Patole v. Marksberry
329 P.3d 53
Utah Ct. App.2014Background
- Patole (non‑citizen) and Marksberry married; six months after a garden incident where Patole threw objects, Marksberry grabbed him by the neck, flipped him over her hip, and held him down. No police were called; they continued cohabiting for six months and later separated.
- Patole alleged additional coercive conduct (threats to report his expired visa and threats involving her father) that delayed his petition for nearly a year.
- Patole petitioned for a protective order under the Cohabitant Abuse Act (CAA); the trial court denied the petition after finding Patole was not in immediate danger and was not "really afraid."
- Patole appealed, conceding he failed to preserve the statutory‑interpretation objection below and asked the court to review for plain error.
- The appellate court concluded the trial court misapplied the CAA by treating present fear or imminent danger as a required element when past abuse alone suffices under the statute.
- The court found the error obvious under settled precedent and prejudicial because Marksberry’s admitted conduct likely satisfied the CAA’s definition of abuse; it reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper statutory test under the CAA for protective orders | Patole: CAA requires cohabitant plus either past abuse or substantial likelihood of future abuse; past abuse alone suffices | Trial court/Marksberry: denial premised on lack of immediate danger or present fear | Court held: statute provides two alternative grounds; past abuse alone suffices — trial court erred by demanding present fear/imminent danger |
| Whether error is preserved or subject to plain‑error review | Patole conceded failure to preserve, requested plain‑error review | Trial court record lacked objection at hearing | Court applied plain‑error framework and found error existed, obvious, and prejudicial |
| Whether Marksberry’s conduct constituted "abuse" under CAA | Patole: grabbing, flipping, holding him down is intentional physical harm under CAA | Marksberry: act was justified by his conduct (tantrum) | Court held: conduct was intentional and constitutes physical harm (comparable to slap); likely meets CAA abuse definition |
| Whether trial error prejudiced appellant (reasonable likelihood of a different outcome) | Patole: absent the legal error, reasonable likelihood protective order would be granted | Marksberry: justification/denial might still stand | Court held: reasonable likelihood of more favorable outcome for Patole; reversal and remand warranted |
Key Cases Cited
- Bailey v. Bayles, 52 P.3d 1158 (Utah 2002) (clarifying CAA requires cohabitant and either past abuse or substantial likelihood of immediate danger)
- State v. Dunn, 850 P.2d 1201 (Utah 1993) (plain‑error test)
- Strollo v. Strollo, 828 P.2d 532 (Utah Ct. App. 1992) (discussing coupling past abuse with present threat language)
- Gutierrez v. Medley, 972 P.2d 913 (Utah 1998) (statutory interpretation is reviewed de novo)
- State v. Ross, 951 P.2d 236 (Utah Ct. App. 1997) (when appellate law is unsettled, error may not be plain)