Mota v. Mota, 2016 UT App 201

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Coverage

Facts

The Precipitating Incident (April 2011)

• In April 2011, while Jennifer was at home holding the parties’ youngest child, Lawrence threatened to commit suicide and picked up a handgun.
• When Jennifer attempted to call 911, Lawrence pointed the gun at Jennifer and the child and stated, “If you dial that last number it will be the last thing you ever do.” (¶ 2).

Issuance of the Protective Order (2012)

• In June 2012, relying in part on the April 2011 incident, Jennifer requested and the district court granted an ex parte temporary protective order.
• On June 27, 2012, the district court held a hearing to determine whether the temporary order should be made permanent. Although properly served, Lawrence did not appear, and the court entered a permanent protective order.
• Lawrence did not appeal the permanent order. Over the following three months, he repeatedly but unsuccessfully sought dismissal of the order and did not appeal any of the orders denying those requests.

The 2014 Request to Dismiss

• In August 2014, after the permanent order had been in effect for more than two years, Lawrence filed a request to dismiss under Utah Code § 78B-7-115(1), which permitted dismissal of a two-year-old protective order if the petitioner no longer had a reasonable fear of future abuse.
• At the September 30, 2014 hearing, which proceeded on the pleadings, proffered evidence, and arguments of counsel, Lawrence methodically addressed statutory factors (a) through (e). Jennifer did not seriously dispute his position on those factors, apart from briefly suggesting that he should have been ordered to complete therapy and noting her own therapy, and instead focused on subsection (f), arguing that the severity of past abuse was a relevant factor.
• The commissioner concluded that the Legislature had adopted a reasonable-person standard and that Jennifer “has a reasonable fear” sufficient to keep the order in place, reasoning that he could not predict that a person at whom a gun had been pointed, accompanied by a threat to kill, would at any future time cease to have a reasonable fear of the person who did so.
• The protective order remained in effect, with minor amendments agreed to by the parties.

Post-Hearing Procedure and Appeal

• Lawrence did not file an objection to the commissioner’s recommendation under rule 108 of the Utah Rules of Civil Procedure and did not request an evidentiary hearing before the district judge.
• Lawrence timely filed a notice of appeal after the district judge signed the final amended protective order in May 2015.

Issues of the Case

• Civil Procedure – Preservation of Error

  1. Preservation / Rule 108 Objection to Commissioner’s Recommendation

  Claim on Appeal: Jennifer argued that Lawrence failed to preserve any of his appellate issues because he did not object to the commissioner’s recommendation under rule 108. Lawrence responded that rule 108 provides only an optional mechanism for challenging a recommendation.

  Holding: — Rejected (threshold ruling in Appellant’s favor). Nothing in the plain language of rule 108 makes an objection a prerequisite to appeal; preservation instead turns on whether the issue was timely and clearly presented to the commissioner or, if an objection is filed, to the district judge.

  Statutory Authority: No Utah Code provision; Utah R. Civ. P. 108(a) (a commissioner’s recommendation is the order of the court until modified, and a party “may” object within 14 days).

  Standard of Review:

  Not separately stated — the court resolved the threshold question by interpreting rule 108 according to its plain language, as it would a statute.

  Controlling Cases:

  • Prime Ins. Co. v. Graves, 2016 UT App 23, ¶ 10, 367 P.3d 1029 (appellant must present the legal basis of a claim to the trial court, not merely the underlying facts)
  • Wohnoutka v. Kelley, 2014 UT App 154, ¶ 3, 330 P.3d 762 (issues not raised below are usually deemed waived)
  • Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370 (court rules are interpreted according to their plain language)
  • Normandeau v. Hanson Equipment, Inc., 2009 UT 44, ¶ 23, 215 P.3d 152 (preservation requires timely and clear presentation of the issue below; cited in short form in the opinion)
  • Wolferts v. Wolferts, 2013 UT App 235, ¶ 14, 315 P.3d 448 (cf.; party who did not object to commissioner-conducted proceedings could not claim denial of an opportunity to be heard)

  Why It Matters: The decision confirms that, in commissioner-heard matters, the rule 108 objection is a strategic choice rather than a jurisdictional or preservation prerequisite. A party who clearly presents an issue to the commissioner may raise it on appeal without first objecting. The ruling nonetheless carries a significant caveat, addressed in Issue 2, that makes foregoing an objection costly in practice.

• Protective Orders — Sufficiency of the Evidence

  2. Protective Order / Challenge to Factual Basis of Original Order

  Claim on Appeal: Lawrence argued that some of the bases for the original grant of the protective order were factually untrue or inadequate to support keeping the order in place.

