Benson v. Muscari

Annotate this Case

Benson v. Muscari (99-142); 172 Vt. 1; 769 A.2d 1291

[Filed 02-Feb-2001]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 99-142

Ellyn Benson Supreme Court

On Appeal from
v. Windham Family Court

Vincent Muscari May Term, 2000

Ellen Holmes Maloney, J.

Sara Kagle and Geoffry F. Walsh, Vermont Legal Aid, Inc., Springfield, for
Plaintiff-Appellee.

William E. Kraham, Brattleboro, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

MORSE, J. Defendant Vincent Muscari appeals from a final
relief-from-abuse order issued to plaintiff Ellyn Benson. Defendant
challenges certain conditions of the order, claiming: (1) the 1000-foot
buffer-zone restriction violated his constitutional rights and represented
an abuse of discretion; (2) the firearms and deadly weapons restrictions
were vague, overbroad, and unsupported by the evidence and findings; (3)
it was error to include the minor child in the order; and (4) the findings
were inadequate to support the five-year period of the order. We uphold all
of the challenged conditions except for the restriction on possession of
deadly weapons, which in the context of this case was vague and overbroad,
and remand for reconsideration of that issue.

The final order for relief from abuse resulted from a violent incident
in plaintiff's home.

Although they had not lived together or had children, plaintiff and
defendant had a sexual relationship for five years and, thus, were
"household members" as defined in 15 V.S.A. § 1101(2). On the evening in
question, defendant entered plaintiff's home without announcing his
presence and encountered plaintiff in her second-floor bedroom with
another man. Defendant then physically assaulted plaintiff, punching her
in the face and dragging her by her arms down to the main floor.
Defendant told her that she would pay for the rest of her life for her
behavior. He destroyed much of the kitchen. A state trooper who arrived
at the scene found plaintiff "covered in blood from head to toe" with
blood "running off her in streams." At the hearing, plaintiff testified
that defendant once told her that if she was ever with another man, he
would kill both of them. She also testified that defendant had possessed
firearms in the past, and was uncertain whether he still possessed them.

At the time of the hearing, plaintiff lived in Westminster with her
nine-year-old daughter, who is not related to defendant. Plaintiff
testified that she cleaned homes in the area, and worked in an egg-roll
business in Putney. Her daughter attended school in Putney. Defendant
resided in Brattleboro.

Based on the foregoing, the trial court found that plaintiff had been
abused by defendant, and that she and her daughter were in immediate
danger of further abuse. The court issued a relief from abuse order
containing a number of terms, four of which are disputed here:

(1) Defendant was ordered not to "place himself within 1000 feet of
Plaintiff individually."

(2) Defendant was ordered not to contact or harass plaintiff's child
and not to place himself within 1000 feet of the child.

(3) Defendant was ordered "not to be in possession or control of any
firearms or dangerous weapons - excepting restaurant cutlery - which shall
not be in his possession off restaurant

premises."

(4) The order provided that it would remain in effect for five years,
until February 10, 2004.

Defendant first challenges the validity of the 1000-foot buffer zone
on the grounds that it is impossible for him to comply with the
restriction, and that it will subject him to criminal responsibility
despite his inability to comply. He asserts that the order denies him due
process of law, and violates his right to live in the community, to
associate with others, and to travel. In making these arguments,
defendant acknowledges that the Abuse Prevention Act specifically
authorizes "restrictions prohibiting the defendant from coming within a
fixed distance of the plaintiff, the children, the plaintiff's residence,
or other designated locations where the plaintiff or children are likely
to spend time." 15 V.S.A. § 1103(c)(1). He notes, however, that he lives
in an area where plaintiff is likely to shop or visit, and asserts that he
might inadvertently violate the 1000-foot limit if he fails to recognize
her from that distance.

