Camp v. Cline

Camp v. Cline

IN THE UTAH COURT OF APPEALS

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Julie Cline Camp,

Petitioner and Appellee,

v.

Earl Cline II,

Respondent and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20040022-CA

F I L E D

(May 5, 2005)

2005 UT App 205

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Third District, Salt Lake Department 034907206

The Honorable Robert K. Hilder

Attorneys: Earl Cline II, Salt Lake City, Appellant Pro Se

Shawn D. Turner, South Jordan, for Appellee

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Before Judges Jackson, Orme, and Thorne.

JACKSON, Judge:

Earl Cline II appeals the protective order entered against him on December 17, 2003 under the Cohabitant Abuse Act. See Utah Code Ann. §§ 30-6-1 to -14 (1998 & Supp. 2003). We affirm.

Cline first claims that Julie Cline Camp's petition for the prior ex parte protective order issued November 20, 2003 (Ex Parte Order) was incomplete and not properly verified. We decline to review these issues because they were not preserved before the trial court. See Walker v. Hansen, 2003 UT App 237,¶22, 74 P.3d 635 ("'[I]ssues not raised at trial cannot be argued for the first time on appeal.'" (citation omitted)), cert. denied, 80 P.3d 152 (Utah 2003). Also, they are irrelevant given that the Ex Parte Order has been superseded by the present December 17, 2003 order, and any defects in the original petition would have been cured in the December 12, 2003 hearing to review the Ex Parte Order, where the court examined in detail the factual and legal context of the Ex Parte Order.

Second, Cline claims that the trial court did not have sufficient grounds to issue the protective order because the threat to Camp, if any, was not "imminent." In reviewing the sufficiency of the evidence before the trial court, "'[t]he appellate court is entrusted with ensuring legal accuracy and uniformity and should defer to the trial court on factual matters.'" Bailey v. Bayles, 2002 UT 58,¶19, 52 P.3d 1158 (quoting Willey v. Willey, 951 P.2d 226, 230-31 (Utah 1997)). Under the Cohabitant Abuse Act, a court may issue a protective order on behalf of "[a]ny cohabitant who has been subjected to abuse . . . or to whom there is a substantial likelihood of abuse." Utah Code Ann. § 30-6-2(1) (Supp. 2003). "Abuse" is defined to include "intentionally or knowingly placing a cohabitant in reasonable fear of imminent physical harm." Id. § 30-6-1(1) (Supp. 2003).

Camp alleged many incidents of past abuse, but the court focused primarily on the most recent allegation that, after Cline was released from jail in October 2003, he called Camp and during the conversation asked, "Why, are you afraid I'm going to come and beat you up?" Cline conceded at the hearing that he "might have [said] that" and the court determined that due to the couple's litigious history, a "climate of hostility" existed in which such a statement could be "reasonably construed . . . as threats or intimidation."

Cline claims that, as a matter of law, a threat by phone from ten miles away is not "imminent." We disagree. The imminence of a harm is not measured by physical or temporal proximity; we consider only whether an individual's actions indicate a present intent to cause harm. In other words, a threat of harm is imminent if it causes the victim to presently fear for her safety. See Bailey v. Bayles, 2001 UT App 34,¶12, 18 P.3d 1129, aff'd, 2002 UT 58, 52 P.3d 1158; Strollo v. Strollo, 828 P.2d 532, 534 (Utah Ct. App. 1992). Here, the court properly concluded that the statement, in its context, could be reasonably understood as a threat of imminent physical harm.

Third, Cline claims that the trial court relied on inadmissible evidence. "Although the admission or exclusion of evidence is a question of law, we review a trial court's decision to admit or exclude specific evidence for an abuse of discretion." State v. Cruz-Meza, 2003 UT 32,¶8, 76 P.3d 1165. Cline claims that many of the petitioner's allegations of abuse are spurious and have been rejected in previous hearings. The record provides grounds for us to doubt the accuracy of Cline's assertions,(1) and it appears from the record that the court did not issue the protective order based on these events. Rather, the court relied primarily on Cline's October 2003 statement and the more general observation that the couple had together created a "climate of hostility."

Finally, Cline claims that his constitutional rights were violated. In his brief, he initially characterizes this issue as an equal protection challenge under the United States Constitution, claiming that Camp was unfairly advantaged as a party to this and prior protective order petitions due to her gender. Because we have already determined that the trial court had sufficient grounds to grant the present protective order and because Cline's prior petitions were not before the trial court and are not before us now, we reject this challenge.

However, in his reply brief, Cline re-characterizes this issue as a due process challenge, which he raises for the first time. He claims that his rights under the United States Constitution were violated because during his incarceration he was not given a reasonable opportunity to prepare his defense. This issue was not properly preserved before the trial court. See Walker v. Hansen, 2003 UT App 237,¶22, 74 P.3d 635, cert. denied, 80 P.3d 152 (Utah 2003). Even if it were properly preserved, we conclude that the December 12, 2003 hearing focused largely on Camp's factual allegations, particularly Cline's alleged threatening statement, to which Cline was adequately prepared to respond. As such, we see no error.(2)

We affirm the order of the trial court.

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Norman H. Jackson, Judge

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WE CONCUR:

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. For example, in addressing Camp's allegation that Cline had trespassed on her property to take a car, Cline asserted that he had permission to do so. The court, however, reminded him that it specifically found that he did not have permission.

2. In December 2003, Cline filed a motion to disqualify Camp's attorney. In January 2004, the trial court entered an order denying the motion. In his appellate brief, Cline identifies this order as an issue but does not identify the appellate standard of review which should apply. Further, in his "detail of argument," he fails to present an argument with citations to relevant authorities and the record as required by rule 24(a)(9) of the Utah Rules of Appellate Procedure. See State v. Green, 2004 UT 76,¶13, 99 P.3d 820. Accordingly, we decline to address this issue. See id. at ¶15 ("'It is well established that a reviewing court will not address arguments that are not adequately briefed.'" (citation omitted)).