Opinion
FILE NO.: CN 19-02915 CPI NO.: 19-15320
10-14-2019
EMILY SEMINAZZI, Petitioner, v. DAVID CAREY Respondent.
ORDER REGARDING REVIEW OF COMMISSIONER'S ORDER
Before the Court is a Request for Review of a Commissioner's Order ("ROCO") timely filed on July 19, 2019 by Emily Seminazzi, Petitioner, objecting to the Commissioner's grant of Protection from Abuse Order ("PFA") issued on June 19, 2019. As reflected in the Commissioner's written Order, the Commissioner found Petitioner committed acts of domestic violence against David Carey, Respondent, and Amanda Carey, Respondent's minor daughter, pursuant to 10 Del. C. 1041. In her ROCO, Petitioner argues the record lacks sufficient evidence for supporting findings of abuse against Petitioner and the Court lacks jurisdiction to enter a PFA on behalf of Respondent's daughter.
Pursuant to 10 Del. C. § 915 (d) (1) A ROCO must be filed within 30 days after the entry of the Commissioner's order.
Respondent filed an Answer to Petitioner's ROCO on July 26, 2019, objecting to the request for ROCO and asking that the Order be denied. On August 26, 2019, Respondent submitted a letter in response to the ROCO, arguing there is no statutory requirement that Respondent demonstrate that he was afraid of Petitioner or even that he was emotionally distressed by her behaviors. Respondent contends the issuance of Respondent's Protection from Abuse Order was based on credible evidence of harassment and Petitioner engaged in a course of conduct that would cause a reasonable person fear or alarm and/or the finding that Petitioner engaged in other conduct that a reasonable person would find threatening or harmful. Respondent also argue because Petitioner was engaged in a substantive dating relationship with Respondent that afforded Petitioner access to take advantage of Respondent's daughter, Respondent's daughter should be entitled to protection either because of her own distress or as part of the course of conduct relevant to Respondent.
The detailed testimony of the unconventional relationship between parties and spouses need not be recited here as those matters are not in material dispute.
During a June 19, 2019, hearing on cross PFA petitions, the Court heard testimony from Petitioner, Respondent, Corporal Andrew Golden, Gabrielle Pimitell, Respondent's wife, Nicole Carey, and Respondent's minor daughter, Amanda Carey. The Commissioner found there was sufficient evidence of abuse by Petitioner against Respondent on the basis of an incident on May 6, where Petitioner took Respondent's phone for a period of time during which she texted Respondent's wife about Petitioner and Respondent's relationship, and an incident on May 22, where Petitioner made several calls to Respondent, finding the calls amounted to harassment. The Commissioner also found the text messages Petitioner sent to Respondent's daughter were a sufficient basis for a finding of abuse by Petitioner against Respondent's daughter.
Standard of Review
A party may seek a ROCO 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 the Court, within 30 days from the date of a 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.
Case law further explains what is meant by a de novo determination:
Therefore, in the de novo determination, the Court will make an independent review of the record and decide whether to accept, reject or modify in whole or
in part the Commissioner's Order. In a de novo determination, the Judge considers (1) testimony presented at the Commissioner's hearing (if hearing is held), (2) the findings of fact and recommendations of the Commissioner, and (3) the specific written objections filed by the objecting party.
C.A. v. C.A., No. CN06-04047, 2007 WL 4793921, at *1 (Del. Fam. Ct. Apr. 3, 2007) (citing D.K.B. v. State, No. 0308003909, 2003 WL 23269499, at *1 (Del. Fam. Ct. Dec. 18, 2003).
Discussion
Upon reviewing the record, this Court finds there is merit to Petitioner's ROCO. The Court will, therefore, reverse the Commissioner's decision and finding for the reasons stated below.
A. The Commissioner failed to apply the correct standard in finding there was sufficient evidence of abuse committed by Petitioner against Respondent.
The Commissioner found Petitioner committed acts of abuse against Respondent on the basis of both parties' admissions during the PFA hearing on June 19, 2019. The Commissioner found there was a basis to enter a PFA order based on their view that "mutual PFA orders" were needed for the health of the parties and their families. As this Court held in Coombs v. Coombs, "the Court is required to make a finding that the Respondent has committed one or more acts of domestic violence. It may be beneficial in every case to enter a [mutual] Order, but to brand an individual with the stigma of having perpetrated such conduct, when he or she has not, is improper". As discussed in further detail below, Respondent failed to demonstrate by a preponderance of the evidence that Petitioner committed acts of abuse against him. While the desire to keep the parties separate from one another is not unwarranted, that basis alone, without sufficient evidence of abuse committed by each party individually, is an incorrect basis for entering a PFA against a party.