It is well documented that "stay away" provisions, including buffer
zones of protection, implement important policy objectives underlying
abuse prevention orders. They are specific and definite, minimizing
interpretation issues. See generally C. Klein & L. Orloff, Providing Legal
Protection for Battered Women: An Analysis of State Statutes and Case Law,
21 Hofstra L. Rev. 801, 922-23 (1993). They prohibit what otherwise may
be viewed as inoffensive contact before it matures into further incidents
of abuse. See id. (clear and forceful stay away orders "ensure that the
beating which brought the petitioner to court to obtain the order is her
last"); State v. Goyette, 166 Vt. 299, 302, 691 A.2d 1064, 1066 (1997)
(order may "prohibit otherwise legitimate conduct to prevent future
abuse"). And they provide the victim a measure of emotional security from
fear of further contact with the abuser. See State v. Hauge, 547 N.W.2d 173, 176 (S.D. 1996) (one purpose

of restraint on abuser's conduct is to preserve "the mental and emotional
health of the vulnerable," which prevails over "other less compelling
interests"). We conclude, therefore, that these important policy goals
are sufficient to justify the incidental restrictions they may impose on
defendant's freedom of travel and association. See Coyle v. Compton, 940 P.2d 404, 414 (Haw. Ct. App. 1997) (freedom of movement is not absolute
and may be restricted, without offending constitutional guarantees, by a
specifically-tailored abuse prevention order).

Although there may be some risk of inadvertent violation of an order
requiring defendant to stay 1000 feet from plaintiff, we cannot conclude
that the condition denies defendant due process of law. His argument is
based largely on the claim that he may be prosecuted, or held in criminal
contempt, for inadvertent violation of the order because it is a strict
liability crime under State v. Mott, 166 Vt. 188, 692 A.2d 360 (1997) and
State v. Crown, 169 Vt. 547, 726 A.2d 493 (1999) (mem.). Defendant
misreads these cases. In Mott, defendant argued that he could not be
convicted for contacting his former wife by mail in violation of an abuse
prevention order because he was unaware of the order and could not have
intended to violate it. We held that intent to violate the order is not
an element of the crime, and affirmed the conviction. 166 Vt. at 197, 692 A.2d at 366; see also State v. Crown, 169 Vt. at 549, 726 A.2d at 495;
State v. Dann, 167 Vt. 119, 133, 702 A.2d 105, 114 (1997). In so holding,
we concluded that the trial court had correctly instructed the jury that
the State must show only that defendant intended to do the act that
constituted the violation; the violation could not result from a mistake,
an accident, or a misunderstanding. See Mott, 166 Vt. at 197, 692 A.2d at
365-66.

Under Mott, therefore, defendant could not be criminally convicted of
violating the abuse prevention order unless the State proved that he
intended to place himself within 1000 feet of

plaintiff. Contrary to defendant's claim, he could not be convicted of an
inadvertent violation of the order. Accordingly, we reject the argument
that the order denied him due process of law. (FN1)

Defendant also asserts that the court abused its discretion in
imposing the 1000-foot buffer zone. The Abuse Prevention Act vests the
trial court with broad discretion to craft "such orders as it deems
necessary to protect the plaintiff, the children or both." 15 V.S.A. §
1103(c) (emphasis added). Such orders may include "prohibiting the
defendant from coming within a fixed distance of the plaintiff [or] the
children." Id. § 1103(c)(1). The dissenting Justice suggests that a
smaller distance might eliminate the likelihood of inadvertent violations
and prove more "effective." Post, at 5. As noted, however, defendant
could not be convicted of an inadvertent violation. Furthermore, the
judgment as to whether a 1000-foot buffer zone, or some greater or lesser
distance, was necessary to provide plaintiff and her child with an
adequate level of security was one that rested within the sound discretion
of the trial court. The trial court, not this Court, was in the best
position to determine the appropriate distance. See State v. Hagen, 151
Vt. 64, 65, 557 A.2d 493, 494 (1989) (finder of fact is best positioned to
determine weight of evidence, credibility and demeanor of witnesses, and
persuasive effect of testimony, and findings will not be set aside unless
clearly erroneous). We may not second-guess the trial court's judgment
merely because a smaller distance might, in our view, have been more
effective.

Defendant also contends the evidence and findings were insufficient to
support the buffer-

zone and firearms limitations. Even without actually viewing the witnesses
or hearing their testimony, one cannot review the record evidence in this
case and fail to understand the trial court's conclusion that a
substantial buffer zone was necessary to secure plaintiff's physical and
emotional well-being. Plaintiff described in detail, albeit with some
difficulty, the vicious attack and substantial injuries she suffered at
the hands of defendant. The severity of the injuries was corroborated by
the investigating officer and by photographs of plaintiff taken shortly
after the incident. Plaintiff also testified that defendant had
threatened to kill her if he saw her with other men. In addition, the
officer conveyed a sense of defendant's utter lack of remorse or
contrition, noting that during his interview with the officer he had twice
stated "that he would come out smelling like a rose."

There was also testimony that plaintiff worked two jobs, and that one
of them, cleaning homes, involved her traveling to numerous locations
where she was alone and vulnerable. Thus, a zone of protection confined
to plaintiff's home or workplace was plainly inadequate to the exigencies
of the situation; a floating zone was necessary to adequately protect
plaintiff and her daughter. Although the court did not articulate its
reasoning process in detailed, step-by-step findings, it explained that
it had chosen the 1000-foot zone suggested by plaintiff as the minimum
distance that "would be safe . . . but . . . reasonable for enforcement
purposes." As to the firearms restriction, plaintiff testified that she
had seen defendant in possession of firearms, and was uncertain whether he
continued to possess them.

We conclude, therefore, that the evidence was sufficient to support
the buffer-zone and firearms limitations. See Begins v. Begins, 168 Vt.
298, 301, 721 A.2d 469, 471 (1998) (given trial court's unique position to
assess credibility of witnesses and weigh evidence, we must affirm court's

findings if supported by credible evidence, and its conclusions if
supported by findings). Further, while the court's findings were not
elaborate, viewed in the light of the record they were adequate to support
the distance and firearms restrictions. The dissent faults the trial court
for failing to explain the basis for these conditions. Findings are
indeed useful guides to a trial court's reasoning process; from an
appellate perspective, one can never have too many findings. Yet we must
not lose sight of the fact that the purpose of the Abuse Prevention Law
"is to provide 'inexpensive and uncomplicated proceedings that allow an
abused family member to obtain immediate relief.'" Mott, 166 Vt. at 196,
692 A.2d at 366 (quoting Rapp v. Dimino, 162 Vt. 1, 4, 643 A.2d 835, 837
(1993)). Requiring more detailed and express findings in this case, where
the record otherwise amply supported the order, undermines that purpose,
and sends the wrong message to trial courts and litigants. Accordingly, we
affirm that portion of the order imposing the 1000-foot buffer zone and
firearms limitations.

Defendant next contests the inclusion of plaintiff's child in the
no-contact provision and the distance restriction. He argues that the
statute does not authorize inclusion of the child where she is not
defendant's child and the proven abuse did not involve the child. In
pertinent part, the statute provides:

(a) Any family or household member may seek relief from abuse by
another family or household member on behalf of him or herself or
his or her children by filing a complaint under this chapter.
. . .

(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, which may include the following:

(1) an order that the defendant refrain from abusing the
plaintiff, his or her children or both and from interfering with
their personal

liberty, including restrictions on the defendant's ability to
contact the plaintiff or the children in person, by phone or by
mail and restrictions prohibiting the defendant from coming
within a fixed distance of the plaintiff, the children, the
plaintiff's residence, or other designated locations where the
plaintiff or children are likely to spend time;

15 V.S.A. § 1103(a), (c)(1). The statute clearly authorizes the court to
include plaintiff's child in the abuse-prevention order. Nowhere does it
state that the child must also be defendant's child or that the court must
have found that defendant also abused the child. Indeed, the language is
directly to the contrary. Particularly for location restrictions, the
statutory coverage is logical because plaintiff will often be present with
her child. Thus, an order that provides a zone of protection for
plaintiff's child or requires defendant to stay away from places the child
is likely to be also provides a zone of protection for plaintiff.

In this case, the order prohibited defendant from abusing plaintiff
and from threatening to use physical force, or using force, against
plaintiff. These parts of the order included only plaintiff. Most of the
remainder of the order has parallel provisions for plaintiff and for
plaintiff's child. Thus, defendant was prohibited from following or
stalking either plaintiff or her child, from threatening or harassing
either, from contacting either, and from coming within 1000 feet of either.
We reject defendant's argument that these provisions are not authorized by
the statute.

Next, defendant challenges the provision that prohibits him from
possessing any firearms or dangerous weapons, except restaurant cutlery
used at his restaurant. Defendant argues that the provision is overbroad,
and unsupported by the record, because no weapon was used in the assault
that underlies the order. As defendant acknowledges, however, the statute
authorizes the court to "make such orders as it deems necessary to protect
the plaintiff, the children or both." Id. § 1103(c).

As he also acknowledges, federal law prohibits him, as a person subject to
a civil protection order, from possessing or receiving a firearm in
interstate commerce. 18 U.S.C. § 922(g)(8). (FN2) Moreover, many state
legislatures, and the United States Congress, have concluded that
restricting an abuser's access to firearms will reduce the threat of
further abuse, or the injury that might result from further abuse. See
Kie v. McMahel, 984 P.2d 1264, 1270-71 (Haw. Ct. App. 1999) (applying
Hawaii statute); N. Hathaway & J. Zanini, Update and Overview of
Massachusetts Case Law Considering the Scope and Meaning of the Abuse
Prevention Statute and Related Issues for Prosecutors, 30 New Eng. L. Rev.
375, 391-92 (1996) (describing Massachusetts statute); Comment, Seizing the
Ammunition from Domestic Violence: Prohibiting the Ownership of Firearms by
Abusers, 29 Rutgers L.J. 607, 622 (1998) (itemizing thirteen state
abuse-prevention statutes that require weapons seizure or forfeiture). A
substantial percentage of acts of domestic violence are committed with
firearms. See Comment, Domestic Violence and Guns: Seizing Weapons Before
the Court Has Made a Finding of Abuse, 23 Vt. L. Rev. 349, 362, 366-67
(1998) (citing national and Vermont statistics). Although defendant is
covered by the federal restriction, federal authorities may have limited
capacity to enforce the restriction. See id. at 364 (noting report by
Vermont's United States Attorney that, due to limited resources, it would
be rare for his office to enforce the federal

prohibition of firearm possession by person subject to abuse prevention
order). The federal restriction does not preempt our power to impose a
parallel restriction. See Conkle v. Wolfe, 722 N.E.2d 586, 593-94 (Ohio
Ct. App. 1998). We thus conclude that the general authorization for the
court to make orders it deems necessary to protect plaintiff, and her
child, was sufficiently broad to allow the court to prohibit defendant
from possessing firearms. See Woolum v. Woolum, 723 N.E.2d 1135, 1139
(Ohio Ct. App. 1999) (holding that order to surrender firearms lies within
the court's discretion).

The order covered more than firearms, however; it also extended to
possession of "dangerous weapons." We have defined a dangerous weapon as
"a weapon which in the way it is used or attempted to be used may endanger
life or inflict great bodily harm." State v. Deso, 110 Vt. 1, 8, 1 A.2d 710, 714 (1938). It is similarly defined in the statute prohibiting the
carrying of deadly or dangerous weapons in a courthouse. See 13 V.S.A. §
4016(2). These definitions are unhelpful to defining a possession
prohibition, however, because they depend upon the use or intended use of
the weapon, which cannot be determined from possession alone.

We derive some help from the court's exclusion of cutlery used at
defendant's restaurant. Yet even this is overbroad, as there is no
practical means to distinguish between restaurant cutlery and normal home
cutlery. Indeed, many common household implements may become dangerous
weapons if misused for that purpose. We conclude, accordingly, that the
term "dangerous weapon" is both vague and overbroad in this context. Our
holding necessitates that the restriction on dangerous weapons be
stricken, and the matter remanded to the trial court for an opportunity to
substitute a more narrow and precise restriction.

Next, defendant challenges the five-year length of the order as
unreasonable, and

unsupported by the evidence and findings. The Abuse Prevention Act imposes
no limit on the duration of relief-from-abuse orders, but does require
that such orders "be granted for a fixed period." 15 V.S.A. § 1103(d).
There is no basis to conclude that a five-year period is unreasonable as
a matter of law. Furthermore, although the court did not make specific
findings relating to the five-year period, the record evidence clearly
disclosed the basis of the order. Plaintiff and defendant had been
involved in a relationship for five years. The underlying assaultive
incident was particularly violent and occurred nine months after the
parties had separated. Defendant had threatened to kill plaintiff if she
were ever with another man. The court could thus conclude that only an
order of long duration would ensure a sufficient cooling-off period to
minimize the risk of further abuse. Accordingly, we uphold the five-year
provision of the order.

The order for relief from abuse issued on February 10, 1999 is amended
to strike from part 9 of the order the following words: "or dangerous
weapons -- excepting restaurant cutlery, which shall not be in his
possession off restaurant premises," and the matter is remanded for further
proceedings on this issue. In all other respects, the order is affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. Defendant's due process theory is that where there are punitive
consequences, compliance with the order cannot be beyond his control. See
State v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197, 1201-1202 (1985)
(probation condition can not impose obligation with which probationer
cannot comply). Defendant has not described the challenge beyond this
brief statement, and, accordingly, we have not examined the theory in
detail. It is sufficient to hold that defendant does not face the
punitive consequences he argues.

FN2. Under the federal statute, the prohibition on possessing a firearm is
applicable if (A) the order was issued after a hearing of which defendant
had notice and in which he had the opportunity to participate; (B) the
order restrains defendant from "harassing, stalking or threatening an
intimate partner" or engaging in conduct that would place an intimate
partner "in reasonable fear of bodily injury;" and (C) the order contains
a finding that defendant "represents a credible threat to the physical
safety of such intimate partner" or explicitly prohibits the use, attempted
use or threatened use of physical force that would reasonably expected to
cause bodily injury against such intimate partner. 18 U.S.C. § 922(g)(8).
The order in this case meets each of these requirements.

------------------------------------------------------------------------------
Dissenting

No. 99-142

Ellyn Benson Supreme Court

On Appeal from
v. Windham Family Court

Vincent Muscari May Term, 2000

Ellen Holmes Maloney, J.

Sara Kagle and Geoffry F. Walsh, Vermont Legal Aid, Inc., Springfield, for
Plaintiff-Appellee.

William E. Kraham, Brattleboro, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J., dissenting. Although I generally agree with the majority
that the evidence in this case is sufficient to support the family court's
order, I part company on the adequacy of the findings. The majority
defends the findings as adequate under the circumstances, establishing a
rule that essentially eliminates the requirement of findings in abuse
prevention cases, because they are inconsistent with a policy of
"inexpensive and uncomplicated proceedings that allow an abused family
member to obtain immediate relief." Rapp v. Dimino, 162 Vt. 1, 4, 643 A.2d 835, 837 (1993). Ironically, we are administering in this case one of the
few statutes that explicitly requires findings. See 15 V.S.A. § 1103(h);
Coates v. Coates, No. 99-457, slip op. at 2-3 (Vt. July 7, 2000).

The entire "findings" in this case, written or oral, (FN1) are
attached to this dissent as an appendix. They consist of four checked
boxes, to specify which conclusory language from the statute applies. The
form tells the family court judge what to do: "Check the applicable box;
cross out findings that do not apply" (even these directions weren't fully
followed here). The first two checked boxes state that defendant has
abused plaintiff, giving no detail and referring the reader to the statute
for a definition of abuse. The third says there is a danger of further
abuse, and again gives no detail. The fourth says that defendant
represents a credible threat to the physical safety of plaintiff and again
does not state why.

Only in the context of a checked box on a form that has that label
would anyone describe these conclusory statements as findings. They fail
to discharge the court's duty to "sift the evidence and state the facts."
Lynda Lee Fashions, Inc. v. Sharp Offset Printing, Inc., 134 Vt. 167, 170,
352 A.2d 676, 677 (1976). They do not give us the basis for appellate
review, Secretary, Agency of Natural Resources v. Irish, 169 Vt. 407, 419,
738 A.2d 571, 580 (1999), because they fail to give us a clear statement
of what was decided and how the decision was reached. Gustin v. Gustin,
148 Vt. 563, 565-66, 536 A.2d 933, 935 (1987). As we described a similar
conclusory statement in Arnold v. Arnold, 141 Vt. 118, 120, 444 A.2d 890, 892 (1982):

To the extent this statement is a conclusion of law, it is not
supported by the findings; considered as a finding of fact, it
does not satisfy the purposes of V.R.C.P. 52.

The "findings" in this case fail to say anything specific regarding the
evidence the court heard or the parties before it.

In many cases, the absence of real findings is of little consequence;
the checked boxes indicate whose version of the facts is believed, and the
remedy is relatively standard. Indeed, if defendant had appealed the
court's conclusion that defendant had abused plaintiff, and relief was
appropriate, I would hold that any violation of the findings requirement
was harmless on the overwhelming evidence present here, at least without a
specific request from defendant for findings.

In this case, however, defendant has challenged aspects of the order,
arguing that they are unreasonable under the circumstances. I think these
cannot be adequately reviewed without some statement of the court's
reasons for imposing them, supported by findings. First, the court imposed
a requirement that defendant not be within 1000 feet of plaintiff or her
child. Plaintiff requested this restriction. Defendant asked for a
three-hundred-foot restriction because an identical restriction was
contained in the conditions of release in the related district court
criminal case. Although the court acknowledged that it could not impose a
distance restriction so great that defendant would not know that he was
within the prohibited distance, it ordered the distance restriction sought
by plaintiff, and rejected that sought by defendant, with no explanation.
(FN2)

The background behind the order that defendant not possess dangerous
weapons was similar. Plaintiff sought the restriction although she
testified that she thought that defendant no longer possesses guns, but
was not sure. Defendant objected to an order and defense counsel told the
court that he would inform defendant of the federal restriction. Without
explanation, the court imposed the restriction in a form too broad to
sustain.

Finally, defendant has challenged the length of the order. Up until
1994, abuse prevention orders could be issued with a maximum duration of a
year, subject to extension for such additional time as the court found
necessary. See 1979, No. 153 (Adj. Sess.), § 1 (adding 15 V.S.A. §
1103(b)). An amendment in that year eliminated the durational limit, while
still requiring that the order be issued for a "fixed period." 1993, No.
228 (Adj. Sess.), § 2 (codified at 15 V.S.A. § 1103(d)). The order may be
modified only based on "a showing of a substantial change in circumstance."
15 V.S.A. § 1103(d).

We see enough orders of this type to observe that a duration of five
years is unusual. In order to protect plaintiff and her child, the order
imposes substantial limits on defendant's mobility. Defendant has lost
the right to possess a firearm even for hunting. We should require the
court to explain why it imposed an order of this length.

