Miller v. Dasilva

2022 UT App 15
THE UTAH COURT OF APPEALS
LISA M. M ILLER ,
Appellant,
v.
A MY ELIZABETH D ASILVA,
Appellee.
Opinion
No. 20200719-CA
Filed February 3, 2022
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 204904364
Steve S. Christensen and Clinton Brimhall, Attorneys
for Appellant
Amy Elizabeth Dasilva, Appellee Pro Se
JUDGE DIANA H AGEN authored this Opinion, in which JUDGES
GREGORY K. O RME and M ICHELE M. C HRISTIANSEN F ORSTER
concurred.
HAGEN, Judge:
¶1 	A final judgment on a petition for a cohabitant abuse
protective order cannot be entered based on a commissioner’s
recommendation until the parties are afforded their statutory
right to object. If a timely objection is filed, the objecting party is
entitled to a hearing before the district court. In this case, once
the commissioner recommended that the protective order be
denied and the case dismissed, a final order was immediately
entered and the petitioner’s timely objection was subsequently
denied without a hearing. Because a final judgment was entered
before the time for filing an objection had passed and without
holding a hearing on the objection, we vacate the final judgment
and remand to the district court to hold the required hearing.

Miller v. Dasilva
20200719-CA 	2 	2022 UT App 15
BACKGROUND
¶2 	Lisa Miller petitioned the district court for a cohabitant
abuse protective order against her former friend and tenant,
Amy Dasilva. A temporary protective order was issued, and a
hearing was scheduled before a commissioner. At the conclusion
of the hearing, the commissioner made the following findings:
I cannot find that there is sufficient evidence to
support 	a 	finding 	that 	Ms. 	Da[s]ilva 	has 	been
stalking Ms. Miller. And I cannot find a fear of
ongoing 	physical 	harm.[1] 	And, 	therefore, 	I 	am
going to respectfully dismiss the protective order.
1. It appears the commissioner may have mistakenly assessed
whether there was sufficient evidence to issue a civil stalking
injunction, rather than a cohabitant abuse protective order. To
prove stalking for purposes of a civil stalking injunction, the
petitioner must show that the respondent has intentionally or
knowingly engaged in “two or more acts directed at or toward a
specific person” and “knows or should know that the course of
conduct would cause a reasonable person” to fear for their own
or another’s safety or suffer other emotional distress. See Utah
Code Ann. § 76-5-106.5(1)(a), (2) (LexisNexis Supp. 2020). In
contrast, a cohabitant abuse protective order may be issued on a
showing that the cohabitant “has been subjected to abuse or
domestic violence” or where there “is a substantial likelihood of
domestic violence.” Id. § 78B-7-602(1). Despite this apparent
error, 	we 	cannot 	accept 	Miller’s 	invitation 	to 	reverse 	the
commissioner’s recommendation because that recommendation
is 	not 	a 	final 	order 	subject 	to 	appeal. 	Any 	errors 	in 	the
commissioner’s analysis must be raised at the hearing on Miller’s
objection.

Miller v. Dasilva
20200719-CA 	3 	2022 UT App 15
A minute entry reflected that the “Commissioner recommends”
that the petition “be 	DENIED and this case be dismissed”
because 	“[t]he 	evidence 	does 	not 	support 	the 	entry 	of 	a
protective order.”
¶3 	That same day, at the direction of a district court judge,
the court clerk entered a final order that stated: “This case is
dismissed. Any protective orders issued are no longer valid.”
¶4 	Miller 	filed 	a 	timely 	objection 	to 	the 	commissioner’s
recommendation, requesting an evidentiary hearing before the
district court pursuant to rule 108 of the Utah Rules of Civil
Procedure. The next day, the district court denied that objection
on the grounds that “dismissal of a protective order . . . is not a
matter that is heard by the District Court Judges under Rule 108
as it is not a recommendation of the Commissioner, but rather a
final decision.”
¶5 	Miller filed a timely notice of appeal.
ISSUE AND STANDARD OF REVIEW
¶6 	The dispositive issue before us is whether, under Utah
Code section 78B-7-604(1)(f), the district court was permitted to
immediately 	dismiss 	the 	case 	based 	on 	the 	commissioner’s
recommendation 	and 	thereafter 	deny 	Miller’s 	objection 	and
request for a hearing. “The proper interpretation and application
of a statute is a question of law, and we afford no deference to
the 	trial 	court 	in 	reviewing 	its 	interpretation.” 	Patole 	v.
Marksberry, 2014 UT App 131, ¶ 5, 329 P.3d 53 (cleaned up).
ANALYSIS
¶7 	Under the Cohabitant Abuse Act, the court may issue a
protective order without notice to the other party (an ex parte

