2016 UT App 233

THE UTAH COURT OF APPEALS

ARIA REBEKAH CARD,

Appellee,

v.

DEVIN JOHN CARD,

Appellant.

Per Curiam Decision

No. 20151001-CA

Filed December 1, 2016

Third District Court, Salt Lake Department

The Honorable Paul G. Maughan

No. 124901827

Mark W. Wiser and Scott B. Wiser, Attorneys

for Appellant

James H. Woodall, Attorney for Appellee

Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and JILL 

M. POHLMAN.

PER CURIAM:

¶1 Devin John Card appeals the district court’s denial of his 

request to dismiss a protective order that his ex-wife, Aria 

Rebekah Card, who is now known as Aria Rebekah Marshall 

(‚Marshall‛), obtained against him. We affirm. 

¶2 In April 2012, Marshall obtained a permanent protective 

order based upon allegations of physical violence and sexual 

assault by Card. In April 2015—after the permanent protective 

order had been in effect for more than two years—Card moved 

to dismiss the protective order under Utah Code section 

78B-7-115. See Utah Code Ann. § 78B-7-115(1) (LexisNexis Supp. 

2016) (‚*A+ protective order that has been in effect for at least 

two years may be dismissed if the court determines that the 
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petitioner no longer has a reasonable fear of future abuse.‛). 

Following an evidentiary hearing on September 1, 2015, the 

district court denied the motion to dismiss. The court also 

imposed a sanction under Utah Code section 78B-7-115(3), by 

awarding Marshall her attorney fees incurred in connection with 

the motion to dismiss the protective order. Id. § 78B-7-115(3) 

(stating that the court shall enter sanctions if it determines that 

either party acted in bad faith or with intent to harass or 

intimidate either party). Card appeals both orders.

¶3 This court recently clarified the standard of review 

applicable to a district court’s decision on a motion to dismiss a 

protective order under section 78B-7-115. See Mota v. Mota, 2016 

UT App 201, ¶ 6, ___ P.3d ___. Although ‚*a+ district court’s 

interpretation of a statute is a question of law‛ reviewed for 

correctness, ‚a statute’s use of the word ‘may’ indicates a court’s 

discretionary power, the exercise of which we review for an 

abuse of discretion.‛ Id. (citations and internal quotation marks 

omitted). ‚Therefore, because the statute is permissive, we 

review the court’s ultimate decision—whether to grant or deny 

*Card’s+ request to dismiss the protective order—for an abuse of 

discretion.‛ Id. We review the district court’s factual findings for 

clear error. Id.

¶4 Utah Code section 78B-7-115(1) allows a court to dismiss a 

protective order that has been in effect for at least two years ‚if 

the court determines that the petitioner no longer has a 

reasonable fear of future abuse.‛ Utah Code Ann. § 78B-7-115(1). 

In determining whether the petitioner no longer 

has a reasonable fear of future abuse, the court 

shall consider the following factors:

(a) whether the respondent has complied with 

treatment recommendations related to domestic 

violence, entered at the time the protective order 

was entered;
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20151001-CA 3 2016 UT App 233

(b) whether the protective order was violated 

during the time it was in force;

(c) claims of harassment, abuse, or violence by 

either party during the time the protective order 

was in force;

(d) counseling or therapy undertaken by either 

party;

(e) impact on the well-being of any minor children 

of the parties, if relevant; and

(f) any other factors the court considers relevant to 

the case before it.

Id. 

¶5 Card argues that in determining whether Marshall ‚no 

longer has a reasonable fear of future abuse,‛ the district court 

failed to apply the definition of abuse found in Utah Code 

section 78B-7-102(1), which defines ‚abuse‛ as ‚intentionally or 

knowingly causing or attempting to cause a cohabitant physical 

harm or intentionally or knowingly placing a cohabitant in 

reasonable fear of imminent physical harm.‛ Utah Code Ann. 

§ 78B-7-102(1) (LexisNexis Supp. 2016). Card contends that 

rather than applying the six statutory factors to determine 

whether Marshall has a reasonable fear of future ‚physical 

harm,‛ the court accepted Marshall’s contention that ‚a 

reasonable fear of future abuse‛ includes a reasonable fear of 

future ‚domestic violence,‛ a much broader term. See id. § 77-36-

1(4) (defining ‚domestic violence‛ to include the commission of 

or attempt to commit harassment, mayhem, and stalking).

¶6 We disagree with Card’s characterization of the record. 

During oral argument and in the district court’s written ruling, 

the district court acknowledged, and did not reject, the definition 
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20151001-CA 4 2016 UT App 233

of ‚abuse‛ advocated by Card. And, after evaluating the six 

statutory factors in section 78B-7-115, the district court 

concluded that ‚*a+ reasonable person under these circumstances 

would find Mr. Card’s actions to be threatening, troubling, and 

disconcerting, and they would cause fear of future abuse and

domestic violence.‛ (Emphasis added). Had the district court 

equated ‚future abuse‛ with ‚domestic violence,‛ as Card 

contends, the court’s finding would have been redundant. 

¶7 The district court further correctly stated that, in 

determining whether a petitioner has a reasonable fear of future 

abuse, section 78B-7-115 ‚directs the Court to consider a number 

of factors, including whether the protective order has been 

violated . . . claims of harassment, and any other factors the court 

considers relevant.‛ Although claims of physical harm and 

violence are relevant factors to be considered, the statute does 

not require the district court to find that physical harm has been 

threatened. In fact, ‚*t+he statute does not require the court to 

dismiss the protective order under any particular circumstance. 

