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
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before this opinion goes to press.


                                          2019 VT 85

                                         No. 2019-019

Carrie McCool                                                 Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Washington Unit,
                                                              Family Division

Joshua Macura                                                 October Term, 2019


Kirstin K. Schoonover, J.

Carrie McCool, Pro Se, Barre, Plaintiff-Appellee.

Craig S. Nolan of Sheehey Furlong & Behm P.C., Burlington, for Defendant-Appellant.


PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Skoglund, J. (Ret.) and
         Howard, Supr. J. (Ret.), Specially Assigned


        ¶ 1.   SKOGLUND, J. (Ret.), Specially Assigned.         Defendant appeals a final relief-

from-abuse (RFA) order issued by the Washington County family division of the superior court.

We conclude that the record does not support the court’s determination that defendant abused

plaintiff by placing her in fear of imminent serious physical harm. Accordingly, we vacate the

RFA order.

        ¶ 2.   The parties had an intimate relationship and began living together in 2011 in a

house originally owned by plaintiff’s family but later purchased by the parties. The relationship

ended in December 2017. In June 2018, plaintiff filed a motion for relief from abuse, asking the

Orange County family division to order defendant to stay away from her and the parties’ home. A
final RFA hearing was held on June 26, 2018. Following testimony from the parties, the Orange

County family division concluded that defendant had engaged in abuse by stalking, and that there

was danger of further abuse. Defendant’s counsel asked the court to enter a continued temporary

order rather than a final order so that defendant did not lose his job as a police officer.1 The court

ultimately decided, with the agreement of both parties, to issue an extended temporary order with

the same provisions that would have been in a final order, for a period of six months.

        ¶ 3.    On December 18, 2018, at the end of the six-month period, the same judge in the

Orange County family division held a hearing on plaintiff’s request to make the order final and

extend it. Following the testimony of both parties, the court declined to extend the RFA order,

stating that the parties at that point were engaged primarily in a property dispute. The court stated

that it would not issue a further extended order because it could not find there was a danger of

further abuse. The court informed the parties “you’ll have no orders in place but need to engage

in behavior . . . appropriately.”

        ¶ 4.    On December 19, 2018, the day after the Orange County family division denied

plaintiff’s motion to extend the previous RFA order, plaintiff filed a new request for an RFA order

in the Washington County family division. In her affidavit, she alleged that a few hours after the

previous day’s hearing, defendant entered her residence without her consent to retrieve his

belongings. Plaintiff further alleged that defendant got inside the house through forced entry2 and

disabled the outside security cameras. She stated that defendant had a history of restraining her

and that the previous RFA order had expired only hours before he entered her residence.



        1
        Plaintiff was also a law enforcement officer at one time. At the time of these proceedings,
she was working as a police dispatcher at the same police department where defendant worked.
        2
         Defendant testified that the sliding glass door at the back of the house was unlocked and
offered video evidence of his entry to show that the door was unlocked. The court declined to
admit the video evidence but did not assume that defendant’s entry into the house was forced.

                                                  2
       ¶ 5.    The Washington County family division granted a temporary RFA order and

scheduled a hearing for January 2, 2019, at which time both parties testified.        Following the

hearing, the court issued a final RFA order based on the court’s determination that defendant had

abused plaintiff by placing her in fear of imminent serious physical harm. Defendant appeals that

order, arguing that: (1) the record does not support the court’s determination that plaintiff was

placed in reasonable fear of imminent serious harm; (2) the court failed to make findings

concerning any danger of future abuse3; and (3) the court abused its discretion by not allowing him

to cross-examine plaintiff,4 unfairly limiting defendant’s direct testimony, and not admitting

relevant video evidence of defendant entering plaintiff’s residence.

       ¶ 6.    On appeal “we review the family court’s decision to grant or deny a protective order

only for an abuse of discretion, upholding its findings if supported by the evidence and its

conclusions if supported by the findings.” Raynes v. Rogers, 2008 VT 52, ¶ 9, 183 Vt. 513, 955



