Oaks v. Hullinger

Oaks v. Hullinger

IN THE UTAH COURT OF APPEALS

----ooOoo----

Jaylene Oaks,

Petitioner and Appellee,

v.

Andrew Hullinger,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030487-CA
 

F I L E D
(February 12, 2004)
 

2004 UT App 21

 

-----

Eighth District Juvenile, Vernal Department

The Honorable Larry A. Steele

Attorneys: Bryan Sidwell, Vernal, for Appellant

Jaylene Oaks, Vernal, Appellee Pro Se

Martha Pierce, Salt Lake City, Guardian Ad Litem

-----

Before Judges Billings, Davis, and Orme.

ORME, Judge:

Appellant argues that multiple references to the word "cohabitant" in the verified petition for a protective order prove that the protective order was issued pursuant to Utah Code Ann. § 30-6-2 (Supp. 2003), a section of the Cohabitant Abuse Act dealing with protective orders. However, the transcript of the protective order hearing reveals that the trial court issued the order pursuant to Utah Code Ann. § 78-3h-102 (Supp. 2003).(1) That section states that "[a]ny interested person may file a petition for a protective order on behalf of a child who has been abused . . . or is in imminent danger of being abused." Utah Code Ann. § 78-3h-102(1) (emphasis added). As used in the prior act, see note 1, an "'[a]bused child' includes a minor less than 18 years of age who . . . has suffered or been threatened with nonaccidental physical or mental harm." Utah Code Ann. § 78-3a-103(1)(a)(i) (2002). We conclude that there is not a requirement in section 78-3h-102 that Appellant and the minor child, for whose benefit the protective order was sought, be cohabitants, and the Cohabitant Abuse Act is thus wholly inapplicable to this case.

We recognize that the written protective order, as well as the ex parte petition for protective order, are on preprinted forms, which refer to section 30-6-4.2, a section of the Cohabitant Abuse Act. See Utah Code Ann. § 30-6-4.2 (Supp. 2003). The Guardian Ad Litem suggests this is merely a cross-reference to certain definitions that may become relevant if the protective order is violated, but points out there has been no violation and the reference is, therefore, inapplicable. We rather think it reflects a convenient, but perhaps ill-advised, use of forms already in existence. At worst, however, this is a clerical mistake. "To ascertain the clerical nature of the mistake, this Court will look to the record to harmonize the intent of the court with the written judgment." State v. Lorrah, 761 P.2d 1388, 1389 (Utah 1988). The oral findings clearly establish that the trial court issued the protective order pursuant to section 78-3h-102 and not pursuant to the Cohabitant Abuse Act.

With respect to the argument that Appellant's due process rights were violated when the trial court allowed Appellee to testify regarding a prior incident between Appellant and the minor child, we see no basis for reversal. Appellant had been apprised of the nature of the proceeding against him, and the testimony was elicited to establish the continuous nature of the abusive relationship between Appellant and the minor child. That testimony was not only relevant, but was the very basis for the issuance of the protective order. Therefore, Appellant had notice that testimony regarding prior abuse would be elicited at the hearing, and the trial court was correct in allowing it. See In re K.M., 965 P.2d 576, 579 (Utah Ct. App. 1998). In any event, even if there were some error in allowing the testimony, it was harmless given the additional evidence justifying the protective order. See State v. Lindgren, 910 P.2d 1268, 1271 (Utah Ct. App. 1996).

Affirmed.

______________________________

Gregory K. Orme, Judge

-----

WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

______________________________

James Z. Davis, Judge

1. The trial court issued the protective order pursuant to Utah Code Ann. § 78-3h-102, which became effective May 5, 2003. See Utah Code Ann. § 78-3h-101 (Supp. 2003) (compiler's note). Utah Code Ann. § 78-3a-305(2) (2002) previously governed protective orders on behalf of minor children. See Protective Order Amendments, ch. 68, § 17-23, 2003 Utah Laws 414, 425-427. Appellant and the Guardian ad Litem agree that the applicable provisions are those which were in effect on April 16, 2003, the date the petition was filed. "As a convenience to the reader, and because the provisions in effect at the relevant times do not differ materially from the statutory provisions currently in effect," at least as concerns the issues raised in this appeal, "we cite to the most recent statutory codifications throughout this opinion, unless otherwise noted." State v. Davis, 965 P.2d 525, 527 n.1 (Utah Ct. App. 1998), cert. denied, 982 P.2d 88 (Utah 1999).