Appeal from Superior Court, Washington Unit, Family Division
Kirstin K. Schoonover, J.
McCool, Pro Se, Barre, Plaintiff-Appellee.
S. Nolan of Sheehey Furlong & Behm P.C., Burlington, for
PRESENT: REIBER, C.J., ROBINSON AND EATON, JJ., AND SKOGLUND,
J. (RET.) AND HOWARD, SUPR. J. (RET.), SPECIALLY ASSIGNED
SKOGLUND, J. (Ret.), Specially Assigned.
1. Defendant appeals a final relief- from-abuse (RFA) order
issued by the Washington County family division of the
superior court. We conclude that the record does not support
the court's determination that defendant abused plaintiff
by placing her in fear of imminent serious physical harm.
Accordingly, we vacate the RFA order.
2. The parties had an intimate relationship and began living
together in 2011 in a house originally owned by
plaintiff's family but later purchased by the parties.
The relationship ended in December 2017. In June 2018,
plaintiff filed a motion for relief from abuse, asking the
Orange County family division to order defendant to stay away
from her and the parties' home. A final RFA hearing was
held on June 26, 2018. Following testimony from the parties,
the Orange County family division concluded that defendant
had engaged in abuse by stalking, and that there was danger
of further abuse. Defendant's counsel asked the court to
enter a continued temporary order rather than a final order
so that defendant did not lose his job as a police
officer. The court ultimately decided, with the
agreement of both parties, to issue an extended temporary
order with the same provisions that would have been in a
final order, for a period of six months.
3. On December 18, 2018, at the end of the six-month period,
the same judge in the Orange County family division held a
hearing on plaintiff's request to make the order final
and extend it. Following the testimony of both parties, the
court declined to extend the RFA order, stating that the
parties at that point were engaged primarily in a property
dispute. The court stated that it would not issue a further
extended order because it could not find there was a danger
of further abuse. The court informed the parties
"you'll have no orders in place but need to engage
in behavior . . . appropriately."
4. On December 19, 2018, the day after the Orange County
family division denied plaintiff's motion to extend the
previous RFA order, plaintiff filed a new request for an RFA
order in the Washington County family division. In her
affidavit, she alleged that a few hours after the previous
day's hearing, defendant entered her residence without
her consent to retrieve his belongings. Plaintiff further
alleged that defendant got inside the house through forced
entry and disabled the outside security cameras.
She stated that defendant had a history of restraining her
and that the previous RFA order had expired only hours before
he entered her residence.
5. The Washington County family division granted a temporary
RFA order and scheduled a hearing for January 2, 2019, at
which time both parties testified. Following the hearing, the
court issued a final RFA order based on the court's
determination that defendant had abused plaintiff by placing
her in fear of imminent serious physical harm. Defendant
appeals that order, arguing that: (1) the record does not
support the court's determination that plaintiff was
placed in reasonable fear of imminent serious harm; (2) the
court failed to make findings concerning any danger of future
abuse; and (3) the court abused its discretion
by not allowing him to cross-examine plaintiff,
unfairly limiting defendant's direct testimony, and not
admitting relevant video evidence of defendant entering
6. On appeal "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." Raynes v. Rogers, 2008 VT 52, ¶
9, 183 Vt. 513, 955 A.2d 1135. Our review of legal
conclusions is "nondeferential and plenary."
Fox v Fox, 2014 VT 100, ¶ 9, 197 Vt. 466, 106
7. We first consider whether the evidence was sufficient to
support the family division's determination that
defendant's conduct placed plaintiff in fear of imminent
serious physical harm. "In a relief-from-abuse hearing,
the plaintiff has the burden of proving abuse by a
preponderance of the evidence." Coates v.
Coates, 171 Vt. 519, 520, 769 A.2d 1, 2-3 (2000) (mem.).
In relevant part, abuse is statutorily defined as placing a
family or household member "in fear of imminent serious
physical harm." 15 V.S.A. § 1101(1)(B). Here,
plaintiff testified that defendant had a history of
restraining her and that she was fearful he would continue to
restrain her. Noting that defendant had turned off the
security cameras, plaintiff explained that she would not know
if he was in the house, which made her very concerned for her
8. The Washington County family division acknowledged that
defendant had not caused plaintiff physical harm or attempted
to stalk her but concluded that he had placed her in fear of
imminent serious physical harm by showing up uninvited at her
residence mere hours after plaintiff's request to extend
the prior RFA order had been denied. The court's
conclusion that defendant had placed plaintiff in fear of
imminent serious physical harm was based in part on
defendant's representation that he would go to
plaintiff's residence only at a mutually agreeable
time. In support of its conclusion, the court
noted that defendant had restrained plaintiff on occasions in
the past, that he had not lived at the residence for over six
months, and that, upon entering the residence on this
occasion, he turned off the surveillance cameras.
9. Defendant argues that his mere presence on the property he
jointly owned with plaintiff cannot be the basis of a final
RFA order, given that no court order prevented him from being
on the property. This argument begs the question of whether
he placed plaintiff in fear of imminent serious harm. On this
point, defendant asserts that plaintiff failed to demonstrate
that any fear she had of imminent serious physical harm was
objectively reasonable under the circumstances. See
Coates, 171 Vt. at 521, 769 A.2d at 3 (concluding
that trial court could not find that defendant had placed
plaintiff in fear of imminent physical harm when plaintiff
never testified that defendant had done ...