Sheri Pence v. Rory D. Pence

¶1 Rory D. Pence (Husband) appeals the district court's order

making a previously entered temporary protective order

permanent. This matter is before the court on Husband's motion

for summary reversal.

¶2 Utah Code section 78B-7-107(b) states that ex parte

temporary protective orders may not be extended beyond the

initial twenty-day period unless:

Pence v. Pence

20130753-CA 2 2014 UT App 23

(i) the petitioner is unable to be present at the

hearing;

(ii) the respondent has not been served;

(iii) the respondent has had the opportunity to

present a defense at the hearing;

(iv) the respondent requests that the ex parte

order be extended; or

(v) exigent circumstances exist.

Utah Code Ann. § 78B-7-107(b) (LexisNexis 2012). Here, a hearing

was scheduled after entry of the initial ex parte protective order.

However, at that hearing the parties agreed that no permanent

order should be entered until a guardian ad litem was appointed

for the children and some of the allegations made against Husband

were investigated by the proper authorities. Accordingly, the

parties agreed to extend the temporary protective order, with some

changes to reflect the visitation rights of Husband. The parties

contemplated that a hearing could be conducted after an

investigation was made of certain allegations. At no point during

the hearing was Husband given the opportunity to present a

defense to the underlying allegations made in the petition for a

protective order. Accordingly, the district court erred in entering

a permanent protective order because Husband was not allowed to

present a defense at the hearing and he did not stipulate to the

entry of a permanent protective order.

¶3 We therefore vacate the July 17, 2013 order making the

protective order permanent. The provisions of the protective order,

however, will remain in effect until an evidentiary hearing is

conducted and a new order is entered.