       3
           The court did not address the danger of future abuse in its oral findings on the record,
but it checked the box on the RFA final order form indicating that there was danger of future abuse.
       4
           After the court finished questioning the unrepresented plaintiff concerning the nature and
circumstances of her complaint, defendant’s attorney indicated that he wanted to cross-examine
plaintiff. The court responded as follows: “We don’t generally allow that to happen. Why don’t
I hear from your client first, and then, if we need the opportunity for cross-examination, the court
will allow it.” Vermont Rule of Evidence 611(a) generally directs the court to “exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence” to make the
“presentation orderly and effective,” to “avoid needless consumption of time,” and to “protect
witnesses from harassment or undue embarrassment.” Although this rule encompasses the
authority “to set reasonable limits on the consumption of time in examining witnesses,” any “limits
must be reasonable and sufficiently flexible to ensure that important evidence is not excluded due
to artificial time constraints.” Varnum v. Varnum, 155 Vt. 376, 390, 586 A.2d 1107, 1115 (1990).
The nature of RFA hearings unquestionably warrants caution to ensure that witnesses are not
harassed; in some cases, questions might need to be posed through the trial judge. But the
wholesale prohibition of cross-examination raises concerns regarding the fairness of a proceeding
because courts must “provide each side a meaningful opportunity to challenge the other’s
evidence.” Frizado v. Frizado, 651 N.E.2d 1206, 1211 n.5 (Mass. 1995), abrogated on other
grounds by Zullo v. Goguen, 672 N.E.2d 502 (Mass. 1996) (stating that defendants in civil cases
have general right to cross-examine witnesses against them, although in abuse-prevention
proceedings such right may be curtained for good cause shown). We need not consider this claim
of error here, however, given our resolution of the appeal on defendant’s first claim of error.
                                                   3
A.2d 1135. Our review of legal conclusions is “nondeferential and plenary.” Fox v Fox, 2014 VT

100, ¶ 9, 197 Vt. 466, 106 A.3d 919.

       ¶ 7.    We first consider whether the evidence was sufficient to support the family

division’s determination that defendant’s conduct placed plaintiff in fear of imminent serious

physical harm. “In a relief-from-abuse hearing, the plaintiff has the burden of proving abuse by a

preponderance of the evidence.” Coates v. Coates, 171 Vt. 519, 520, 769 A.2d 1, 2-3 (2000)

(mem.). In relevant part, abuse is statutorily defined as placing a family or household member “in

fear of imminent serious physical harm.” 15 V.S.A. § 1101(1)(B). Here, plaintiff testified that

defendant had a history of restraining her and that she was fearful he would continue to restrain

her. Noting that defendant had turned off the security cameras, plaintiff explained that she would

not know if he was in the house, which made her very concerned for her safety.

       ¶ 8.    The Washington County family division acknowledged that defendant had not

caused plaintiff physical harm or attempted to stalk her but concluded that he had placed her in

fear of imminent serious physical harm by showing up uninvited at her residence mere hours after

plaintiff’s request to extend the prior RFA order had been denied. The court’s conclusion that

defendant had placed plaintiff in fear of imminent serious physical harm was based in part on

defendant’s representation that he would go to plaintiff’s residence only at a mutually agreeable

time.5 In support of its conclusion, the court noted that defendant had restrained plaintiff on

occasions in the past, that he had not lived at the residence for over six months, and that, upon

entering the residence on this occasion, he turned off the surveillance cameras.

       ¶ 9.    Defendant argues that his mere presence on the property he jointly owned with

plaintiff cannot be the basis of a final RFA order, given that no court order prevented him from


       5
           At the December 18, 2018 hearing in which the Orange County family division declined
to extend the earlier RFA order, defendant responded in the affirmative when asked by his counsel
whether, if there was no order in place, he would retrieve his property at a time mutually agreeable
to plaintiff and him.
                                                 4
being on the property. This argument begs the question of whether he placed plaintiff in fear of

imminent serious harm. On this point, defendant asserts that plaintiff failed to demonstrate that

any fear she had of imminent serious physical harm was objectively reasonable under the

circumstances. See Coates, 171 Vt. at 521, 769 A.2d at 3 (concluding that trial court could not

find that defendant had placed plaintiff in fear of imminent physical harm when plaintiff never

testified that defendant had done so and court’s findings failed to “address the relationship, if any,

between the parties’ past history and plaintiff’s subjective belief that she fears defendant”).

       ¶ 10.   We agree that, as a matter of law, the record does not support a conclusion that

plaintiff had an objectively reasonable fear of imminent serious physical harm. Apart from

plaintiff’s testimony that defendant’s conduct in entering her residence placed her in fear, the

Washington County family division relied upon the parties’ past history and the fact that defendant

entered the residence and turned off the outside security cameras without plaintiff’s consent despite

agreeing earlier the same day that he would retrieve his personal belongings from plaintiff’s

residence only at a time agreed upon by the parties. With respect to defendant’s history of

restraining plaintiff, the family division relied upon plaintiff’s testimony from the previous RFA

proceeding that defendant had restrained her on occasion by bearhugging her, which defendant

claimed he did to prevent her from doing something dangerous.

