Opinion
FILE NO. CK18-02178 PETITION NO. 19-07506
07-18-2019
R----- B-----, PETITIONER, v. B----- B-----, RESPONDENT.
ORDER
REQUEST FOR REVIEW OF COMMISSIONER'S ORDER
Before the HONORABLE JAMES G. MCGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
The Court has before it a Request for Review of a Commissioner's Order (ROCO) filed by B----- B----- (Wife), represented by Anna Brousell, against R----- B----- (Husband), self-represented, on April 26, 2019. Wife appeals the Commissioner's April 26, 2019 Protection From Abuse (PFA) Order entered on Husband's behalf against Wife. The Commissioner's PFA Order against Wife is OVERRULED.
BACKGROUND
The parties are married and at the relevant time lived in the same home, along with Wife's child. Wife filed a Petition for Order of PFA and Affidavit for Emergency Ex Parte Order of PFA on March 20, 2019. That same day, the Commissioner entered an Ex Parte Order of PFA against Husband on Wife's behalf. Husband filed a Petition for Order of PFA, two Affidavits for Emergency Ex Parte Order of PFA, and a Motion to Modify, Extend or Rescind Order of PFA on March 21, 2019. On March 22, 2019, Wife filed a Motion for Contempt of Order of PFA against Husband. The Commissioner held a hearing on both Petitions for Order of PFA on April 2, 2019. The Commissioner granted the parties' respective petitions, entering a PFA Order against Wife on Husband's behalf and a PFA Order against Husband on Wife's behalf on that same date. Wife filed the present Request for ROCO on April 26, 2019.
Tr. of Apr. 2, 2019 PFA Hr'g, at p. 16, ll. 18-19, p. 32, l. 12.
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)(1); Del. Fam. Ct. R. Civ. P. 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 a Commissioner's order. A judge 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.
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 Del. Fam. Ct. R. Civ. P. 53.1(e)&(g). See also State v. M.S., 2006 WL 4546614, at *1 (Del. Fam. Ct. Sept. 8, 2006).
See Div. of Family Services v. J.C., 2012 WL 4861601, at *3 (Del. Fam. Ct. May 23, 2012) (citations omitted). See also Adams-Hall v. Adams, 2010 WL 3733922, at *2 (Del. 2010) (noting that this approach is within the Family Court's discretion).
See J.C., 2012 WL 4861601, at *3.
WIFE'S OBJECTION
Wife raises one objection to the Commissioner's April 2, 2019 Order entering a PFA Order against her on Husband's behalf. Wife asserts the Commissioner erroneously found she committed an act of abuse against Husband. Wife argues Husband did not present sufficient evidence to support the Commissioner's finding that she committed an act of abuse as defined under Title 10, Section 1041 of the Delaware Code.
DISCUSSION
At the conclusion of the hearing, the Commissioner announced her ruling on the record:
As for [Husband's] petition against [Wife], I am going to grant [Husband's] PFA. I find that [Wife] committed acts of abuse. I believe that she did kick [Husband] causing -- resulting in the injury to her toe. I do believe that there was an altercation in which she caused injury to you over the course of the events and that she did cause injury to you. So I will grant her—[Husband's] PFA against her.
Tr. at p. 113, ll. 21-24, p. 114, ll. 1-5.
Title 10, Section 1041(1) lists eight types of conduct which constitute abuse. Section 1041 defines "domestic violence" as "abuse perpetrated by one member against another member of the following protected classes: a. Family, as that term is defined in § 901(12) of this title." Under Title 10, Section 901(2) the definition of family includes spouses. The Court may grant "appropriate relief" upon a finding by a preponderance of the evidence that a respondent committed an act of domestic violence. The Court has defined preponderance of the evidence as "such relevant evidence as will enable the court to determine the identity of the litigant who should prevail, the weight of the evidence tipping in favor of that litigant."
See 10 Del. C. § 1041(1).
10 Del. C. § 1043(e) (emphasis added).
10 Del. C. § 901(12) ("'Family' means spouses . . .").
F.C. v. B.C., 64 A.3d 867, 873 (Del. Fam. Ct. Mar. 7, 2013) (internal citations omitted). See also Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967) ("The side on which the greater weight of the evidence is found is the side on which the preponderance of the evidence exists.").
The Commissioner concluded that Wife kicked Husband, causing physical injury and satisfying the definition of abuse. This reviewing judge finds there is insufficient evidence to support the Commissioner's finding of fact.
