1. The Honorable Judith M. Billings, Senior Judge, sat by special

assignment as authorized by law. See generally Utah Code Jud.

Admin. R. 11-201(6).

2014 UT App 213

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

KARL MARTIN HEGBLOOM,

Defendant and Appellant.

Opinion

No. 20120264-CA

Filed September 11, 2014

Third District Court, Salt Lake Department

The Honorable Denise P. Lindberg

No. 111903279

Peter A. Daines, Isaac E. McDougall, and John B.

Plimpton, Attorneys for Appellant

Sean D. Reyes and John J. Nielsen,

 Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which

JUDGE JOHN A. PEARCE and SENIOR JUDGE JUDITH M. BILLINGS

concurred.1

VOROS, Judge:

¶1 Karl Martin Hegbloom appeals from his conviction after

entering a conditional guilty plea to two counts of attempted

violation of a protective order. He contends on appeal that the

protective order he disobeyed was issued in violation of his due

process rights and thus void. And because it was void, he argues,
State v. Hegbloom

20120264-CA 2 2014 UT App 213

he may challenge it collaterally in this criminal proceeding. We

affirm.

BACKGROUND

¶2 Hegbloom and K.M. shared custody of their child, but

custody exchanges proved difficult for both parents. K.M.

eventually obtained an ex parte civil protective order against

Hegbloom.

¶3 Before the hearing on the protective order, Hegbloom filed

a written response. Both parents appeared pro se at the hearing.

Hegbloom brought evidence, some of it unknown to K.M., to

present at the hearing. Rather than receive the evidence, the

commissioner proceeded by proffer. Hegbloom then orally

requested a “formal evidentiary hearing.” The commissioner

responded, “Once I make my ruling, if there’s an objection you . . .

can object and take it before the judge . . . [who] can decide whether

there [will] be a full formal evidentiary hearing.” Insisting that

without the rejected evidence he “ha[d] no case,” Hegbloom again

requested a formal evidentiary hearing; the commissioner again

denied the request.

¶4 At the conclusion of the hearing, the commissioner asked

Hegbloom if he agreed to the terms the guardian ad litem had

proposed for his protective order. He replied, “I . . . agree to those

terms.” (Omission in original.) The commissioner then stated that

she would recommend an extension of the protective order against

Hegbloom on those terms. However, Hegbloom again requested an

evidentiary hearing. The commissioner responded, “You can object

to my recommendations if you believe that they were

inappropriate. That will go to the judge and you can make that

request . . . .” Hegbloom specifically asked if his objection needed

to be in writing, to which the commissioner replied that it did.

Hegbloom then told the commissioner that his written submissions

included a request for a formal evidentiary hearing. The

commissioner responded that she had already denied that, adding,
State v. Hegbloom

20120264-CA 3 2014 UT App 213

“You may now object and we’ll make that request,” but that his

objection “need[ed] to be in writing.”

¶5 Hegbloom did not file a written objection to the

commissioner’s recommendation. Without holding an evidentiary

hearing, the district court followed the recommendation and

entered a permanent protective order against Hegbloom.

Hegbloom did not appeal.

¶6 A few months later, K.M. reported Hegbloom to the police

for multiple violations of the order. She alleged that he had sent her

multiple text messages and had come to her apartment “dressed as

a clown.” He was charged with nine violations of the protective

order, all third degree felonies.

¶7 In the criminal court, Hegbloom contended that the

protective order had been entered in violation of his due process

rights, rendering it void. The court ruled that Hegbloom’s oral

objection to the commissioner’s recommendation was not a valid

objection and that the entry of the order did not violate his due

process rights. The court stated, “The problem here is that Mr.

Hegbloom did not follow the statutory requirements . . . even

though the commissioner repeatedly gave him that information.”

The criminal court concluded that the commissioner had explained

to Hegbloom how to object to the commissioner’s recommendation

but that Hegbloom had failed to do so.

¶8 Hegbloom entered conditional guilty pleas to two counts of

attempted violation of a protective order, class A misdemeanors,

reserving the right to appeal the district court’s ruling denying his

motion to declare the protective order void.

