Patole v. Marksberry

2014 UT App 131
_________________________________________________________
THE UTAH COURT OF APPEALS
SACHIN PATOLE,
Petitioner and Appellant,
v.
TESS MARKSBERRY,
Respondent and Appellee.
Opinion
No. 20120934-CA
Filed June 12, 2014
Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 124700059
Michelle E. Lesué, Attorney for Appellant
Autumn R. Fitzgerald, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, 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 wife, Tess Marksberry. Because
we determine that the trial court erred in interpreting the
Cohabitant Abuse Act (the CAA), we reverse and remand for
further proceedings.

Patole v. Marksberry
1. Because the trial court’s findings of fact were made orally from
the bench and were relatively sparse, “our recitation of the facts
also includes findings implicitly made by the trial court and
matters that are undisputed in the record.” See State v. Legg, 2014
UT App 80, ¶ 2, 324 P.3d 656.
2. Patole also sought a protective order against his father-in-law,
which the trial court also denied. Patole appealed that denial as
well, and we address that appeal in a separate decision. See Patole
v. Marksberry, 2014 UT App 132.
20120934-CA 2 2014 UT App 131
BACKGROUND1
¶2 After having been married for about four months,
Marksberry and Patole were in their garden at two o’clock in the
morning when, for unexplained reasons, Patole began throwing
bricks, chairs, planters, and tables. Later, during an evidentiary
hearing held in connection with Patole’s petition for a protective
order, Marksberry explained that she found Patole’s tantrum
“completely ridiculous and uncalled for,” so she grabbed Patole by
the neck, flipped him over her hip, and held him down for a couple
of minutes. When she released Patole, he got up and threw a table
over. After this incident, no one called the police, and the couple
continued to live together for another six months. They are
currently separated and seeking a divorce.
¶3 Patole, who is not a U.S. citizen, also claims that Marksberry
threatened several times to report him to the police for having an
expired visa and that she threatened him with an assault by her
father, who had beaten Patole on at least one prior occasion.2
According to Patole, these threats dissuaded him from calling the
police or seeking a protective order until nearly a year after the
incident in the garden.

Patole v. Marksberry
20120934-CA 3 2014 UT App 131
¶4 When Patole did petition for a protective order against
Marksberry, the trial court denied it. Patole then requested a
hearing. Following the hearing, the trial court concluded:
I’m convinced that this is not about Mr. Patole
being in fear of his life or his safety, and so with
respect to the Tess Marksberry petition, I find that
there’s not sufficient evidence of danger—immediate
danger to the petitioner’s safety or domestic violence
or abuse. . . .
The bigger issue here is I don’t think Mr.
Patole is really afraid of these people.
The trial court again denied Patole’s request for a protective order
against Marksberry. Patole appeals.
ISSUE AND STANDARD OF REVIEW
¶5 Patole argues that the trial court erred in its interpretation
of the legal standard found in the CAA. “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. Gutierrez
v. Medley, 972 P.2d 913, 914–15 (Utah 1998).
ANALYSIS
¶6 On appeal, Patole contends that the trial court did not
properly interpret the CAA. But at the hearing, Patole “failed to
specifically raise [his] objections and to introduce supporting
evidence or relevant legal authority.” See 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 56, 99 P.3d 801. Because of this omission, we
conclude that Patole did not raise his principal appellate issue in
such a way as to afford the trial court “an opportunity to correct
the alleged error,” and thus the issue is unpreserved for appeal. See

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20120934-CA 4 2014 UT App 131
id. Patole concedes as much and asks us to review the trial court’s
interpretation of the CAA, and the resulting denial of his petition,
for plain error. To establish plain error, a petitioner must show the
following:
(i) An 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). We consider each of
these requirements in turn.
I. Error
¶7 The trial court erred in interpreting the legal standard
applicable to this case. The relevant provision of the CAA states:
Any cohabitant who has been subjected to
abuse or domestic violence, or to whom there is a
substantial likelihood of abuse or domestic violence,
may seek . . . a protective order . . . whether or not
that person has left the residence or the premises in
an effort to avoid further abuse.
Utah Code Ann. § 78B-7-103(1) (LexisNexis 2012). During its ruling
from the bench, the trial court was concerned that Patole was not
in “immediate danger” and that he was not in “fear of his life or his
safety.” Nothing in the statute requires that a petitioner be in
immediate danger or in such fear. See id.
¶8 On appeal, Patole asserts that the trial court misinterpreted
the CAA to require both a showing of past abuse or domestic
violence and a substantial likelihood of abuse or domestic violence
in the future. Patole argues that the plain language of the statute

