                                                     Supreme Court

                                                     No. 2013-198-Appeal.
                                                     (P 12-1084-A)


Rosanna Cavanaugh               :

       v.                       :

Brian Cavanaugh.                :




  NOTICE: This opinion is subject to formal revision before
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  notify the Opinion Analyst, Supreme Court of Rhode Island, 250
  Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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                                                                     Supreme Court

                                                                     No. 2013-198-Appeal.
                                                                     (P 12-1084-A)



           Rosanna Cavanaugh                   :

                     v.                        :

             Brian Cavanaugh.                  :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Robinson, for the Court. The defendant, Brian Cavanaugh, has appealed from

an order of the Chief Judge of the Family Court affirming the entry of an order by a magistrate of

the Family Court restraining and enjoining him from contacting his former wife, Rosanna

Cavanaugh (the plaintiff). It is the contention of the defendant that the magistrate’s issuance of a

civil restraining order was not authorized by G.L. 1956 chapter 15 of title 15, which chapter is

entitled “Domestic Abuse Prevention.” This case came before the Supreme Court pursuant to an

order directing the parties to appear and show cause why the issues raised in this appeal should

not be summarily decided. After a close review of the record and careful consideration of the

parties’ arguments (both written and oral), we are satisfied that cause has not been shown and

that this appeal may be decided at this time. For the reasons set forth in this opinion, we affirm

the order of the Family Court.




                                               -1-
                                                  I

                                         Facts and Travel

       On August 10, 2012, plaintiff filed a complaint in Family Court seeking protection from

abuse pursuant to chapter 15 of title 15 of the General Laws. In that complaint, plaintiff alleged

that she “suffered abuse when the defendant” “[p]laced [her] in fear of imminent physical harm”

and engaged in “Stalking, Cyberstalking, [and/or] Harassing.” In support of her complaint,

plaintiff filed an affidavit stating that she was in fear of defendant because of his “persistent

threatening, swearing, and menacing behavior during pick-up/drop-off times [when they would

exchange their child] and phone calls.”        She asked the court to enjoin defendant “from

contacting, assaulting, molesting, or otherwise interfering with [her] * * * .”        An ex parte

“Temporary Order [for] Protection from Abuse” was entered that same day. The Family Court

specified, inter alia, in the order that defendant may contact plaintiff to facilitate visitation and

that the exchange of their child (over whom the parties had shared physical custody) should

occur at either the North Smithfield, Rhode Island or Franklin, Massachusetts police stations.1

                                                 A

              The Hearing on Plaintiff’s Complaint for Protection from Abuse

       On October 19, 2012, a hearing was held on plaintiff’s complaint for protection from

abuse before a magistrate of the Family Court, at which plaintiff and defendant both testified.

                                  1. The Testimony of Plaintiff

       At the hearing, plaintiff testified that she and defendant had formerly been married but

that they had divorced in 2011. She further stated that there was one child born of that marriage.



1
        At the time of the hearing before the Chief Judge, it was made clear on the record that
plaintiff is from North Smithfield, Rhode Island and that defendant is from Franklin,
Massachusetts.
                                                -2-
The plaintiff testified with respect to multiple occasions in the past when defendant had “yelled,”

“screamed,” and sworn at her and had placed her “in fear of bodily harm;”2 she added that she

was “very scared” because that type of conduct on the part of defendant—which she alleged

occurred “all the time”—had been “escalat[ing].”

       It was plaintiff’s testimony that, in August of 2012, her relationship with defendant

worsened due to her having filed a motion to modify their child’s visitation schedule (which

motion was dismissed by the Family Court for lack of subject matter jurisdiction on August 9).

The plaintiff then proceeded to testify with respect to three specific phone calls made by

defendant to her after the dismissal of that motion. The plaintiff testified that, on the day her

motion was dismissed, she received a phone call from defendant, who, in a “gruff, seething kind

of tone of voice,” said to her: “[A]re, you going to keep f*** with me now?” The plaintiff then

testified that, sometime after that, defendant had called her to “gloat,” stating: “Don’t ‘F’ with

me and my lawyers.” She further testified that, on August 10, 2012, when she was en route to

meet defendant so that she could pick up their son pursuant to a coparenting agreement,

defendant called her on the phone and said: “So, you’re going to stop talking, you know, s***

about me. Do you understand?” She stated that, because she became “really * * * scared” as a

result of that phone call, she called the police in Franklin; she added that an officer then escorted

her to the place where she would pick up the child. The plaintiff explained that, following that

incident, she filed the complaint for protection from abuse. When asked whether there were any

other incidents that placed her “in fear of [defendant] or in fear of bodily harm,” she replied in

the affirmative. She testified that, during the divorce proceedings, defendant threatened to

2
        The plaintiff conceded on cross-examination that none of defendant’s statements
constituted explicit threats against her physical well-being; however, she testified that defendant
would “lean[] in and yell[]” at her and would “use[] his physique to * * * be threatening” when
speaking to her.
                                                -3-
“throw [her] cats in the pound” and “trashed” her piano; she added that, in May of 2012,

defendant “threw something at [her].”