ISSUE AND STANDARD OF REVIEW

¶9 Hegbloom challenges his conviction on the ground that the

protective order was void. It was void, he argues, because it was

entered in violation of his due process rights, specifically, his right

to an evidentiary hearing. And because the order was void, he
State v. Hegbloom

2. Although Hegbloom nominally mentions the Utah Constitution,

he does not set forth “a unique state constitutional analysis.” See

State v. Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397. Accordingly, we

decline to separately consider any state constitutional claim. See id.

20120264-CA 4 2014 UT App 213

argues, he may challenge it collaterally in this criminal proceeding.

“Constitutional issues, including questions regarding due process,

are questions of law that we review for correctness.” State v.

Martinez, 2013 UT 23, ¶ 6, 304 P.3d 54 (citation and internal

quotation marks omitted). Similarly, “[w]hether a judgment is void

or voidable is a question of law.” Nebeker v. Summit County, 2014

UT App 137, ¶ 9.

ANALYSIS

¶10 The threshold question here is whether Hegbloom may, in

this criminal proceeding, collaterally attack the protective order

entered in the prior civil proceeding. Collateral attacks are

disfavored. “With rare exception, when a court with proper

jurisdiction enters a final judgment . . . that judgment can only be

attacked on direct appeal.” State v. Hamilton, 2003 UT 22, ¶ 25, 70

P.3d 111. An attack “is regarded as collateral if made when the

judgment is offered as the basis of a claim in a subsequent

proceeding.” Olsen v. Board of Educ., 571 P.2d 1336, 1338 (Utah

1977).

¶11 A void judgment “is open to collateral attack.” Farley v.

Farley, 431 P.2d 133, 137 (Utah 1967); 46 Am. Jur. 2d Judgments § 29

(2006). But “[t]he concept of a void judgment is narrowly construed

in the interest of finality.” Brimhall v. Mecham, 494 P.2d 525, 526

(Utah 1972). Two circumstances may render a judgment void. First,

a “judgment [is] void on its face for lack of jurisdiction in the

court.” Bowen v. Olsen, 246 P.2d 602, 605 (Utah 1952). Second, a

judgment is void when the court entering the judgment “acted in

a manner inconsistent with due process of law.” Brimhall, 494 P.2d

at 526. Hegbloom relies on the second basis.2
State v. Hegbloom

3. Hegbloom does not assert that, had he objected to the

commissioner’s finding in the manner she prescribed, the district

court would have denied him an evidentiary hearing. Nor does he

assert that the alleged procedural error would not have been

corrected on appeal had he appealed.

20120264-CA 5 2014 UT App 213

¶12 “‘The purpose of due process is to prevent fundamental

unfairness.’” State v. Parker, 872 P.2d 1041, 1048 (Utah Ct. App.

1994) (quoting State v. Maestas, 815 P.2d 1319, 1325 (Utah Ct. App.

1991)); see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) (stating

that the aim of due process is “‘to prevent fundamental

unfairness’” (quoting Lisenba v. California, 314 U.S. 219, 236 (1941))).

Due process cannot be confined to a specific formula but rather is

“‘flexible and calls for such procedural protections as the particular

situation demands.’” Mathews v. Eldridge, 424 U.S. 319, 321 (1976)

(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

¶13 At a minimum, due process requires “[t]imely and adequate

notice and an opportunity to be heard in a meaningful way.” Salt

Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 50,

299 P.3d 990 (alteration in original) (citation and internal quotation

marks omitted). The opportunity to be heard in a meaningful way

includes the “opportunity to present evidence and argument on

that issue before decision.” Plumb v. State, 809 P.2d 734, 743 (Utah

1990).

