Friday, October 23, 2009

Protective Orders: Failure to Request an Evidentiary Hearing is Wavier, Stale Abuse Coupled with New Threats is Admissible

Hedgcock v. Hedgcock, 2009 UT App. 304, (Utah Court of Appeals, October 22, 2009).
Wife obtained an Ex Parte Protective Order. At the hearing, the commissioner recommended that the court enter a permanent Protective Order. The Salt Lake District Court issued the permanent Protective Order on September 4, 2008. Husband objected to Commissioner’s recommendation, but before the judge could hold a hearing on the objection, Wife requested a hearing alleging that Husband had broken into her home on September 6, 2008 (2 days after the hearing, Wife had arrived to her home with her children and new boyfriend to find Husband in the home). Husband responded to the request for hearing and objected to the court considering any new information (i.e. the break-in). The court held a telephone conference, at which time the parties agreed to several things. Among them, that no evidentiary hearing would be required. The district court held a hearing on the objection and denied the motion to dismiss the Protective Order because of past abuse and current threats.
Husband appealed to the Utah Court of Appeals alleging that the district court should not have considered stale abuse (abuse that took place and was subject to a previously dismissed protective order). He also argued that the district court should have held an evidentiary hearing.
The Court affirmed, and found that a district court can consider stale abuse when coupled with current threats. The Court also found that Husband had waived any claim to an evidentiary hearing by not requesting it and by never contesting the district court’s conclusion the parties agreed not to have one.


Grant said...

The Court could have ruled this moot and refused to hear it.

All that is necessary for a P.O. is domestic violence. see UCA 78B-7-106. One form of domestic violence is the violation of a P.O. See UCA 77-36-1(4)(k). Breaking into the house would be the violation of the P.O. and sufficient grounds for any modification or subsequent P.O.

Scott said...

I'd like to see the Court of Appeals eventually weigh in on what degree of deference, if any, trial courts should give commissioner's recommendations. I've seen District Court Judges range from strict de novo to abuse of discretion rubber-stamping of whatever a Commissioner recommends.

Grant said...

Thanks Scott. I think that the Objections to Commissioner's recommendations should be handled uniformly instead of being determined by the individual judge's preference. I would even appreciate the presiding judge in each district setting the standard for that district.


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