Card v. Card

2016 UT App 233THE UTAH COURT OF APPEALS
ARIA REBEKAH CARD,
Appellee,
v.
DEVIN JOHN CARD,
Appellant.
Per Curiam Decision
No. 20151001-CA
Filed December 1, 2016
Third District Court, Salt Lake Department
The Honorable Paul G. Maughan
No. 124901827
Mark W. Wiser and Scott B. Wiser, Attorneys
for Appellant
James H. Woodall, Attorney for Appellee
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and JILL
M. POHLMAN.
PER CURIAM:
¶1 Devin John Card appeals the district court’s denial of his
request to dismiss a protective order that his ex-wife, Aria
Rebekah Card, who is now known as Aria Rebekah Marshall
(‚Marshall‛), obtained against him. We affirm.
¶2 In April 2012, Marshall obtained a permanent protective
order based upon allegations of physical violence and sexual
assault by Card. In April 2015—after the permanent protective
order had been in effect for more than two years—Card moved
to dismiss the protective order under Utah Code section
78B-7-115. See Utah Code Ann. § 78B-7-115(1) (LexisNexis Supp.
2016) (‚*A+ protective order that has been in effect for at least
two years may be dismissed if the court determines that the
Card v. Card
petitioner no longer has a reasonable fear of future abuse.‛).
Following an evidentiary hearing on September 1, 2015, the
district court denied the motion to dismiss. The court also
imposed a sanction under Utah Code section 78B-7-115(3), by
awarding Marshall her attorney fees incurred in connection with
the motion to dismiss the protective order. Id. § 78B-7-115(3)
(stating that the court shall enter sanctions if it determines that
either party acted in bad faith or with intent to harass or
intimidate either party). Card appeals both orders.
¶3 This court recently clarified the standard of review
applicable to a district court’s decision on a motion to dismiss a
protective order under section 78B-7-115. See Mota v. Mota, 2016
UT App 201, ¶ 6, ___ P.3d ___. Although ‚*a+ district court’s
interpretation of a statute is a question of law‛ reviewed for
correctness, ‚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.‛ Id. (citations and internal quotation marks
omitted). ‚Therefore, because the statute is permissive, we
review the court’s ultimate decision—whether to grant or deny
*Card’s+ request to dismiss the protective order—for an abuse of
discretion.‛ Id. We review the district court’s factual findings for
clear error. Id.¶4 Utah Code section 78B-7-115(1) allows a court to dismiss a
protective order that has been in effect for at least two years ‚if
the court determines that the petitioner no longer has a
reasonable fear of future abuse.‛ Utah Code Ann. § 78B-7-115(1).
In determining whether the petitioner no longer
has a reasonable fear of future abuse, the court
shall consider the following factors:
(a) whether the respondent has complied with
treatment recommendations related to domestic
violence, entered at the time the protective order
was entered;
20151001-CA 2 2016 UT App 233Card v. Card
(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;
(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.¶5 Card argues that in determining whether Marshall ‚no
longer has a reasonable fear of future abuse,‛ the district court
failed to apply the definition of abuse found in Utah Code
section 78B-7-102(1), which defines ‚abuse‛ as ‚intentionally or
knowingly causing or attempting to cause a cohabitant physical
harm or intentionally or knowingly placing a cohabitant in
reasonable fear of imminent physical harm.‛ Utah Code Ann.
§ 78B-7-102(1) (LexisNexis Supp. 2016). Card contends that
rather than applying the six statutory factors to determine
whether Marshall has a reasonable fear of future ‚physical
harm,‛ the court accepted Marshall’s contention that ‚a
reasonable fear of future abuse‛ includes a reasonable fear of
future ‚domestic violence,‛ a much broader term. See id. § 77-36-
1(4) (defining ‚domestic violence‛ to include the commission of
or attempt to commit harassment, mayhem, and stalking).
¶6 We disagree with Card’s characterization of the record.
During oral argument and in the district court’s written ruling,
the district court acknowledged, and did not reject, the definition
20151001-CA 3 2016 UT App 233Card v. Card
of ‚abuse‛ advocated by Card. And, after evaluating the six
statutory factors in section 78B-7-115, the district court
concluded that ‚*a+ reasonable person under these circumstances
would find Mr. Card’s actions to be threatening, troubling, and
disconcerting, and they would cause fear of future abuse and
domestic violence.‛ (Emphasis added). Had the district court
equated ‚future abuse‛ with ‚domestic violence,‛ as Card
contends, the court’s finding would have been redundant.
¶7 The district court further correctly stated that, in
determining whether a petitioner has a reasonable fear of future
abuse, section 78B-7-115 ‚directs the Court to consider a number
of factors, including whether the protective order has been
violated . . . claims of harassment, and any other factors the court
considers relevant.‛ Although claims of physical harm and
violence are relevant factors to be considered, the statute does
not require the district court to find that physical harm has been
threatened. In fact, ‚*t+he 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.‛ See Mota, 2016 UT App 201, ¶ 21.
