Patole v. Marksberry

2014 UT App 132
_________________________________________________________
THE UTAH COURT OF APPEALS
SACHIN PATOLE,
Petitioner and Appellant,
v.
MARK MARKSBERRY,
Respondent and Appellee.
Memorandum Decision
No. 20130208-CA
Filed June 12, 2014
Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 124700060
Julie C. Winkler, Attorney for Appellant
Mark Marksberry, Appellee Pro Se
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE
concurred.
ORME, Judge:
¶1 Sachin Patole appeals the trial court’s denial of his request
for a protective order against his father-in-law, Mark Marksberry.
Because we determine that the court plainly erred by finding
insufficient evidence of abuse and by incorrectly narrowing the
definition of cohabitant found in the Cohabitant Abuse Act (the
CAA), we reverse and remand for further proceedings.
¶2 Patole sought a restraining order against Marksberry based
on several alleged incidents of abuse. Marksberry was not
represented by counsel at the evidentiary hearing on the petition,
and he is not represented by counsel on appeal. He did not file a
brief, and it appears from the record that he did not strenuously

Patole v. Marksberry
1. Patole’s appeal from the denial of the protective order he sought
against Marksberry’s daughter is the subject of a separate opinion.
See Patole v. Marksberry, 2014 UT App 131.
20130208-CA 2 2014 UT App 132
object to the protective order that Patole seeks. When the trial court
asked Marksberry if he was resisting the protective order, he
responded: “I don’t care. . . . I resist the lies, but I did do one of
these things, so I’ll sign a protective order. I don’t care.” In the end,
Marksberry decided to stay at the hearing “to tell the truth.” He
did not testify, but Patole and Marksberry’s daughter—against
whom Patole was also seeking a protective order and who was
represented by counsel—both testified that on at least one occasion
Marksberry hit Patole in the face. At the conclusion of the hearing,1
the trial court denied Patole’s petition for a protective order against
Marksberry, concluding that they were not cohabitants within the
meaning of the CAA and that even if they were, there was
insufficient evidence of abuse or domestic violence.
¶3 Patole did not object to the trial court’s findings at the time,
and accordingly asks us to review the trial court’s decision for plain
error. To establish plain error, a petitioner must show that
(i) [a]n error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the
appellant . . . .
State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
¶4 Patole first asserts that the trial court erred in deciding that
he was not a cohabitant with Marksberry for the purposes of the
CAA. After an evidentiary hearing, the trial court ruled from the
bench:
With respect to Mr. Marksberry, . . . there’s [not]
sufficient evidence that they’re co-habitants. The
question of whether people who are related can be

Patole v. Marksberry
2. The 2013 amendment of the CAA added “or had” to subsection
(2)(d), so that provision now reads, “has or had one or more
children in common with the other party.” See Utah Code Ann.
§ 78B-7-102(2)(d) (LexisNexis Supp. 2013).
20130208-CA 3 2014 UT App 132
co-habitants or not is kind of a grey area under the
statute. Of course you can find a lot of people that
are technically related . . . . I don’t think the statute
means people that broadly, and I think it has to be
that the relationship has somehow caused you to
spend a considerable amount of time together, and
there’s really no evidence of that in this case.
¶5 The trial court’s attempt to limit the definition of cohabitant
is perhaps understandable. Normally, the word “cohabitant”
would suggest two people who are living together or at least who
lived with each other at some point in time. But the CAA defines
cohabitant in a much different way. See Utah Code Ann. § 78B-7-
102 (LexisNexis 2012); Myers v. Myers, 2010 UT App 74, ¶ 14 n.4,
231 P.3d 815 (“One term may have different meanings in different
statutory contexts. Thus, as used in the CAA, the term ‘cohabitant’
includes many categories of persons who do not live together as
husband and wife.”), aff’d, 2011 UT 65, 266 P.3d 806. The CAA
specifically defines “cohabitant” as a person who
(a) is or was a spouse of the other party;
(b) is or was living as if a spouse of the other party;
(c) is related by blood or marriage to the other party;
(d) has one or more children in common with the
other party;
(e) is the biological parent of the other party’s unborn
child; or
(f) resides or has resided in the same residence as the
other party.
Utah Code Ann. § 78B-7-102(2). While we recognize that the2
statutory definition expands the word beyond the realm of its
normal usage, we do not agree with the trial court that this

