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Card v. Card

Court of Appeals of Utah

December 1, 2016

Aria Rebekah Card, Appellee,
v.
Devin John Card, Appellant.

         Third District Court, Salt Lake Department The Honorable Paul G. Maughan No. 124901827

          Mark W. Wiser and Scott B. Wiser, Attorneys for Appellant

          James H. Woodall, Attorney for Appellee

          Before Judges J. Frederic Voros Jr., Stephen L. Roth, and Jill M. Pohlman.

          PER CURIAM

         ¶1 Devin John Card appeals the district court's denial of his request to dismiss a protective order that his ex-wife, Aria Rebekah Card, who is now known as Aria Rebekah Marshall (‚Marshall''), obtained against him. We affirm.

         ¶2 In April 2012, Marshall obtained a permanent protective order based upon allegations of physical violence and sexual assault by Card. In April 2015-after the permanent protective order had been in effect for more than two years-Card moved to dismiss the protective order under Utah Code section 78B-7-115. See Utah Code Ann. § 78B-7-115(1) (LexisNexis Supp. 2016) (''[A] protective order that has been in effect for at least two years may be dismissed if the court determines that the petitioner no longer has a reasonable fear of future abuse.''). Following an evidentiary hearing on September 1, 2015, the district court denied the motion to dismiss. The court also imposed a sanction under Utah Code section 78B-7-115(3), by awarding Marshall her attorney fees incurred in connection with the motion to dismiss the protective order. Id. § 78B-7-115(3) (stating that the court shall enter sanctions if it determines that either party acted in bad faith or with intent to harass or intimidate either party). Card appeals both orders.

         ¶3 This court recently clarified the standard of review applicable to a district court's decision on a motion to dismiss a protective order under section 78B-7-115. See Mota v. Mota, 2016 UT App 201, ¶ 6, __ P.3d __. Although ''[a] district court's interpretation of a statute is a question of law'' reviewed for correctness, ''a statute's use of the word 'may' indicates a court's discretionary power, the exercise of which we review for an abuse of discretion.'' Id. (citations and internal quotation marks omitted). ''Therefore, because the statute is permissive, we review the court's ultimate decision-whether to grant or deny [Card's] request to dismiss the protective order-for an abuse of discretion.'' Id. We review the district court's factual findings for clear error. Id.

         ¶4 Utah Code section 78B-7-115(1) allows a court to dismiss a protective order that has been in effect for at least two years ''if the court determines that the petitioner no longer has a reasonable fear of future abuse.'' Utah Code Ann. § 78B-7-115(1).

In determining whether the petitioner no longer has a reasonable fear of future abuse, the court shall consider the following factors:
(a) whether the respondent has complied with treatment recommendations related to domestic violence, entered at the time the protective order was entered;
(b) whether the protective order was violated during the time it was in force;
(c) claims of harassment, abuse, or violence by either party during the time the ...

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