Patole v. Marksberry
20120934-CA 5 2014 UT App 131
requires only that the petitioner (1) was a cohabitant and (2) had
suffered past abuse or domestic violence, or, in the alternative,
could show a substantial likelihood of future abuse or domestic
violence. Patole claimed that he and Marksberry were cohabitants
and that she had abused him on a prior occasion. That is all the
CAA requires to demonstrate eligibility for a protective order, and
the trial court’s reliance on its determination that there was not
“sufficient evidence of danger” is misplaced.
¶9 It is possible, as Patole suggests, that the trial court was
erroneously relying on our ruling in Bailey v. Bayles, 2001 UT App
34, 18 P.3d 1129, aff’d, 2002 UT 58, 52 P.3d 1158. There, we
articulated a three-part test for protective order eligibility under the
CAA: The petitioner must (1) be a cohabitant of the respondent,
(2) have suffered physical abuse or domestic violence, and (3) have
an imminent fear of physical harm or fear of future abuse. Id. ¶ 12.
This test was apparently formed by blending the CAA's
requirements with language from a prior decision in which we held
that the CAA protects a person “‘if past abuse is coupled with a
present threat of future abuse.’” See id. ¶¶ 11–12 (quoting Strollo v.
Strollo, 828 P.2d 532, 534 (Utah Ct. App. 1992)).
¶10 This test, literally applied, would directly conflict with the
plain meaning of section 78B-7-103 of the CAA, which does not
require a showing of fear of future abuse if the petitioner has
shown past abuse. When the Utah Supreme Court affirmed our
decision in Bailey, it clarified that,
according to the statute, in order for [the petitioner]
to obtain a protective order, she was required to
show that she was a cohabitant and either that she
had been subjected to abuse or domestic violence, or
that there was a substantial likelihood of immediate
danger of abuse or domestic violence to her.

Patole v. Marksberry
20120934-CA 6 2014 UT App 131
Bailey v. Bayles, 2002 UT 58, ¶ 24, 52 P.3d 1158 (emphasis in
original). Since the Utah Supreme Court’s clarification in Bailey, this
court has repeatedly employed the correct statutory test without
the errant gloss that emerged in our Bailey decision. See, e.g., Martin
v. Colonna, 2009 UT App 227, ¶ 7, 217 P.3d 1147 (“The statute
provides two alternative grounds upon which [petitioner] may
seek a protective order, and states: ‘Any cohabitant who has been
subjected to abuse or domestic violence, or to whom there is a
substantial likelihood of abuse or domestic violence, may seek an
ex parte protective order or a protective order in accordance with
this chapter.’”) (emphasis in original) (quoting Utah Code Ann.
§ 78B-7-103(1) (2008)); State v. Hardy, 2002 UT App 244, ¶ 17, 54
P.3d 645 (“Before a protective order may issue, a court must first
conclude that the parties to the protective order are cohabitants,
and that a cohabitant has been ‘subjected to abuse or domestic
violence, or . . . [that] there is a substantial likelihood of immediate
danger of abuse or domestic violence.’”) (quoting the predecessor
of Utah Code section 78B-7-103).
¶11 But despite the clarity of the CAA’s language, the
definitiveness of the Utah Supreme Court’s holding in its Bailey
decision, and this court’s subsequent rulings consistent therewith,
the flawed test this court announced in its Bailey decision, which
added a requirement not in the statute, continues to circulate. For
example, the editors of both LexisNexis and Westlaw include the
incorrect three-part test in their annotated versions of the Utah
Code. See Utah Code Ann. § 78B-7-103 notes to decisions
(LexisNexis 2012) (“To obtain a protective order under [the CAA],
petitioner was required only to demonstrate: (1) she is or was a
cohabitant of the respondent . . . ; (2) she had suffered physical
abuse or domestic violence . . . ; and (3) she had an imminent fear
of physical harm, or ‘a present fear of future abuse.’”) (quoting
Bailey, 2001 UT App 34, ¶ 12); Utah Code Ann. § 78B-7-103 notes of
decisions (Westlaw through 2013 Second Spec. Sess.) (“To obtain
protective order, petitioner is required to demonstrate (1) petitioner

