Hastings v. Hastings

Hastings v. Hastings

IN THE UTAH COURT OF APPEALS
 

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Ana A. Hastings,

Petitioner and Appellee,

v.

John Hastings,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040244-CA
 

F I L E D
(October 21, 2004)
 

2004 UT App 373

 

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Fourth District, Provo Department

The Honorable Lynn W. Davis

Attorneys: John Hastings, Gilbert, Arizona, Appellant Pro Se

Douglas B. Thayer and J. Bryan Quesenberry, Provo, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

    John Hastings (Husband) appeals from a protective order and from an order denying his motion to continue the hearing on the protective order.

    Both parties have filed motions to strike the other parties' memoranda, as well as objections to various pleadings. The motions and objections are denied, and we determine the motion for summary disposition based upon the memoranda filed by each party in response to the sua sponte motion.

    On January 23, 2004, Ana Hastings (Wife) filed a verified petition seeking a protective order. The supporting affidavit attested that Husband had engaged in violent or abusive behavior during the marriage and, most recently, during the time period from December 23, 2003 through January 4, 2004, when he was present at the Utah County residence that Wife shared with her parents and the parties' child. Wife obtained an ex parte protective order on January 26, 2004. On February 5, 2004, an Arizona Deputy Sheriff personally served Husband with documents that included the ex parte protective order and a notice of a hearing scheduled for February 13, 2004. See Utah R. Civ. P. 6(b) ("Notice of a hearing shall be served not later than 5 days before the time specified for the hearing, unless a different time period is fixed by these rules or by order of the court.").

    On February 12, 2004, Husband served and filed a "Motion for Continuance" by facsimile, which contended that he did not receive adequate notice and that the petition for a protective order was a "ploy" to obtain custody of the parties' child. At the hearing on February 13, 2004, the commissioner denied the motion for continuance, finding that the petition was not filed as a means to circumvent child custody proceedings, and that Husband was not credible based upon his prior misrepresentation that there were no children born during the marriage. The commissioner signed the protective order on February 13, 2004, and the district court judge signed it on February 18, 2004, which is also the date of its entry. The commissioner's ruling denying a continuance was formalized in an order entered on March 10, 2004.

    Husband claims that Wife did not actually want a protective order and was coerced to seek the order by her counsel. However, the verified petition for a protective order was supported by a detailed affidavit signed by Wife describing instances of physical and verbal abuse, and later by her supplemental affidavit. In addition, this claim was not raised in the district court and does not merit consideration for the first time on appeal. See Shire Dev. v. Frontier Invs., 799 P.2d 221, 224 (Utah Ct. App. 1990) ("As we have reiterated many times, we will not consider an issue raised on appeal for the first time.").

    Both the ex parte protective order and the subsequent protective order entered after the hearing satisfy the requirements of Utah Code section 30-6-4.2. See Utah Code Ann. § 30-6-4.2 (Supp. 2003). A return of service appears in the record and demonstrates that Husband received actual notice. His motion for continuance did not demonstrate that he did not receive the required notice and, instead, claimed that Husband needed three weeks to prepare and arrange travel. Given the fact that Husband resided outside the state of Utah, granting a continuance of the hearing may have been advisable. Nevertheless, Husband has not made an adequate showing of prejudice from the denial to support a determination that the district court abused its discretion by denying the motion for continuance. In denying the continuance, the court expressed concerns about Husband's credibility because of his prior misrepresentations. Accordingly, we conclude that the court did not abuse its discretion in denying the motion. Husband's argument that he did not actually misrepresent the fact that a child had been born during the marriage is without merit, and also was not raised in the trial court.

    Finally, Husband's assertion that he had previously obtained an Arizona protective order that prevented Utah from issuing a protective order also was not raised in the trial court, and it is both factually and legally unsupported.

    We affirm the district court's grant of a protective order and denial of the motion seeking a continuance. We deny the requests of both parties for attorney fees under rule 33 of the Utah Rules of Appellate Procedure, without prejudice to renewal if this case continues.

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge

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I CONCUR IN THE RESULT:

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James Z. Davis, Judge