We have often said that we will not speculate on the basis for a
challenged court order and must reverse an order unsupported by sufficient
findings and conclusions to enable us to know its basis. E.g., Secretary
v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 242, 705 A.2d 1001,
1010 (1997) ("We will remand if we are left in a position where we must
speculate as to the basis

of the decision reached or if a claim has been left unaddressed.")
(citation omitted). We are violating this requirement here. More
important, I believe, is that we are accepting in the name of speed and
efficiency a practice that undermines the legitimacy of an order that must
be respected if it is to be effective. It takes little time to tell
defendant directly why his conduct was so outrageous that extraordinary
protections are required. Unfortunately, the failure to do so makes the
court's actions appear arbitrary and creates an excuse not to comply
voluntarily. I believe that under the guise of helping abuse victims, we
are actually diminishing the efficacy of orders they must rely on.

Finally, because we are remanding this case in any event, we should
give the trial court the opportunity to revisit the distance restriction
in light of our decision. Although I agree with the majority that under
the court's order defendant cannot face criminal liability unless he
intends to come within 1000 feet of plaintiff, I question whether a
floating restriction alone is effective in light of that ruling. The
State will have great difficulty proving that defendant's presence within
1000 feet of plaintiff is intentional, at least unless defendant is fairly
close. See State v. Conti, 672 A.2d 885, 887 (R.I. 1996) (state failed to
prove violations of no contact order were intentional where defendant
greeted abused victim at post office and waved to her as she drove by him).
Both the majority and the family court appear to assume that the greater
the distance restriction, the greater the security for plaintiff. I
question that assumption, especially when we are dealing with distances far
greater than those necessary for defendant to see and recognize plaintiff.
The trial court gave an illusion of security, not security.

I believe the order could create much greater security, and eliminate
defendant's objection that he cannot comply, if it contained substantial
distance restrictions around places where plaintiff lives and works, and
around the child's school, see L. Lerman, A Model State Act: Remedies for

Domestic Abuse, 21 Harv. J. on Legis. 61, 106-07 (1984), accompanied by a
distance restriction around plaintiff and her child which is smaller and
more workable.

For the above reasons, I would remand the restrictions ordered with
respect to the distance limits and the possession of weapons, and the
five-year duration, for the court to provide findings and reasons to
support them. For the reasons stated by the majority, I agree that the
dangerous weapon restriction is overbroad and must be modified. I would
also remand for the court to consider modifications to the distance
restriction as explained above. I am authorized to state that Justice
Johnson joins in this dissent.

_______________________________
Associate Justice

----------------------------------------------------------------------
Footnotes

FN1. The court made oral "findings," consistent with, but even more sparse
than the written "findings."

FN2. The majority states that the trial court explained its decision as the
"minimum distance" that would be safe but reasonable for enforcement
purposes. Ante at 6. Apparently, the majority is relying on a statement
that the court made to plaintiff in seeking a recommendation for a distance
restriction:

I guess I would ask what distance you feel would be safe to ask-
now, please keep in mind that I-we can't put like one mile
because a person doesn't know when they're within a mile of
someone else, we need to put down a distance that would be safe,
but is reasonable for enforcement purposes.
Would you like to make a suggestion?

This is not an explanation of the order the court actually issued. Even if
it were, the majority embellished it by stating that the court established
the minimum safe distance. In fact, the court never used the word
"minimum," and nothing in its statement indicates that it was seeking the
"minimum" safe distance.

------------------------------------------------------------------------------
Appendix

FINDINGS BY THE COURT: (check the applicable box; cross out findings that do
not apply)

X Defendant has abused X Plaintiff his/her/their monor child(ren)
--- --- ---
(Abuse is defined in 15 V.S.A Sec. 110(1).)
---

Names of Minor Child(ren)

_________________________________________________________________________

X There is a danger of further abuse.
---

X Defendant represents a credible threat to the physical safety
---
of X plaintiff minor child(ren)
--- ---

Defendant has a duty to support the plaintiff.
---

Defendant has a duty to support the minor child(ren) named above.
---

FINDINGS WAIVED BY THE PARTIES ON THE RECORD

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