Opinion
File No.: CN08-05031 Pet. No.: 19-03767
05-30-2019
M. A. B. Petitioner, v. J. J. J. Respondent.
M. A. B. , Pro Se J. J. J. , Janine Howard- O'Rangers. Esquire, Respondent
REVIEW OF COMMISSIONER'S ORDER
M. A. B. , Pro Se
J. J. J. , Janine Howard- O'Rangers. Esquire, Respondent Kerr, F., Judge
PROCEDURAL HISTORY
Pending before the Court is a Request for Review of a Commissioner's Order ("ROCO") filed by M. A. B. ("Father"). Father is seeking a review of the Order entered by Commissioner Jennifer Mayo on March 29, 2019 entering a lifetime Protection from Abuse ("PFA") Order, following a hearing on a Petition filed by J. J. J. ("Mother") alleging that Father committed acts of abuse against her and that there are aggravating circumstances warranting the lifetime Order. The parties' file contains over 550 docket entries and the Court will not recite the entire case file history but just those pleadings which concern the current petition and those referenced at the hearing on March 29, 2019.
The current PFA Petition was filed on February 5. 2019. Father was served on March 6, 2019 the day the hearing was originally scheduled. Father requested and was granted a continuance until March 29, 2019. The Court held a hearing on March 29, 2019. Both parties testified and Mother requested that the Court take judicial notice of numerous prior Orders. The Father did not oppose the request that the Court take judicial notice of the prior Orders which were introduced as Exhibits rather than having the Court rummage through the voluminous file searching for the specified pleadings. No other evidence was introduced. Following the testimony and closing arguments, the Court found that Father had committed new acts of abuse against Mother not part of any prior PFA Petition and that there were aggravating circumstances sufficient to provide the basis for a lifetime PFA. Specifically, the Court found that there was a history of repeated violations of prior protective orders by Father, that there were prior convictions of crimes against Mother by Father and that there were acts of abuse which the Court found constitute an immediate and ongoing danger to Mother.
Transcript p. 6
Father filed a timely Request for Review of a Commissioner's Order on April 22, 2019. Father alleges that a PFA Order was not warranted as there was no violence or threat of violence by Father against Mother and no reasonable fear of harm on the part of Mother. Father alleges that all the allegations in the petition were previously litigated in the family and superior courts, that most of the allegations are too old and should not be raised in the current petition, that the majority of the allegations were regarding letters alleged to have been sent by Father to various persons which not introduced into evidence, that the Court erred in providing relief for the parties' child Z. , that Petitioner did not meet the requirements for a lifetime PFA pursuant to 10 Del. C. §1045(f), and finally that the Court erred in relying upon a chance encounter between Father and Mother outside of an Aldi Supermarket.
STANDARD OF REVIEW
A party may seek a review of a Commissioner's Order pursuant to 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 part the Order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.Because this was a Commissioner's final order, the Court reviews the Order de novo. According to Black's Law Dictionary a de novo review is "[a]n appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings." Pursuant to Family Court Civil Rule 53.1(b), an appeal of a Commissioner's Order must "set forth with particularity the basis for each objection." Upon taking the matter under review, a judge of the Court will make a de novo determination regarding the objected to portions of the Commissioner's Order. A judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party.
Id.
Black's Law Dictionary (10th ed. 2014).
FAM. CT. CIV. P. R. 53.1(b).
10 Del. C. § 915(d)(1); see also FAM. CT. CIV. P. R. 53.1(e).
C.M. v. L.A., 2007 WL 4793042, at *1 (Del. Fam. Ct. Dec. 27, 2007).
ANALYSIS
The court will analyze Father's arguments one by one and will cite to the testimony or other evidence which impacts each argument rather than recite the evidence in its entirety.