¶14 Hegbloom does not claim that he lacked actual notice of the

protective-order proceeding. Rather, he contends that he was

denied the opportunity to be heard. This denial, he reasons, took

the form of a requirement that he file a written objection to the

commissioner’s recommendation after the conclusion of the

hearing before the commissioner. And because the district court

entered the protective order in violation of his due process rights,

Hegbloom may, he asserts, collaterally attack it.3

¶15 We do not agree that the civil protective order is subject to

collateral attack. To begin with, the case law does not support

Hegbloom on this point. Hegbloom cites many Utah cases stating
State v. Hegbloom

4. See, e.g., State v. Candland, 2013 UT 55, ¶¶ 13, 25, 309 P.3d 230

(rejecting, on direct appeal, a challenge to guilty plea); In re

Adoption of Baby E.Z., 2011 UT 38, ¶¶ 37, 44, 266 P.3d 702 (holding,

on direct appeal, that the federal Parental Kidnapping Prevention

Act does not deprive Utah courts of subject matter jurisdiction

where another state first exercised jurisdiction over the adoption);

Garcia v. Garcia, 712 P.2d 288, 291 n.5 (Utah 1986) (holding that

divorce decree entered without effective service on respondent

should be set aside under rule 60(b) of the Utah Rules of Civil

Procedure); Brimhall v. Mecham, 494 P.2d 525, 526 (Utah 1972)

(refusing rule 60(b) relief to a wife who asserted the judgment

against her was void on the ground that the appearance of the

attorney employed by her husband was unauthorized to represent

her interests); Utah Power & Light Co. v. Richmond Irrigation Co., 13

P.2d 320, 324 (Utah 1932) (holding, on direct appeal, that the mere

fact that a judgment may be erroneous does not render it void);

Bangerter v. Petty, 2010 UT App 49, ¶ 14, 228 P.3d 1250 (holding that

an incorrect property description in a sheriff’s deed is a “minor

irregularity” that did not render the sale void and thus subject to

collateral attack); State v. Rawlings, 893 P.2d 1063, 1071 (Utah Ct.

App. 1995) (holding that because the defendant was not given

proper notice of a probation extension hearing, the district court

lacked the authority to extend the defendant’s probation); Jenkins

v. Weis, 868 P.2d 1374, 1383 (Utah Ct. App. 1994) (holding void, on

direct appeal, a district court’s sua sponte dismissal of a cause of

action without notice or hearing); Richins v. Delbert Chipman & Sons

Co., 817 P.2d 382, 385 (Utah Ct. App. 1991) (affirming, on direct

appeal, the denial of relief under rule 60(b)(5) on the ground that

“[n]othing in the record indicates that the court lacked jurisdiction

over the subject matter or over the parties or was otherwise

incompetent to render judgment”); Workman v. Nagle Constr., Inc.,

802 P.2d 749, 753 (Utah Ct. App. 1990) (holding void, on direct

(continued...)

20120264-CA 6 2014 UT App 213

in the abstract the rule that a denial of due process renders a

judgment void and hence subject to collateral attack. But none of

these cases address the situation before us here: the wrongful

denial of an evidentiary hearing.4
State v. Hegbloom

4. (...continued)

appeal, a judgment against members of a class in a class action

where “nothing in the record indicates that the members of the

would-be class . . . were notified that this action had been brought

to adjudicate their claims”).

20120264-CA 7 2014 UT App 213

¶16 Indeed, Hegbloom cites no Utah case upholding a collateral

attack. He does cite a Utah case allowing a challenge to a void

judgment under rule 60(b)(5) of the Utah Rules of Civil Procedure,

but that case involved lack of service, not lack of an evidentiary

hearing. See Garcia v. Garcia, 712 P.2d 288, 291 & n.5 (Utah 1986)

(holding that a divorce decree entered without effective service on

the respondent should be set aside under rule 60(b)(5)). Hegbloom

cites one non-Utah case permitting collateral attack on due process

grounds, but its rationale relies on lack of notice, not lack of an

evidentiary hearing. See Olson v. State, 77 P.3d 15, 16–18 (Alaska Ct.

App. 2003) (holding that a defendant who had “never received

notice of the hearing” on a petition for a long-term protective order

could not be convicted for violating it).

