Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-283

                                      FEBURARY TERM, 2013

 Kimberly Kim                                          }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 Larry Hone                                            }    DOCKET NO. 369-7-12 Cnfa

                                                            Trial Judge: Alison S. Arms

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

       Defendant appeals from a final relief-from-abuse order issued in favor of plaintiff. He
contends that the evidence was insufficient to support the findings and order. We affirm.

        The record evidence may be summarized as follows. The parties were married in 1990
and divorced in 2002. They have two adult children. In June 2012, one of their daughters was
seriously injured in an automobile accident in Vermont and hospitalized at Fletcher Allen
Hospital. Plaintiff was residing in Florida at the time with her new spouse, and defendant was
residing in Vermont with his new spouse.

        Plaintiff traveled from Florida to Vermont and was in their daughter’s hospital room with
defendant on June 25, 2012, when a dispute between them resulted in the calling of hospital
security and the subsequent establishment of a schedule so that their visits did not overlap.
Nevertheless, plaintiff testified that, on July 10, 2012, defendant was alone with her in the
hospital hallway and threatened her, stating: “I’m going to kill you, I’m going to throw you down
a fucking—I’m going to kill you.” Plaintiff also testified that, a few days after this incident, she
was driving in Rutland on the way to a guardianship proceeding when defendant pulled in front
of her in his car and started stopping and starting, in an effort to impede her progress. When
asked at the hearing, “Are you in fear of your ex-husband?” plaintiff responded, “Yes.”
Defendant categorically denied that either incident had occurred.

        Plaintiff filed a petition for relief from abuse, and the court held a final hearing on July
26, 2012. Based on the testimony summarized above, the court found, “[b]ased upon the
credible evidence adduced at the hearing,” that plaintiff had proved by a preponderance of the
evidence that defendant abused her by threatening to kill her, and had thus placed her in “fear of
imminent serious physical harm,” under 15 V.S.A. § 1101(1)(B). The court denied defendant’s
subsequent motion to reconsider. This appeal followed.

        Defendant contends the evidence was insufficient to support the court’s findings that he
threatened and placed in her fear of imminent, serious physical harm. First, he contends that the
court erred in giving more weight to plaintiff’s testimony than his own testimony that he was not
at the hospital when the alleged threat occurred, and never made the statement in question. Our
review is limited. “[W]e view [the trial court’s factual findings] 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.” Coates v. Coates, 171 Vt. 519, 520 (2000)
(quotation omitted). That deference applies particularly where, as here, testimony is in conflict,
“[g]iven [the trial court’s] unique position to assess the credibility of witnesses and weigh the
evidence.” Begins v. Begins, 168 Vt. 298, 301 (1998). This was essentially a credibility contest,
and we discern no basis to conclude that the trial court clearly erred here in finding in plaintiff’s
favor.

        Defendant also contends that there was no evidence that the threat placed plaintiff in fear
of imminent, serious bodily injury. Although the question as to whether plaintiff was “in fear of
your ex-husband” was asked after she had recounted both the hospital and the driving incidents,
there is little doubt from the context that she was referring to both when she responded “Yes.”
This was sufficient to support the court’s finding. Accordingly, we find no basis to disturb the
judgment.

       Affirmed.

                                                 BY THE COURT:

                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Brian L. Burgess, Associate Justice




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