Rather, if the court’s decision is guided by the statutory factors, 

it has discretion to decide if and when to dismiss a protective 

order.‛ See Mota, 2016 UT App 201, ¶ 21.

¶8 Applying the factors from section 78B-7-115 that were 

relevant to the case before it, the district court found that Card 

had violated the protective order and that he continued to 

engage in violations and provocative actions designed to harass 

and intimidate Marshall. See Utah Code Ann. § 78B-7-115(1)(b)–

(d) (LexisNexis Supp. 2016).

He ferreted out Ms. Marshall’s banking 

information, without Ms. Marshall’s knowledge or 

consent, and deposited child support checks into 

her account. He reasoned that it was reasonable to 

do so because it was consuming fewer public 

resources by not requiring a mail handler or 
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20151001-CA 5 2016 UT App 233

someone else to do the same job. That such conduct 

by Mr. Card would be alarming and disconcerting 

to Ms. Marshall, or any other reasonable person, 

did not dissuade Mr. Card. The Court finds that 

this was a deliberate act to harass, intimidate and 

emotionally upset her while Mr. Card justified it as 

innocent and practicable.

The district court further found that Card demanded that 

Marshall be physically present at a parent-time exchange ‚at a 

location he selected on short notice, when there was no order 

requiring Ms. Marshall to personally receive the child.‛ The 

district court noted Card’s ‚pattern of self-justified behavior 

[that was] designed to harass and adversely affect the emotional 

stability of‛ Marshall. Card did so ‚in a manner to walk as close 

to the line, as he sees it, between compliance with, and 

committing a violation of, the Protective Order so that he feels he 

has not technically crossed it.‛ The district court also found that 

Card hired a process server to serve Marshall with child support 

checks, after being notified that she had opened a case with the 

Office of Recovery Services (ORS) and appointed them as her 

agent for collection of child support. This course of conduct ‚was 

again undertaken with the intent to harass and intimidate‛ 

Marshall. In each instance, Card justified his actions as 

reasonable under the circumstances and as calculated to save 

time and money or serve his own interests. 

¶9 Card argues that the district court did not make sufficient 

subsidiary findings to demonstrate how he violated the 

protective order. The argument lacks merit. Among other things, 

the protective order prohibited Card ‚from directly or indirectly 

contacting, harassing, telephoning, e-mailing or otherwise 

communicating with‛ Marshall. As demonstrated above, the 

district court’s ruling provided sufficiently detailed subsidiary 

findings to demonstrate a basis for its finding that Card harassed 

Marshall while the protective order was in place. Furthermore, 
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the district court found that Card continued to take actions that 

the district court found were ‚calculated to intimidate, harass 

and ensure the emotional distress of‛ Marshall. See id. § 78B-7-

115(1)(c) (requiring consideration of ‚claims of harassment‛).

The court also found that although Card had completed 

domestic violence counseling and paid a fine in connection with 

a criminal case, he had not internalized the principles of the 

course. See id. § 78B-7-115(1)(d). 

¶10 Based on these findings, the district court’s ultimately 

found, 

A reasonable person in these circumstances would 

find Mr. Card’s actions to be threatening, 

troubling, and disconcerting, and they would cause 

fear of future abuse and domestic violence. The 

Court finds that Ms. Marshall has been harassed, 

intimidated and has a reasonable fear of continued 

abuse, and that the Protective Order should remain 

in effect.1

¶11 It is abundantly clear from the district court’s ruling that 

the court considered the relevant statutory factors in reaching its 

determination that the protective order should remain in place 

because Card had not demonstrated that Marshall no longer had 

a reasonable fear of future abuse. Significantly, the district court 

further found that Card had not demonstrated a change in his 

 

1. By way of further clarification, the district court specifically 

stated that Card was prohibited from further direct contact with 

Marshall, from depositing money into her bank account, from 

taking any action to determine where she lives, or from being 

within 1,000 feet of her residence. He was directed to use the 

professional agency designated in the divorce proceeding for 

parent-time exchange. 
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20151001-CA 7 2016 UT App 233

behavior from the time that the protective order was issued and 

that he continued to justify the behavior that the court found to 

be threatening, intimidating, and harassing. Under these

circumstances, the district court did not abuse its discretion in 

denying the motion to dismiss the protective order.

¶12 Card claims the district court erred in adopting prior 

findings made by the court commissioner. Because the district 

court’s findings based on the testimony from the September 1, 

2015 hearing were sufficient to support its determination that 

Marshall had a reasonable fear of future abuse, even without 

considering the court commissioner’s findings, Card has not 

demonstrated any basis for reversal based upon the inclusion of 

those findings in the court’s ruling.

¶13 Finally, Card claims that the district court erred in 

imposing a sanction under section 78B-7-115(3). That section 

provides that the court ‚shall enter sanctions against either party 

if the court determined that either party acted: (a) in bad faith; or 

(b) with intent to harass or intimidate either party.‛ Utah Code 

Ann. § 78B-7-115(3). The district court found that Card’s actions 

were intended to harass or intimidate Marshall. Card has not 

demonstrated that this finding was clearly erroneous. Having 

made the requisite findings, the district court did not err in 

imposing a sanction. 

¶14 Affirmed.