Coates v. Coates

Coates v. Coates (99-457); 171 Vt. 519; 769 A.2d 1 

[Filed 07-Jul-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-457

                              APRIL TERM, 2000


Katherine M. Coates	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Windham Family Court
                                       }	
                                       }
James D. Coates	                       }	DOCKET NO. 131-7-99Wmfa		
                                                Trial Judge:  William D. Cohen

             In the above-entitled cause, the Clerk will enter:


       Defendant James Coates appeals a Windham Family Court decision
  granting plaintiff Katherine  Coates' application for a final order for
  relief from abuse against defendant, arguing that plaintiff did  not meet
  the burden of proof to prove abuse.  We reverse.

       The following evidence was presented at a hearing on plaintiff's
  application.  The parties were  married in Florida and had a daughter in
  April 1993.  A Florida family court order dissolved the  marriage in May
  1996.   Plaintiff was awarded sole custody of daughter, pursuant to the
  court's  finding that shared parental responsibility would be detrimental
  to daughter as defendant "has a long  history of mental and physical
  problems that would prevent him from meaningful participation in  deciding
  major issues affecting the child's life."  The court also granted
  plaintiff's request to relocate  with daughter to Vermont, but required
  that she provide defendant her address and telephone  number.  Defendant
  was allowed supervised visits with daughter in Vermont, on the condition
  that  he give forty-eight hours notice to plaintiff.  He was also allowed
  telephone communication with  daughter three times a week.

       After plaintiff and daughter relocated to Vermont in 1996, defendant
  called on a weekly basis.   Defendant and plaintiff spoke when he called
  for daughter, and plaintiff listened in on defendant's  conversations with
  daughter without objection from defendant.  Defendant occasionally sent 
  daughter appropriate gifts, and plaintiff assisted daughter in sending
  cards and photographs to  defendant.  

       Sometime in late 1996 or 1997, defendant sent plaintiff and daughter
  three handwritten songs  entitled "Christmas Songs from Hell."  The songs
  contained graphic descriptions of violence and  threats of death and murder
  set to Christmas carol tunes.  Plaintiff testified that these arrived
  without  warning, that they disgusted her, and that she did not share them
  with daughter.  Defendant testified 


 

  that these songs were mere parodies of Christmas carols with macabre
  themes, and that he read them  to plaintiff over the phone and sent them to
  her at her request.  During a telephone call on another  occasion,
  defendant described to daughter the pain and bleeding he experienced when
  he had a tooth  pulled, which plaintiff thought inappropriate for daughter
  to hear.

       In approximately June 1999, defendant informed plaintiff and daughter
  that he was planning to visit  them in Vermont.  Plaintiff testified that
  defendant said that he was going to "take [daughter] for a  ride" and "fix
  things in her house," and that he was going to petition for joint custody
  of daughter.  Plaintiff testified that she was afraid to tell defendant
  that he could not visit her or daughter.  On July  1, 1999, plaintiff
  applied to the Windham Family Court for a temporary relief from abuse order 
  against defendant.  The application was granted and the order served on
  defendant in Florida on July  8, 1999.  

       At an August 27, 1999, hearing, plaintiff requested a permanent relief
  order.  Both plaintiff and  defendant testified and were represented by
  counsel.  In addition to the evidence discussed above, the  court allowed
  plaintiff -- over defendant's objection -- to testify as to physical and
  psychological  abuse she suffered prior to and during their marriage. 
  Plaintiff also testified that defendant similarly  abused daughter.  The
  court allowed the testimony to "put in context the plaintiff's sense of
  fear." 

       In its September 3, 1999, written decision, the court granted
  plaintiff a relief-from-abuse order.  The  court found no abuse against
  daughter and allowed defendant supervised visitation pursuant to 
  conditions in its order.  Defendant appeals, arguing that the court's
  decision was clearly erroneous  because plaintiff did not carry her burden
  of proof alleging abuse.  

       "We note at the outset that when reviewing the factual findings of a
  trial court we view them in the  light most favorable to the prevailing
  party below, disregarding the effect of any modifying evidence,  and we
  will not set aside the findings unless they are clearly erroneous." 
  Stickney v. Stickney, __ Vt.  __, __, 742 A.2d 1228, 1230 (1999) (mem.). 
  We will uphold factual findings if supported by  credible evidence, and the
  court's conclusions will stand if the factual findings support them.  See 
  Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998).  However,
  conclusions that are not  supported by the court's findings cannot be
  sustained.  See id. 