  Holding: — Affirmed (not reached on the merits). Because the commissioner hearing proceeded on pleadings, proffers, and argument, and Lawrence never requested an evidentiary hearing before the district judge under rule 108(d)(2), the record description of his conduct remained essentially unrebutted, and the court declined to consider his factual challenges.

  Statutory Authority: Utah R. Civ. P. 108(c), (d)(2) (evidence not presented to the commissioner may not be presented to the judge absent a substantial change of circumstances; in protective order matters, any party has the right, upon request, to present testimony and other evidence on genuine issues of material fact).

  Standard of Review:

  Clear error — the commissioner’s factual findings, as adopted by the district court.

  No reweighing — where a foundation for the decision exists in the evidence, the appellate court will not reweigh it.

  Controlling Cases:

  • Meyer v. Aposhian, 2016 UT App 47, ¶ 10, 369 P.3d 1284 (commissioner findings adopted by the district court reviewed for clear error)
  • In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (appellate court may not reweigh evidence when a foundation for the decision exists)
  • Sheeran v. Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797 (facts viewed in the light most favorable to the district court’s ruling)

  Why It Matters: Although a rule 108 objection is optional, it is the only avenue for developing a contested factual record when the commissioner hearing proceeds by proffer. A respondent who forgoes the objection and the rule 108(d)(2) evidentiary hearing effectively accepts the petitioner’s factual narrative for appellate purposes. The court added (n.6) that the argument was of little importance in any event, because the commissioner relied on the gun incident alone and Lawrence identified no legal error in the consideration of other incidents.

• Protective Orders — Statutory Interpretation

  3. Statutory Interpretation / Catch-All Factor and Pre-Order Conduct

  Claim on Appeal: Lawrence argued that the commissioner overreached subsection (f) by treating the severity of the precipitating incident as a relevant factor, contending that subsection (f) should be reserved for exceptional circumstances. At oral argument he refined his position to a categorical rule: conduct preceding entry of the protective order, including the most serious precipitating events, may not be considered at all.

  Holding: — Affirmed. Nothing in the statutory text limits the inquiry to facts arising after entry of the protective order; subsection (f) permits a court to consider the egregiousness of the underlying conduct so long as the court deems it relevant to whether the petitioner still has a reasonable fear of future abuse.

  Statutory Authority: Utah Code § 78B-7-115(1)(f) (catch-all permitting consideration of “any other factors the court considers relevant to the case before it” in determining whether the petitioner no longer has a reasonable fear of future abuse). Now renumbered as § 78B-7-605 and substantially restructured; see Section IV.

  Standard of Review:

  Correctness — the district court’s interpretation of the statute.

  Controlling Cases:

  • Alliant Techsystems, Inc. v. Salt Lake County Board of Equalization, 2012 UT 4, ¶ 17, 270 P.3d 441 (statutory interpretation is a question of law reviewed for correctness)
  • Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 33, 267 P.3d 863 (statutory inquiry begins with the text)

  Why It Matters: The holding forecloses the argument that a respondent’s post-order compliance “resets” the analysis and confines the court to conduct occurring while the order was in force. The court supplied an evidentiary rationale: a person’s conduct when not subject to a court order bears directly on how he is likely to behave if the order is lifted. Egregious precipitating conduct therefore remains relevant long after entry of the order.

• Protective Orders — Dismissal

  4. Protective Order Dismissal / Abuse of Discretion

  Claim on Appeal: Lawrence argued that factors (a) through (e) signal to respondents what conduct will earn dismissal, and that satisfying those factors should result in dismissal (describing the point at the hearing as “deductive reasoning” from “philosophy 101”). He also contended that the commissioner never found that Jennifer subjectively had a reasonable fear of future abuse.

  Holding: — Affirmed. Factors (a) through (e) are mandatory considerations, but they do not mandate a particular result; the statute’s permissive “may” gives the court discretion over whether and when to dismiss, and the court did not exceed that discretion by relying on the gun incident. The court did not separately analyze the subjective-fear contention, noting instead (n.8) that Lawrence had not challenged the conclusion that continued fear of a man who pointed a gun at the petitioner and her child was reasonable.

  Statutory Authority: Utah Code § 78B-7-115(1) (protective order in effect at least two years “may be dismissed” if the petitioner no longer has a reasonable fear of future abuse, after consideration of factors (a) through (f)).

