Roper v. Shovan

2013 UT App 124_________________________________________________________
THE UTAH COURT OF APPEALS
KELLI ANN ROPER,
Plaintiff and Appellee,
v.
JACOB MICHAEL SHOVAN,
Defendant and Appellant.
Per Curiam Decision
No. 20130134‐CA
Filed May 16, 2013
Third District, West Jordan Department
The Honorable Mark S. Kouris
No. 120415652
Jacob Michael Shovan, Appellant Pro Se
Kelli Ann Roper, Appellee Pro Se
Before JUDGES THORNE, VOROS, and CHRISTIANSEN.
PER CURIAM:
¶1 Appellant Jacob Michael Shovan appeals the district court’s
issuance of a civil stalking injunction. Accordingly, the issues
before this court are limited to a determination whether the district
court erred in issuing the civil stalking injunction. To the extent
that Shovan seeks affirmative relief regarding issues of child
custody and parent‐time, those issues are not properly before this
court on appeal and must be pursued within the pending divorce
proceedings between Shovan and Appellee Kelli Ann Roper. This
case is before the court on a sua sponte motion for summary
disposition.
¶2 “In order to enter a civil stalking injunction, the district court
must conclude that ‘an offense of stalking has occurred’ that meets
the criteria for the ‘crime of stalking as defined by [Utah Code]
Roper v. Shovan
section 76‐5‐106.5(2)’—the criminal stalking statute.” Coombs v.
Dietrich, 2011 UT App 136, ¶ 2, 253 P.3d 1121 (quoting Utah Code
Ann. § 77‐3a‐101(1), (5) (2008)).
A person is guilty of stalking who intentionally or
knowingly engages in a course of conduct directed at
a specific person and knows or should know that the
course of conduct would cause a reasonable person
. . . to fear for the person’s own safety or the safety of
a third person or . . . to suffer other emotional
distress.
Utah Code Ann. § 76‐5‐106.5(2) (LexisNexis 2012). “Course of
conduct” includes “two or more acts directed at or toward a
specific person, including . . . acts in which the actor follows,
monitors, observes, photographs, surveils, threatens, or
communicates to . . . a person . . . directly” or “approaches or
confronts a person.” Id. § 76‐5‐106.5(1)(b)(i),(ii). “[W]e review the
trial court’s findings of fact for clear error, reversing only where [a]
finding is against the clear weight of the evidence, or if we
otherwise reach a firm conviction that a mistake has been made.”
ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App.
1997).
¶3 Roper alleged two incidents to establish a course of conduct
constituting stalking, each of which arose when Shovan was
picking up the parties’ children to exercise parent time. In each
instance, Roper alleged that Shovan physically and verbally
confronted Roper in the presence of the children causing her to be
frightened for her safety. Although Shovan and Roper were
divorced in a bifurcated proceeding, the divorce proceedings
remained pending, and the divorce court had not entered any final
order on custody and parent time issues. Following a hearing, the
district court found that
[Shovan] intentionally and knowingly engaged in a
course of conduct that would cause a reasonable
20130134‐CA 2 2013 UT App 124Roper v. Shovan
person to fear bodily injury or suffer emotional
distress on two or more occasions. Specifically, given
the tumultuous relationship this couple’s had, for
him to show up, he knows that’s going to cause
problems, yet he chooses to do it anyway. Second of
all, he should have known or did know in fact the
victim would be bothered by this; and lastly, that she
was in fear and suffered some emotional distress
because of this.
¶4 After explaining the requirements of the civil stalking
injunction, the district court also explained, on the record, the
parent‐time schedule established by the temporary order of the
divorce court. Although a dispute arose at the hearing regarding
the parent‐time schedule, the district court clearly limited its ruling
to enforcing the divorce court’s temporary order, while urging the
parties to diligently proceed to obtain a final decree from the
divorce court. Shovan’s claim that the district court in the civil
stalking case ordered less parent‐time than he was entitled to by
statute is without merit. The district court in this case was bound
by the order in the divorce court, and any modification or
interpretation of that order must be pursued in the ongoing divorce
proceedings. Similarly, to the extent that Shovan seeks affirmative
relief from this court to modify parent‐time, we lack jurisdiction to
consider those issues and claims and they must be pursued in the
divorce case.