       In a relief-from-abuse hearing, the plaintiff has the burden of
  proving abuse by a preponderance of  the evidence.  "Abuse" is defined as
  the occurrence of one or more of the following acts:  "(A)  attempting to
  cause or causing physical harm; (B) placing another in fear of imminent
  serious  physical harm."  15 V.S.A. § 1101(1).  Pursuant to 15 V.S.A. §
  1103(c), if the court finds that the  defendant has abused the plaintiff
  and that there is a danger of further abuse, the court shall make  such
  orders as it deems necessary to protect the plaintiff, the children or
  both.  Subsection (h)  provides:  "when findings are required under this
  section, the court shall make either written findings  of fact or oral
  findings of fact on the record."  Id. at § 1103(h).  It is undisputed that
  the court made  no oral findings following the merits hearing.  And, in
  this case, the court's written findings are not  supported by credible
  evidence and are inadequate to support a relief-from-abuse order.

 

       Here, in their entirety, are the court's only findings that can be
  said to pertain to an abusive  situation:

    7.  On one occasion the defendant sent the plaintiff and the minor
    child a series of three  songs, in his own handwriting, entitled
    "Christmas Songs from Hell."  The songs contained  graphic
    descriptions and threats of death and murder.

    8.  In approximately June 1999, the defendant began telling both
    the plaintiff and the minor  child that he was planning to come
    visit them.  He told the plaintiff that he was going to  come into
    her house and begin fixing things for her.  The plaintiff was
    afraid to say no to the  defendant.  The defendant told the
    plaintiff that he wanted to petition the Court to modify  custody. 
    The plaintiff became increasingly alarmed and frightened.

  Here is the trial court's conclusion:

    The Court finds that the defendant has placed the plaintiff in
    fear of imminent serious  physical harm and grants the request for
    relief.

    This finding is based on the letter to plaintiff which clearly is
    inflammatory and put the  plaintiff in fear of physical harm.

       The court concluded that defendant placed plaintiff in fear of
  imminent serious physical harm based  on the songs defendant sent plaintiff
  at least a year-and-a-half before his announced visit. (FN1) The  sole
  testimony from plaintiff concerning her reaction to the song lyrics was the
  simple statement that  she was "kind of disgusted."
     
       The only testimony from plaintiff about what defendant did that
  frightened her was in response to the  question: "Does it scare you when
  the defendant says he is going to come up and petition the judge  for
  shared custody of her (their daughter)?"  Plaintiff answered, "Yes."  

       At the hearing, after the close of evidence, the court noted that
  plaintiff "subjectively believes that  she's in fear" but requested
  proposed findings from both sides as to "how that relates to any evidence 
  regarding threats, coercions, past behavior."   Unfortunately, the trial
  court's findings do not address  the relationship, if any, between the
  parties' past history and plaintiff's subjective belief that she fears 
  defendant.  

 

       The trial court could not properly find, on the basis of evidence
  before it, that defendant had placed  plaintiff in fear of imminent serious
  physical harm.  Plaintiff never testified she feared imminent  physical
  harm from defendant.  Her testimony primarily focused on her desire to deny
  defendant any  visitation with his daughter, notwithstanding the fact that
  his visitation would be supervised pursuant  to a prior Florida divorce
  order.   With no evidence that plaintiff was in fear of imminent serious 
  physical harm, there was no basis for an abuse-prevention order.  

       This is not to deny plaintiff's fear that defendant would become a
  more active part of their daughter's  life.  But it serves no purpose to
  mislabel her fear of a custody fight as a fear of imminent serious 
  physical harm or to misapply the law to accommodate that fear.

       The trial court abused its discretion when it issued the
  relief-from-abuse order. 

       Reversed.


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                                 Dissenting


       AMESTOY, C.J., dissenting.   The majority concludes that plaintiff
  feared a custody fight, not  imminent serious physical harm.  I believe
  that the trial court was in a much better position to  determine what
  plaintiff feared, and that the court did not abuse its discretion in
  determining that  defendant "has placed the plaintiff in fear of imminent
  serious physical harm."  I, therefore,  respectfully dissent.  

