts are relevant to the commissioner’s
determination. 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.

20150191-CA 8 2016 UT App 201
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¶15 The commissioner’s recommendation acknowledges this
principle. At the hearing before the commissioner, Lawrence
meticulously addressed the factors outlined in subsections (a)
through (e). And, despite a brief suggestion that perhaps
Lawrence should have been ordered to complete therapy—and
noting that she herself had received therapy—Jennifer did not
seriously disagree with Lawrence’s position on those five factors.
Instead, Jennifer focused on subsection (f). Her attorney argued
that under that subsection, “one of the factors that should be . . .
relevant . . . is the severity of the past abuse.” The commissioner
agreed, and that factor weighed heavily in his recommendation
not to disturb the protective order.

¶16 Specifically, it is apparent on the record that the
commissioner focused on the prominent factor that Jennifer
urged: the egregiousness of the underlying conduct. He
discussed the egregiousness of the conduct, indicating that
time—or at least the mere two years that had passed in this
case—would not necessarily erase the fear associated with
having a gun pointed at a person. The commissioner also
concluded that such residual fear would be reasonable, given the
accompanying “threat to kill [the person] with [the gun].”

¶17 The commissioner’s explanation of his decision to leave
the protective order in place, based on the incident with the gun,
makes clear that he deemed the egregiousness of that incident to
be “relevant to the case before it.” See Utah Code Ann. § 78B-7-
115(1)(f) (LexisNexis Supp. 2016). We see no error in this analysis
and hold it to be legally and factually supported. Thus, we cannot
say that the commissioner erred in interpreting subsection (f) to
include prior abuse as relevant to the continuation of the order.

¶18 Concluding that the commissioner did not err in his
interpretation of subsection (f), we are left to decide whether the
court abused its discretion in leaving the protective order in
place. It did not.

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¶19 For Lawrence to demonstrate that the district court
exceeded its discretion, he must show that it “exceeded the
limits of reasonability when it denied the motion” to dismiss the
protective order. See Gudmundson v. Del Ozone, 2010 UT 33,
¶¶ 23–24, 232 P.3d 1059 (deciding whether a district court
abused its discretion in denying a motion under rule 56(f) of the
Utah Rules of Civil Procedure). This he cannot do.

¶20 The protective order here had been in effect more than
two years before Lawrence filed his request to dismiss, putting
his request within the confines of section 78B-7-115(1). Lawrence
argues that “provisions (a)–(e) give guidance to subjects of
protective orders as to what behavior is expected of them in
order to have the protective order eventually dismissed.” In both
his arguments before the commissioner and his arguments on
appeal, Lawrence espouses the view that if a respondent
complies with subsections (a) through (e), the protective order
should be dismissed. 7 We cannot agree with this interpretation
of the statute. Of course, there might be times when satisfaction
of subsections (a) through (e)—or even some of those
subsections—would be sufficient to allow the district court to
conclude that the petitioner no longer had a reasonable fear of
future abuse and to dismiss a protective order. But that does not
mean the statute must operate in the way Lawrence urges.

¶21 The factors outlined in subsections (a) through (e) are all
mandatory considerations. See Utah Code Ann. § 78B-7-115(1).
But consideration of these factors hardly mandates a certain
result. Instead, the statute provides that a protective order may
be dismissed if the petitioner no longer has a reasonable fear of

7. At the hearing, Lawrence explicitly stated, “I don’t know other
than (a) through (e) has been complied with. Therefore
deductive reasoning from, you know, philosophy 101[:] . . . (a)
through (e), therefore (f).”

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future abuse, and it outlines how a court must come to its
conclusion of whether the petitioner still has a reasonable fear.
The statute does not require the court to dismiss the protective
order under any particular circumstance. Rather, if the court’s
decision is guided by the statutory factors, it has discretion to
decide if and when to dismiss a protective order. Under the
circumstances present here, we cannot say that the district court
exceeded this discretion. 8

¶22 Insofar as Lawrence preserved his arguments for appeal,
those arguments are unavailing. The commissioner did not err
when he considered the egregiousness of Lawrence’s original
conduct in concluding that Jennifer still had a reasonable fear of
future abuse or when he recommended keeping the protective
order in place. And the district court did not abuse its discretion
in adopting that recommendation and denying Lawrence’s
request to dismiss the protective order.

¶23 Affirmed.

8. We also note that Lawrence has not challenged the court’s
conclusion that continued fear of a man who pointed a gun at a
petitioner and her child, threatening to kill her if she called 911,
is reasonable.

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