  Standard of Review:

  Abuse of discretion — the ultimate decision to grant or deny dismissal, because the statute uses the permissive “may”; appellant must show the court exceeded the limits of reasonability.

  Clear error — the commissioner’s factual findings adopted by the district court.

  Controlling Cases:

  • State v. Draper-Roberts, 2016 UT App 151, ¶ 14 & n.5 (statutory “may” signals discretionary power reviewed for abuse of discretion)
  • Gudmundson v. Del Ozone, 2010 UT 33, ¶¶ 23–24, 232 P.3d 1059 (abuse of discretion requires showing the court exceeded the limits of reasonability)
  • Snyder v. Snyder, 2010 UT App 130U, para. 2 (per curiam) (appellate court ensures legal accuracy and defers to trial court on factual matters in protective order appeals)
  • Bailey v. Bayles, 2002 UT 58, ¶ 19, 52 P.3d 1158 (source of the legal-accuracy/factual-deference formulation quoted in Snyder)

  Why It Matters: Mota establishes that the statutory factors structure the court’s analysis but do not operate as a checklist entitling a compliant respondent to dismissal. A single egregious incident can support a finding of continuing reasonable fear even where every post-order factor favors the respondent. The court also noted (n.4) that the parties disputed the governing standard of review, and it resolved that dispute by applying abuse-of-discretion review to the ultimate decision.

Rules of Evidence

Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

Utah Rules of Appellate Procedure

Utah Rules of Professional Conduct

Case Cited

Litigation and Appellate Strategy

Reversal Predictor

• The commissioner or court fails to address each mandatory statutory factor on the record.
• The court relies on a catch-all consideration without explaining its relevance to whether fear remains reasonable.
• The court applies a purely subjective standard or treats the petitioner’s professed fear as dispositive.
• A timely request for an evidentiary hearing under rule 108(d)(2) is denied in a protective order matter.
• The court treats itself as bound to continue or dismiss the order rather than exercising discretion.

Mandatory Factor Checklist

Under former § 78B-7-115(1), as construed in Mota:

• (a) Respondent’s compliance with domestic violence treatment recommendations entered with the order.
• (b) Whether the protective order was violated while in force.
• (c) Claims of harassment, abuse, or violence by either party while the 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.
• (f) Any other factors the court considers relevant, including the egregiousness of pre-order conduct.

Under current law (verify before filing): § 78B-7-605(1) findings for amendment or dismissal after one year, and § 78B-7-606(2) showings for extension of an expiring order.

Signal Cluster (High-Risk Appeal Profile)

• A record showing the commissioner considered only the precipitating incident without referencing the enumerated factors.
• A timely rule 108 objection with an express rule 108(d)(2) evidentiary-hearing request that was denied or ignored.
• Findings that do not identify whether fear was assessed under an objective reasonable-person standard.
• A precipitating incident of materially lesser severity than the firearm threat in Mota, combined with a long period of compliance and documented treatment.

Mota presented the opposite profile on each point, which is why affirmance was straightforward.

Strategy Insight

• Lawrence’s appeal was framed largely as an evidentiary dispute (the facts were untrue, the compliance factors favored him) layered on a categorical legal theory the text did not support. The only viable path to reversal was a narrowly framed legal-error argument supported by a developed record.
• The lesson is that a protective order dismissal appeal succeeds, if at all, by showing the court misapplied the statutory framework, not by asking the appellate court to weigh the precipitating conduct differently.

Teaching Value

• Mota is a compact vehicle for teaching three recurring family-law appellate concepts: the permissive “may” as a trigger for abuse-of-discretion review, the distinction between mandatory considerations and mandatory outcomes, and the practical interaction between rule 108 and appellate preservation.

Insights

Utah-Only Jurisprudence

• The opinion relies exclusively on Utah authority. All fifteen cases cited are Utah decisions (seven from the Utah Supreme Court and eight from the Utah Court of Appeals), and no federal or out-of-state authority is cited.
• The court resolved the subsection (f) question as a matter of plain text alone, without resort to legislative history or other jurisdictions’ protective order statutes.

