Bailey v. Bayles

2001 UT App 34, 18 P.3d 1129, 414 Utah Adv. Rep. 6, 2001 Utah App. LEXIS 10, 2001 WL 82315

• Court: Court of Appeals of Utah
• Decided: February 1, 2001
• Docket: 990765-CA
• Status: Published

Opinions

OPINION

THORNE, Judge:

T1 Respondent/Appeliant Randee Bayles appeals the trial court's decision granting Petitioner/Appellee Jeroldene Bailey's petition for a permanent protective order. We affirm.

BACKGROUND

T 2 In January of 1997, Bayles and Bailey, after twenty-seven years of marriage, separated and ultimately divorced. Bailey subsequently filed a Verified Petition for a Protective Order against Bayles. In the petition, Bailey alleged that following their separation Bayles had initiated a pattern of behavior intended to intimidate and cause her fear. Bailey's petition listed several specific incidents, which covered nearly four pages, and included repeated examples of unwanted and unnecessary contact initiated by Bayles.¹ Bailey characterized Bayles's behavior as stalking, however, at no point did she file a criminal Stalking complaint against Bayles.²

13 In addition, Bailey's petition asserted that throughout the parties' marriage Bayles had physically, emotionally, and mentally abused her. In support of this claim, Bailey provided specific examples of abuse, including allegations that Bayles had at least twice threatened to kill her.

T 4 The trial court, after conducting several hearings concerning Bailey's petition, concluded by a preponderance of the evidence that Bayles had "been stalking [Bailey] by intentionally or knowingly engaging in a course of conduct directed at [Bailey] that would cause a reasonable person to suffer emotional distress herself." °

T5 The trial court issued the following specific factual findings in support of its grant of the petition:

1. The respondent maintained a visual or physical proximity to defendant on two or more occasions as follows:

A. On June 17, 1998, the respondent drove slowly by the petitioner as she was getting out of her car to go into the house to have lunch.

On May 18, 1998, the petitioner and her husband went to the Old Timers café for lunch. The respondent circled around the restaurant twice and, as the petitioner and her husband left the café, the respondent went to Parley Redds, made a U-turn, and followed petitioner and her husband to their employment at the School District office.

On March 81, 1998, the respondent followed the petitioner slowly in his truck as she walked home for lunch.

On March 31, 1998, the respondent drove by petitioner's home 6 times. When she and her husband were leaving in the car to go for a ride, the respondent drove by, waving and honking.

On June 10, 1998, Jeff Bailey, husband of the petitioner, was driving from Blanding to Monticello when the respondent pulled up close behind Mr. Bailey, then pulled alongside him, causing Mr. Bailey to slow down. Respondent drove alongside Mr. Bailey's vehicle at a speed of about 10 mph and then pulled in front of Mr. Bailey and came to a complete stop in the road. Mr. Bailey then pulled out and went around the respondent.

2. The respondent knew or should have known that the above conduct would cause emotional distress to the petitioner or to her husband, Jeff Bailey, because of the stormy marriage of 27 years during which the respondent called the petitioner foul and obscene names on many occasions, physically abused her by slapping her, and threatened her with bodily harm by holding a pistol to her neck in 1975, and by telling her in [sic] the opining [sic] day of deer season in the 1990' [sic] that he could kill her anytime he wanted.

T6 The trial court, after granting Bailey's petition, used the standard protective order form, and restricted Bayles from the following: (1) attempting, threatening, or committing any further domestic abuse against Bailey; (2) attempting, threatening, or committing further violence against Bailey's husband; (8) contacting, harassing, telephoning or otherwise communicating with Bailey; (4) trespassing at Bailey's place of residence; and (5) interfering with or appearing at Bailey's workplace.

T7 Bayles appeals from the trial court's grant of a protective order.

ISSUE AND STANDARD OF REVIEW

T8 Bayles argues that, because the trial court relied on Utah's criminal Stalking statute, see Utah Code Ann. § 76-5-106.5 (1999), the trial court's findings do not satisfy the requisite burden of proof to prove that Bayles Stalked Bailey, and therefore, the order should be reversed and Bailey's petition dismissed.

19 However, while we agree that the trial court concluded Bayles had been Stalking Bailey, pursuant to section 76-5-106.5, we need not address the sufficiency of this conclusion. "It is well-established that [we] may affirm a "judgment, order, or decree appealed from if it is sustainable on any legal ground or theory apparent on the record, even though that ground or theory was not identified by the lower court as the basis of its ruling." Orton v. Carter, 970 P.2d 1254, 1260 (Utah 1998) (quoting Limb v. Federated Milk Producers Ass'n., 23 Utah 2d 222, 461 P.2d 290, 293 n. 2 (1969)); see also Bagshaw v. Bagshaw, 788 P.2d 1057, 1060 (Utah Ct.App.1990).³

ANALYSIS

T{10 Bayles argues that the trial court's factual findings do not support its conclusion that he had been Stalking Bailey following the parties separation and divorce. However, we need not address this argument. The issue now before this court is whether the trial court's decision to grant Bailey's petition for a protective order is supported by either the trial court's specific findings or the undisputed evidence. See Bagshaw, 788 P.2d at 1060.

{11 Utah Code Ann. § 30-6-2(1) (1999) sets forth the requirements that a party must meet to obtain a protective order. In pertinent part, section 30-6-2(1) states:

[alny eohabitant ... who has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of immediate danger of abuse or domestic violence, may seek an ex parte protective order or a protective order in accordance with this chapter, whether or not that person has left the residence or the premises in an effort to avoid further abuse.

