Opinion
CS16-02279
01-17-2024
K P, Appellant, v. R C, Appellee.
Appellant K------ P------, represented by Tara Blakely, Esquire. Appellee R----- C---------, pro se.
Date Submitted: December 4 2023
Petition No. 23-22034
Appellant K------ P------, represented by Tara Blakely, Esquire.
Appellee R----- C---------, pro se.
REVIEW OF COMMISSIONER'S ORDER
PAULA T. RYAN, JUDGE
INTRODUCTION
Pending before the Court is a Request for Review of a Commissioner's Order filed by K------p------("Ms. P------") against R-----C---------("Mr. C---------"). Ms. P------seeks review of an October 24, 2023 Commissioner's Order granting her a two-year Order of Protection from Abuse ("PFA") instead of a "lifetime" PFA against Mr. C
FACTUAL AND PROCEDURAL BACKGROUND
PFA Petition and Hearing
On October 12, 2023 Ms. P------filed for a PFA alleging that Mr. C---------committed acts of abuse against her. Ms. P------alleged that Mr. C--------- strangled her, committed acts of physical and sexual assault, and left her in fear that he would take their children from her care.Ms. P------'s request for an Emergency Ex Parte PFA Order was granted, and a temporary PFA against Mr. C---------was issued which also granted Ms. P------temporary custody of the parties' two children. On October 24, 2023 the parties appeared via Zoom for proceedings on Ms. P------'s PFA Petition. During the hearing, the parties consented to a PFA being issued against Mr. C---------. Although the parties both consented to a "lifetime" PFA, the Commissioner declined to find the existence of aggravating circumstances and granted a two-year PFA rather than a lifetime PFA against Mr. C---------.
See October 24, 2023 Order of Protection from Abuse - Consent. D.I. 24.
See October 12, 2023 Petition for Order of Protection from Abuse, D.I. 15.
Id. Ms. P------and Mr. C---------have two minor children in common, A- P------("A--" DOB -/-/-) and Z-- p------("Z--" DOB -/-/-).
October 12, 2023 Affidavit for Emergency Ex Parte Order, D.I. 20; October 12. 2023 Temporary Ex Parte Order of Protection from Abuse. D.I. 22.
Mr. C---------'s Criminal Charges
In addition to the civil PFA proceedings, Mr. C---------was also charged with criminal offenses involving Ms. P------as the alleged victim that are currently pending in Family Court. Mr. C---------also has a previous set of charges which were disposed of in Sussex County Court of Common Pleas that involved Ms. P------as the alleged victim.
October 24, 2023 Order of Protection from Abuse - Consent, D.I. 24.
Family Court Criminal Case
On October 10, 2023, Ms. P------ reported to police that on that date, Mr. C--------- allegedly grabbed her head trying to force her to perform oral sex and also slapped her across the face. Mr. C---------was arrested and charged with Sexual Harassment and Offensive Touching in connection with this incident. This criminal case is currently pending in Family Court with trial scheduled for January 19, 2023.
The Court has access to and takes judicial notice of the pleadings and orders in the criminal file in Family Court Adult Criminal File No. 2310004591 (State v. R-----C---------). With regard to criminal charges in other courts, the Court has access to Mr. C---------'s criminal history information as well as the court dockets and sentencing orders through DELJIS. See State v. R-----C---------. Court of Common Pleas Criminal Case No. 2105013212.
Court of Common Pleas Criminal Case
Earlier in 2023, Ms. P------reported to police that on May 23, 2021 Mr. C---------had entered her residence and strangled her in front of their daughter. On March 4, 2023, Mr. C---------was arrested and charged with Strangulation, Endangering the Welfare of a Child, and Burglary Second Degree. At a preliminary hearing on March 9, 2023, a Deputy Attorney General entered a nolle prosequi on the charges of Strangulation and Endangering the Welfare of a Child, and Mr. C---------pleaded guilty to an amended charge of Criminal Trespass First Degree, a lesser included offense of Burglary in the Second Degree. Mr. C---------was sentenced to one year of unsupervised probation and ordered to complete an anger management course and have no unlawful or uninvited contact with Ms. P------.
See State v. R-----C, Family Court Adult Criminal File No. 2310004591.