¶5 Shovan contends that the district court in the civil stalking
case incorrectly considered how Roper “felt” in ruling on the civil
stalking injunction. “A person is guilty of stalking who
intentionally or knowingly engages in a course of conduct directed
at a specific person and knows or should know that the course of
conduct would cause a reasonable person” to fear for her safety or
the safety of a third person or “to suffer other emotional distress.”
Utah Code Ann. § 76‐5‐106.5(2). “‘Reasonable person’ means a
reasonable person in the victim’s circumstances.” Id.
§ 76‐5‐106.5(1)(e). Roper alleged two incidents in which Shovan
20130134‐CA 3 2013 UT App 124Roper v. Shovan
confronted her at the children’s school or in her neighborhood and
acted in a confrontational or harassing manner toward her. Under
the civil stalking statute, the district court appropriately considered
Roper’s reaction to Shovan’s behavior as a reasonable person under
the victim’s circumstances. The district court’s findings are not
clearly erroneous and support the civil stalking injunction.
¶6 Shovan claims that he was prevented by the district court
from presenting all relevant evidence and that the district court
incorrectly limited the evidence to that related to the two alleged
incidents of stalking. The district court properly limited the
evidence and testimony to the events of October 24 and November
9, 2012. At several points in the hearing, the district court asked
Shovan whether he had any additional information he wanted to
provide about those events. Also during the hearing, the district
court asked whether Roper had any evidence of the parties’
arrangements for picking up the children on October 24, or
November 9, 2012. Roper produced an email and testimony about
communication with Shovan. The district court then made the
same inquiry of Shovan, who stated that he did not have any
emails with him in court.
¶7 Shovan was not limited in his testimony about his
understanding of the arrangements for the days in question. For
the first time on appeal, he argues that previously undisclosed
emails dated September 12, and October 23, 2012, support his
position regarding the parties’ agreements. However, because
those emails were not presented to the district court, we do not
consider them on appeal. “Under ordinary circumstances, we will
not consider an issue brought for the first time on appeal unless the
trial court committed plain error or exceptional circumstances
exist.” RJW Media, Inc. v. CIT Grp./Consumer Fin., Inc, 2008 UT App
476, ¶ 24 n.3, 202 P.3d 291 (citation and internal quotation marks
omitted). Finally, when Shovan expressed to the district court that
he believed he had not been allowed to fully explain his position,
the district court asked him what he felt he had not been able to
explain and gave him an opportunity to do so. Shovan’s response
20130134‐CA 4 2013 UT App 124Roper v. Shovan
was to accuse Roper of lying, rather than to identify any evidence
that he wished to place before the court. Shovan was not prevented
from presenting any testimony or evidence that was relevant to the
stalking allegations and was given a fair opportunity to present any
evidence.
¶8 Shovan also claims that the district court exhibited bias or
prejudice towards him. A claim of judicial bias or prejudice must
be raised in a timely manner by a motion filed in the district court
under rule 63 of the Utah Rules of Civil Procedure. See Utah R. Civ.
P. 63(b). Shovan did not file such a motion. Accordingly, we also do
not consider that claim because it is raised for the first time on
appeal.
¶9 Finally, Shovan claims that Roper was generally untruthful
in her testimony and therefore this court should disregard it on
appeal. However, we defer to the advantaged position of the
district court to make credibility determinations and will not
substitute our judgment for that of the district court. Salt Lake City
v. Hughes, 2011 UT App 128, ¶ 5, 253 P.3d 1118 (“It is the province
of the trier of fact to assess the credibility of witnesses, and we will
not second‐guess the trial court where there is a reasonable basis to
support its findings.”).
¶10 We conclude that the district court’s factual findings
supporting the ultimate conclusion that Shovan engaged in a
course of conduct that would cause a reasonable person in Roper’s
position to fear for her safety or experience emotional distress are
not clearly erroneous and that they support the decision to issue
the stalking injunction in this case. See Coombs v. Dietrich, 2011 UT
App 136, ¶ 16, 253 P.3d 1121. Accordingly, we affirm the district
court’s decision.
20130134‐CA 5 2013 UT App 124