Miller v. Dasilva
20200719-CA 	4 	2022 UT App 15
protective order) if it appears from the petition “that domestic
abuse has occurred” or is substantially likely to occur. Utah
Code Ann. § 78B-7-603(1)(a) (LexisNexis Supp. 2020). If the court
issues an ex parte protective order, it must schedule a hearing
and provide notice to the respondent. Id. § 78B-7-604(1)(a). After
notice and a hearing, the court may issue a cohabitant abuse
protective order, which is effective until further order of the
court. Id. § 78B-7-604(1)(e). If such an order is not issued, the ex
parte protective order expires unless extended by the court. Id.
§ 78B-7-604(1)(b).
¶8 	A commissioner may conduct the required hearing in
cohabitant abuse cases and “[m]ake recommendations to the
court.” Utah R. Jud. Admin. 6-401(1)–(2)(D). If the hearing takes
place before a commissioner, “either the petitioner or respondent
may file an objection within 10 days after the day on which the
recommended order [is issued by the commissioner] and the
assigned judge shall hold a hearing within 20 days after the day
on which the objection is filed.”2 Utah Code Ann. § 78B-7-
604(1)(f).
¶9 	Here, the district court denied Miller’s objection to the
commissioner’s 	recommendation 	without 	holding 	a 	hearing.
Miller argues this was a “violation of the mandate in Utah Code
Ann. § 78B-7-604(1)(f).” We agree.
¶10 	In 	denying 	Miller’s 	objection, 	the 	court 	ruled 	that
“dismissal of a protective order” is not a matter that can be
heard by the district court under rule 108 because “it is not a
2. Effective May 5, 2021, the statute now provides that an
objection 	must 	be 	filed 	within 	fourteen 	days 	and 	that 	the
assigned judge must hold a hearing within twenty-one days
after the objection is filed. Utah Code Ann. § 78B-7-604(1)(f)
(LexisNexis Supp. 2021).

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20200719-CA 	5 	2022 UT App 15
recommendation 	of 	the 	commissioner, 	but 	rather 	a 	final
decision.” Because commissioners are prohibited from making
“final 	adjudications,” 	Utah 	R. 	Jud. 	Admin. 	6-401(4)(A), 	we
assume 	that 	the 	district 	court 	was 	referring 	not 	to 	the
commissioner’s recommendation, but to the order dismissing the
case entered at the direction of a district court judge immediately
after the hearing before the commissioner. Even so, the rule
expressly provides that “[a] judge’s counter-signature on the
commissioner’s recommendation does not affect the review of an
objection.” Utah R. Civ. P. 108(a). Once Miller filed a timely
objection to the commissioner’s recommendation and a request
for hearing, the district court was statutorily required to hold a
hearing 	within 	twenty 	days. 	See 	Utah 	Code 	Ann. 	§ 78B-7-
604(1)(f). 	The 	district 	court 	erred 	by 	denying 	the 	objection
without holding such a hearing.
CONCLUSION
¶11 	The district court did not have authority to enter a final
order dismissing this case before the time for filing an objection
to the commissioner’s recommendation had expired. Because
Miller filed a timely objection and request for hearing, she was
entitled to a hearing before the district court. Accordingly, we
vacate the final judgment, reverse the district court’s order
denying the objection, and remand for the district court to hold
the hearing required by statute.