Request for Review of a Commissioner's Order
On November 21, 2023, Ms. P------filed a Request for Review of a Commissioner's Order seeking to have the two-year Consent PFA against Mr. C--------- extended to a lifetime PFA Order. Mr. C---------did not file an answer to Ms. P------'s Request for Review.
See State v. R-----C---------, Criminal Case No. 2105013212 (Court of Common Pleas docket).
The Court received a transcript of the October 24, 2023 PFA hearing on December 4, 2023 and has reviewed this transcript and all relevant pleadings, filings and background information.
MS. P------'S OBJECTIONS TO COMMISSIONER'S ORDER
In her Request for Review of the Commissioner's October 24, 2023 Order, Ms. P------ asserts that the Commissioner erred in declining to enter a lifetime PFA Order even though both parties had consented to this. Specifically, Ms. P------asserts that the Commissioner erred by ruling that a finding of aggravating circumstances is required for a lifetime PFA Order pursuant to Title 10 § 1045(f) of the Delaware Code. Ms. P------asserts that the Commissioner has the authority to allow parties to consent to a lifetime PFA Order under §§ 1045(b) and (c) of Title 10.Ms. P------therefore requests that the Court extend the two-year consent PFA Order to one of permanent duration.
Request for Review of a Commissioner's Order, D.I. 25.
Id.
Title 10 §1045(f) of the Delaware Code provides that "upon a finding that aggravating circumstances exist" a Court may enter a PFA order for "as long as reasonable necessary" including an order of permanent duration. Del. Code Ann. tit. 10, § 1045(f).
Title 10 § 1045(b) of Title 10 of the Delaware Code provides the fixed period of time for which relief may be granted pursuant to §1045. Del. Code Ann. tit. 10, § 1045(b). Title 10 § 1045(c) provides that a PFA order which is issued by the Court may be extended or modified upon a motion filed by either party. Del. Code Ann. tit. 10, § 1045(c).
LEGAL STANDARD
The Delaware Code confers upon this Court appellate jurisdiction over a Commissioner's Order. Specifically, the Delaware Code provides that:
[a]ny 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 rules of the Court, within 30 days from the date of a Commissioner's order.
Request for Review of a Commissioner's Order, D.I. 25.
From an appeal of a Commissioner's Order, this Court must make a de novo determination based on the record below. A judge deciding an appeal from a Commissioner's Order may accept, reject, or modify in whole or in part, the Commissioner's Order. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
DEL. FAM. CT. R. CIV. P. 53.1(E).
DEL. CODE ANN. TIT. 10, §915(D); DEL. FAM. CT. R. CIV. P. 53.1(G).
Protection from Abuse Orders
In order to obtain a PFA Order, the petitioner must prove by a preponderance of the evidence that the respondent committed an act of abuse as defined by statute. However, if a respondent consents to the imposition of a protective order, the Court may issue an order establishing protective provisions in favor of the petitioner without making a finding of abuse. In addition, upon motion by either party and following a hearing, the Court may extend the duration of an existing protective order based upon the consent of the respondent to such an extension.
Id.
See DEL. CODE ANN. tit. 10, §1044(b). See also DEL. CODE ANN. tit. 10, §1041(1) [Effective December 20, 2023]. Section 1041(1) defines “abuse” as conduct which constitutes any of the following:
a. Intentionally or recklessly causing or attempting to cause physical injury or a sexual offense, as defined in §761 of Title 11.
b. Intentionally or recklessly placing or attempting to place another in reasonable apprehension of physical injury' or sexual offense to such person or another.
c. Intentionally or recklessly damaging, destroying or taking the tangible property of another person, including:
1. Legal documents that are the property of another person
2. Inflicting physical injury on any companion animal or service animal.
d. Engaging in a course of alarming or distressing conduct in a maimer which is likely to cause fear or emotional distress or to provoke violent or disorderly response.
e. Trespassing on or in property of another person, or on or in property from which the trespasser has been excluded by court order.
f. Child abuse, as defined by Chapter 9 of Title 16.
g. Unlawful imprisonment, kidnapping, interference with custody and coercion, as defined in Title 11.
h. Intentionally causing or attempting to cause an adult to be financially dependent by doing either or both of the following:
1. Maintaining overwhelming control over the individual's financial resources, including withholding access to money or credit cards or forbidding attendance at school or employment without reasonable justification, and against the individual's will.
