2016 UT App 47

THE UTAH COURT OF APPEALS

NATALIE NEWELL MEYER,

Appellant,

v.

WINTON CLARK APOSHIAN,

Appellee.

Opinion

No. 20140166-CA

Filed March 10, 2016

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 134902809

Mitchell J. Olsen and Beau J. Olsen, Attorneys

for Appellant

J. Morgan Philpot, Attorney for Appellee

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

JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE JAMES Z.

DAVIS concurred.1

VOROS, Judge:

¶1 Natalie Meyer appeals the district court’s denial of her 

petition for a domestic protective order against her ex-husband, 

Winton Clark Aposhian.2 The district court ruled that Meyer 

 

1. Senior Judge James Z. Davis began his work on this case as a 

member of the Utah Court of Appeals. He retired from the court, 

but thereafter became a Senior Judge. He completed his work on 

the case sitting by special assignment as authorized by law. See 

generally Utah R. Jud. Admin. 11-201(6).

2. Appellee Aposhian did not file a brief on appeal.
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failed to show that she is a victim of abuse or domestic violence, 

as required for a protective order under the Cohabitant Abuse 

Act (the Act). See Utah Code Ann. § 78B-7-103(1) (LexisNexis 

2012). We affirm.

BACKGROUND

¶2 Meyer sought a protective order in May 2013, citing a 

number of encounters with Aposhian beginning in 2008. Both 

Meyer and Aposhian testified at the protective order hearing; 

she described a series of threatening actions, he a series of 

innocuous encounters. For example, Meyer, a high school 

teacher and tennis coach, testified that Aposhian would come to 

the tennis courts when she was coaching. She told her principal 

that she was going through a contentious divorce. The principal 

arranged for the school resource officer to “keep the peace” at 

the tennis courts. Aposhian testified that he would pick up their 

daughter from her school and, at the daughter’s request, walk

with her to the tennis courts.

¶3 The encounters culminated in May 2013, when Aposhian 

drove his large, military-style truck through the neighborhood, 

sounded its horn, and backed it onto Meyer’s driveway. 

Aposhian testified that he was celebrating a holiday weekend, 

that he still had friends living in the neighborhood who enjoyed 

seeing his truck, and that Meyer’s driveway was the only 

location to turn the truck around. He also testified that he 

carefully backed into the driveway, assisted by two neighbors.

¶4 Meyer testified that she was in her home with their 

daughter when she “heard the sound of an army truck and . . . a 

blaring horn.” She watched through the window as Aposhian 

talked with neighbors and then backed the truck into her 

driveway to leave the cul-de-sac. She testified that she thought 

Aposhian was going to hit her car, that their daughter was 
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20140166-CA 3 2016 UT App 47

“upset,” and that her “heart [was] racing.” She also testified that 

the two did not communicate during the incident.

¶5 Meyer’s current husband testified that he came home

after Aposhian had driven away and found Meyer and her 

daughter “shaken and scared.” Mr. Meyer testified that he called 

Aposhian and asked him not to back his truck into the Meyers’ 

driveway again. Mr. Meyer testified that after the call ended, 

Aposhian called him back and said that he would come to the 

house and “bury you, I’ll end you,” to which Mr. Meyer 

responded, “Bring it, bitch.” Mr. Meyer testified that he reported 

Aposhian’s threats to the police.

¶6 Aposhian testified that he returned to the Meyers’ house 

in a different truck to see if the military-style truck had damaged 

the driveway. Two police officers were there when he arrived 

and both testified that Aposhian was “agitated.” They testified 

that when they asked him to get out of his truck, Aposhian 

informed them that he was armed; they initially allowed him to 

keep his gun, but eventually disarmed him and arrested him for 

trespassing.

¶7 After the truck incident, Meyer petitioned the court for a 

protective order, and Mr. Meyer petitioned the court for a civil 

stalking injunction. A different district court judge heard and 

granted Mr. Meyer’s petition for a civil stalking injunction.

¶8 The district court denied Meyer’s petition. The court 

stated that the “remedy of a Domestic Protective Order is 

deliberately narrow. It requires that a cohabitant seeking such an 

order ‘has been subjected to abuse or domestic violence’ or that 

there is a ‘substantial likelihood of abuse or domestic violence.’” 

(Quoting Utah Code Ann. § 78B-7-103 (LexisNexis 2012).) The 

court specifically considered abuse and two implicated 

categories of domestic violence—criminal trespass and stalking. 

The court found that Meyer was not the victim of abuse or 
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20140166-CA 4 2016 UT App 47

domestic violence and that Aposhian posed no imminent threat 

of abuse or domestic violence to Meyer. Meyer timely appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Meyer first contends that the district court erred in 

finding no reasonable basis for her to fear as a result of 

Aposhian’s actions. She next contends that the district court 

erred by “not tak[ing] into account [her] fear for her husband.” 

