Katherene Richardson v. Todd Rupper

¶1 Todd Rupper (Husband) appeals from the district court's

denial of his motion to dismiss a protective order. We affirm.

¶2 Husband and Katherene Richardson (Wife) married in 1993

and had one child together (Child). In 2003, Wife filed for divorce

and petitioned for a protective order against Husband. The district

court issued a protective order in April 2003, pursuant to the

Richardson v. Rupper

2. Because a copy of the Stipulation is not in the record on appeal,

we quote the relevant provisions of the Stipulation as they appear

in the order from which Husband appeals.

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Cohabitant Abuse Act, see Utah Code Ann. §§ 30-6-1 to -14 (Lexis

1998 & LexisNexis Supp. 2002) (current version at Utah Code Ann.

§§ 78B-7-101 to -116 (LexisNexis 2012)). The protective order

granted custody of Child to Wife and prohibited Husband from

"directly or indirectly contacting, harassing, telephoning, or

otherwise communicating with [Wife], except as provided for in the

Divorce Action.” Consequently, the type and scope of

communication permitted under the protective order was to be

defined in the parties' divorce action. The district court's first order

in the divorce action (the 2003 Divorce Court Order) stated, "The

parties may communicate with each other by telephone, or in

writing, notwithstanding the protective order . . . .”

¶3 Following the entry of a bifurcated divorce decree in 2004,

the district court modified the protective order in 2005 (the 2005

Modified Protective Order). The 2005 Modified Protective Order

maintained the restriction on Husband from "directly or indirectly

contacting, harassing, telephoning, or otherwise communicating

with [Wife], except as provided for in the divorce action.” In a

minute entry from the hearing to modify the protective order, the

commissioner explained that this restriction meant that "the

parents can communicate with each other only as to scheduling

and exercising visitation.” Over the course of the next few years,

Husband filed multiple motions to dismiss the protective order, all

to no avail. As a result, the 2005 Modified Protective Order

remained in effect.

¶4 In June 2009, Husband and Wife reached an agreement (the

Stipulation) to settle the remaining issues in the divorce action. The

Stipulation required Husband and Wife to "'communicate via

email or phone calls'” and explained that "'[t]he communication

shall be civil and relating only to the minor child.'”2 Another

provision of the Stipulation stated, "'On January 1, 2011, the

protective order shall be dismissed, provided that there are no

Richardson v. Rupper

3. A copy of the email is not included in the record on appeal. Our

description of the email's content is therefore based on Wife's

counsel's reading of it into the record at the hearing on Husband's

motion to dismiss the protective order.

4. Initially, Husband argued that his June 2010 email and its context

related to Child. The district court was not persuaded by

Husband's claim, and Husband does not advance that argument on

appeal.

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violations of the protective order between June 18th [2009] and

January 1, 2011.'” (Alteration in original.) Despite the language in

the Stipulation limiting the parties' permitted communications to

issues relating to Child, Husband sent an email to Wife on June 8,

2010, stating, "'You have used the [protective order] as a legal

weapon for money, power, and control. . . . [T]his thing broke

down over communications and it is impacting all of us. . . . Drop

it.'”3 Afterward, the Stipulation served as the basis for the district

court's final decree of divorce in December 2010 (the 2010 Final

Divorce Decree).

¶5 Husband again moved to dismiss the protective order,

seeking to enforce the district court's order in the 2010 Final

Divorce Decree that the protective order "'shall be dismissed

provided there are no violations of the protective order between

June 18, 2009 and January 1, 2011.'” At a hearing before the district

court, Husband argued that he had not violated the protective

order. Wife opposed Husband's motion, arguing that Husband's

June 2010 email asking Wife to drop the protective order was a

violation of the 2010 Final Divorce Decree. Husband did not deny

having sent the email, but he asserted that it did not violate the

protective order because the 2003 Divorce Court Order governed

and did not restrict the subject matter of his permitted written and

verbal communication with Wife.4 Husband argued that the

agreement in the Stipulation limiting his contact with Wife to issues

related to Child was not controlling because the Stipulation was

not incorporated into a court order until after he sent the email.

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¶6 The district court denied Husband's motion to dismiss the

protective order. The court reasoned that the parties'

communications were governed by the Stipulation and not the 2003

Divorce Court Order because the Stipulation "was immediately

binding upon the parties as a contract, even though not reduced to

a signed order until December 2010.” The court concluded that

Husband was not entitled to a dismissal of the protective order

because Husband's June 2010 email to Wife addressed issues

unrelated to Child, violated the protective order, and did not

comport with the stipulated requirements for dismissal. Husband

timely appeals.