¶17 Hegbloom attempts to frame his denial of an evidentiary

hearing as a denial of notice. But he received notice of both the ex

parte order and the extension of that order. He attended the

hearing and even challenged the grounds for the order to the

extent possible without calling witnesses. But he did not seek an

evidentiary hearing in district court as instructed by the

commissioner. Hegbloom now contends that the commissioner’s

instructions were erroneous underrule 7 of the Utah Rules of Civil

Procedure and section 78B-7-107(1)(f) of the Utah Code. But even

if Hegbloom is correct, we cannot agree that the error denied him

notice. We thus reject his argument that “the fact that he was

deprived of an opportunity to be meaningfully heard meant that he

never received sufficient notice and the issuing court lacked

jurisdiction.”

¶18 Hegbloom’s claim finds the strongest support in Wiscombe

v. Wiscombe, 744 P.2d 1024, 1025 (Utah Ct. App. 1987). The basic

facts of Wiscombe are similar to those before us. In Wiscombe, a
State v. Hegbloom

20120264-CA 8 2014 UT App 213

divorced couple attended a proffer hearing before a domesticrelations commissioner. Id. at 1024–25. The husband made no

written objection to the commissioner’s recommendation, but

claimed to have orally objected, a claim the wife challenged. Id. at

1025. The district court found that the husband had failed to

properly object to the recommendation of the commissioner and

entered judgment consistent with the commissioner’s

recommendation. Id. The husband directly appealed to this court.

Id.

¶19 We held, “Given the lack of opportunity for a complete

evidentiary hearing in proceedings before the domestic relations

commissioner, we believe in this case that procedural due process

requires that any doubts about compliance with Rule 8(d) ought to

be resolved in favor of [the husband], who was seeking a full

evidentiary hearing before [the district court].” Id. “One of the

fundamental requisites of due process,” we noted, “is the

opportunity to be fully heard.” Id. at 1025–26. And where “it was

not clear that [the husband] waived his due process right to a full

hearing,” the district court should have granted one. Id. at 1026.

¶20 Our opinion in Wiscombe aids Hegbloom to this extent: we

classified the wrongful denial of an evidentiary hearing on the

protective order as a violation of due process. Crucially, though,

Wiscombe involved a direct appeal. Even in dicta, it never mentions

voidness, jurisdiction, or collateral attacks. And unlike the husband

in Wiscombe, Hegbloom did not appeal the judgment of the district

court in the protective-order case. Instead, he violated the order

and now belatedly seeks to attack it collaterally . We are unwilling

to extend Wiscombe’s holding beyond its facts and its stated

rationale. Wiscombe does ground its holding on due process. But as

explained above, our reading of the cases suggests that not every

due process violation rendering a judgment erroneous necessarily

renders it void as well.

¶21 Had Hegbloom lacked notice of the protective-order

proceeding, we might well agree that the resulting order was void.

A litigant denied notice of a proceeding has no opportunity to
State v. Hegbloom

20120264-CA 9 2014 UT App 213

bring an appellate challenge; to deny such a litigant the right to

collaterally challenge the judgment entered without notice—and

thus without an opportunity to be heard—would indeed be

fundamentally unfair. Denying a collateral challenge to that

judgment would foreclose any opportunity to be heard in

connection with the entry of the order.

¶22 But Hegbloom stands on different footing. He received

notice, attended the hearing before the commissioner, stated his

intention to seek an evidentiary hearing, and was instructed how

to do so. He does not claim that he lacked notice of entry of the

district court judgment or was prevented from bringing a direct

appeal. The husband in Wiscombe appealed the judgment entered

against him. Hegbloom could have done likewise. After all, “[t]he

proper method for contesting an adverse ruling is to appeal it, not

to violate it.” State v. Clark, 2005 UT 75, ¶ 36, 124 P.3d 235. We see

nothing fundamentally unfair in not allowing a litigant to challenge

collaterally a judgment he could have challenged directly had he

chosen to do so.

¶23 In sum, once the protective order was entered against

Hegbloom and with his knowledge, he was obligated either to

appeal it or obey it. He was not free to disobey it and then

challenge it collaterally in the criminal proceeding. Whatever errors

were or were not made by the commissioner orthe district court in

the protective-order proceeding did not render the judgment

entered there void and subject to collateral attack.

CONCLUSION

¶24 The judgment of the district court is affirmed.