Coombs v. Coombs, No. 97-22759. 1997 WL 905943, at *3 (Del. Fam. Ct. Nov. 17, 1997).
B. The Commissioner did err in concluding there was sufficient evidence Petitioner committed an act of abuse against Respondent on May 6.
The Commissioner found Petitioner committed acts of abuse against Respondent on the basis of both parties' admissions during the PFA hearing on June 19, 2019. The Commissioner granted Respondent's PFA Petition against Petitioner with on the basis of two incidents between Petitioner and Respondent taking place on May 6 and May 22. Pursuant to 10 Del. C. § 1041(d), "'[a]buse'" means conduct which constitutes [...] [e]ngaging 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". Petitioner argues the Commissioner improperly granted Respondent's PFA Petition Petitioner's behavior on May 6 was insufficient evidence from which the Commissioner could conclude that a reasonable person in Respondent's circumstances would have been distressed or afraid under 10 Del. C. 1041(1)(d). Petitioner also argues a single incident cannot be the basis for finding Petitioner engaged in a "course of alarming or distressing conduct". The Court agrees with Petitioner that the events on May 6 were insufficient evidence that Petitioner engaged in acts of domestic violence pursuant to 10 Del. C. § 1041.
It is undisputed that parties obtained each other's phones and each used the other's to send text messages to third parties. Based on Respondent's own testimony, Respondent admits that during the incident on May 6, Respondent took Petitioner's phone and sent messages from Petitioner's phone as reflected on page 223 of the trial transcript:
Respondent: At that point, I think I picked her phone up off my desk, and I - I looked through it, because I knew the password. I did text a couple of people that - "I love Dave," because she texted Stacy in front of me.Respondent's alleged however when Petitioner sent messages from Respondent's phone that constituted abuse as reflected in the trial transcript on page 224:
Respondent: [Petitioner] texted [Respondent's wife] that - "I'm with Dave." "He doesn't want to be with you".Aside from clarifying with his wife who was responsible for sending the messages, Respondent failed to provide any testimony as to an effect, if any, Petitioner's actions had on Respondent. Respondent was also aware Petitioner was using his phone to send text messages, as reflected in the trial transcript on page 75:
Petitioner's Attorney: So Respondent was there when you sent those text messages? Petitioner: He was there the whole time.Additionally, Respondent admits there was no physical altercation between Petitioner and Respondent, outside of taking phones as reflected in the trial transcript on page 223:
Respondent: There was never any physical altercations at the firehouse besides snatching phones and maybe a little pushing, trying to get phones back.Respondent's counsel also admitted Respondent was not a credible witness, as reflected in the trial transcript on page 293.
Respondent and Respondent's wife had a "swinging" relationship with Stacy and her husband.
Respondent's Attorney: Again, my own client has admitted he's a liar.
Based on the testimony on the record, Respondent presented that both parties took each other's phones and sent messages to third parties. There is no evidence on the record Petitioner's taking of the phone or messages sent had an effect on Respondent that would constitute abuse. Considering the surrounding circumstances in this case and the relationship between the parties, Respondent failed to meet their burden of a preponderance of the evidence that Petitioner's conduct on May 6 constituted abuse pursuant to 10 Del C. §1041(d).
Petitioner's conduct on May 6, also does not constitute abuse under 10 Del. C. 1041 (h). Pursuant to 10 Del. C. 1041 (h) "'[a]buse' means [a]ny other conduct which a reasonable person under the circumstances would find threatening or harmful". The Commissioner granted Respondent's petition because she believed it would be best for all involved if the parties stayed away from each other, not on the basis of Petitioner's conduct being that of which a reasonable person under the circumstances would find threatening or harmful. As mentioned above, Respondent admitted there was no physical altercation between Petitioner and Respondent. Respondent also admitted to continuing to engage with Petitioner despite Petitioner sending texts messages from his phone. Respondent offered no testimony as to his emotional state with regard to the incident, nor did Petitioner's actions have any impact on Respondent. Given the relationship between the parties, Petitioner's action would not be perceived by a reasonable person as threatening or harmful. As a result, while this Court has found under 10 Del C. §1041(d) and 10 Del. C. 1041 (h) "definitions of abuse do not require Petitioner to prove of any violent acts or threats of violence to receive a PFA", Respondent in this case has not met the burden of proof of a preponderance of the evidence that Petitioner's conduct on May 6 constituted abuse under any definition.
