dissenting:
I dissent. When the additional facts found by the court of appeals are "stripped away" as countenanced by the majority, there remains no alternate ground on which the court of appeals can be affirmed.
Bailey petitioned for and received an ex parte protective order against Bayles. Her petition was brought pursuant to the Cohabitant Abuse Act, section 30-6-1 to -14, and the Cohabitant Abuse Procedures Act, seetion 77-86-1 to -10.1 The "domestic violence," which she alleged in her petition, and which she sought protection against, was stalking by her ex-husband Bayles. Stalking is one of many acts of domestic violence listed in section 77-86-1(2) for which a protective order may be sought. The elements of stalking are found in our eriminal code in section 76-5-106.5.
Six months after the protective order had been issued, Bayles moved the trial court to dismiss it. In response, Bailey moved to make it permanent. The trial court held a hearing and found that in the four months preceding the filing of the petition for a protective order, Bayles had stalked Bailey on five different occasions. No other acts of domestic violence were found in support of the order. After finding the five separate acts of stalking, the court found that Bayles knew or should have known that his stalking would cause emotional distress to Bailey because of their stormy marriage of twenty-seven years, during which he called her foul and obscene names, physically abused her, and threatened her with a pistol.
Bayles appealed to the court of appeals contending that the evidence was insufficient to support the trial court's findings of fact that he had stalked her. The court of appeals declined to address Bayles' contention that the evidence of stalking was insufficient but after making additional findings of fact, affirmed the trial court on the alternate ground that Bayles had engaged in a pattern of physical violence against Bailey which caused her to fear him.
The majority opinion correctly holds that the court of appeals erred in making additional findings of fact to support the alternate ground upon which it relied. However, the majority opinion then proceeds to affirm the court of appeals based solely on the trial court's finding that during their "stormy marriage of twenty-seven years," Bayles physically abused Bailey by slapping her. That finding, however, is clearly insufficient to support the protective order. Bayles' conduct during their marriage may have constituted grounds for divorce, but not grounds, standing alone, for a protective order eighteen months later. The trial court's finding of physical abuse during the marriage was made only to demonstrate why Bailey suffered emotional distress when Bayles stalked her on the five occasions and was not intended as a finding of separate and independent acts of domestic violence on which alone to predicate the protective order. She did not seek the protective order on the grounds she had been abused during her marriage, but on the grounds that after their separation, divoree, and her remarriage, Bayles stalked her. Under the Cohabitant Abuse Act and the Cohabitant Abuse Procedures Act, a petitioner is granted a protective order when he or she is in fear of imminent physical harm. Utah Code Ann. § 80-6-1(1). As the court of appeals held in Stroflo v. Strollo, 828 P.2d 532 (Utah Ct.App.1992), the Cohabitant Abuse Act protects those who are reasonably in fear of physical harm resulting from past conduct coupled with the present threat of future harm. In this case, stalking was the present threat. The majority does not identify any other present threat but affirms on "the alternate grounds of section 80-6-2(1)."
*1168The majority relies on section 30-6-4.4 for its holding that no present threat of harm need be shown. It reads too broadly that section which simply provides that "the court may not deny a petitioner relief requested pursuant to this chapter solely because of a lapse of time between an act of domestic violence or abuse and the filing of the petition for an order of protection" (emphasis added). That section is drawn narrowly and does not purport to do away with the requirements of Strollo that the petitioner be reasonably in fear of physical harm resulting from past conduct coupled with a present threat of future harm.
In summary, when the additional findings of facts made by the court of appeals are "stripped away," as countenanced by the majority, the finding of the trial court that there had been abuse eighteen months earlier during their marriage is, standing alone, insufficient to support a protective order. I would reverse the court of appeals and remand this case to it to determine whether the evidence is sufficient to support the trial court's findings of stalking, which is the only possible ground upon which the protective order can be supported.
. Contrary to a statement in the majority opinion, Bayles does not dispute that the petition was brought pursuant to these statutes and that they provide the applicable law.