Roper v. Shovan

302 P.3d 483

734 Utah Adv. Rep. 40

Kelli Ann ROPER, Plaintiff and Appellee,

v.Jacob Michael SHOVAN, Defendant and Appellant.

No. 20130134–CA.

Court of Appeals of Utah.

May 16, 2013.

Jacob Michael Shovan, Appellant Pro Se.

Kelli Ann Roper, Appellee Pro Se.

Before Judges THORNE, VOROS, and CHRISTIANSEN.

Decision

PER CURIAM:

¶ 1 Appellant Jacob Michael Shovan appeals the district court's issuance of a civil stalking injunction. Accordingly, the issues before this court are limited to a determination whether the district court erred in issuing the civil stalking injunction. To the extent that Shovan seeks affirmative relief regarding issues of child custody and parent-time, those issues are not properly before this court on appeal and must be pursued within the pending divorce proceedings between Shovan and Appellee Kelli Ann Roper. This case is before the court on a sua sponte motion for summary disposition.

¶ 2 “In order to enter a civil stalking injunction, the district court must conclude that ‘an offense of stalking has occurred’ that meets the criteria for the ‘crime of stalking as defined by [Utah Code] section 76–5–106.5(2)’—the criminal stalking statute.” Coombs v. Dietrich, 2011 UT App 136, ¶ 2, 253 P.3d 1121 (quoting Utah Code Ann. § 77–3a–101(1), (5) (2008)).

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 ... to fear for the person's own safety or the safety of a third person; or ... to suffer other emotional distress.

Utah Code Ann. § 76–5–106.5(2) (LexisNexis 2012). “Course of conduct” includes “two or more acts directed at or toward a specific person, including ... acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to ... a person ... directly” or “approaches or confronts a person.” Id. § 76–5–106.5(1)(b)(i), (ii). “[W]e 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.” ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct.App.1997).

¶ 3 Roper alleged two incidents to establish a course of conduct constituting stalking, each of which arose when Shovan was picking up the parties' children to exercise parent time. In each instance, Roper alleged that Shovan physically and verbally confronted Roper in the presence of the children causing her to be frightened for her safety. Although Shovan and Roper were divorced in a bifurcated proceeding, the divorce proceedings remained pending, and the divorce court had not entered any final order on custody and parent time issues. Following a hearing, the district court found that

[Shovan] intentionally and knowingly engaged in a course of conduct that would cause a reasonable person to fear bodily injury or suffer emotional distress on two or more occasions. Specifically, given the tumultuous relationship this couple's had, for him to show up, he knows that's going to cause problems, yet he chooses to do it anyway. Second of all, he should have known or did know in fact the victim would be bothered by this; and lastly, that she was in fear and suffered some emotional distress because of this.

¶ 4 After explaining the requirements of the civil stalking injunction, the district court also explained, on the record, the parent-time schedule established by the temporary order of the divorce court. Although a dispute arose at the hearing regarding the parent-time schedule, the district court clearly limited its ruling to enforcing the divorce court's temporary order, while urging the parties to diligently proceed to obtain a final decree from the divorce court. Shovan's claim that the district court in the civil stalking case ordered less parent-time than he was entitled to by statute is without merit. The district court in this case was bound by the order in the divorce court, and any modification or interpretation of that order must be pursued in the ongoing divorce proceedings. Similarly, to the extent that Shovan seeks affirmative relief from this court to modify parent-time, we lack jurisdiction to consider those issues and claims and they must be pursued in the divorce case.

¶ 5 Shovan contends that the district court in the civil stalking case incorrectly considered how Roper “felt” in ruling on the civil stalking injunction. “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” to fear for her safety or the safety of a third person or “to suffer other emotional distress.” Utah Code Ann. § 76–5–106.5(2). “ ‘Reasonable person’ means a reasonable person in the victim's circumstances.” Id. § 76–5–106.5(1)(e). Roper alleged two incidents in which Shovan confronted her at the children's school or in her neighborhood and acted in a confrontational or harassing manner toward her. Under the civil stalking statute, the district court appropriately considered Roper's reaction to Shovan's behavior as a reasonable person under the victim's circumstances. The district court's findings are not clearly erroneous and support the civil stalking injunction.

¶ 6 Shovan claims that he was prevented by the...