She also contends that the district court “applied the wrong 

standard in determining emotional distress.” Finally, she 

contends that she is entitled to attorney fees incurred during 

both the district court proceedings and this appeal.

¶10 “When reviewing challenges to a district court’s decision 

regarding a protective order under the Cohabitant Abuse Act, 

the ‘appellate court is entrusted with ensuring legal accuracy 

and uniformity and should defer to the trial court on factual 

matters.’” Richardson v. Rupper, 2014 UT App 11, ¶ 7, 318 P.3d 

1218 (quoting Bailey v. Bayles, 2002 UT 58, ¶ 19, 52 P.3d 1158). We 

“review the trial court’s findings of fact for clear error, reversing 

only where [a] finding is against the clear weight of the 

evidence, or if we otherwise reach a firm conviction that a 

mistake has been made.” Zappe v. Bullock, 2014 UT App 250, ¶ 4, 

338 P.3d 242 (alteration in original) (citation and internal 

quotation marks omitted).

ANALYSIS

¶11 To obtain a protective order under the Cohabitant Abuse 

Act, “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.’” Patole v. Marksberry, 2014 UT App 131, ¶ 12, 329 P.3d 

53 (quoting Utah Code Ann. § 78B-7-103 (LexisNexis Supp. 
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2015)). The Act incorporates the definition of “domestic 

violence” from section 77-36-1. See Utah Code Ann. § 78B-7-

102(5) (LexisNexis Supp. 2015). That definition of “domestic 

violence” includes “commission or attempt to commit, . . . by 

one cohabitant against another . . . stalking.” Id. § 77-36-1(4)(i). 

Stalking, in turn, is defined in section 76-5-106.5:

A person is guilty of stalking who intentionally or 

knowingly engages in a course of conduct directed 

at a specific person and knows or should know that 

the course of conduct would cause a reasonable 

person: (a) to fear for the person’s own safety or 

the safety of a third person; or (b) to suffer other 

emotional distress.

Id. § 76-5-106.5(2) (LexisNexis 2012). Emotional distress “means 

significant mental or psychological suffering, whether or not 

medical or other professional treatment or counseling is 

required.” Id. § 76-5-106.5(1)(d).

¶12 The district court applied these definitions in ruling that 

“Ms. Meyer has not been the victim of abuse or domestic 

violence by Mr. Aposhian, and there is no imminent threat of 

abuse or domestic violence by him.” Meyer challenges these 

rulings on appeal, arguing in effect that the court erred in 

finding that Aposhian’s “explanation of the events was 

credible.”

¶13 “Findings of fact, whether based on oral or documentary

evidence, shall not be set aside unless clearly erroneous, and due 

regard shall be given to the opportunity of the trial court to 

judge the credibility of the witnesses.” Utah R. Civ. P. 52(a).

“Credibility determinations are within the province of the 

[district court] judge, who is uniquely equipped to make factual 

findings based exclusively on oral testimony due to his or her 

opportunity to view the witnesses firsthand, to assess their 

demeanor, and to consider their testimonies in the context of the 
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proceedings as a whole.” Kidd v. Kidd, 2014 UT App 26, ¶ 34, 321 

P.3d 200 (citation and internal quotation marks omitted). 

Furthermore, “judges, by virtue of the duties of their office, are 

regularly exposed to evidence of incidents of domestic violence 

and the persons involved in such incidents.” M.K. v. Doyle, 2014 

UT App 160, ¶ 8, 330 P.3d 1278. A court does not “view the 

incidents in isolation when determining whether a reasonable 

person in [the petitioner’s] position would fear for her safety. 

Rather, [it] evaluate[s] whether the course of conduct considered 

in the context of the circumstances would cause a reasonable 

person to fear for her safety.” Butters v. Herbert, 2012 UT App 

329, ¶ 18, 291 P.3d 826 (citations and internal quotation marks 

omitted).

¶14 Meyer claims that in finding Aposhian’s testimony 

credible, the district court “misconstrue[d] the significance of 

[his] acts and fail[ed] to acknowledge that [his] actions go over 

and above the circumstances divorcing parties tend to engage 

in.” She also claims that the court incorrectly concluded “that 

there was no indication that physical violence would occur.” She 

argues that under the stalking statute, “the petitioner needs to 

only fear.”

¶15 At the protective order hearing, the district court “heard 

testimony concerning a number of events that [Meyer] claim[ed] 

justify a conclusion that she is in imminent threat of physical 

violence from [Aposhian].” After considering the testimony of 

both parties, the court “found Mr. Aposhian’s version of these 

events credible” and “did not find credible Ms. Meyer’s claims 

that Mr. Aposhian’s presence . . . would cause a reasonable 

person to suffer significant emotional distress.”