       ¶ 11.   At that June 2018 hearing, however, the Orange County family division explicitly

concluded that none of defendant’s conduct—including the bearhugs—had placed plaintiff in fear

of imminent serious physical harm; rather, the court based its temporary RFA order on defendant’s

having stalked plaintiff.6 Later, at the December 2018 hearing, the court denied plaintiff’s motion


       6
          In the dissent’s view, we are inaccurately suggesting that “the Orange County court had
rejected defendant’s restraint of plaintiff as a basis for the RFA order.” Post, ¶ 20. We suggest no
such thing. Our point is that the Orange County family division explicitly found that the past
bearhug incidents would not place “someone in fear of imminent serious physical harm” and that
there were not “any kinds of threats of imminent serious physical harm.” As noted above, the
Orange County family division did find abuse by stalking, finding that the bearhug incidents—
                                                    5
to extend the RFA order, finding that the parties’ dispute at that point was largely a conflict about

personal property. The court found that the parties had tried to avoid each other and credited

defendant’s testimony that he never told plaintiff he would come back to her residence any time

he wanted to retrieve his belongings.

       ¶ 12.   Notably, the undisputed evidence in this case was that defendant went to plaintiff’s

residence at a time when he knew she would be at work and not at the house, specifically so that

he could avoid her. Earlier that day, defendant emailed plaintiff to try and find a time when he

could pick up the rest of his belongings, which he been attempting to do for the previous six

months. Plaintiff responded that she could not contact him until an internal police investigation

was completed, with no indication of when that would occur. A couple hours before entering

plaintiff’s residence, defendant sent the last email in that chain, saying that if her investigation was

anything like his, it would take a while to complete.

       ¶ 13.   Although defendant’s decision to enter plaintiff’s residence without her consent

may have shown “bad judgment,” as the court indicated, the undisputed evidence7 demonstrates

that defendant was seeking to avoid rather than confront plaintiff. Regarding the security cameras,

the undisputed evidence was that defendant disabled security cameras that monitored only the

exterior of the house. Given that defendant had never physically harmed plaintiff, that there had

not been any incident of alleged physical restraint in almost a year, and that defendant entered

plaintiff’s residence when he knew she was not there so as to avoid her, there was insufficient

evidence in the record, as a matter of law, to support a conclusion that defendant’s conduct in




combined with the degree of oversight and demanded accountability that defendant displayed
toward plaintiff—amounted to surveilling or monitoring that “would cause a reasonable person to
fear for her safety.”
       7
          The dissent states that we are crediting defendant’s testimony about what happened by
describing defendant’s efforts to retrieve his belongings from plaintiff’s residence at a time he
knew she would not be home. These are undisputed, not modifying, facts.
                                                 6
entering her residence to retrieve his personal belongings placed plaintiff, from an objectively

reasonable standpoint, in fear of imminent serious physical harm.

       ¶ 14.   Because the record does not support the court’s conclusion that defendant abused

plaintiff, we need not consider defendant’s arguments that the court failed to make findings on the

danger of future abuse and that it deprived him of a fair opportunity to make his case at the RFA

hearing.

       The family division’s January 2, 2019 final relief-from-abuse order is vacated.



                                               FOR THE COURT:



                                               Associate Justice (Ret.), Specially Assigned


       ¶ 15.   REIBER, C.J., dissenting. I would affirm because the record does support the

trial court’s conclusion that plaintiff had an objectively reasonable fear of imminent serious

physical harm, and the trial court did not abuse its discretion in granting the relief-from-abuse

(RFA) order. I respectfully dissent.

       ¶ 16.   We review a trial court’s decision to grant an RFA order for abuse of discretion,

“upholding its findings if supported by the evidence and its conclusions if supported by the

findings.” Raynes v. Rogers, 2008 VT 52, ¶ 9, 183 Vt. 513, 955 A.2d 1135. I emphasize this

deferential standard. “In matters of personal relations, such as abuse prevention, the family court

is in a unique position to assess the credibility of witnesses and weigh the strength of evidence at

hearing.” Id. “[T]he 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.” Coates v. Coates, 171 Vt. 519, 522, 769 A.2d 1, 5 (Amestoy, C.J., dissenting).

Moreover, in assessing whether the evidence sufficiently supports the findings, we must view the


                                                 7
evidence in the light most favorable to the prevailing party, excluding the effects of modifying

evidence. Cabot v. Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997).8

       ¶ 17.   The record here supports the court’s exercise of discretion. Promptly upon the

expiration of the six-month RFA order, defendant entered plaintiff’s home without her consent

and turned off the security cameras. This was done immediately following the defendant’s

representation to the Orange County family division that he no longer lived at plaintiff’s residence,

he was willing to retrieve the remainder of his belongings from the property at a mutually agreeable

time, and he had no access to the security cameras and no interest in gaining access.