¶7 Husband argues on appeal that the district court erred by

failing to dismiss the protective order. 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.” Bailey v. Bayles, 2002 UT 58, ¶ 19, 52

P.3d 1158 (citation and internal quotation marks omitted); see also

Snyder v. Snyder, 2010 UT App 130U, para. 2 (per curiam) (citing

Bailey, 2002 UT 58, ¶ 19).

¶8 Husband asserts that the district court should have granted

his motion to dismiss the protective order because the court's

decision was based on its erroneous conclusion that his June 2010

email violated the protective order. Husband argues that the 2003

Divorce Court Order limited only the form of his communication

with Wife, not its subject matter. He further asserts that the

Stipulation's provision that the parties' "'communication shall be

civil and relating only to [Child]'” did not take effect until the court

incorporated it into the 2010 Final Divorce Decree, which was filed

after his June 2010 email. In response, Wife argues that the

Stipulation was effective when signed in June 2009 and thus that

the district court properly denied Husband's motion to dismiss

because Husband violated the protective order with his June 2010

email.

Richardson v. Rupper

5. We do not have the entire record from the divorce action before

us. Husband contends that the 2003 Divorce Court Order remained

in effect in the divorce action until December 2010 and provided

that "[t]he parties may communicate with each other by telephone,

or in writing, notwithstanding the protective order entered in [the

protective order action].” However, the commissioner's minute

entry for the 2005 Modified Protective Order suggests that the

court in the divorce action already limited Husband and Wife to

child-related subjects when it stated, "[T]he parents can

communicate with each other only as to scheduling and exercising

visitation.”

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¶9 Whether Husband's June 2010 email violates the protective

order depends on how the controlling protective order defined the

permitted communications between Husband and Wife. If, as

Husband contends, the provisions of the 2003 Divorce Court Order

remained in place in June 2010, then the controlling protective

order limited the parties to written and telephonic

communications, and Husband's email would fall within the term

permitting written communication.5 If, as Wife contends, the

Stipulation was controlling, then the controlling protective order

restricted the parties to communications regarding issues related

to Child. In that case, the June 2010 email was outside the scope of

the permitted contact because Husband's demand for Wife to drop

the protective order was unconnected to Child.

¶10 When the parties signed the Stipulation in June 2009, it was

binding upon Husband and Wife. "A stipulation is construed as a

contract,” Coalville City v. Lundgren, 930 P.2d 1206, 1209 (Utah Ct.

App. 1997), and "parties are bound by their stipulations unless

relieved therefrom by the court,” Yeargin, Inc. v. Auditing Div. of

Utah State Tax Comm'n, 2001 UT 11, ¶ 19, 20 P.3d 287 (citation and

internal quotation marks omitted). As a contract, a valid stipulation

is binding even before it is entered by the district court. See

Richlands Irrigation Co. v. Westview Irrigation Co., 80 P.2d 458, 467

(Utah 1938). The 2005 Modified Protective Order restricted

communication "except as provided for in the divorce action.”

Because the Stipulation was binding, see id., we conclude that the

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Stipulation qualifies as part of "the divorce action” sufficient to

define the scope of permissible communication under the

protective order. The Stipulation entered into in June 2009

restricted Husband and Wife's subsequent communications to

emails and phone calls that are "'civil and relating only to [Child]'”

and also provided for conditional dismissal of the protective

order—the provision upon which Husband now relies. We agree

with the district court that Husband's June 2010 email violated the

terms of the Stipulation.

¶11 Because the Stipulation conditions removal of the protective

order on compliance with that order, Husband is not entitled to

dismissal of the protective order under the terms of the Stipulation.

A party cannot accept the benefits of a contract and reject its

burdens. See Prudential Fed. Sav. & Loan Ass'n v. Hartford Accident &

Indem. Co., 325 P.2d 899, 903 (Utah 1958); Francisconi v. Hall, 2008

UT App 166U, para. 18 . Thus, Husband is not in a position to claim

relief under the Stipulation's provision governing the potential

dismissal of the protective order. The district court therefore did

not err when it denied Husband's motion to dismiss the protective

order.

¶12 Affirmed.