Opinion
FILE NO. CK17-14153
08-25-2017
C------- L-----------, PETITIONER/RESPONDENT, v. J--------- J----------, RESPONDENT/PETITIONER.
JAMES G. MCGIFFIN, JR JUDGE
PETITION NOS. XX-XXX XX-XXX
ORDER
REVIEW OF A COMMISSIONER'S ORDER
(Petitions for Protection From Abuse)
Before the HONORABLE JAMES G. McGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
This is the Court's Decision on a Request for Review of a Commissioner's Order filed by Petitioner C---- L---- (L----) against Respondent J------ J------ (J----). L---- filed her Petition for Order of Protection from Abuse (PFA) against J------ on May 11, 2017. J------ filed his Petition for Order of Protection from Abuse (PFA) against L---- on May 15, 2017. The Commissioner held a hearing on May 23, 2017 on cross PFA petitions. The Commissioner's orders, dated May 23, 2017, denied L----' PFA Petition against J------ and J------' cross-petition. L---- filed a Request for Review of a Commissioner's Order on May 26, 2017.
STANDARD OF REVIEW
A non-defaulting party may timely request judicial review of a Family Court Commissioner's Order. Review of a Commissioner's Order is governed by 10 Del. C. § 915(d)(1), which provides,
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by the rules of Court, within 30 days from the date of the Commissioner's Order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's Order to which objection is made. A judge of the Court may accept, reject, or modify in whole or in party the order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
Based on this standard of review, this Court will refer to the record of the Commissioner's proceeding, but will review the law and evidence independently. Because the Commissioner hears and evaluates live witness testimony, the Court gives weight to the Commissioner's assessments of credibility. The Court is not bound by the Commissioner's determinations if it finds those determinations are unreasoned or unsupported.
See FAM.CT.CIV.P.R. 53.1(e)(g); see also State v. M.S., No. 0605008568, 2006 WL 4546614, at *1 (Del.Fam.Ct. Sept. 8, 2006).
See Div. of Family Services v. J.C., No. CN11-04854, 2012 WL 4861601, at *3 (Del.Fam.Ct. May 23, 2012) (citing cases). See also Adams-Hall v. Adams, 3 A.3d 1096 (Table), 2010 WL 3733922, at *2 (Del. 2010) (noting that this approach is within Family Court's discretion).
See J.C., 2012 WL 4861601, at *3.
FACTS
The parties are the parents of N------ J------ (N------), born June 26, 2004 and M------ J------ (M------), born January 30, 2006. The parties were divorced January 30, 2015.
The subject of L----' PFA petition is the series of text messages sent by J------ to L---- on May 9, 10, and 11, 2017. The text message exchange began as J------ and L---- were parked next to each other at the ball park when J------ asked L---- for "favors," which she described as "essentially asking for sex." L---- asserted: "I kept telling him no, to please leave me alone."
Tr. 6:15; 7:20-21.
Tr. 6:17-19.
Tr. 6:19-20.
The unwelcome contact continued into the next morning. L---- testified to her response to these messages: "I just really wanted him to leave me alone. I did not- I was not going to have sex with him." J------ persisted in sending text messages to L---- asking her to have sex with him one last time. J------ threatened to file emergency custody and take the children away from L---- if she didn't comply. One of the text messages on May 10th read, "I got a question, if I back off everything could you please help me out one last time. I am doing as much as I can for you." L----responded, "No. I am not having sex with you, J----." The text messages continued with L---- offering the same response to J------. L---- testified that this kind of contact by J------ has occurred for years.
Tr. 6: 20-23.
Tr. 6:24; 7:1.
Tr. 7:4-5.
Tr. 8:5-7.
Tr. 8:8-9.
Tr. 8:10-12.
Tr.11: 8-10.
L---- admitted that the parties slept together since their divorce, but she explained that it was "under the constant threats of [J------] hurting me." J------ threatened to tell of L----' capitulation to her husband if she didn't continue to have sex with him. She testified that her response to J-----' sexual harassment was distress: "I have begged. I have cried." Finally, once L---- attempted to call for help when J------ "started on her" and he took her phone away and twisted her arm. This action caused L---- to fear for her safety.
Tr. 31:17-18. L---- testified that she slept with J------ twice since the divorce.
Tr. 31: 21-22.
Tr. 31: 21-22.
Tr. 33:9-12.
Tr. 33: 18-20.
DISCUSSION
L----' Objections
On May 26, 2017, L---- filed a Request for Review of a Commissioner's Order, arguing that the Commissioner erred in finding that J------ had not violated 10 Del. C. §1041(1)(b) and §1041(1)(h). To support her argument, L---- first points out that the Court erred because J------ admitted harassing L----, sending her text messages demanding sex and refusing to stop contacting her after she demanded that he stop.
The Protection from Abuse (PFA) statute explains "abuse" with eight separate and particular definitions. Relevant to the facts of this case is this definition: "Engaging in a course of alarming or distressing conduct in a manner which is likely to cause fear or emotional distress or to provoke a violent or disorderly response." "Abuse" is also defined as "any other conduct which a reasonable person under the circumstances would find threatening or harmful."
J------ admitted that he "harassed" L---- for sex. He testified that it was "our little thing," suggesting that L---- consented to this communication. The evidence clearly indicates that L--- did not consent to this conduct, except perhaps under duress. J------ denied grabbing L----' phone and testified he has only ever put his hands on L---- to stop her from hitting him.
Tr. 62:16-18. According to J------'s testimony, he admitted he harassed L---- for a favor, which happened about 12 times.
Tr. 63: 1-2.
Tr. 62: 22-23.
The undisputed facts indicate that J------' contact with L---- qualifies as "abuse" as defined by 10 Del. C. §1041(1)(d). The nature and frequency of the text messages caused L---- to suffer emotional distress and fear. She begged and cried for J------ to stop contacting her in that way.
Tr. 63:15-17.
The Commissioner concluded that J------' text messages did not constitute abuse, but that conclusion is not supported by this record. The Commissioner found that the parties had a history of contacting each regarding their sexual relations and that the tone of the text message exchange was not "harassing" but "begging." The Commissioner also found credible J------' testimony that the parties had, "some kind of agreement," because L---- had consented to sex in the past. This conclusion is not reasonable. Prior consent to a sexual act is not any waiver of control over one's body and sexual activity. It is a door that can be closed. "No" means no, even when it follows "yes."
Tr. 33: 18-20. --------
This case does not turn on the credibility of the witnesses. It turns on the undisputed facts that J------ persisted in a course of conduct, i.e. begging for sex, that L---- found emotionally distressing and fear provoking. These facts satisfy a definition of abuse under the Protection from Abuse statute.
CONCLUSION
IT IS HEREBY ORDERED that the Commissioner's Order dated May 23, 2017 is REJECTED in whole. The matter is REMANDED for entry of a Protection from Abuse Order against Respondent J----- J----- and on behalf of Petitioner C------- L--------.
IT IS SO ORDERED this 25th day of AUGUST, A.D. 2017.
/ JAMES G. McGIFFIN, JR. /
JAMES G. MCGIFFIN, JR., JUDGE JGM/ac cc: Commissioner Gretchen Gilchrist
David J. Bever, Esquire
Parties