Husband suggested, during his questioning of Wife, that she committed an act of abuse against him by kicking him. Husband asked Wife, "Would you - since you swore on that Bible would you be willing to admit that you kicked me in the face on 3/15 when I was looking under the bed, yes or no?" Wife denied doing so, twice. Husband's question is not testimonial evidence. Neither Husband nor Wife made any other reference to "kicking." There is no evidence in the record to support the Commissioner's finding that Wife kicked Husband.
Tr. at p. 54, ll. 19-22.
Id. at p. 54, l. 23, p. 55, l. 1.
The Commissioner also found that Wife engaged in a "physical altercation" during which Wife caused injury to Husband. Wife testified that Husband sustained scratches to his face on Saturday March 17, 2019, while she was fending off Husband's physical attack. To put this evidence in context, Wife's testimony also included her description of the events of that day and Husband's acts of, "pushing me around, shoving me down," resulting in an injury to her toe and, "numerous bruises and things on my body." She proffered several photographs revealing extensive bruising with abrasions on several parts of her body. What is not in the record is any evidence that Wife acted "intentionally or recklessly" when causing Husband's injury.
Id. at p. 22, ll. 17-20.
Id. at p. 18, ll. 4-5, 16-17.
The Protection From Abuse statute does not define "intentionally" or "recklessly," but those concepts are defined in Delaware law elsewhere. Under the Delaware Criminal Code,
See generally 11 Del. C. § 101, et seq. The Criminal Code is a proper analog, as both the Criminal Code and the PFA statute are applied to an actor to limit that actor's personal liberty.
a person acts intentionally with respect to an element of an offense when:
(1) If the element involves the nature of the person's conduct or a result thereof, it is the person's conscious object to engage in conduct of that nature or to cause that result; and
(2) If the element involves the attendant circumstances, the person is aware of the existence of such circumstances or believes or hopes that they exist.
11 Del. C. § 231(b) (emphasis added).
Similarly,
a person acts recklessly with respect to an element of an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the element exists or will result from the conduct. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.
11 Del. C. § 231(e) (emphasis added).
Husband presented no evidence that Wife's conduct was the result of a conscious object to cause him injury. The evidence indicates that she intended only to defend herself. Husband also failed to present evidence that Wife's conduct displayed a conscious disregard of a substantial and unjustifiable risk. Her defense of self provided her the justification to act in the manner that resulted in Husband's injury.
Tr. at p. 22, l. 13
The Protection From Abuse Act does not expressly provide for a justification defense, but the Child Protection from Domestic Violence Act (CPDVA) does. The CPDVA defines domestic violence as including, "physical or sexual abuse or threats of physical or sexual abuse and any other offense against the person committed by 1 parent against the other parent, against any child living in either parent's home, or against any other adult living in the child's home." However, the statute makes clear, "'domestic violence' does not include reasonable acts of self-defense by 1 parent for self-protection . . ."
13 Del. C. § 701A, et seq.
Id.
The CPDVA and the justification of self-defense allow children and their parents to protect themselves from domestic violence. The CPDVA and the PFA statute were enacted to curb domestic violence and should be read in pari materia, in harmony. The purpose of the PFA statute is to protect victims of domestic violence. A person does not commit an act of domestic violence if the person uses reasonable self-defense to protect himself or herself from an act of domestic violence.
The justification of self defense is described in the Delaware Criminal Code at 11 Del. C. § 464.
See Gerald v. Peggy R., 1980 WL 20452 (Del. Fam. Ct. Nov. 17, 1980). See also Husband, J. v. Wife, J, 413 A.2d 1267, 1269 (Del. Fam. Ct. Dec. 18, 1979).
The record supports the conclusion that Wife, a parent, scratched Husband in self-defense. Wife provided credible evidence in her testimony and photographs of her injuries. Domestic violence does not include reasonable acts of self-defense. The Commissoner's finding that Wife's act in "an altercation in which she caused injury" to Husband was abusive is error as a matter of law because the element of intention or recklessness is absent from Husband's proof of claim.
CONCLUSION
The Commissioner's April 2, 2019 PFA Order against Wife on Husband's behalf is OVERRULED and the Order of Protection entered against Wife on April 2, 2019 is VACATED.
IT IS SO ORDERED this ___ day of JULY, 2019.
/s/ _________
JAMES G. MCGIFFIN JR., JUDGE JGM/spm/jrb cc: Anna Brousell
R----- B
Com. Gilchrist Date Mailed: