Date: 04-18-2008

Case Style: Mary Raynes v. Earl Rogers

Case Number: 2008 VT 52

Judge: Johnson

Court: Supreme Court of Vermont on appeal from the Orange Family Court

Plaintiff's Attorney: Alexander W. Banks and Jo Ann Hertford (Legal Intern), South Royalton Legal Clinic, South Royalton, Vermont for Plaintiff-Appellee.

Defendant's Attorney: UnknownAllison A. Ericson and Joseph A. Campagna of Law Offices of Sedon and Ericson, Chelsea, Vermont for Defendant-Appellant.

Description: Defendant appeals from the family court's decision granting plaintiff's request for a final abuse-prevention order. We affirm.

2. The parties agree on the following facts. Plaintiff and defendant were involved in a romantic relationship and lived together for approximately six years. They separated in February 2006, when plaintiff moved out of defendant's home. Following the separation, the parties continued to have numerous disputes about personal property, including ownership of a horse purchased during the relationship. On June 4, 2006, plaintiff was invited to defendant's home to have dinner and visit the horse. The parties got into an argument. As plaintiff was leaving, she picked up defendant's small dog and took the dog with her to her car. In the confrontation that followed, defendant kicked the door of plaintiff's car and used physical force against plaintiff in an attempt to get his dog back.

3. Plaintiff sought and obtained an emergency abuse-prevention order; she then requested that the order be made permanent. At the hearing, plaintiff testified that, during the confrontation on June 4, 2006, defendant chased her, grabbed her, kicked the door of her car, grabbed her by the hair, and hit her in the face with a closed fist. She testified that defendant's actions caused her physical pain and fear. Plaintiff further testified that, following this incident, defendant called her repeatedly and drove by her house on numerous occasions, and that she continued to fear him.

1. When defendant testified, he conceded that he kicked plaintiff's car window on the date in question and that he used physical force against plaintiff, attempting to pry her hands apart to release the dog and, as a result, placing an elbow on her neck. Defendant explained that he took this action in an effort to prevent plaintiff from stealing his dog and that he believed he was justified in doing so. Defendant further conceded that he drove by plaintiff's home four to five times in a single day to keep track of her habits to prove that she was fraudulently obtaining disability benefits.

2. In closing argument, defendant's attorney argued that defendant was justified in his actions because he used only the amount of force necessary to protect his personal property, namely, his dog. According to defendant, plaintiff was therefore not entitled to relief as provided by the abuse-prevention statute under which the proceedings were held.

3. The family court rejected defendant's argument, finding that the "[d]efendant had abused the [p]laintiff on that night in question regarding the use of physical force in the car" and had caused her to fear harm, such that the statutory standard for abuse was met. Further, the court found defendant's continuing surveillance of plaintiff after the incident of abuse to be particularly troubling. As a result of defendant's "continuing surveillance, telephone callings, and so on," the court concluded that plaintiff was in reasonable "fear of further harm," and that the emergency abuse-prevention order should therefore be made final. See 15 V.S.A. § 1103(c) (allowing court to issue order to protect the plaintiff if it finds that "the defendant has abused the plaintiff and that there is a danger of further abuse").

4. On appeal, defendant argues that he was justified in abusing plaintiff, as defined by 15 V.S.A. § 1101, because he used only the amount of force necessary to prevent defendant from stealing his dog. While defendant asserts that the family court erred in failing to make findings as to whether his use of force was reasonable under the circumstances, he argues that in any event, it would not be "unreasonable for him to pull [plaintiff's] hair or hit [her] in an effort to force her to drop his dog." Finally, he asserts that the use of reasonable force to defend property should be treated as an affirmative defense barring protective orders under the Abuse Prevention Act and that the court therefore erred in granting plaintiff's final order.

5. Vermont's Abuse Prevention Act was passed by the Legislature in 1980, in the wake of growing national consciousness of the need for civil legal protections for domestic-violence victims. See S. Goodmark, Law is the Answer? Do We Know That for Sure?: Questioning the Efficacy of Legal Interventions for Battered Women, 23 St. Louis U. Pub. L. Rev. 7, 10 (2004); J. Wesley, Breaking the Vicious Circle: The Lawyer's Role, 6 Vt. L. Rev. 363, 374 (1981). The statute addresses the pattern of controlling behavior that distinguishes intimate abuse from other forms of violence by providing a unique legal remedy, injunctive in nature, aimed at ending the cycle of domestic violence before it escalates. See J. Wesley, supra at 374; Heck v. Reed, 529 N.W.2d 155, 164 (N.D. 1995) (explaining that domestic violence is "a pattern of assaulting and controlling behavior committed by one household member against another" (quotation omitted)). Abuse-prevention orders are unique in that they are intended to provide immediate relief from intrafamily violence as well as to protect victims from future abuse, rather than to hold perpetrators liable for past acts of violence. As such, to obtain relief under the abuse-prevention statute, a plaintiff need prove only: (1) that a family or household member abused her by "[a]ttempting to cause or causing [her] physical harm," placing her "in fear of imminent serious physical harm," or stalking her; and (2) that there is a danger of future abuse. 15 V.S.A. §§ 1101(1), 1103(c). Limiting the elements to be proven in this way is in keeping with the statute's remedial purpose: to provide prompt relief to victims of domestic abuse through "inexpensive and uncomplicated proceedings." Benson v. Muscari, 172 Vt. 1, 6, 796 A.2d 1291, 1296 (2001) (quotation omitted).

6. In matters of personal relations, such as abuse prevention, the family court is in a unique position to assess the credibility of witnesses and weigh the strength of evidence at hearing. Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998). As such, we review the family court's decision to grant or deny a protective order only for an abuse of discretion, upholding its findings if supported by the evidence and its conclusions if supported by the findings. Wright v. Bradley, 2006 VT 100, 9, 180 Vt. 383, 910 A.2d 893.

7. Abuse-prevention proceedings, by nature, concern disputes among family or household members. See 15 V.S.A. § 1103(a). Thus, at hearing, the parties present evidence of the circumstances of the dispute that led to the alleged incident of abuse that is the threshold requirement for relief under 15 V.S.A. § 1101. In any contested case before the court, the defendant necessarily argues either: (1) that the abuse claimed by plaintiff did not occur, or (2) that defendant was justified in abusing plaintiff. With regard to the latter, courts frequently hear testimony from defendants that the alleged act of violence was provoked by plaintiff's own actions - e.g., name-calling, infidelity, or striking first - and that the plaintiff is therefore undeserving of a protective order. See P. Roestenberg, Representing Children When There Are Allegations of Domestic Violence, 28 Nov. Colo. Law. 77, 78 (stating that "many batterers will minimize their abuse, contend that it occurred in self-defense, or argue that it resulted from the victim's provocation"). While the court considers such testimony in assessing the totality of the circumstances, it does so with its statutory duty in mind - to determine whether the plaintiff is in need of legal protection from intimate abuse, rather than to decide which party was to blame for the dispute that led to the act of violence triggering the abuse-prevention petition.

8. In the case before us, defendant testified that he kicked plaintiff's car door, grabbed her wrists, and threw an elbow in her neck in the process. He further admitted that he drove by her house four to five times in one day to monitor her whereabouts. Given defendant's admissions and plaintiff's testimony regarding the dog incident, and defendant's later stalking-like behavior, the court did not abuse its discretion in determining that defendant posed a future threat of harm to plaintiff. Contrary to defendant's assertion, the court neither ignored the testimony that plaintiff precipitated the argument by grabbing his dog nor was required to deny plaintiff's request for relief even if it found defendant's version of events credible. The court was required to order appropriate protections for plaintiff if it found both that plaintiff was abused and in danger of future abuse, and it did so here.[1] See 15 V.S.A. 1103(c) ("the court shall make such orders as it deems necessary to protect the plaintiff" upon finding that defendant abused her and that there is a danger of future abuse).

9. Nevertheless, defendant argues that the common-law defense-of-property doctrine should be imputed to the abuse-prevention statute, allowing a complete bar to injunctive relief under the statute where the defendant uses reasonable force to protect personal property. Defense of property historically arose in the context of common-law criminal and tort actions. See, e.g., State v. Patch, 145 Vt. 344, 349-51, 488 A.2d 755, 759-60 (1985); State v. Bean, 107 Vt. 513, 518-19, 180 A. 882, 884 (1935); State v. Cleaveland, 82 Vt. 158, 160, 72 A. 321, 321 (1909); Johnson v. Perry, 56 Vt. 703, 706-07 (1884); Hodgeden v. Hubbard, 18 Vt. 504, 507 (1846). Such actions were concerned with determining the property owner's liability, potentially exposing him to either criminal sentencing or monetary damages. In this context, the common-law defense of property reinforced the importance of citizens' private property rights by exempting property owners from liability for protecting their property against the criminal or tortious invasion of others. See generally E. Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. L. & Pol. 399, 400-09 (2007) (discussing defense of property in context of state constitutional provisions granting right to protect property); L. Alsup, The Right to Protect Property, 21 Envtl. L. 209, 217 (1991) (stating that primary common-law right of private property "would have been meaningless with out the means to secure [its] enjoyment" by defense of property).

10. In contrast to criminal or tort actions, abuse-prevention proceedings did not exist at common law, but are based entirely in statute. The statute does not contemplate defense of property as an affirmative defense to relief from abuse because it is based on public policy considerations having nothing do with private property rights and everything to do with protecting victims from intimate abuse.[2] Abuse-prevention actions are remedial in nature, and thereby focus solely on the plaintiff's need for immediate and prospective protection from the defendant rather than the defendant's liability for abusing the plaintiff. See Rapp v. Dimino, 162 Vt. 1, 4, 643 A.2d 835, 836-377 (1993) (holding that abuse-prevention statute "focuses on fast, temporary relief to family members in immediate danger" rather than resolving parties' custody, support or property claims). Whereas it makes sense to allow common-law defenses to crimes and torts that derive from the common law, the policies underpinning the abuse-prevention statute, and the protections offered by it, represent a stark departure from the common-law perspective on intimate relationships. Compare Note, Common Law Crimes in the United States, 47 Colum. L. Rev. 1332, 1332 (1947) (majority of states retain English common-law principles to some degree within their criminal statutes) with R. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 Yale L. J. 2117, 2122-23 (1996) (under Anglo-American common law, husband had right to use physical force to the extent necessary to command wife's obedience and chastise her for "misbehavior"). By attempting to import the common-law defense-of-property doctrine into the abuse-prevention setting, defendant equates apples with oranges. In essence, defendant's argument boils down to a recharacterization of an assertion commonly made by defendants in abuse-prevention proceedings: plaintiff brought the violence upon herself and is therefore undeserving of relief from abuse. The critical question in such proceedings, however, is not who was at fault, but who, if anyone, is in need of protection.

11. To be clear, we do no violence to the common-law property regime by our decision today; rather, we hold that the common-law defense of property is wholly irrelevant to a determination of whether an alleged victim of domestic violence requires protection from abuse. It is the dissent's interpretation of the Abuse Prevention Act that would undoubtedly reap the more significant change to Vermont law. The dissent would amend the domestic-violence statute so as to incorporate incompatible common-law principles. In so doing, it would turn a simple, straightforward proceeding focused on the plaintiff's need, if any, for legal protection, into a contest over such peripheral issues as who precipitated the violent actions at issue and whether the actor was justified in his actions, thereby eviscerating the statute's protections entirely.

12. As we have stressed in the past, remedial statutes, such as the Abuse Prevention Act, must be liberally construed to "suppress the evil and advance the remedy" intended by the Legislature." Dep't of Corrections v. Human Rights Comm'n, 2006 VT 134, 7, 181 Vt. 225, 917 A.2d 451 (quotations omitted). Construing the abuse-prevention statute in a way that gives credence to the gender-biased myth that domestic-violence victims provoke, and therefore deserve their abuse, would in no way serve its legislative purpose of providing victims with prompt, uncomplicated relief from abuse. See Heck, 529 N.W.2d at 164 (discussing legislature's intent to counteract myth that "victims provoke or deserve the violence"); In re Marriage of Ieronimakis, 831 P.2d 172, 192 (Wash. Ct. App. 1992) (Kennedy, J., dissenting) (claiming that "[t]he belief that domestic violence is usually precipitated by the victims[‘] provocations" is pervasive in society and still operates in the judiciary's handling of domestic violence). On the record before us, we discern no abuse of discretion by the family court. There was ample evidence, in fact an admission, that defendant abused plaintiff as defined by the abuse-prevention statute, and further, that plaintiff was in reasonable fear of future harm.

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http://www.libraries.vermont.gov/supct/current/op2006-342.html

Outcome: Affirmed

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None