Opinion
FILE NO. CK16-37170
05-18-2017
G-------------- I-----------, PETITIONER/RESPONDENT, v. J---------------- S-------------, RESPONDENT/PETITIONER.
JAMES G. MCGIFFIN, JR JUDGE
PETITION NOS. XX-XXX XX-XXX
ORDER
REVIEW OF A COMMISSIONER'S ORDER
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 of January 10, 2017, filed by G------- I----------. The Order granted J------- S----------- an Order of Protection from Abuse (PFA) against I-----------. A simultaneous Order granted I--------- an Order of Protection from Abuse against S---------.
BACKGROUND
The parties are the parents of G------- I----------, born November 2, 2013, and D------- I----------., born January 25, 2015. The Court held a hearing on January 10, 2017, on cross PFA Petitions. S------ filed her Petition against I--------- on December 5, 2016. I------ filed his Petition against S------ on December 14, 2016.
The Court heard testimony from the parties and Dr. Joseph Zingaro, a psychologist.
These are the facts. On November 22, 2016, S------- was working at I------'s restaurant, S---------'s, in Dover. While working, S-------- ingested some of the drug Adderall. After the restaurant closed, S------ drank some tequila and inhaled some cocaine. S------ locked up the restaurant and got into her car to leave for home. While in the car, as S------ was searching for her keys, she fell asleep in the back seat. She awoke hours later to a Dover Police Officer knocking on her car window. S------ was taken to Kent General Hospital for evaluation and transferred to Innovations in Ellendale. She was then transferred to Dover Behavioral Health ("DBH") for a ten (10) day stay.
On December 3, 2016, after S------ was released from DBH, she went to the family's home to remove and resume care of the children. S------ attempted to place the children in her vehicle and take them to the maternal grandmother's house. I--------- objected. S--------- testified that I------ shoved her up against a car multiple times and caused bruising to her ribs. I--------- testified that S------ ripped his shirt. On December 4, 2016, S------ sought treatment at Milford Memorial Hospital for her injuries.
According to the testimony of both parties, I--------- once suggested to S------ she commit suicide by slitting her wrists. This comment was made in front of the parties' minor child. I--------- also claimed that S------ screamed at him, cussed him and threatened him. His testimony was ambiguous and unclear about the "screaming," "cussing," and "threatening." He stated that S------ called him on December 2 or 3, "cussing me, threatening me." Moments later, I---------'s counsel advised the Court, "[w]e're not saying that her screaming and yelling . . . before December was abuse." I---------' description of the incident at the garage makes no reference to "screaming," "cussing,' or "threatening."
Tr. 28:10; 154:23
Tr. 151:16-21
Tr.171:18-175
The Court entered cross Orders of Protection from Abuse and granted the parties joint legal custody and shared residential placement of the minor children. The Court ordered that S-----------'s visitation with the children be supervised by the maternal grandmother.
I--------- v. S------, File No. CK16-03072; Case: 16-38581; Order: 0097044, Jan. 10, 2017(Gilchrist, Comm'r). S------ v. I---------, File No. CK16-03072; Case: 16-37170; Order: 0097045, Jan. 10, 2017( Gilchrist, Comm'r). The Court awarded shared residential placement on a 2-2-3 schedule, beginning with Mother on January 11, 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,
10 Del. C. § 915(d)(2); Fam.Ct.Civ.P.R. 53.1(a).
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 the 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 could hear and evaluate 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.
DISCUSSION
I---------'s Objections
On February 8, 2017, I--------- filed a Request for Review of a Commissioner's Order, raising three objections. I--------- first argues that the Commissioner erred in awarding S------ shared, supervised placement of the parties' minor children notwithstanding S------'s ten (10) day involuntary commitment to Dover Behavioral Health and her cocaine use.
To support this objection, I--------- argues that the Commissioner's reliance on Dr. Zingaro's opinion is misplaced because the tests used by Dr. Zingaro do not meet "Daubert standards" and were based on S------'s self-reports. Besides reviewing S------'s records, in forming his opinion, Dr. Zingaro used the Mood Disorder Questionnaire, the Domestic Violence Evaluation (DOVE) and the Adult-Self Report.
Dr. Joseph Zingaro's name is misspelled in the hearing transcript as "Zangaro."
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
This objection is unavailing on appeal, as I--------- waived it during the trial. Prior to Dr. Zingaro's testimony, the parties stipulated that Dr. Zingaro was an expert witness. As a witness with specialized knowledge, Dr. Zingaro may offer opinion testimony.
if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Dr. Zingaro described in detail the evaluation process he used with S------, which included testing and an interview. Dr. Zingaro testified that those tests are accepted by the peer-reviewing community or are otherwise empirically validated. I---------' present objection does not call into question the satisfaction of the elements of this rule. Indeed, Dr. Zingaro's written report on the evaluation of S------ was admitted without objection from I---------.
Tr. 127:5;128:1
Tr. 137:5-8
I--------- affirmatively waived his objection to Dr. Zingaro's testimony when counsel told the Commissioner, during her closing, "I certainly will allow the Court to put whatever weight on those tests you deem fit." "A waiver occurs where a party intentionally relinquishes an available contention or objection." Delaware Courts have found waiver based upon counsel's affirmative and voluntary statements to the court. I---------'s statement accepting the Commissioner's decision was a voluntary and affirmative statement to the Court and was an intentional waiver of his objection that the testimony was inadmissible.
Tr. 216:2
Brown v. United Water Delaware, Inc., 3 A.3d 272, 276 (Del. 2010) citing Minna v. Energy Coal S.p.A., 984 A.2d 1210, 1214 (Del. 2009); Beebe Medical Center, Inc. v. Bailey, 913 A.2d 543,550-551 (Del. 2006).
See King v. State, 239 A.2d 707, 708 (Del. 1968) (holding that counsel's statements to the trial judge constituted an express waiver); Bullock v. State, 775 A.2d 1043, 1061 (Del. 2001) (holding that in the context of jury instructions, a defendant's approval of the instruction constitutes a waiver of a prior objection to the instruction.) But see Johnson v. State, 550 A.2d 903, 910 (Del. 1988) (holding no effective waiver when counsel stated he had "no other objection notwithstanding the initial one I noted previously.").
The Commissioner relied, in part, on Dr. Zingaro's testimony in awarding S------ shared, supervised placement of the parties' minor children. In making this determination, the Commissioner stated: "I haven't heard anything where either parent is unable to provide care to the children. Granted that [S------] does have . . . some mental health issues, but I do find Dr. Zingaro to be credible, that he does not find her to be a risk to the children." The Commissioner accepted Dr. Zingaro's opinion that S------ is not "in any way a danger to herself or to others." Dr. Zingaro testified that he, "did not have any concerns that S------ would not know what to do in terms of raising her children," and that S------'s "current levels of stress seem to be situational rather than chronic." The Court used sound discretion to award shared, supervised placement of the parties' minor children.
Tr. 222: 3-8.
Tr. 111:4.
Tr. 111:6-8.
Tr. 1-2.
With his second objection, I--------- argues that the Court erred in preventing I--------- from showing to Dr. Zingaro portions of S------'s Dover Behavioral Health record on cross-examination which had been excluded on evidentiary grounds. I--------- asserts that Dr. Zingaro should have examined the Psychiatrist Admission Notes, Assessment Referral, Medical Consultation, Psychological Assessment, Nursing Assessments, or Psychiatric Progress Notes. Dr. Zingaro used only portions of the information in S------'s Dover Behavioral Health file and not the entire file, in developing his opinion.
The Commissioner decided against allowing I--------- to refer to those documents in cross examination of Dr. Zingaro. The Commissioner reasoned, "[t]hose records have not been vetted or [supported by] any doctor testimony." But that ruling did not prevent I--------- from asking Dr. Zingaro about the substance of the documents. I--------- asked Dr. Zingaro how S------'s comment, "[w]hen I drink, I drink. I like to get drunk for real," would influence his opinion. Dr. Zingaro confirmed that he asked S------ about, and knew of, her drinking. I--------- asked Dr. Zingaro about S------'s suicidal ideation. Dr. Zingaro explained that suicidal ideation is typical of domestic violence victims. I--------- asked Dr. Zingaro about S------'s "violent ideations towards [I---------]." Dr. Zingaro explained these thoughts are also typical fantasies of a victim of domestic violence. I---------' objection does not suggest that any actual harm resulted from the Commissioner's ruling, even if the ruling was made in error. But I do not agree that the ruling was made in error.
This Court assumes that the Commissioner inadvertently left out a phrase like this in the sentence.
Tr. 131:11
Tr. 131:19
TR.132:8
Tr. 99:18; 121:14
Tr. 122:11
Tr. 99:18; 123:15
Although Delaware Rule of Evidence 703 allows that an expert may be asked about facts "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject," where those facts are not admissible in evidence, the Commissioner may refuse admission of the documents. Delaware Rule of Evidence 611 provides that "the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence." Delaware courts allow trial judges broad discretion in ruling on the scope of cross-examination. Although "counsel generally has discretion to cross-examine witnesses that discretion does not include the right to probe into irrelevant matters." The Commissioner apparently had little confidence in the quality of the information on the documents, as no foundation for admissibility was established and because the information from S------ was elicited and recorded by an individual unavailable for cross examination.
Harris v. State, 695 A.2d 34, 41 (Del. 1997) Citing Thompson v. State, 399 A.2d 194, 202 (Del. 1979) See State v. Keifer, 1997 WL 295680 at *1 (Del. Fam. Mar. 17, 1997) ("Because of its importance, the scope of cross-examination is necessarily a matter involving the trial court's discretion.").
