Jaynes v. Waters

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Jaynes v. Waters Case No. 20000446-CA




Rosie Waters Jaynes,
Petitioner and Appellee,


Lee B. Waters,
Respondent and Appellant.

(Not For Official Publication)

Case No. 20000446-CA

(December 6, 2001)

2001 UT App 368



Third District, Salt Lake Department
The Honorable Tyrone Medley

Randy S. Ludlow, Salt Lake City, for Appellant

Gregory B. Wall, Salt Lake City, for Appellee


Before Judges Greenwood, Jackson, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the [appellant's] brief[] and [the] record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

The trial court found: "The petitioner asked the respondent to remove herself from the home of petitioner and she refused and failed to do so willingly." These findings are alone sufficient to support the issuance of a protective order because they establish a criminal trespass by respondent against petitioner. See Utah Code Ann. § 76-6-206(2)(b)(i) (1999); State v. Tuckett, 2000 UT App 295,¶13, 13 P.3d 1060 ("Upon refusing to leave when asked, [appellant] became a [criminal] trespasser[.]"). Criminal trespass falls within the statutory definition of domestic violence. See Utah Code Ann. § 30-6-1(6) (Supp. 2001) (defining domestic violence for purposes of the Cohabitant Abuse Act "the same as that term is defined in Section 77-36-1"); id. § 77-36-1(2)(l) (1999) ("[d]omestic violence also means commission or attempt to commit . . . any offense against property described in Title 76, Chapter 6, Part 1, 2, or 3," which includes criminal trespass under section 76-6-206).

It is true that petitioner presented no evidence at the hearing that supports the trial court's findings. However, the trial court made clear that it relied on a statement in petitioner's verified petition:

[W]hen you examine the verified petition in this particular case[,] and I've heard nothing to the contrary at this point, the verified petition lays out a scenario whereby the petitioner in this particular case, being the owner of the residence, requested the respondent to leave[,] and [respondent] apparently chose not to leave. In this [c]ourt's view, that meets the legal definition of criminal trespass, which is one of the criminal offenses that fall under the heading of domestic violence, that satisfy domestic violence for . . . the Cohabitant Abuse Act ex-parte orders or protective orders.

(Emphasis added.)

Upon hearing this explanation--and the court's virtual invitation to proffer evidence to the contrary--respondent did not challenge petitioner's verified statement. Rather, apparently accepting the factual premise stated by the court, respondent argued that an action in unlawful detainer, instead of a petition for a protective order, is the proper method by which to remove an unwelcome person from one's property. The trial court answered by reiterating its view of Utah's statutory scheme:

[I]f I have someone living in my home, there may very well be circumstances under which I suggest it's time for him to go . . . .

So, if you continue to remain when I've . . . communicated to you that it's time for you to leave[,] and you continue to remain, you [have], under the right set of circumstances, committed the offense of criminal trespass[,] and criminal trespass equals domestic violence[,] and domestic violence equals the issuance of a protective order, ex parte order under the Cohabitant Abuse Act.

Respondent again did not challenge petitioner's statement that respondent had been asked to leave and had refused. Rather, respondent's counsel said simply, "Okay. I see," whereupon the hearing concluded.

Given respondent's failure under these circumstances to contest petitioner's allegations regarding criminal trespass, and because "[w]e will overturn the trial court's findings of fact only if they are 'against the clear weight of the evidence, or if [we] otherwise reach[] a definite and firm conviction that a mistake has been made,'" Cooke v. Cooke, 2001 UT App 110,¶7, 22 P.3d 1249 (last two alterations in original) (quoting State v. Walker, 743 P.2d 191, 193 (Utah 1987)), we decline to upset the trial court's findings on criminal trespass. We hold that issuance of the protective order was proper on the narrow ground that respondent committed a criminal trespass against petitioner.(1)

We note also that, although respondent requested an evidentiary hearing, she made no objection when the trial court instead set a hearing for "oral argument." Without contesting the trial court's characterization, respondent notified petitioner that the hearing would be "for oral argument." When the hearing was continued, respondent still did not object to the court's setting the hearing only for oral argument, nor did she renew her request for an evidentiary hearing. Significantly, upon commencement of the hearing on March 31, 2000, respondent launched right into proffers and argument without ever requesting the opportunity to put on testimonial evidence. All things considered, we must conclude respondent acquiesced in proceeding by proffer rather than by evidentiary hearing.

Mindful of respondent's concerns regarding the possible effect of our decision on her immigration status, we hasten to add that at no time did petitioner allege that respondent engaged in physical abuse or violence against petitioner. Moreover, while the acts complained of meet the broad statutory definition of "domestic violence," they do not amount to domestic violence as commonly understood. Furthermore, had respondent contested the findings relevant to criminal trespass and timely objected to the denial of an evidentiary hearing, we would have been inclined to reverse and remand for a full evidentiary hearing.


Gregory K. Orme, Judge



Pamela T. Greenwood, Presiding Judge

Norman H. Jackson, Associate Presiding Judge

1. The trial court made other findings supporting alternative grounds for issuance of the protective order. Unlike the findings supporting a conclusion that a criminal trespass had occurred, however, the trial court's other findings purportedly resolved clearly disputed issues of fact. These findings were made on the basis of conflicting proffers by counsel as well as brief, informal questioning of petitioner, who was not sworn or subject to cross examination. We have previously disapproved of trial courts resolving contested factual issues after hearing only proffers rather than after conducting an evidentiary hearing. See, e.g., Mantano v. Third Dist. Ct., 934 P.2d 1156, 1157 (Utah Ct. App. 1997); State v. Starnes, 841 P.2d 712, 715 n.5 (Utah Ct. App. 1992); Wiscombe v. Wiscombe, 744 P.2d 1024, 1025-26 (Utah Ct. App. 1987).