¶16 The court also found that “[d]espite a lengthy and 

contentious divorce, Ms. Meyer is unable to testify to any single 

instance where Mr. Aposhian committed any physical violence 

or overtly threatened physical violence to her.” The court found 
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that Meyer “has found her interactions with Mr. Aposhian since 

her separation upsetting, intimidating, and annoying,” but 

determined that such feelings “do[] not lead to a conclusion that 

they will escalate to violence.” The court finally found that, 

although “[c]ontentious divorces, by nature, cause emotional 

distress,” “Meyer’s claims that Mr. Aposhian’s [behavior] would 

cause a reasonable person to suffer significant emotional 

distress” were not credible. These credibility determinations are 

not against the clear weight of the evidence, nor do we have a 

definite and firm conviction that a mistake has been made. On 

the contrary, because the district court judge was “uniquely 

equipped” to make credibility determinations, see Kidd, 2014 UT 

App 26, ¶ 34, we defer to the credibility findings of the district 

court—specifically that Aposhian’s testimony was credible and 

that a reasonable person would not fear Aposhian’s actions as he 

described them.

¶17 Meyer next contends that the district court “completely 

dismissed the fear that [Meyer] had for her husband and did not 

take it into account when denying the protective order.”

¶18 A person may be guilty of the predicate crime of stalking 

if that person knowingly or intentionally engages in a course of 

conduct “directed at a specific person and knows or should 

know that the course of conduct would cause a reasonable 

person . . . to fear for the person’s own safety or the safety of a 

third person.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2012)

(emphasis added). Meyer is thus correct as a matter of law that a 

domestic protective order may be based on the petitioner’s fear 

for the safety of a third person.

¶19 But this case presents an atypical twist: the third person 

for whose safety Meyer feared had already obtained a civil 

stalking injunction against Aposhian. The court here did not

”dismiss[] the fear” Meyer had for her husband; it simply 

included Mr. Meyer’s civil stalking injunction in the reasonable-
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person calculus. And it in effect concluded that, looking at both 

the stalking injunction and the other facts of this case—bearing 

in mind the court accepted Aposhian’s version of events—a 

reasonable person in Meyer’s position would not fear for Mr. 

Meyer’s safety. In so doing, the district court acted reasonably 

and in keeping with the statute.

¶20 Next, Meyer contends that the district court “applied the 

wrong standard in determining emotional distress.” Meyer 

argues that the court misinterpreted and misapplied two 

standards in the stalking statute: the reasonable person standard 

and the emotional distress standard.

¶21 Meyer first argues that the district court misapplied the 

reasonable person standard. It erred, she maintains, in finding 

“that a reasonable person would not have experienced emotional 

distress [or fear] as a result of [Aposhian’s] actions.” She argues 

that the “appropriate standard under Utah law is if a reasonable 

person, under the same situation and circumstances as [Meyer], 

would have suffered emotional distress from [Aposhian’s] 

conduct.” “The proper interpretation and application of a statute 

is a question of law which we review for correctness, affording 

no deference to the district court’s legal conclusion[s].” Ellison v. 

Stam, 2006 UT App 150, ¶ 16, 136 P.3d 1242 (alteration in 

original) (citation and internal quotation marks omitted).

¶22 The “offense of stalking does not focus on the particular 

emotional distress [a particular victim] suffers, but rather on 

how the defendant’s conduct would affect a reasonable person.” 

Baird v. Baird, 2014 UT 08, ¶ 24, 322 P.3d 728 (alteration in 

original) (citation and internal quotation marks omitted). The

statute defines a “reasonable person” as “a reasonable person in 

the victim’s circumstances.” Utah Code Ann. § 76-5-106.5(1)(e). 

“By including ‘in the victim’s circumstances’ as part of the 

‘reasonable person’ definition, [section 76-5-106.5] provides for 

an individualized objective standard. Under this standard, a 
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court must consider the entire context surrounding defendant’s 

conduct.” Baird, 2014 UT 08, ¶ 26 (citation omitted). However, 

“courts must avoid succumbing to a purely subjective analysis, 

which is inconsistent with the objective standard’s intent to 

protect[] against criminalizing conduct that only an 

unreasonably sensitive or paranoid victim would find harassing 

so as to reduce the risk of a truly innocent defendant falling 

within the ambit of [a stalking statute].” Id. ¶ 27 (alterations in 

original) (citation and internal quotation marks omitted).