Casalvera v. State, 410 A.2d 1369, 1374 (Del. 1908) (Defendant's cross-examination was probing irrelevant matters).
I---------'s final objection is that the Court erred in finding that I--------- committed acts of abuse against S------. I--------- argues that the December 3rd incident between the parties at the garage of their home did not rise to a level of abuse and that S------ offered no pictures into evidence nor did she offer testimony of a medical professional linking her injuries to I---------. I--------- also alleges that the Court erred in finding he committed an act of abuse against S------ when he responded to her that, "[i]f [killing yourself is] what you want to do, go do it."
Tr. 155:5
It is not unusual for a claim of domestic violence to be based on contradictory testimony with little corroboration. Such is the nature of domestic violence. The Commissioner evaluated the parties' testimony and concluded that I--------- did intentionally or recklessly cause S------ injury in the confrontation at the car. The Commissioner also found that I---------' admitted comment about the slitting of wrists was an abusive act, rejecting I---------' claim that the comment was offered by S------ "out of context." That comment is likely to be threatening or harmful to a reasonable person in the circumstances of this case.
Once the Commissioner resolved the credibility issues in favor of S------, the testimony of the parties provided enough to support a finding that I--------- committed acts of abuse. But there is more to support those findings.
The Commissioner also found the expert testimony of Dr. Zingaro persuasive. Dr. Zingaro provided a thorough report of S------'s psychological condition. Dr. Zingaro explained that S------ presented as a classic victim of coercive control by I---------. His explanation of coercive control, "[the domestic violence] isn't necessarily physical but may be more dangerous because it's emotional and much harder to detect," describes the action meant to be addressed by the statutory definition of abuse, "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."
Tr. 106: 17-20.
See 10 Del. C. §1041(d).
Dr. Zingaro reported that S------ complained I--------- was controlling. He controlled when she worked. He threatened to shoot her (suggesting he could confuse her for a burglar) and possessed a firearm. He put her and the children out of the home. He controlled what she wore. S------ had lost her sense of self. Dr. Zingaro found that S------ presented as is a typical victim of domestic violence.
Tr. 101:3
Tr. 104:4
Tr. 105:15
Tr. 126:11
Tr. 122:21
Tr. 106:2-3.
Although the problem of coercive control in an intimate relationship has not been addressed in Delaware case law I can find, it is a subject recognized and addressed in other jurisdictions, and that attention is instructive here. In Illinois, the Appellate Court, 5th Dist., found that coercive control, a psychological process that unfolds overtime, can support the tort of intentional infliction of emotional distress. "The process by which a spouse exerts coercive control is based upon a 'systematic, repetitive infliction of psychological trauma' designed to 'instill terror and helplessness.'" In an immigration case, the U.S. Court of Appeals for the 9th Circuit evaluated a relationship characterized by coercive control under the "extreme cruelty" standard application to immigration status applications. "The literature also emphasizes that, although a relationship may appear to be predominantly tranquil and punctuated only infrequently by episodes of violence, 'abusive behavior does not occur as a series of discrete events,' but rather pervades the entire relationship." "Domestic violence is the physical, sexual, psychological, and/or emotional abuse of a victim by his or her intimate partner, with the goal of asserting and maintaining power and control over the victim. [citations omitted] Most domestic violence victims are subject to an ongoing strategy of intimidation, isolation and control that extends to all areas of a woman's life, including sexuality, material necessities, relations with family, children, and friends, and work."
Feltmeier v. Feltmeier, 777 N.E.2d 1032, 1043-1044 (Ill. App. 2002).
Id.
Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003) Citing Mary Ann Dutton, Understanding Women's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191, 1208 (1993).
Pugliese v. Superior Court, 140 Cal. App. 4th 1444, 1452 (2007), citing Stark (California Appellate Court observed).
The evidence adduced at trial clearly supports the finding that I--------- committed acts of abuse against S------.
S------ raised no objection to the PFA Order entered against her. I am compelled to mention that my reading of the transcript leaves me unpersuaded that the evidence to support the I-------- petition justifies a finding that S------'s actions meet a definition of abuse. But my review is limited by statute to, "those portions of the Commissioner's Order to which objection is made." The Delaware General Assembly has determined the limited nature of the review allowed and I do not have the authority to go beyond that limit.
10 Del. C. §915(d)(1). --------
CONCLUSION
The Commissioner was well within her discretion to find that I--------- committed abuse because the evidence indicates I--------- injured S------ and engaged in course of alarming and distressing conduct that caused S------ considerable emotional distress.
IT IS HEREBY ORDERED that the Commissioner's Order is ACCEPTED in whole.
IT IS SO ORDERED this 18th day of MAY, A.D. 2017.
/ JAMES G. McGIFFIN, JR. /
JAMES G. MCGIFFIN, JR., JUDGE JGM/ac cc: Commissioner Gretchen Gilchrist
Parties