Wall v. Wal

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Marcia P. Wall,
Plaintiff and Appellee,

v.

Dean H. Wall,
Defendant and Appellant

AMENDED MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971741-CA

FILED
March 19, 1999 1999 UT App 072

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Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
J. Scott Brown and Stephen R. Sloan, Salt Lake City, for Appellant
Todd A. Utzinger, Salt Lake City, for Appellee

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Before Judges Wilkins, Jackson, and Billings.

BILLINGS, Judge:

Appellant Dean Wall (husband) appeals the trial court's order affirming the issuance of a protective order to Marcia Wall (wife). Husband raises two issues: (1) whether the protective order met the statutory requirements; and (2) whether the trial court should have held an evidentiary hearing to determine if the protective order was appropriate. We affirm.
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This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 971741-CA issued on March 11, 1999. The listing of Judge Greenwood on the panel was in error. Judge Jackson is now correctly identified.Utah Code Ann. § 30-6-2(1) explains when and to whom a protective order may issue: "Any cohabitant or any child residing with a cohabitant who has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of immediate danger of abuse or domestic violence, may seek an ex parte protective order. . . ." Utah Code Ann. §30-6-2(1) (1998). Further, "[i]f it appears from a petition for an order for protection . . . that domestic violence or abuse has occurred . . . a court may: without notice, immediately issue an order for protection
ex parte . . . as it considers necessary to protect the petitioner and all parties named to be protected in the petition." Id. § 30-6-4.2(1)(a) (1998). Finally, Utah Code Ann. § 30-6-4.4 makes clear that "[t]he court may not deny a petitioner relief requested pursuant to this chapter [i.e., the Cohabitant Abuse Act] solely because of a lapse of time between an act of domestic violence or abuse and the filing of the petition for an order of protection. Id. §30-6-4.4 (1998).

In Strollo v. Strollo, 828 P.2d 532 (Utah Ct. App. 1992), this court held that the Cohabitant Abuse Act protects those who are in current fear of physical harm when there is a history of domestic violence coupled with the fear of future harm: Section 30-6-2 clearly indicates that "any [cohabitant] who has been subjected to abuse" may seek a protective order. Further, because "abuse" is defined as "intentionally placing another in fear of imminent physical harm," if past abuse is coupled with a present threat of future abuse, a person may seek a protective order.
. . . Past abusive behavior, although not dispositive, is a factor in determining cause for protection.
. . . The statute clearly protects those who are reasonably in fear of physical harm resulting from past conduct coupled with a present threat of future harm. Strollo, 828 P.2d at 534-35 (internal quotations and citations omitted).

In this case, husband acknowledged at the protective order hearing that he physically assaulted wife fifteen months prior to wife's seeking the order. However, husband argues there is no "present threat of future abuse." In contrast, wife testified she was concerned for her well being because litigation concerning her petition to modify the divorce decree and restrict husband's visitation rights with their children "has been heating up," and there had been an increase in confrontations between herself and husband. We conclude the trial court correctly affirmed the commissioner's issuance of this limited protective order as the court, on the record before it, could reasonably conclude that wife was in fear of future harm.

Husband also argues the trial court erred because it did not hold an evidentiary hearing to determine whether the protective order's issuance was appropriate. We conclude husband has failed to preserve this issue for appeal. "'The "mere mention" of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal.'" Tolman v. Winchester Hills Co., Inc., 912 P.2d 457, 461 (Utah Ct. App. 1996) (citations omitted); see also Mills v. Brody, 929 P.2d 360, 364 (Utah Ct. App. 1996) (concluding appellant failed to preserve claim where "nominal references did not sufficiently raise the issue to a 'level of consciousness' before the trial court.").

Here, husband never raised his desire to have an evidentiary hearing before the commissioner.(1) Following the commissioner's recommendation that the protective order should issue, husband filed a written memorandum objecting to the recommendation. Wife answered husband's objection and husband filed a reply memorandum. The first and only time husband mentioned a request for an evidentiary hearing was in his reply memorandum, where he quoted language from our opinion in Strollo, stating that "if the trial court cannot make a determination from the face of the pleadings, the court should hold an evidentiary hearing to ferret out the allegations and determine whether a protective order is appropriate under the circumstances." Strollo, 828 P.2d at 535. This statement is insufficient to preserve this issue on appeal.

Husband did not timely nor specifically request that an evidentiary hearing be held; rather he stated "if the trial court cannot make a determination from the face of the pleadings" an evidentiary hearing should be held. The trial court evidently determined an evidentiary hearing was not necessary after reviewing all pertinent documents, and affirmed the commissioner's recommendation. We find no error and therefore affirm.

Wife requests attorney fees under Rule 33, Utah Rules of Appellate Procedure, claiming that this appeal was frivolous. We decline to award attorney fees.
 

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Judith M. Billings, Judge

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WE CONCUR:
 
 

Michael J. Wilkins,
Presiding Judge
 
 

Norman H. Jackson, Judge

1 "Court commissioners shall have the following authority: At the commissioner's discretion, and after notice to all parties or their counsel, conduct evidentiary hearings . . ." Utah Code of Judicial Administration 6-401(2)(F) (1998).