Protective Order Caselaw review: Bountiful v. Swenson 2024 UT App 133

The case involved a Mother who obtained a protective order against the Father of her child. Initially it contained standard no-contact and stay-away orders that Father was not allowed to contact Mother in any way and had to stay away from her vehicle, job, home, and the child’s school and daycare. The order did not, however, contain any provision specifically barring Father from being in physical proximity to Mother (such as a 100-ft radius). Parties later by agreement modified the order to allow them to civilly communicate with each other regarding child issues. They also agreed to curbside parent-time exchanges and they would have no contact except to exchange clothing and other items for their children. Then they stipulated in their Divorce Decree they could attend the children’s events regardless of whose parent-time it was. Over the next few years, parties attended many of their children’s events simultaneously – although not together – such as school events, parent-teacher conferences, plays, karate activities, and a baptism. On occasion, they even concurrently attended their children’s medical appointments, including occasions where they were in the same room.

In 2022, Father wanted to attend a doctor appointment for their child that the Mother was also attending. The Mother did not want him to attend, and informed him via email she would consider it a violation of their protective order if he showed up. Sure enough, Father came to a doctor’s appointment for their son (which the Mother showed up too also). The appointment took place without incident, and neither party communicated with the other. There is no indication there was any physical contact between them.

The State subsequently charged the Father with violating the protective order. While that was pending, Mother filed a motion in the protective order case accusing Father of violating the protective order and asking to impose a 500 feet stay-away order. The family court determined Father had not violated the protective order and denied the request to impose a 500 foot stay-away order. The criminal court then held a preliminary hearing and dismissed the case, finding there was no probable cause the Father did anything wrong. The State appealed.

The Court explained to sustain a protective order violation charge, the State must prove a defendant intentionally or knowingly violated the order after having been served. In the criminal context, a protective order must clearly state what is prohibited so a defendant is on clear notice of what he can and cannot do. Courts cannot punish someone unless the order is sufficiently specific and definite to leave no reasonable basis for doubt regarding its meaning. Conversely, when the underlying order is clear then it is appropriate to punish individuals who intentionally or knowingly violate it.

Appellate court holds the order here did not clearly prohibit Father from attending doctor appointments for his child, even with the Mother was present. That was because no provision barred him from being within a certain distance of her and no provision barred him from attending doctor appointments. The Court acknowledged the “no contact” and “stay away” provisions and the State’s arguments those broad terms should have put Father notice not to come there. Court explains in some cases protective orders are drafted to include a physical proximity provision, but if not “its absence must mean something.” They interpreted the stay away order pertaining to the Mother’s car, home, work, and school to mean Father is not precluded from coming to other unlisted places, such as a doctor’s office. Furthermore, the no-contact provision was all about the parties’ communication practices; not actual physical contact. They explained the prohibition against “contact, phone, mail, e-mail” and the like was a prohibition on communication and did not bar physical contact at a doctor’s office. The Court also relied on fact the parties’ Decree allowed them to attend their children’s events simultaneously. And to the extent there was a conflict, the Decree’s provisions trumped the Protective Order.

The Court conceded there may be situations where, in context, a person’s mere physical presence is a subtle form of communication or even a threat. But no evidence that was the case here. Father did not attempt to communicate and there was no indication he intended for Mother to perceive that way. Under totality of the circumstances, the Court upheld dismissal of the protective order violation charge against him.

You can read the appellate court opinion in full at https://legacy.utcourts.gov/opinions/appopin/Bountiful%20City%20v.%20Swenson20240919_20230430_133.pdf