Card v. Card
391 P.3d 264
Utah Ct. App.2016Background
- In April 2012 Marshall obtained a permanent protective order against Card alleging physical violence and sexual assault.
- After the order had been in effect >2 years, Card moved in April 2015 to dismiss it under Utah Code §78B-7-115.
- The statute allows dismissal if the court determines the petitioner no longer has a reasonable fear of future abuse and lists six factors the court should consider.
- After an evidentiary hearing (Sept. 1, 2015) the district court denied Card’s motion, finding Card violated the protective order and continued harassing, intimidating, and provocative conduct.
- The court also awarded Marshall attorney fees as a sanction under §78B-7-115(3), concluding Card acted with intent to harass or intimidate.
Issues
| Issue | Plaintiff's Argument (Card) | Defendant's Argument (Marshall) | Held |
|---|---|---|---|
| Whether the district court applied the correct legal definition of "abuse" when evaluating "reasonable fear of future abuse" | Court should have applied the statutory definition of "abuse" in §78B-7-102(1) (physical harm or placing cohabitant in reasonable fear of imminent physical harm) | Court properly applied §78B-7-115 factors and considered harassment and other non-physical conduct as relevant to a reasonable fear of future abuse | Court affirmed — district court considered the statutory factors and did not err in its framing or analysis |
| Whether the district court’s subsidiary findings support its conclusion that Card violated the protective order while it was in force | Card: findings insufficiently specific to show violation | Marshall: evidence showed repeated indirect contact, harassing acts, and pattern of intimidating behavior | Court affirmed — findings were sufficiently detailed to support violations and the conclusion of ongoing harassment |
| Whether adopting prior findings of the court commissioner required reversal | Card: district court improperly adopted commissioner findings | Marshall: district court’s own hearing findings independently support the result | Court affirmed — district court’s independent findings were sufficient even excluding commissioner findings |
| Whether imposition of sanctions under §78B-7-115(3) was erroneous | Card: sanction improper | Marshall: sanction authorized because court found Card acted with intent to harass/intimidate | Court affirmed — district court made requisite findings of intent and did not clearly err |