Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCool v. MaCura

Supreme Court of Vermont

November 22, 2019

Carrie McCool
v.
Joshua Macura

          On Appeal from Superior Court, Washington Unit, Family Division Kirstin K. Schoonover, J.

          Carrie McCool, Pro Se, Barre, Plaintiff-Appellee.

          Craig S. Nolan of Sheehey Furlong & Behm P.C., Burlington, for Defendant-Appellant.

          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.[1] 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[2] 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[3]; and (3) the court abused its discretion by not allowing him to cross-examine plaintiff, [4] unfairly limiting defendant's direct testimony, and not admitting relevant video evidence of defendant entering plaintiff's residence.

         ¶ 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 A.3d 919.

         ¶ 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 safety.

         ¶ 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.[5] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.