2. Stealing or defrauding money or assets, exploiting the victim's resources for personal gain, or withholding physical resources such as food, clothing, necessary medications, or shelter.
i. Any other conduct which a reasonable person under the circumstances would find threatening or harmful.
j. 1. Any of the following acts when used as a method of coercion, control, punishment, or intimidation of a person who has a close bond of affection to the companion animal as defined in paragraph (1)j. 2. of this section:
A. Inflicting of attempting to inflict physical injury on the companion animal.
B. Engaging in conduct which is likely to cause the person to fear that the companion animal will be physically injured.
C. Engaging in cmelty to the companion animal under § 1325 of Title 11.
See DEL. CODE ANN. tit. 10, §1043(e) (in connection with ex parte orders and emergency hearings: “If the Court finds by a preponderance of the evidence that the alleged domestic violence has occurred, or if the respondent consents to entry of a protective order, the Court shall grant any appropriate relief, including, but not limited to, the relief set forth in §1045 of this title.”); DEL. CODE ANN. tit. 10, §1044(b) (in connection with non-emergency hearings: “If the Court finds by a preponderance of the evidence that the alleged domestic violence has occurred, or if the respondent consents to entry of a protective order, the Court shall grant any appropriate relief, including, but not limited to, the relief set forth in §1045 of this title.”). See also Thomas v. Thomas, 1996 WL 797034 at *4 (Del. Fam. Ct. Oct. 7, 1996) (rather than a private agreement or contract, PFA consent decree is a court order with a judicial officer making final determination as to whether the PFA should be issued).
See DEL. CODE ANN. tit. 10, §1045(c) (“Orders may be extended only after the Court finds by a preponderance of the evidence that domestic violence has occurred since the entry of the order, a violation of the order has occurred, if the respondent consents to the extension of the order or for good cause shown.”).
October 24, 2023 PFA Hearing
On October 24, 2023, the parties appeared via Zoom videoconference for a hearing on Ms. P------'s PFA Petition. The parties indicated to the Commissioner that they wished to enter a consent protective order. After reading the consent order on the record the Commissioner noted that although the parties requested a lifetime order, she would not grant a lifetime PFA without a finding of aggravating circumstances:
Commissioner-. And I see that the parties are requesting that it be a lifetime order, but I would have to be able to make a finding of aggravating circumstances and the Court's not making a finding.
Ms. Blakely. My understanding is that if the parties say to consent, they can consent to a lifetime.
Commissioner-. I will not accept a consent without making a finding - a lifetime consent.
Ms. Blakely. Okay.
Commissioner. So do you want two years, but then the custody provisions, what do we consider to be the ancillary provisions, would only be for one year. So they
would expire one year from today, October 24, 2024. And then the no contact, the stay away provisions, the protective provisions would be two years from today, October 24, 2025.
Ms. Blakely. If Your Honor will not allow there to be a consent for a lifetime, then my client would seek for two years.
Commissioner. Right, so the protective provisions would be two years and then - Ms. Blakely. Correct.
Commissioner'. - the ancillary would be as directed by statute, one year.
Transcript at 7: 23-24; 8: 1-24; 9: 1-24; 10: 1-24; 11: 1-24; 12: 1-24; 13: 1-16.
Commissioner's Ruling
In the proceeding on October 24, 2023, both parties indicated that they understood the consent order, including its two-year duration, and engaged in the colloquy with the Commissioner to ensure the agreement was entered voluntarily. Therefore, the Commissioner granted a two-year Consent PFA Order against Mr. C---------which prohibited him from owning a firearm or committing any acts of abuse against Ms. P------and any minor children in her household. The PFA also prohibited Mr. C---------from having any direct or indirect contact with Ms. P------and required him to stay 100 yards away from Ms. P------, her home, her workplace, the children's school, and Z- P---------,
See Thomas v. Thomas, 1996 WL 797034 at *4.
October 24, 2023 Order of Protection from Abuse - Consent, D.I. 24.