Doctrinal Anchors (Utah Supreme Court)

• Alliant Techsystems, Inc. v. Salt Lake County Board of Equalization, 2012 UT 4 — Established that statutory interpretation is reviewed for correctness. Role: supplied the standard for the subsection (f) issue.
• Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50 — Established that statutory analysis begins with the text. Role: grounded the holding that nothing in the statute confines the inquiry to post-order conduct.
• Burns v. Boyden, 2006 UT 14 — Established that court rules are construed like statutes, by their plain language. Role: basis for holding that rule 108 objections are optional.
• Normandeau v. Hanson Equipment, Inc., 2009 UT 44 — Articulated the timely-and-clear-presentation test for preservation. Role: defined where preservation occurs in commissioner-heard matters.
• In re B.R., 2007 UT 82 — Established that appellate courts do not reweigh evidence where a foundation for the decision exists. Role: reinforced rejection of Lawrence’s factual arguments (n.6).
• Gudmundson v. Del Ozone, 2010 UT 33 — Framed abuse of discretion as exceeding the limits of reasonability. Role: supplied the test for the ultimate dismissal decision.
• Bailey v. Bayles, 2002 UT 58 — Established the legal-accuracy/factual-deference allocation in protective order review. Role: cited through Snyder in addressing the standard-of-review dispute (n.4).

The Most Important Holding

• The catch-all factor permits a court to weigh the egregiousness of the conduct that produced the protective order, and satisfaction of the enumerated compliance factors does not entitle a respondent to dismissal.
• The court’s rationale is the most transferable part of the opinion: conduct that occurred when the respondent was not subject to a court order is probative of how he will behave if the order is lifted. That reasoning treats the pre-order period as the best available predictor of post-dismissal risk.
• Practically, a single sufficiently grave incident, such as pointing a firearm at a petitioner and child with a threat to kill, can sustain a finding of continuing reasonable fear notwithstanding a clean compliance record.

Reversal Based on Legal Error vs. Factual Error

• The decision was affirmed in full; there was no reversal on either legal or factual grounds.
• Reversal would most plausibly have followed from legal error, such as a failure to consider the mandatory factors (a) through (e), reliance on a subsection (f) consideration with no stated connection to reasonable fear, application of a purely subjective standard, or denial of a timely request for an evidentiary hearing under rule 108(d)(2).
• A factual-error theory was effectively unavailable because Lawrence never developed a contrary record through the rule 108 evidentiary hearing.

The Rule 108 Paradox — Optional Objection, Real Consequences

• Mota holds both that a rule 108 objection is optional for purposes of appeal and that failing to file one can forfeit the ability to contest the facts. When a commissioner hearing proceeds by proffer, the objection and the accompanying evidentiary-hearing request are the only means of building a contested record.
• The practical rule is that legal arguments may proceed directly to appeal if clearly raised before the commissioner, but factual disputes generally require an objection and a request for testimony before the district judge.

Statutory Evolution After the 2020 Renumbering

• The six-factor, two-year dismissal framework construed in Mota no longer appears in the Utah Code in that form. Current law pairs a narrower dismissal provision (§ 78B-7-605) with automatic three-year expiration subject to extension on a showing of current reasonable fear (§ 78B-7-606).
• The opinion’s core reasoning, that egregious precipitating conduct is relevant to whether fear remains reasonable, is likely to remain persuasive in extension proceedings under § 78B-7-606, though practitioners should expect respondents to emphasize the statute’s requirement of a “current” reasonable fear. This is an analytical projection rather than a holding of the court and should be confirmed against post-2021 appellate authority.

Default Consequences Compound Over Time

• Lawrence’s failure to appear at the 2012 permanency hearing, and his failure to appeal the permanent order or any of the subsequent denials, left the account of the gun incident uncontested for years. By the time of the 2014 motion, that account was the settled factual foundation of the case.

Practitioner Takeaways

Trial Lawyers (Respondent):

• Do not rely on compliance with the enumerated factors alone. Affirmatively address the precipitating conduct, including context, remediation, and changed circumstances, because the court may weigh it heavily.
• If the commissioner hearing proceeds by proffer and the facts are disputed, file a timely rule 108 objection and expressly request an evidentiary hearing under rule 108(d)(2).

Trial Lawyers (Petitioner):

• Where the compliance factors are not seriously contestable, concentrate the argument on the catch-all factor and articulate expressly why the severity of past abuse makes continued fear reasonable.
• Request findings tying the precipitating conduct to the reasonable-fear determination to insulate the ruling under Mota’s relevance requirement.

Appellate Lawyers:

• Frame challenges as legal error (misinterpretation of the statute, failure to consider mandatory factors, wrong standard) rather than disputes over how the evidence should be weighed.
• Confirm that every issue, including any subjective-fear argument, was clearly presented and ruled upon below; unaddressed arguments risk being passed over, as the subjective-fear contention effectively was here.

Self-Represented Respondents and Protective Order Subjects:

• Failing to appear at the initial hearing and failing to appeal can lock in the petitioner’s version of events for the life of the order and beyond.