                                 2. The Testimony of Defendant

       The defendant testified on his own behalf.         He acknowledged that there had been

arguments between plaintiff and him before and after their divorce was finalized and that he had

resorted to vulgarity during those arguments. He admitted that, following the dismissal of

plaintiff’s motion to modify the visitation schedule, he had called plaintiff to “gloat[]” and that

he had used the “F” word during that phone call. He also testified that, during the August 10

phone call testified to by plaintiff, he told her to “stop making up lies about [him].” It was his

testimony that, after that call, plaintiff called the police and that an officer had been present the

next time the parties exchanged their son. The defendant acknowledged that his swearing at

plaintiff in the midst of a phone call constituted “harassment,” but he asserted that she had been

“harassing [him] as well.”

                        3. The Decision of the Family Court Magistrate

       After the testimony was heard, the magistrate rendered a decision from the bench. She

found that “this case [was] a case that sound[ed] in * * * harassment and intimidation and * * *

control” but that it was “not a case of physical violence or threats of physical violence.” It was

the magistrate’s view that, “in order to protect the plaintiff from the intimidation and the

harassment,” the existing order for protection issued on August 10, 2012 should remain in effect

as a civil order. In accordance with the magistrate’s decision, a civil restraining order against

defendant was entered on November 9, 2012. The defendant filed a timely appeal to the Chief

Judge of the Family Court, in accordance with G.L. 1956 § 8-10-3.1(d).




                                                -4-
                                                C

                          The Defendant’s Appeal to the Chief Judge

       On April 18, 2013, a hearing was held before the Chief Judge on defendant’s appeal. The

defendant contended that, because the magistrate found that the present case sounded in

“harassment and intimidation and * * * control” but was not “a case of physical violence or

threats of physical violence,” she exceeded her statutory authority under chapter 15 of title 15

when she issued the civil restraining order.

       The Chief Judge determined that, based on her review of the testimony of both plaintiff

and defendant at the hearing before the magistrate, “there [was] no question that [defendant had]

intimidated and [had] bull[ied]” plaintiff and that the magistrate, by issuing a civil restraining

order, “did what she was supposed to do.”

                                                II

                                       Standard of Review

       This Court reviews questions of statutory construction and interpretation in a de novo

manner. State v. Diamante, 83 A.3d 546, 548 (R.I. 2014); see also McCulloch v. McCulloch, 69

A.3d 810, 819 (R.I. 2013); Downey v. Carcieri, 996 A.2d 1144, 1149 (R.I. 2010); Planned

Environments Management Corp. v. Robert, 966 A.2d 117, 121 (R.I. 2009). It is a well-settled

principle that, “when the language of a statute is clear and unambiguous, this Court must

interpret the statute literally and must give the words of the statute their plain and ordinary

meanings.” Diamante, 83 A.3d at 548 (internal quotation marks omitted); see also DeMarco v.

Travelers Insurance Co., 26 A.3d 585, 616 (R.I. 2011); Accent Store Design, Inc. v. Marathon

House, Inc., 674 A.2d 1223, 1226 (R.I. 1996). If a statute is ambiguous, however, we will

“apply the rules of statutory construction and examine the statute in its entirety to determine the



                                               -5-
intent and purpose of the Legislature.” Tarzia v. State, 44 A.3d 1245, 1252 (R.I. 2012) (internal

quotation marks omitted); see also Kingston Hill Academy v. Chariho Regional School Distict,

21 A.3d 264, 271 (R.I. 2011); Downey, 996 A.2d at 1150.

                                               III

                                            Analysis

        On appeal, defendant contends that the magistrate committed an error when she issued a

civil restraining order pursuant to § 15-15-3(a) because any remedy afforded to a plaintiff under

chapter 15 of title 15 must be predicated upon a finding of “[d]omestic abuse” as set forth in

§ 15-15-1(2); defendant represents that the magistrate made “an explicit finding on the record

that the case did not involve domestic abuse.” The defendant further contends that, if this Court

determines that the magistrate made “a positive finding of domestic abuse, such a finding is

unfounded and unsupported” by plaintiff’s complaint and the affidavit in support of same, as

well as the testimony presented at the hearing before the magistrate. The defendant attempts to

frame his argument as an appeal of the magistrate’s order; however, what is properly before this

Court is the affirmance by the Chief Judge of the Family Court of the magistrate’s order issuing

a civil restraining order.