PFA ORDER WAS NOT WARRANTED AS THERE WAS NO VIOLENCE , THREAT
OF VIOLENCE OR REASONABLE FEAR OF HARM
Father's argument does not properly cite the applicable standard for obtaining an order for Protection from Abuse. There is no requirement of physical violence or specific threats of physical violence. In the present case the Court found that Mother satisfied 10 Del. C. §1041(1)(d), in that Father committed an act or acts of abuse by engaging in a course of alarming or distressing conduct in a manner which is likely to cause fear or emotional distress. The Commissioner also found that Father's conduct was such that a reasonable person under the circumstances would find it threatening or harmful pursuant to 10 Del. C. §1041(1)(h). The Court cited the D. v. D. case which discussed the reasonable person standard and noted that a reasonable person "under the circumstances" would find Father's conduct threatening or harmful.
D. v. D. , Del. Fam., File No. CN06-02461, Pet. No. 12-15434, Cooper, J. (9/20/2012).
In the present case, the Court found that Father was twice convicted of harassing Mother and was convicted of criminal trespass after entering Mother's apartment. Father also had civil and criminal findings of violating protective orders. With this background in mind, and with Father still subject to a criminal no contact Order, Father, who had just recently been released from incarceration, showed up at the exact same moment in time as Mother outside the gym where she works out. While Father alleged this was a coincidence, the Court did not find Father credible. Father first testified that he was a "black card member" of the same gym and made a point of explaining that he could attend that gym and any Planet Fitness gym. However, he later testified that he was not there to go to the gym but to go the grand opening of the Aldi supermarket to "check it out.". Mother testified that Father did not leave when he saw her and that he stood a few feet from the gym entrance, requiring her to walk past him. The Court does not find that the Commissioner erred in finding that Father's showing up at Mother's gym and not immediately leaving when he saw her and staying there while she had to walk by was a violation of the no contact order and intended to cause Mother fear or emotional distress and that a reasonable person in Mother's position would be afraid.
Transcript, p. 66-67
Transcript, p. 38
"Though the Court reviews the record independently, the Commissioner has the opportunity to hear and assess witness testimony; thus, the Court accords great weight to the findings of the Commissioner in regards to the credibility of witnesses." However, the Commissioner must make explicit findings as to why the Commissioner finds testimony to be credible. In this case, the Commissioner found that it is not reasonable to believe that Father, who had only been out of jail for a few weeks and who had a restraining order, just happened to be outside the gym or supermarket at the exact same time that Mother arrived. The Court also found that Father had written letters to third parties over years which caused her emotional distress. The Commissioner did not commit legal error by finding that Mother had proven that abuse occurred.
Id. at 3.
Id.
ALL THE ALLEGATIONS IN THE PETITION WERE PREVIOUSLY LITIGATED IN
THE FAMILY AND SUPERIOR COURTS
Father argues that since the allegations in the Petition, including prior PFA Petitions, the harassment and the PFA contempt actions, were previously litigated in the Family and Superior Courts. The Commissioner found that the pending action is a different type of litigation and that the parties are different or the purpose is different and therefore it is not res judicata. The Court can distinguish the PFA petition from the visitation proceeding and the criminal law proceedings. The Court notes that the visitation proceeding involves the same parties but the law applied and the standards are completely different. The Court looks at the best interest of the child during visitation cases and domestic violence and criminal records are factors which the Court considers. Unlike the criminal proceedings, the Court in a PFA case, can look at a course of conduct and can award relief that would not be available in a PFA. Furthermore, the prior convictions, prior PFA's and civil contempt of PFA's provide the context within which to view the reasonableness of Mother's fear. Finally, whether or not there is a history of prior violations of PFA Orders and prior criminal convictions are factors the Court is directed to consider if a lifetime PFA is requested. Therefore, not only is this evidence allowed, it is required to be considered.
Additionally, the Court notes that the encounter outside the gym was not previously litigated and was the incident which precipitated the most recent filing.
