Utah Court of Appeals
What must a petitioner prove under Utah's Cohabitant Abuse Act? Patole v. Marksberry Explained
Summary
Patole sought a protective order against his wife Marksberry under the Cohabitant Abuse Act after she grabbed him by the neck, flipped him over her hip, and held him down during a domestic dispute. The trial court denied the petition, finding insufficient evidence of immediate danger or fear of future harm.
Practice Areas & Topics
Analysis
The Utah Court of Appeals in Patole v. Marksberry addressed a persistent misunderstanding about the requirements for obtaining a protective order under Utah’s Cohabitant Abuse Act (CAA). This decision clarifies the statutory standard and corrects widespread confusion perpetuated by secondary sources.
Background and Facts
After four months of marriage, Patole and Marksberry were in their garden when Patole began throwing objects during what Marksberry described as a “tantrum.” Marksberry responded by grabbing Patole by the neck, flipping him over her hip, and holding him down for several minutes. The couple continued living together for six months after the incident. Patole, who was not a U.S. citizen, alleged that Marksberry threatened to report him for visa violations and threatened him with assault by her father. Nearly a year later, Patole petitioned for a protective order, which the trial court denied.
Key Legal Issues
The central issue was the proper interpretation of Utah Code section 78B-7-103(1), which governs eligibility for protective orders under the CAA. The trial court applied an incorrect standard requiring both past abuse and immediate danger or fear of future harm.
Court’s Analysis and Holding
The court of appeals applied plain error review since the issue was unpreserved. The court found that the CAA requires a petitioner to prove they are (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.” The statute creates two alternative grounds, not cumulative requirements.
The court traced the confusion to an erroneous three-part test from its earlier Bailey v. Bayles decision, which incorrectly added a requirement of “imminent fear of physical harm.” While the Utah Supreme Court later corrected this error, the flawed test continued circulating in legal annotations and standard court forms.
Practice Implications
This decision provides crucial clarification for practitioners handling domestic violence cases. Courts cannot deny protective orders based solely on lack of future threat when past abuse is established. The court found Marksberry’s admitted conduct—grabbing Patole by the neck and flipping him—constituted abuse under the CAA’s definition of “intentionally or knowingly causing or attempting to cause a cohabitant physical harm,” even if potentially justified as a response to Patole’s behavior.
Case Details
Case Name
Patole v. Marksberry
Citation
2014 UT App 131
Court
Utah Court of Appeals
Case Number
No. 20120934-CA
Date Decided
June 12, 2014
Outcome
Reversed
Holding
The Cohabitant Abuse Act requires proof that a petitioner is a cohabitant who has been subjected to abuse or domestic violence OR to whom there is a substantial likelihood of abuse or domestic violence, not both past abuse AND future likelihood.
Standard of Review
Plain error review for unpreserved issues. Correctness for statutory interpretation questions, with no deference to the trial court.
Practice Tip
When seeking protective orders under the Cohabitant Abuse Act, clearly argue the disjunctive nature of the statutory requirements and cite the corrected Bailey standard to avoid confusion from secondary sources.
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