Id.⁴ Further, in Strollo v. Strollo, 828 P.2d 532 (Utah Ct.App.1992) we explained the requirements of section 80-6-2(1), concluding that

[slection 30-6-2 clearly indicates that "any person who has been subjected to abuse" may seek a protective order. Further, because "abuse" is defined as "intentionally placing another in fear of imminent physical harm," if past abuse is coupled with a present threat of future abuse, a person may seek a protective order.

Strollo, 828 P.2d at 534 (quoting Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn.Ct.App.1989)).

112 Therefore, to obtain a protective order, Bailey was required only to demonstrate, (1) she is or was a cohabitant of the respondent, as defined by Utah Code Ann. § 30-6-1(1) (1998)⁵; (2) she had suffered physical abuse or domestic violence, as defined by Utah Code Ann. § 77-836-1 (1999); and (8) she had an imminent fear of physical harm or, put another way, " 'a present fear of future abuse."" See Strollo, 828 P.2d at 534 (citation omitted).

113 In March and April of 1999, the trial court held evidentiary hearings on Bailey's petition for a protective order, after which the trial court concluded that, over the course of their twenty-seven year marriage, Bayles had pursued a pattern of physical violence that included pushing, slapping, and punching Bailey. The trial court also found that Bayles had both verbally and emotionally abused Bailey during their marriage-abuse that included Bayles putting a gun to Bailey's neck and telling her he could kill her at any time. Accordingly, the trial court correctly concluded that Bayles had subjected Bailey to physical abuse and domestic violence.

[14 The trial court also found that after the separation, (1) Bayles had repeatedly followed Bailey in his car, both while she was on foot and in her vehicle and (2) Bayles had also repeatedly followed Bailey's current husband, conduct that included a potentially volatile incident on an isolated and deserted stretch of highway. Further, the trial court found that Bayles had twice threatened Bailey's life. Finally, in both her petition and during her testimony, Bailey clearly indicated to the trial court that she experienced a constant fear of Bayles, a fear that was aggravated with every incident. Based on Bailey's testimony, the trial court correctly concluded in its memorandum decision that Bailey's emotional distress was reasonable.

115 From the record before us, we conclude that the evidence supports the trial court's finding that Bayles abused Bailey during their marriage. We further conclude Bailey presented sufficient evidence to support the trial court's determination that, following their separation, Bayles intentionally created in Bailey an imminent fear of physical harm. Finally, we conclude that Bayles's conduct-repeatedly following Bailey, following Bailey's husband, repeatedly calling Bailey's home and workplace, coupled with the evidence of past abuse-was sufficient for the trial court to conclude that Bailey's fear

was both reasonable and real. See Strollo, 828 P.2d at 535.

{16 Therefore, we conclude that the trial court did not err in granting Bailey's petition and issuing the requested protective order.

117 I1CONCUR: RUSSELL W. BENCH, Judge.

1 . The petition listed twenty incidents involving Bayles. Also listed were nearly forty phone calls from unlisted numbers where the caller either hung-up prior to or immediately after either Bailey or her current husband answered the phone. Bailey also submitted an affidavit to the court roughly outlining one witness's testimony concerning repeated complaints filed against Bailey and ber husband by Bayles at their place of employment. While the trial court did not find each of these incidents occurred by a preponderance of the evidence, Mr. Bayles was clearly on notice of the nature of the petition and the underlying allegations supporting it.

2 . For clarity, we refer to criminal Stalking using a capital "S" and behavior referred to as stalking with a small ""s."

3 . This is a long established practice of appellate courts both in and out of Utah. See, eg., 5 C.J.S. Appeal and Error § 714 ("the appellate court will affirm the judgment, order, or decree appealed from if it is sustainable on any legal ground or theory apparent from the record"); see also Rasmussen v. Davis, 1 Utah 2d 96, 262 P.2d 488, 489 (1953)(holding that it is the accepted policy of the court to affirm a trial court's ruling on other grounds "if the conclusion reached, though based on incorrect reasons, is in fact correct for some other reason" (footnote omitted)). In the instant case, the trial court concluded that Bayles had engaged in Stalking Bailey. See Utah Code Ann. § 76-5-106.5 (1999). However, in our view the trial court also characterized the totality of Bayles's actions as non-criminal stalking in an attempt to describe Bayles's conduct towards Bailey. Moreover, it is clear from the hearing record and from the trial court decision that Bailey initiated the action solely for the purpose of obtaining a protective order against her ex-spouse. Therefore, we conclude that it is appropriate for this court to review the trial court's decision in light of Bailey's initial petition for protective order, rather than under the criminal Stalking statute.

4 . In response to a growing concern, nationwide as well as in Utah, surrounding the recognition of domestic violence as a clear community problem, the Utah Legislature adopted a statewide response in the Cohabitant Abuse Act. See Utah Code Ann. §§ 30-6-1 to 14 (1999). Whether by design or accident, a significant number of victims had previously found that orders of protection were not available to them. The purpose of the Cohabitant Abuse Act was to create a timely and simplified process whereby some level of protection and safety could be afforded to victims who had previously been outside the umbrella of orders available to persons involved in criminal prosecutions. These orders would require that the party subject to the order of protection leave the victim alone and provide for some measurable and enforceable safeguards, as determined by the court.

5 . Because Bailey does not dispute that Bayles meets this requirement, we do not examine it.