MOST OF THE ALLEGATIONS ARE TOO OLD TO BE CONSIDERED IN THE
CURRENT PFA PETITION
Father next argues that most of the allegations are too old to be considered in the current PFA Petition. The PFA statute itself does not contain a limitation on the remoteness of time between the alleged event and the filing of the petition. The Court notes that the finding of abuse is in part based upon Father showing up outside Mother's gym during the brief period of time that he was released from incarceration. The Court finds that this act alone in the context of the prior PFA's and convictions would be sufficient to make a finding of abuse, looking at the criteria set forth in great detail in the analysis of the first argument. As noted in the discussion of the first argument, this Judge finds that just the act of showing up at Mother's gym and not immediately turning around when Mother came toward the gym was sufficient to demonstrate that Father committed an act of abuse, when considered with the background of the case. A reasonable person in Mother's situation would be in fear. While the incident outside the gym may have been the precipitating event, the other evidence is not to simply establish a new finding of abuse, but rather to put the recent action in context. The prior acts also form the basis of a finding of a course of conduct pursuant to 10 Del. C. §1041(1)(d). Additionally, these prior acts, though more remote in time, are also required to be considered as part of the aggravating factors for a lifetime PFA. The remoteness in time can be considered when weighing the persuasive value of the evidence but the evidence itself is not inadmissible on the basis of the age of the allegations. Finally, the Court properly considered the overall context when determining the relevance of the older allegations. As was argued by Mother, Father was incarcerated for the majority of the past several years. Father was released from incarceration sometime after the Court hearing on April 26, 2018 and he was observed standing outside the gym less than a month later.
Transcript, p. 67
If it were not for the more recent event where Father showed up at the gym, Father's argument would have more merit. As it is, the prior actions are not being used as the sole basis for the new PFA but to put Father's more recent actions in context.
THE MAJORITY OF THE ALLEGATIONS WERE REGARDING LETTERS
WRITTEN TO THIRD PARTIES WHICH WERE NOT PUT IN EVIDENCE
Father next alleges that the decision must be overturned as the majority of the allegations in the Petition were regarding letters written to third parties which were not introduced into evidence. The Court is basing the decision on the evidence introduced at the trial and not the Petition. The Court notes that the PFA Petition contains 29 paragraphs regarding allegations of abuse. Of these 29 paragraphs, 5 referred to letters written to third parties. Additionally, while the actual letters were not admitted into evidence, the harassment conviction which arose from the letters, was admitted. Furthermore, Father during cross-examination, opened the door to the testimony concerning the contents of the letters. In response to Father's questions, Mother testified that "They were letters requesting information about our daughter and making false allegations about myself to other people." Mother testified that letters were sent to "multiple agencies, my daughter's school, my employer ... saying I abused my child."
Transcript, p. 29
Transcript, p. 28
Therefore, there was testimony that the letters were sent to third parties and the content of the letters, though the letters themselves were not introduced. Also, the prior Court Orders entered by Judge Newell imposing limitations on Father's communications with third parties were admitted with the pleadings the Court took judicial notice of at the outset of Mother's case. Father pled guilty on January 18, 2019 to harassment. The Court found that Father was incarcerated between 2012 and 2018 and that therefore his only means of harassing Mother was by mail. As a result of the totality of the evidence, the Court can deduce that the letters were harassing and could form the basis, along with the encounter outside the gym, for a finding of abuse.
Commissioner's supplemental written findings dated April 3, 2019.
THE COURT ERRED BY PROVIDING RELIEF FOR THE PARTIES' MINOR CHILD,
Z.
Father argues that the Court erred by providing relief for Z. when there was no allegation that Z. was abused. The Court notes that the PFA Order does not list Z. as a protected victim. While there is a provision in the PFA Order requiring Father to stay 100 yards away from the child's school or day care, the Court explained that this was standard language and that these are locations where Father could expect to come into contact with Mother. This is part of the stay away Order regarding Mother. Father's contact with Z. is governed by the most recent custody and visitation order entered by the Court, which does not currently provide for any visitation for Father as he has not been yet had a sustained period of time without incarceration. Father's contact with Z. is not part of the PFA. As the Court did not provide relief for Z. , this argument has no merit.
Transcript, p. 79
THE EVIDENCE DID NOT MEET THE CRITERIA FOR A LIFETIME PFA
PURSUANT TO 10 DEL. C. §1045(f)
Father argues that the evidence presented did not meet the criteria set forth in the PFA statute which provides the basis for entering permanent orders. The Commissioner went through the criteria on the record and determined that 3 of the 5 aggravating circumstances can be found in this case. The statute does not require a finding of more than one of these aggravating circumstances. The Court correctly found that there is "a history of repeated violations of protective orders by the respondent." Father has had both civil and criminal contempt findings. A PFA was entered by consent on October 3, 2008. On December 11, 2008, Father admitted to a civil violation of the 2008 Consent PFA Order and on August 24, 2009 there was another finding of a civil violation of the consent PFA. Father was found guilty of criminal contempt of a PFA on January 27, 2009. Father pled guilty to criminal trespass and criminal contempt of the PFA on May 11, 2009. A new PFA Petitioner was entered after a hearing and findings on October 11, 2011. The Court also found that Father had prior convictions for crimes against Mother. As noted above, Father has convictions for criminal trespass and criminal contempt of a PFA where Mother was the victim. On February 13, 2012 and on January 16, 2018, Father was adjudged guilty of harassment where Mother was the victim. Father does not deny these convictions. He just argues that the crimes are not violent, were already litigated and too remote in time. The statute does not require that the crimes are violent. Though not needed, as the Court appropriately found two other aggravating factors, the Court also found that there were acts of abuse which the Court believes constitute an immediate and ongoing danger to Mother. The Court found that due to the repetitive nature of the violations that Father's actions created an immediate and ongoing threat to Mother.
Transcript, p. 78.
Petitioner's Exhibit 1.
Petitioner's Exhibit 1.
Petitioner's Exhibit 1.
Petitioner's Exhibit 1.
Petitioner's Exhibit 1.
Transcript, p. 78
Petitioner's Exhibit 1
Transcript, p. 78
THE COURT ERRED IN RELYING UPON A CHANCE ENCOUNTER OUTSIDE
ALDI'S IN MAKING FINDING OF ABUSE
Father argues that the Court erred by relying upon the encounter outside Mother's gym, or Aldi's, in making a finding of abuse against Father. Father argues that the this was purely a chance encounter and that he immediately left the area when he noticed Mother from 100 feet away. Mother testified that she parked and walked up to the entrance to the gym and that Father was standing just a couple of feet from the entrance. Mother testified that "all's I did was walk right past and report it to the gym and called the police." On cross-examination, in response to a question posed by Father, Mother provided more detail in explaining "Well, when you saw me walking up to the building you stood there. You didn't leave when you saw me. You stood there, and I walked two feet in front of you."
Transcript, p. 21
Transcript, p. 21
Transcript p. 38
Father also testified regarding this incident. Initially, Father testified that he had a black card membership to Planet Fitness. He testified that he could go to different locations with a black card membership and that while he joined the Newark location, he could go to other gyms when he was at other locations tutoring. This suggests that he was at the gym that day. Otherwise, there is no reason to bring it up. Later he states that he was not at the gym but at the Aldi's because they were having a grand opening and he "wanted to check it out and see what they had there." Father also testified that he was just coming out of the store when he saw Mother and that he was surprised to see her and that he left immediately. The Commissioner who was able to observe both parties during their testimony made a finding that it was not reasonable "to be just standing outside an Aldi or a Planet Fitness at the time that she happens to drive up." The Commissioner further stated "By preponderance of the evidence, I'm going to find that you were there, and you stayed there in violation of the 100-yard stay-away." The Commissioner further found that this action caused fear on the part of Mother. The Commissioner made a determination as to the credibility of the witnesses and found Mother's testimony more credible. There is nothing in the record to suggest that the Commissioner made an error in this determination and, as she observed both parties during the testimony, the Court gives deference to the Commissioner's observations as the findings are supported by the record.
Transcript, p. 66
Transcript, p. 67
Transcript, p. 67
Transcript, p. 77 --------
CONCLUSION
The Court finds that the Court did not err in finding that Father committed acts of abuse pursuant to the PFA statute and that the evidence also supported a finding that there were aggravating factors providing the basis for a lifetime PFA. For the foregoing reasons, the Court finds that the Commissioner's Order is AFFIRMED.
IT IS SO ORDERED.
/s/_________
FELICE GLENNON KERR, Judge Cc: Parties/Counsel
The Honorable Jennifer L. Mayo Date mailed: 5/30/2019