       A family or household member may seek or obtain a relief from abuse
  order by proving that another  family or household member has abused her or
  him.  See 15 V.S.A. § 1103.  One of the definitions  of "abuse" is "placing
  another in fear of imminent serious physical harm."  15 V.S.A. §
  1101(1)(B).   Plaintiff sought a temporary relief from abuse order when it
  became apparent that defendant was  intending to make his first visit to
  plaintiff and daughter since their relocation to Vermont in 1996.   The
  court found that plaintiff "became increasingly alarmed and frightened"
  about defendant's  planned visit.  The court determined that plaintiff's
  fear of imminent serious harm was based on a  series of three songs -- each
  in defendant's handwriting -- which defendant had sent to plaintiff.  
  Defendant, while conceding that the songs are "tasteless," argues that they
  are "not in a serious style  or to be taken seriously."  The effect of the
  songs on plaintiff, when coupled with defendant's  announced intention to
  pay his first visit to plaintiff and daughter, was a matter for the court
  to weigh  in determining whether defendant's acts had placed plaintiff in
  imminent serious physical harm.  See  In re B.M., 165 Vt. 194, 205-06, 679 A.2d 891, 898-99 (1996) (holding family court has discretion to  adopt
  testimony of domestic violence).  I cannot say the court erred, especially
  upon review of the  exhibits before the Court.  One example will suffice, a
  "parody song" sung to the tune of "Jingle  Bells":

                   Jingle bells, banshee yells,
                   Santa's gone insane,
                   He's got a knife,
                   Gonna' take some life,
                   In a one horse open sleigh, hey;

 

		   Jingle Bells, bloody smells
                   Gut rending curdling pain,
                   Running through the snow,
                   Screaming as you go,
                   Bleeding as you go,
                   Santa's gone insane;

                   Slashing to and fro,
                   In a one horse open sleigh,
                   Dead children in the snow,
                   You might just die today;

                   Santa's looking for you now,
                   He'll gut you like a pig,
                   Butcher you like a cow,
                   Then cook you on a stick - ooooh.

       Although the majority is correct that plaintiff never testified
  directly that she feared imminent  serious physical harm from defendant,
  the dynamics of domestic abuse ought to make us particularly  cautious in
  substituting our judgment -- on the basis of a cold record -- for that of
  the judge who  heard the testimony.  There are many reasons why the
  testimony of the person alleging abuse or fear  of abuse may be circumspect
  or incomplete.  Indeed, in criminal prosecutions of domestic abuse,  some
  prosecutors will not dismiss a complaint notwithstanding the reluctance of
  a victim to testify.   See Note, No Drop Policies in the Prosecution of
  Domestic Violence Cases: Guarantee to Action or  Dangerous Solution?, 63
  Fordham L. Rev. 853, 858 (1994) (noting that "the policy represents
  official  acknowledgment of the fear and ambivalence victims often feel
  when asked to testify against their  batterers").

       The trial judge is uniquely suited - and certainly better suited than
  this Court - to evaluate the  testimony of witnesses in relief from abuse
  cases.  See Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998)
  ("Given its unique position to assess the credibility of witnesses and
  weigh the  evidence, we will not set aside the court's findings if
  supported by the evidence, nor its conclusions if  supported by the
  findings.").  I cannot say, on a record that includes mailings from
  defendant to  plaintiff that graphically threaten death and murder, that
  the court erred in finding a sufficient basis  upon which to issue a final
  order for relief from abuse.  Accordingly, I dissent.  I am authorized to 
  state that Justice Morse joins in this dissent.

 



  Dissenting:	                        BY THE COURT:


  __________________________________	_______________________________________
  Jeffrey L. Amestoy, Chief Justice	John A. Dooley, Associate Justice

  __________________________________	_______________________________________
  James L. Morse, Associate Justice	Denise R. Johnson, Associate Justice

                                        _______________________________________
                                        Marilyn S. Skoglund, Associate Justice


	
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                                  Footnotes


FN1.  The trial court did not reconcile the conflicting testimony between
  defendant and plaintiff as to  the date the song lyrics were sent. 
  Plaintiff testified that they arrived "about a year and a half ago,"  and
  defendant testified he sent them in "November - late November of '96,"
  two-and-a-half years  before the plaintiff sought a protective order.