        In our judgment, defendant’s conduct was clearly the type of conduct that the General

Assembly has mandated can be the predicate for the issuance of a protective order. Section 15-

15-3(a) expressly authorizes issuance of a protective order on behalf of a “person suffering from

domestic abuse.” The term “[d]omestic abuse” is defined, with a laudable degree of specificity,

in § 15-15-1(2). Among the acts specified in a later subsection of the statute as constituting

“domestic abuse” is “[s]talking.” That subsection (viz., § 15-15-1(6)) reads in its entirety as

follows:



                                              -6-
                       “‘Stalking’ means harassing another person or willfully,
               maliciously and repeatedly following another person with the
               intent to place that person in reasonable fear of bodily injury[.]”

It is significant that the just-quoted statutory definition is worded in the disjunctive.

Accordingly, for present purposes, it suffices to focus on the first five words of that definition:

“‘Stalking’ means harassing another person.”

       In turn, the term “harassing” is statutorily defined as follows:

                       “‘Harassing’ means following a knowing and willful course
               of conduct directed at a specific person with the intent to seriously
               alarm, annoy, or bother the person, and which serves no legitimate
               purpose. The course of conduct must be such as would cause a
               reasonable person to suffer substantial emotional distress, or be in
               fear of bodily injury[.]” Section 15-15-1(8).

In the present action, defendant’s conduct fell within the purview of “domestic abuse” because

he was “harassing” (and thus “stalking”) plaintiff within the meaning of the statute. The plaintiff

testified with respect to defendant’s repeated use of vulgar language towards her and his

threatening demeanor and tone; and she stated in both her complaint and at the hearing before the

magistrate that defendant had placed her “in fear of physical harm.” The defendant admitted to

such conduct, and it is worth noting that he also acknowledged that his swearing at plaintiff in

the midst of a phone call constituted “harassment.” It is clear to us (1) that defendant was

engaging in “a knowing and willful course of conduct” directed at plaintiff, with the intent to

“seriously alarm, annoy, or bother” her and (2) that such conduct would cause a reasonable

person to “be in fear of bodily injury.” Section 15-15-1(8).

       After a careful review of the record, we are unable to find where, as defendant contends,

the magistrate made “an explicit finding on the record that the case did not involve domestic

abuse;” the finding by the magistrate to which defendant appears to be referring to is her finding

that the instant case was “not a case of physical violence or threats of physical violence.” It is

                                               -7-
apparent, however, from the clear and unambiguous language of the statute that actual physical

harm or threats thereof are not required for a finding that, in a given case, “domestic abuse,” as

defined by § 15-15-1(2), is present. See National Refrigeration, Inc. v. Capital Properties, Inc.,

88 A.3d 1150, 1156 (R.I. 2014). As previously indicated, in our view, the above-referenced

testimony established that defendant had been “harassing” plaintiff within the plain meaning of

the statute. See D’Ambra v. North Providence School Committee, 601 A.2d 1370, 1375 (R.I.

1992).

         In his written submission to this Court, the defendant concedes that, if there is a finding

of “domestic abuse” as defined by § 15-15-1(2), then § 15-15-3(a) expressly provides the hearing

justice with the discretion to choose an appropriate remedy based on the facts or circumstances

of a particular case in order to protect a claimant from that domestic abuse. Section 15-15-3(a)

clearly and unambiguously provides for relief from abuse in a variety of forms, “including, but

not limited to,” five specified remedies—one of which is a protective order. See Diamante, 83

A.3d at 550. Furthermore, § 15-15-3(h)(2) clearly states that any proceedings under this chapter

“shall not preclude any other available civil or criminal remedies.” We read this language in

conjunction with § 8-10-38, which confers on the Family Court the same power which is

conferred on the Superior Court by the provisions of G.L. 1956 § 8-6-1. Section 8-6-1 provides

that the Supreme and Superior Courts may “enter such judgments, decrees, and orders * * * as

may be necessary or proper to carry into full effect all the powers and jurisdiction * * * conferred

upon them * * * .” Accordingly, the Chief Judge properly affirmed the magistrate’s order

because it was within the magistrate’s authority to issue a civil restraining order in this case after

determining that, based on the evidence before her, the civil restraining order was necessary to

protect the plaintiff from the defendant’s harassment.



                                                -8-
                                                 IV

                                            Conclusion

       For the reasons set forth in this opinion, we affirm the order of the Family Court. The

record in this case may be returned to that tribunal.




                                                -9-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Rosanna Cavanaugh v. Brian Cavanaugh.

CASE NO:              No. 2013-198-Appeal.
                      (P 12-1084-A)

COURT:                Supreme Court

DATE OPINION FILED: June 16, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice William P. Robinson III

SOURCE OF APPEAL:     Providence County Family Court

JUDGE FROM LOWER COURT:

                      Chief Judge Haiganush R. Bedrosian

                      Magistrate Jeanne L. Shepard

ATTORNEYS ON APPEAL:

                      For Plaintiff: Robert M. Brady, Esq.

                      For Defendant: Karen A. Oliveira, Esq.