J.P.D. v. W.S. No. CN12-06267, 2013 WL 1908725, at 6 (Del. Fam. Ct. Feb. 1, 2013). --------
C. The Commission did err in finding Petitioner committed an act of domestic violence against Respondent pursuant to 10 Del . C. 1041 on May 22.
The Commissioner found Petitioner's phone calls to Respondent on May 22 to constitute abuse under 10 Del C. §1041. Pursuant to 10 Del. C. § 1041(d), "'[a]buse'" means conduct which constitutes [...] [e]ngaging 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". On May 22, Respondent testified that Petitioner made several phone calls to Respondent between 8:00 or 9:00 PM on May 21 through 3:00 AM in the morning on May 22. Respondent testified to calling Petitioner on the May 22 and having a twelve minute conversation with Petitioner. Respondent further testified to driving to Petitioner's house later on the morning of May 22 and engaging in a "make out" session with Petitioner, as reflected in the trial transcript on page 230. Respondent also gave no testimony to any feelings of fear or distress as a result of Petitioner's phone calls, but rather, did give testimony to driving to see the Petitioner after said phone calls. Given these facts, Petitioner's phone calls on May 22 do not meet the definition of abuse under 10 Del. C. § 1041(d).
Petitioner's conduct on May 22, also does not constitute abuse under 10 Del. C. 1041 (h). Pursuant to 10 Del. C. 1041 (h) "'[a]buse' means [a]ny other conduct which a reasonable person under the circumstances would find threatening or harmful". As was mentioned above, Respondent called Petitioner not to indicate that Petitioner should stop calling or that Petitioner's behavior was unwelcome by Respondent, but rather instead Respondent engaged in a twelve minute long conversation, followed by a several minute long FaceTime, then driving to Petitioner's house. When asked about his basis for wanting a PFA, Respondent described the relationship overall as unhealthy, but failed to convey any identifiable incident or incidents of abuse. Considering the totality of these circumstances, no reasonable person under these particular circumstances could conclude Respondent found Petitioner's conduct on these days to be threatening or harmful.
D. The Commissioner did not err in finding jurisdiction over Respondent's minor Daughter.
Despite not being engaged in a direct relationship with Respondent's daughter, the Court still has jurisdiction to grant a PFA for Respondent's daughter on behalf of Respondent's relationship with Petitioner. Pursuant to 10 Del. C. § 1041(2), "domestic violence" is defined as "abuse perpetrated by one member against another member of [certain] protected classes [...] persons in a current or former substantive dating relationship." 10 Del. C. §1041(2) (b) "factors to consider for a substantive dating relationship include the length of the relationship, or the type of relationship, or the frequency of interaction between the parties. The Court agrees given the intimate nature of the relationship between the parties and the frequency with which parties were engaged with one another over the period of several months, the parties did have a substantive relationship for the purposes of the PFA statute. Pursuant to 10 Del. C. §1045 (a)(12) "after consideration of a petition for a protective order, the Court may grant [...] any other relief necessary or appropriate to prevent or reduce the likelihood of future domestic violence". In this case, the since the Commissioner found the text messages Petitioner sent to Respondent's daughter to constitute abuse under 10 Del. C. § 1041(d) the Court could grant Protection from Abuse for the Respondent's daughter as part of the relief necessary to prevent the likelihood of future domestic violence. However, this issue is moot with regard to the fact Respondent failed to demonstrate abuse committed by Petitioner under his own petition. ACCORDINGLY, IT IS HEREBY ORDERED THAT:
Petitioner's Request for Review of a Commissioner's Order is GRANTED and the Commissioner's Order for Protection from Abuse Order against Petitioner is REVERSED.
IT IS SO ORDERED this 14th day of October, 2019
/s/ _________
ROBERT BURTON COONIN, Judge
Cc: Commissioner
Counsel via email
Date emailed: __________
RBC/dnn