The Commissioner Did Not Err By Issuing a Two-Year PFA Order by Consent Rather than a Permanent Order, as There Were No Aggravating Circumstances Presented
In her Request for Review, Ms. P------asserts that the Commissioner erred by prohibiting her and Mr. C---------from entering a permanent protective order by consent. Ms. P------asserts that under the provisions of Title 10, Section 1045(b) and (c), the parties may consent to a lifetime PFA order. Section 1045(b) of the Delaware Code provides:
Request for Review of a Commissioner's Order, D.I. 25.
(b) Relief granted under this section shall be effective for a fixed period of time not to exceed 1 year, except that relief granted under paragraphs (a)(1) and (a) (2) of
this section may be entered for a fixed period of time not to exceed 2 years, unless a longer period of time is ordered pursuant to subsection (c) or (f) of this section
DEL. CODE ANN. tit. 10, §1045(b) (emphasis added).
Thus, the duration of a PFA Order is generally up to one year, but may be two years if deemed necessary to restrain the respondent from committing acts of domestic violence or to prohibit contact with the petitioner, and may be even longer upon the appropriate findings in § 1045(f).Section 1045(c) addresses the extension of an existing PFA Order:
Id.
(c) An order issued under this part may be extended, or terms of the order modified, upon motion of either party. Hearings on such motions shall be scheduled within 30 days after proof of service on the respondent is filed. Such motions may be heard on an emergency basis if filed in accordance with § 1043 of this title. Orders may be extended only after the Court finds by a preponderance of the evidence that domestic violence has occurred since the entry of the order, a violation of the order has occurred, if the respondent consents to the extension of the order or for good cause shown.
DEL. CODE ANN. tit. 10, §1045(c) (emphasis added).
The Court finds that subsections (b) and (c) of §1045 do not authorize the issuance of lifetime PFA orders by consent. Rather, § 1045(b) merely sets the general duration of PFAs (up to one or two years) and authorizes the Court to issue a PFA Order of a longer duration under the provisions of §1045(c) and § 1045(f). Section 1045(c) allows for the extension and modification of PFA orders that have already been issued by the Court, while § 1045(f) addresses when a Court may issue a PFA for longer than two years, including a "permanent" PFA Order upon a finding of aggravating circumstances. In this case, the hearing on October 24, 2023 involved the issuance of the initial PFA Order against Mr. C--------- on behalf of Ms. P------, not the extension or modification of a previous PFA Order. Therefore, the Commissioner did not err in issuing a two-year PFA Order based upon the parties' consent.
Permanent or Lifetime PFA Orders Require a Finding of Aggravating Circumstances
The statutory authority for a PFA Order to be issued upon consent of both parties is found in § 1043(e) (exparte and emergency PFA hearings) and § 1044(b) (non-emergency PFA hearings), which provide that a protective order may be issued in one of two ways: (1) if the Court finds by a preponderance of the evidence that the alleged domestic violence has occurred, or (2) if the respondent consents to the entry of a protective order. Upon one of these findings, the Court is authorized to "grant any appropriate relief, including but not limited to, the relief set forth in §1045." Thus, when a PFA Order is issued by consent, there is no corollary finding of abuse.
However, even where both parties consent, it is the judicial officer who makes the final determination as to whether to issue a protection from abuse order, and may reject a consent agreement if it is imbalanced or does not adequately protect the interests of one of the parties ora child. See Thomas v. Thomas, 1996 WL 797034 at *4: M T. IT. v. P.J. W.. 2008 WL 1948382, *2 (Del. Fam. Ct. March 18, 2008). Moreover, a consent PFA may only be modified or extended if both parties consent or if there is a finding of contempt made against the respondent. See Thomas v. Thomas, 1996 WL 797034 at *2 ("clear meaning" of PFA statute indicates intent to enable the Court to modify a PFA Order, consensual or otherwise, upon motion of either party and a hearing) (citing Devarmin v. Devarmin, 1996 WL 797031 (Del. Fam. Ct. July 23, 1996)).