Patole v. Marksberry
3. Based on standard consanguinity and affinity charts, a father-in-
law is a first-degree relation by affinity, i.e., the closest
possible relationship by marriage. See, e.g., Consanguinity/Affinity
C h ar t, St ate of Nevada Commission on Ethics,
http://ethics.nv.gov/FORMS/Consanguinity-affinity%20chart%20
043008.pdf (last visited June 9, 2014).
20130208-CA 4 2014 UT App 132
presents a gray area in which additional limitations may be
judicially inserted. Instead, we “assume that the words and phrases
used [in the CAA] were chosen carefully and advisedly.” Hill v.
Hill, 968 P.2d 866, 868 (Utah Ct. App. 1998) (citation and internal
quotation marks omitted).
¶6 Based on the CAA’s definition, Patole and Marksberry are
cohabitants because they are related by marriage. See Utah Code
Ann. § 78B-7-102(2)(c). Next to a spouse–already explicitly included
in subsection (2)(a)–a father-in-law is one of the closest relations
possible through marriage. Therefore, even reading the statute3
narrowly, the definition of cohabitant would have to include a
father-in-law or else the phrase “related by . . . marriage” in
subsection (2)(c) would be meaningless. When interpreting the text
of a statute, we “avoid interpretations that will render portions of
[it] superfluous or inoperative.” Hall v. Department of Corrections,
2001 UT 34, ¶ 15, 24 P.3d 958. As a result, we readily conclude that
Patole and Marksberry are cohabitants for the purposes of the
CAA, even though they do not satisfy subsection (2)(f), which sets
forth the classic definition of “cohabitant.”
¶7 The trial court found no evidence that Patole and
Marksberry spent “a considerable amount of time together,” but
this observation, even if correct, has no effect on whether Patole
and Marksberry are cohabitants under the CAA, except indirectly
under subsection (2)(f). We therefore conclude that the trial court
erred in determining otherwise.
¶8 This error should have been “obvious to the trial court.” See
State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). When there is no
settled appellate law to guide a trial court and the relevant statute

Patole v. Marksberry
20130208-CA 5 2014 UT App 132
is not controlling in plain terms, an error will not be considered
obvious. See State v. Low, 2008 UT 58, ¶ 41, 192 P.3d 867; State v.
Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997). In this case, however,
the law is settled that the definition of cohabitant contained in the
CAA is intentionally broad and is to be construed in accordance
with the words used in the statute. See Myers, 2010 UT App 74, ¶ 14
n.4 (recognizing that the CAA has a broader definition of
cohabitant than other statutes); Corwell v. Corwell, 2008 UT App 49,
¶ 9, 179 P.3d 821 (taking notice of the Legislature’s intent to create
a broadly applicable statute with the CAA). This error prejudiced
Patole because the trial court’s erroneous conclusion that he and
Marksberry were not cohabitants necessarily precluded Patole’s
petition for a protective order. See Utah Code Ann. § 78B-7-103
(providing that only a cohabitant may seek a protective order).
Accordingly, it was plain error for the trial court to conclude that
Patole and Marksberry were not cohabitants as defined in the
CAA.
¶9 Patole also argues that the trial court erred in determining
that there was insufficient evidence of abuse or domestic violence.
Marksberry’s striking of Patole readily falls under the definition of
abuse. See id. § 78B-7-102(1). Under the CAA, a petitioner must
prove three elements to establish abuse: (1) the petitioner was a
cohabitant at the time of the abusive act, (2) the act was intentional,
and (3) the act caused the petitioner physical harm. See id.; Martin
v. Colonna, 2009 UT App 227, ¶ 10, 217 P.3d 1147 (concluding that
abuse committed during a time when the petitioner was not a
cohabitant does not fall under the CAA).
¶10 We have already concluded that Patole and Marksberry are
cohabitants as defined in the statute. See supra ¶ 6. And it is
undisputed that on at least one occasion Marksberry intentionally
hit Patole in the face, which certainly amounts to physical harm
under the CAA. Cf. Bailey v. Bayles, 2002 UT 58, ¶ 24, 52 P.3d 1158
(holding that slapping “constitute[s] physical harm under the terms
of the statute”). As a result, the trial court erred in finding
insufficient evidence of abuse. With clear appellate guidance on
what constitutes abuse, this error should have been obvious to the
trial court. Finally, this error resulted in prejudice to Patole by

Patole v. Marksberry
20130208-CA 6 2014 UT App 132
foreclosing his ability to seek a protective order against his father-
in-law and, absent this error, Patole would likely have been
granted the protective order.
¶11 Because we conclude that the court plainly erred in
determining that Patole was not a cohabitant under the CAA and
in determining that there was insufficient evidence of abuse as
defined by the CAA, we reverse and remand for further
proceedings consistent with this decision.