Patole v. Marksberry
20120934-CA 7 2014 UT App 131
is or was a cohabitant of the respondent, (2) petitioner had suffered
physical abuse or domestic violence, and (3) petitioner had an
imminent fear of physical harm or, put another way, a present fear
of future abuse.”).
¶12 We agree with Patole that the unfortunate continued vitality
of our erroneous Bailey opinion may have led to some confusion.
Considering that our role is to ensure legal accuracy and
uniformity, see Richardson v. Rupper, 2014 UT App 11, ¶ 7, 318 P.3d
1218, we will endeavor, once and for all, to make this path straight.
Therefore, we reiterate that the simple test enshrined in plain terms
in the statute adopted by the Utah Legislature, as recognized by the
Utah Supreme Court in its Bailey opinion, is the one, true standard
for analyzing petitions for protective orders under the CAA. That
is, a petitioner must prove that he or she is (1) a “cohabitant”
(2) “who has been subjected to abuse or domestic violence, or to
whom there is a substantial likelihood of abuse or domestic
violence.” See Utah Code Ann. § 78B-7-103 (LexisNexis 2012)
(emphasis added).
¶13 It follows, then, that any purported analytic framework
for considering the availability of a protective order that is
inconsistent with this standard is incorrect under the CAA. This
includes the flawed test articulated in our Bailey decision and the
concept that, in petitions for protective orders under the CAA, past
abuse must be “coupled with a present threat of future harm.”
Strollo v. Strollo, 828 P.2d 532, 535 (Utah Ct. App. 1992).
¶14 It is undisputed that Patole and Marksberry were
cohabitants at the time of the alleged abuse. Patole claims that he
was the victim of abuse on a prior occasion at the hands of
Marksberry. As a result, the trial court erred when it ruled from the
bench at the conclusion of the evidentiary hearing that because
Patole was not in fear of Marksberry at present, and had no fear for
his safety going forward, he did not meet the threshold
requirement for eligibility for a protective order.

Patole v. Marksberry
20120934-CA 8 2014 UT App 131
II. Obviousness
¶15 We now examine whether 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 is not controlling in plain terms, an
error will not be considered obvious or “plain.” See State v. Ross,
951 P.2d 236, 239 (Utah Ct. App. 1997); State v. Low, 2008 UT 58,
¶ 41, 192 P.3d 867. In this case, however, the appellate law is settled
and the statute is controlling in plain terms. See supra ¶ 10.
Therefore, if a cohabitant has alleged prior abuse in a petition for
a protective order under the CAA, then it would be obviously
improper to dismiss that petition based on a lack of a likelihood of
future abuse—which is merely an alternative ground for obtaining
a protective order, not an additional requirement.
¶16 It is true that secondary sources, such as annotations to the
Utah Code, have made the law on this subject appear to be
unsettled. See supra ¶ 11. We also recognize that the standard form
for denying a protective order approved by the Board of District
Court Judges might also lead to confusion. The standard denial
form presents various statements accompanied by check boxes,
which the trial court may select to indicate all the options that
conform with the trial court’s findings. It reads, in part:
The Court . . . orders that the Protective Order is
denied because:
[1] there is not sufficient evidence that the
Petitioner and Respondent are cohabitants.
[2] there is not sufficient evidence of domestic
violence or abuse, or of a substantial likelihood of
immediate danger to the Petitioner’s safety.
Initially it appears to be a faithful representation of the correct
statutory test. But the CAA provides that a trial court may grant
a protective order based on at least one of two alternative grounds:

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20120934-CA 9 2014 UT App 131
past abuse or domestic violence or substantial likelihood of
future abuse or domestic violence. The standard denial form,
however, is phrased in the negative. As a result, it could be read
to mean that a trial court may deny a protective order based on
the petitioner’s failure to demonstrate either one of the two
alternatives. Such a reading could allow a trial court to erroneously
apply our flawed Bailey test with its extra requirement. To avoid
confusion, the standard denial form should read, following the
second check box: “there is not sufficient evidence of domestic
violence or abuse, and there is not sufficient evidence of a
substantial likelihood of immediate danger to the Petitioner’s
safety.” Indeed, when applying the statutory test, a trial court must
dispose of both alternative grounds before it can properly deny a
protective order request under the CAA.
¶17 But in determining whether the trial court’s error should
have been obvious, we do not consider secondary sources or
standardized forms. Instead, we consider the clarity of any
applicable statute and whether there is “settled appellate law to
guide the trial court.” Ross, 951 P.2d at 239. In light of the plain
meaning of the CAA and the well-settled appellate guidance from
both this court and the Utah Supreme Court, we conclude not only
that the trial court erred but also that this error should have been
obvious.
III. Prejudice
¶18 Finally, we determine whether, “absent the error, there is a
reasonable likelihood of a more favorable outcome” for Patole. See
State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). While the trial court
erred in considering Patole’s lack of fear of future abuse, this error
only prejudices Patole if he would be able to prove that he had
suffered abuse or domestic violence at the hands of Marksberry on
a prior occasion or that there was a substantial likelihood of future
abuse or domestic violence from Marksberry. We conclude that,

Patole v. Marksberry
3. The CAA defines domestic violence as “any criminal offense
involving violence or physical harm . . . when committed by one
cohabitant against another,” but it also includes specific criminal
offenses that do not necessarily include physical harm, such as
harassment, electronic communication harassment, stalking,
criminal trespass, and violation of a protective order. See Utah
Code Ann. § 77-36-1(4) (LexisNexis 2012). Abuse, however, is not
limited to actions that would constitute a criminal offense. See id.
Marksberry claims that her actions were justified, which, if true,
would render them less than criminal and therefore something
other than domestic violence. But because abuse under the CAA
does not require that a criminal offense has been committed,
justifications that apply to criminal offenses do not necessarily
apply to claims of abuse under the CAA. See id.
20120934-CA 10 2014 UT App 131
under the CAA, a reasonable likelihood exists that Patole will be
able to prove at least one incident of past abuse.
¶19 The CAA defines abuse as “intentionally or knowingly
causing or attempting to cause a cohabitant physical harm.” Utah
Code Ann. § 78B-7-102(1) (LexisNexis 2012). Marksberry admitted
that she grabbed Patole around the neck, flipped him over her hip,
and held him down for a couple of minutes. Marksberry does not
assert that the act was involuntary or in any way unintentional.
Instead, Marksberry contends that her actions were justified by
Patole’s tantrum in the garden. While this justification could
potentially render her actions something less than domestic
violence, Marksberry’s intentional act still likely falls within the
CAA’s broad definition of abuse. Marksberry does not contend3
that the CAA’s definition of abuse is overly broad, and considering
the state’s “inarguably significant interest in protecting”
cohabitants from abuse, we see no reason to read the statute
narrowly. See State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645.
Because Patole and Marksberry were cohabitants under the CAA
and because Marksberry acted intentionally, the only remaining

Patole v. Marksberry
20120934-CA 11 2014 UT App 131
question is whether Marksberry caused Patole “physical harm.” See
Utah Code Ann. § 78B-7-102(1). Because the Utah Supreme Court
has determined that slapping a cohabitant “constitute[s] physical
harm under the terms of the statute,” Bailey v. Bayles, 2002 UT 58,
¶ 24, 52 P.3d 1158, being grabbed by the neck, flipped over, and
held down also constitutes physical harm under the CAA. Patole
was a cohabitant, Marksberry acted intentionally, and her actions
caused Patole physical harm at least on par with a slap.
Considering all this, we conclude that absent the trial court’s legal
error, a reasonable likelihood exists that Patole’s petition for a
protective order would have been granted. See State v. Dunn, 850
P.2d 1201, 1208–09 (Utah 1993).
CONCLUSION
¶20 The trial court erred in premising its decision on the lack of
immediate danger to Patole and Patole’s lack of fear, given that his
petition for a protective order under the CAA was premised on
allegations of prior abuse. Based on the plain meaning of the
statute and well-settled appellate law, this error should have been
obvious to the trial court. This error prejudiced Patole.
Accordingly, we reverse and remand to the trial court for such
further proceedings as may now be in order.