¶23 Meyer argues that “[t]here is nothing in the record that 

establishes that the trial court looked at the totality of the 

circumstances from a reasonable person in [Meyer’s] position 

and how [Aposhian’s] actions would have affected a reasonable 

person in [Meyer’s] circumstances.” We disagree.

¶24 The district court, after summarizing all the incidents in 

question, stated that it did “not view these incidents in isolation, 

but consider[ed] all of the incidents, taken as a whole, as to 

whether they amount to a course of conduct directed at Ms. 

Meyer that would cause a reasonable person to suffer significant 

emotional distress.” It concluded that such incidents “may be 

annoying, painful, or intimidating, but to make the leap from 

there to ‘significant emotional distress’ under the stalking 

statutes would transform every unpleasant divorce into a 

potential stalking action.” The district court therefore correctly 

applied the “reasonable person” standard in this case.

¶25 Meyer next argues that the district court misapplied the 

emotional distress standard. She maintains that the court 

incorrectly concluded that “the behavior of [Aposhian] had to 

involve behavior so outrageous as to reasonably result in 

significant emotional distress.” Meyer argues that “[t]his 

determination is inappropriate because ‘outrageous behavior’ 

should not be read into the statute.”
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20140166-CA 10 2016 UT App 47

¶26 This argument was not preserved. “The purpose of the 

preservation requirement is to put the district court on notice of 

an issue and provide it with an opportunity to rule on it.” 

Donjuan v. McDermott, 2011 UT 72, ¶ 20, 266 P.3d 839. “To 

properly preserve an issue for appellate review, the issue must 

be raised in the district court. Additionally, the issue must be 

specifically raised, in a timely manner, and must be supported 

by evidence and relevant legal authority.” Id.; see also State v. 

McNeil, 2016 UT 3, ¶ 24.

¶27 Meyer has not identified a point in the record where she 

presented this argument to the district court. See Utah R. App. P. 

24(a)(5) (requiring an appellant’s brief to provide either a 

“citation to the record showing that the issue was preserved in 

the trial court” or a “statement of grounds for seeking review of 

an issue not preserved”). Nor has our review of the record 

revealed any such presentation. See Wohnoutka v. Kelley, 2014 UT 

App 154, ¶ 6, 330 P.3d 762 (“An appellate court should not be 

asked to scour the record to save an appeal by remedying the 

deficiencies of an appellant’s brief. We have nonetheless 

reviewed the record designated on appeal . . . .”).

¶28 Because Meyer did not raise this issue in the district court, 

she did not preserve it. Because she did not preserve it, we 

decline to consider it. See Hale v. Big H Constr., Inc., 2012 UT App 

283, ¶ 55, 288 P.3d 1046. However, we note that the supreme 

court addressed the stalking statute’s emotional distress 

standard in Baird v. Baird, 2014 UT 08, 322 P.3d 728, a case 

decided after the district court entered the order at issue here. 

The supreme court held that, as amended in 2008, “[t]he statute 

leaves no room for a requirement of proof of outrageous and 

intolerable conduct.” Id. ¶ 38 (internal quotation marks omitted).

¶29 The district court recognized that, at the time of the 

hearing, the emotional distress “standard . . . is a bit up in the 

air” and informed the parties that the standard “was interpreted 
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20140166-CA 11 2016 UT App 47

to equate to the tort standard at one point, then the standard for 

the statute was amended.” The court further explained, “There’s 

a dispute among folks about whether it . . . was intended to 

amend the appellate court interpretation or not. I tend to be on 

the spectrum of it needs to be significant emotional distress, i.e., 

something like the requirement for tortious infliction of 

emotional distress.” The court then invited the parties “to brief 

it.” Despite this information and invitation, Meyer did not brief 

the emotional distress standard for the district court, and 

therefore did not preserve her argument for appeal.3

¶30 Finally, Meyer contends that we should award her 

attorney fees resulting from this appeal. “A party seeking to 

recover attorney’s fees incurred on appeal shall state the request 

explicitly and set forth the legal basis for such an award.” Utah 

R. App. P. 24(a)(9). Further, “only the prevailing or successful 

party is entitled to an award of attorney fees.” Olsen v. Lund, 

2010 UT App 353, ¶ 6, 246 P.3d 521. Meyer does not cite any 

legal basis for an award of attorney fees and has not prevailed 

on appeal. We therefore deny her request for fees.

¶31 The judgment of the district court is affirmed.

 

3. Even if Meyer had preserved this argument in the district 

court, it would not have changed the outcome on appeal. The 

district court found that the behaviors at issue in this case were 

common in “contentious divorces.” Given the court’s findings, 

we agree that “to make the leap from there to ‘significant 

emotional distress’ under the stalking statutes would transform 

every unpleasant divorce into a potential stalking action.’”