State v. Machan, 2013 UT 72 (December 3, 2013)
The Utah Supreme Court addressed for the first time the conditions under which an estranged spouse may burglarize the family home in the absence of a court order excluding him/her. A spouse had been removed from the home by police and was prohibited from returning under a protective order. Several weeks after the protective order expired, the spouse returned to the home and was found by his 16-year-old son and wife, brandishing a rifle. The court held that the proper focus of the inquiry was not on who held title to the home, but was whether the spouse/cotenant had voluntarily surrendered his possessory rights to the family home prior to his entry, creating an implied-in-fact contract relinquishing possession. Relying in part on the language of Utah Code section 30-2-10, the court held that such a relinquishment could only be achieved through mutual consent, and a spouse/cotenant cannot unilaterally revoke the other spouse/cotenant’s possessory right to the home. The court affirmed the consideration of several conditions in determining whether such an implied-in-fact contract exists from the totality of the circumstances, including whether the spouse/cotenant: voluntarily moved out and established a separate residence; removed his personal belongings; willingly relinquished keys; and entered through surreptitious or violent means, supporting an inference that the spouse/cotenant understood he had relinquished possession. The court upheld the magistrate’s determination that the State had presented insufficient evidence at a preliminary hearing to support any such relinquishment in this case because there was no evidence that the spouse voluntarily moved out of the home, and the fact that the removed spouse did not try to reestablish residence in the home for three weeks after expiration of the restraining order was insufficient by itself to support an inference of mutual agreement to relinquish possession. The court concluded that affirmative acts are more indicative of an implied agreement as opposed to failures to act.