¶8 Applying the factors from section 78B-7-115 that were
relevant to the case before it, the district court found that Card
had violated the protective order and that he continued to
engage in violations and provocative actions designed to harass
and intimidate Marshall. See Utah Code Ann. § 78B-7-115(1)(b)–
(d) (LexisNexis Supp. 2016).
He ferreted out Ms. Marshall’s banking
information, without Ms. Marshall’s knowledge or
consent, and deposited child support checks into
her account. He reasoned that it was reasonable to
do so because it was consuming fewer public
resources by not requiring a mail handler or
20151001-CA 4 2016 UT App 233Card v. Card
someone else to do the same job. That such conduct
by Mr. Card would be alarming and disconcerting
to Ms. Marshall, or any other reasonable person,
did not dissuade Mr. Card. The Court finds that
this was a deliberate act to harass, intimidate and
emotionally upset her while Mr. Card justified it as
innocent and practicable.
The district court further found that Card demanded that
Marshall be physically present at a parent-time exchange ‚at a
location he selected on short notice, when there was no order
requiring Ms. Marshall to personally receive the child.‛ The
district court noted Card’s ‚pattern of self-justified behavior
[that was] designed to harass and adversely affect the emotional
stability of‛ Marshall. Card did so ‚in a manner to walk as close
to the line, as he sees it, between compliance with, and
committing a violation of, the Protective Order so that he feels he
has not technically crossed it.‛ The district court also found that
Card hired a process server to serve Marshall with child support
checks, after being notified that she had opened a case with the
Office of Recovery Services (ORS) and appointed them as her
agent for collection of child support. This course of conduct ‚was
again undertaken with the intent to harass and intimidate‛
Marshall. In each instance, Card justified his actions as
reasonable under the circumstances and as calculated to save
time and money or serve his own interests.
¶9 Card argues that the district court did not make sufficient
subsidiary findings to demonstrate how he violated the
protective order. The argument lacks merit. Among other things,
the protective order prohibited Card ‚from directly or indirectly
contacting, harassing, telephoning, e-mailing or otherwise
communicating with‛ Marshall. As demonstrated above, the
district court’s ruling provided sufficiently detailed subsidiary
findings to demonstrate a basis for its finding that Card harassed
Marshall while the protective order was in place. Furthermore,
20151001-CA 5 2016 UT App 233Card v. Card
the district court found that Card continued to take actions that
the district court found were ‚calculated to intimidate, harass
and ensure the emotional distress of‛ Marshall. See id. § 78B-7-
115(1)(c) (requiring consideration of ‚claims of harassment‛).
The court also found that although Card had completed
domestic violence counseling and paid a fine in connection with
a criminal case, he had not internalized the principles of the
course. See id. § 78B-7-115(1)(d).
¶10 Based on these findings, the district court’s ultimately
found,
A reasonable person in these circumstances would
find Mr. Card’s actions to be threatening,
troubling, and disconcerting, and they would cause
fear of future abuse and domestic violence. The
Court finds that Ms. Marshall has been harassed,
intimidated and has a reasonable fear of continued
abuse, and that the Protective Order should remain
in effect.1
¶11 It is abundantly clear from the district court’s ruling that
the court considered the relevant statutory factors in reaching its
determination that the protective order should remain in place
because Card had not demonstrated that Marshall no longer had
a reasonable fear of future abuse. Significantly, the district court
further found that Card had not demonstrated a change in his
1. By way of further clarification, the district court specifically
stated that Card was prohibited from further direct contact with
Marshall, from depositing money into her bank account, from
taking any action to determine where she lives, or from being
within 1,000 feet of her residence. He was directed to use the
professional agency designated in the divorce proceeding for
parent-time exchange.
20151001-CA 6 2016 UT App 233Card v. Card
behavior from the time that the protective order was issued and
that he continued to justify the behavior that the court found to
be threatening, intimidating, and harassing. Under these
circumstances, the district court did not abuse its discretion in
denying the motion to dismiss the protective order.
¶12 Card claims the district court erred in adopting prior
findings made by the court commissioner. Because the district
court’s findings based on the testimony from the September 1,
2015 hearing were sufficient to support its determination that
Marshall had a reasonable fear of future abuse, even without
considering the court commissioner’s findings, Card has not
demonstrated any basis for reversal based upon the inclusion of
those findings in the court’s ruling.
¶13 Finally, Card claims that the district court erred in
imposing a sanction under section 78B-7-115(3). That section
provides that the court ‚shall enter sanctions against either party
if the court determined that either party acted: (a) in bad faith; or
(b) with intent to harass or intimidate either party.‛ Utah Code
Ann. § 78B-7-115(3). The district court found that Card’s actions
were intended to harass or intimidate Marshall. Card has not
demonstrated that this finding was clearly erroneous. Having
made the requisite findings, the district court did not err in
imposing a sanction.
¶14 Affirmed.
20151001-CA 7 2016 UT App 233