In this case, the Commissioner declined to allow the parties to consent to a lifetime PFA order without a finding of aggravating circumstances pursuant to § 1045(f), and instead issued a two-year PFA based upon their consent. Section 1045(f) provides:
Notwithstanding any provision of this section to the contrary, upon a finding that aggravating circumstances exist, the Court may grant no contact relief pursuant to paragraphs (a)(1) and (a)(2) of this section for as long as reasonably necessary to prevent further acts of abuse or domestic violence, up to and including the entry of a permanent order of the Court. An order entered pursuant to this subsection may only be modified or amended upon motion of a party for good cause shown. For purposes of this subsection, aggravating circumstances shall mean physical injury or serious physical injury to the petitioner caused by the respondent; the use of a deadly weapon or dangerous instrument against the petitioner by the respondent; a history of repeated violations of prior protective orders by the respondent; prior convictions for crimes against the petitioner by the respondent; the exposure of any member of the petitioner's family or household to physical injury or serious physical injury by the respondent; or any other acts of abuse which the Court
believes constitute an immediate and ongoing danger to the petitioner or any member of the petitioner's family or household.
DEL. CODE ANN. tit. 10, §1045(f) (emphasis added).
In 2010, the PFA statute was amended to allow the Family Court to issue protective order provisions of longer duration, i.e. up to two years and in certain circumstances, a permanent protective order. The synopsis of the legislation indicates:
House Bill No. 336 (March 18, 2010), available at https://legis.delaware.gov/ison/BillDetail/GetHtmlDocumcnt?fileAttachmentId=38913. House Bill No. 336 was effective immediately upon its signing by the Governor on July 12, 2010.
This Act enhances the Family Court's ability to protect victims of domestic violence and abuse by authorizing the Family Court to enter the no contact provisions of protection from abuse orders for up to 2 years in every case and, where aggravating circumstances exist, authorizing the Family Court to order no contact for as long as it deems necessary to prevent further abuse, including the entry of a permanent order.
Synopsis, House Bill No. 336 (March 18, 2010), available at https://legis.delaware.gov/BillDetail/19917.
Thus, the provisions of § 1045(f) authorize Family Court to impose a lifetime protective order restraining the respondent from committing acts of domestic violence or contacting the petitioner only upon a finding of the existence of at least one aggravating circumstance. By including detailed specific language requiring a finding of aggravating circumstances, it appears the legislature intended to limit the extraordinary relief of a permanent PFA Order only to those cases in which such aggravating circumstances are found to exist. As it is clear that parties may consent to a PFA Order of shorter duration without a finding of abuse, it stands to reason that they may not consent to a lifetime PFA Order unless there are aggravating circumstances as the statute specifically requires.
DEL. CODE ANN. tit. 10, §1045(f). One Family Court judge has held that upon a finding at a hearing that aggravating circumstances exist, a Commissioner must enter a lifetime PFA Order rather than a two-year PFA Order. See L.R. v. M.R., 2019 WL 7282045 (Del. Fam. Ct. Dec. 20, 2019) (Commissioner's decision to limit a PFA order to two years was not supported by the record where multiple aggravating circumstances were found, warranting a lifetime PFA Order under §1045(f)). See also M.A.B. v. J.J.J., 2019 WL 2513769 at *4 (Del. Fam. Ct. May 30, 3019) (despite respondent's insistence that the evidence did not meet criteria for a lifetime PFA, the statute does not require a finding of more than one aggravating circumstance to issue a lifetime order).
Therefore, the Court finds that the only circumstances when a lifetime PFA may be issued by consent is when there is an accompanying consent or stipulation as to the existence of at least one aggravating circumstance as defined in § 1045(f).
As part of the colloquy ensuring the voluntariness of consent for a lifetime PFA, in cases where a respondent is also facing criminal charges with the petitioner as the alleged victim, it may be prudent for the judicial officer to inquire whether the respondent has discussed the potential implications of consenting to an aggravating circumstance under § 1045(f) with his/her counsel in the PFA proceedings or in any pending criminal matters.
CONCLUSION
After a review of the transcript, pleadings, and background information in this case, the Court finds that the Commissioner did not err by concluding that a finding of aggravating circumstances is necessary for imposing a lifetime PFA Order, even when both parties otherwise consent. However, as set forth above, a Commissioner may issue a lifetime PFA Order by consent if the respondent is also willing to stipulate to the existence of at least one aggravating circumstance under § 1045(f).
Therefore, this case is REMANDED to the Commissioner for further hearing on whether a lifetime PFA Order may issue in this case, consistent with this decision. In the event Mr. C---------is not willing to consent to the existence of at least one aggravating circumstance under § 1045(f), then the October 24, 2023 PFA Order of two-year duration shall remain in effect.
IT IS SO ORDERED