       ¶ 18.   Most critically, this was done within the context of a history of abuse—a history

that the majority downplays. The Orange County family division held in June 2018 that defendant

had abused plaintiff by stalking her. Specifically, the court found that defendant had physically

restrained plaintiff without her consent and had refused to assure plaintiff that he would not restrain

her in the future. The court said these instances of physical restraint were “part of the backdrop”

of the parties’ situation. The court also found that defendant tracked plaintiff’s movements with

the property’s security cameras and “interrogate[d] and question[ed]” her about her activities. The

court concluded that “those things together . . . the court finds would put the plaintiff in—a

reasonable person should know that it would cause a reasonable person to fear for her safety.” The

court held that defendant’s conduct satisfied the statutory definition for stalking and provided the

basis for an RFA order. See 15 V.S.A. § 1101(1)(D) (providing “[s]talking” as one of several

definitions of abuse under RFA statute); 12 V.S.A. § 5131(6) (defining stalking as “to engage


       8
          The majority suggests that defendant engaged in an ill-conceived but otherwise relatively
benign effort to retrieve his belongings from the home he previously shared with plaintiff, taking
pains to avoid doing so at a time when she would be present. See ante, ¶¶ 12-13. In describing
the facts this way, the majority essentially credits defendant’s testimony about what happened—
relying on modifying evidence and implicitly finding defendant credible. The inference the
majority draws from defendant’s testimony—that defendant did not pose an immediate threat—is
neither a fact nor undisputed. It is a conclusion that the trial court rejected and the record does not
compel.
                                                   8
purposefully in a course of conduct directed at a specific person that the person engaging in the

conduct knows or should know would cause a reasonable person to . . . fear for his or her safety”).

       ¶ 19.   In sum, the record shows a history of intimidating and controlling behavior by

defendant, and that history, including the physical restraints and misuse of the security cameras,

provided the basis of an RFA order against defendant. The order was not extended following

defendant’s representation that he no longer lived at the residence, he would work with plaintiff to

retrieve his belongings, he had no access to the security cameras, and he did not seek access to the

cameras. On the very day that defendant made these representations, he entered defendant’s home

without her consent and immediately turned off the security cameras that had been central to the

prior RFA order. All of these facts taken together provide a basis for the Washington County

family division to conclude that plaintiff had an objectively reasonable fear of imminent serious

physical harm. See 15 V.S.A. § 1101(1)(B) (defining abuse as “[p]lacing another in fear of

imminent serious physical harm”); see also Raynes, 2008 VT 52, ¶ 8 (explaining abuse-prevention

statute “addresses the pattern of controlling behavior that distinguishes intimate abuse from other

forms of violence by providing a unique legal remedy, injunctive in nature, aimed at ending the

cycle of domestic violence before it escalates”).

       ¶ 20.   The majority reasons that the Washington County court’s conclusion was in error

because the Orange County court had rejected defendant’s restraint of plaintiff as a basis for the

RFA order. See ante, ¶ 11. More accurately, the Orange County court rejected defendant’s

restraint of plaintiff as a basis for finding that his conduct met two of the statutory definitions for

abuse. The Orange County court said that defendant’s conduct, including the restraints, did not

cause or attempt to cause her physical harm, and he did not threaten her with imminent serious

physical harm. See 15 V.S.A. §§ 1101(1)(A) (defining abuse as “[a]ttempting to cause or causing

physical harm”); id. § 1101(1)(B) (defining abuse as “[p]lacing another in fear of imminent serious

physical harm”). But then the Orange County court held that defendant’s conduct—including the

                                                    9
physical restraints—did meet the basis for finding defendant stalked defendant, which is a third

definition for abuse pursuant to the statute. Id. § 1101(1)(D) (defining “abuse” as “[s]talking”);

12 V.S.A. § 5131(6)(A) (defining “[s]talk”). It was entirely proper for the Washington County

court to rely on the history of abuse between the parties, including the physical restraints, in

holding that defendant’s subsequent conduct constituted abuse.

       ¶ 21.   Additionally, the majority notes that nearly a year had passed since any alleged

incidents of physical restraint. Ante, ¶ 13. Defendant last physically restrained plaintiff in March

2018. Defendant was deployed out-of-state shortly afterward. He returned to Vermont in June

2018, and he was placed under court order that same month. That defendant did not physically

restrain plaintiff during those nine months does not undercut the trial court’s decision. If anything,

it supports it. As soon as the external constraints on defendant’s actions were lifted, he intruded

into plaintiff’s home and interfered with the security cameras—suggesting that only the order was

restraining defendant from abusive behavior. The timing shows the reasonableness of plaintiff’s

fear, not the unreasonableness.

       ¶ 22.   I respectfully dissent. I am authorized to state that Justice Robinson joins this

dissent.

                                                FOR THE COURT:



                                                Chief Justice




                                                 10
