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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-113

                                      SEPTEMBER TERM, 2012

 Jessica Woodward                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Caledonia Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 Richard Woodward                                      }    DOCKET NO. 14-1-12 Cafa

                                                            Trial Judge: M. Kathleen Manley

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

          Defendant appeals the family division’s order granting plaintiff relief from abuse. We
affirm.

        Plaintiff and defendant have three young children and had been married for several years
when, in December 2010, plaintiff left defendant, filed for divorce, and sought a relief-from-
abuse (RFA) order. Plaintiff obtained a RFA order that same month for a one-year period based
primarily on an incident in which defendant struck plaintiff in the face. In addition to the RFA
order, the incident led to a domestic assault charge and a deferred sentence for defendant.

        Plaintiff’s attempt in January 2012 to extend the RFA order was dismissed as untimely.
Shortly thereafter, plaintiff filed a new complaint for relief from abuse. At the conclusion of a
January 31, 2012 hearing, at which plaintiff testified, the family division issued a new RFA order
for a one-year period. Defendant appeals that order, arguing that there was insufficient evidence
of abuse to support the new order.

         The family division shall issue RFA orders as it deems necessary to protect the plaintiff
and any children involved if, in relevant part, the court finds that the defendant has abused the
plaintiff and there is a danger of further abuse. 15 V.S.A. § 1103(c)(1)(A). “Abuse” is defined
to include “[p]lacing another in fear of imminent serious physical harm.” Id. § 1101(1)(B). “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 (2000) (mem.). The interpretation, weight,
and persuasiveness of the evidence, and the credibility of the witnesses, are within the province
of the trial court. LaMoria v. LaMoria, 171 Vt. 559, 561 (2000) (mem.). We review the court’s
findings in the light most favorable to the judgment, disregarding the effect of modifying
evidence, and thus we will not set aside the findings unless they are clearly erroneous. Coates,
171 Vt. at 520. In short, findings will be upheld if supported by credible evidence, and the
court’s conclusions will be affirmed if reasonably supported by the findings.

       Plaintiff was the only witness at the hearing in this case. She testified that defendant had
frequently struck her and choked her in front of the children during the course of their seven-year
marriage. She also testified that he had frequently told her he would kill her and the children if
she ever left him and she provided grisly details as to how he would do it and get away with it.
She testified that, as a result of his actions and threats during their marriage, she was afraid to be
near him. She testified that, since the first RFA order was put in place, she had seen him only at
the courthouse. She described one incident in November 2011 when she observed defendant
come out of a case manager’s conference cursing and saying he hated her. She testified that she
felt like he would have hit her if he had known she was nearby. On another occasion, her eldest
child’s therapist played back a recording of a telephone message that defendant had left for the
therapist. Plaintiff testified that she broke down when she heard the message because the mere
sound of his voice scared her. She stated that she continued to be afraid of defendant and
concerned for her safety.

         At the conclusion of the hearing, the trial court found that plaintiff had “testified
credibly . . . to a life of seven years of violence,” which included “hitting her on a number of
occasions and strangulation on occasion” in the children’s presence. According to the court,
“[i]t’s evident, just watching [plaintiff] testify, that she has significant fears of [defendant] and,
apparently, the children continue to experience issues as a result of the abuse sustained or
witnessed over the course of the parties’ years together.” The court noted that given the history
of abusive behavior by defendant toward plaintiff over a number of years, just hearing his voice
was enough for plaintiff to experience anxiety. The court stated that defendant’s apparent
inability to control himself even in a courthouse setting with security present “gives one pause as
to his ability to control his anger and feelings of expressed hatred toward [plaintiff] in a setting
less confining than that.” Noting that the parties were still “involved in an apparently
contentious divorce” involving “an ongoing issue with regard to parent-child contact,” the court
concluded that defendant “represents a credible threat to both the safety of the children and to
[plaintiff] and that an order is necessary to ensure his continued good behavior.”

        On appeal, defendant argues that there was insufficient evidence of abuse to support the
new order. He asserts, without explaining how or why, that the doctrine of res judicata
precluded the court from relying upon the same facts that it had relied upon in making the
original expired order. According to defendant, plaintiff could not obtain a second RFA order
unless she proved that she and the children had been abused since issuance of the original order.
In defendant’s view, she failed to do so insofar as the only evidence she produced as to his
alleged abuse since issuance of the initial RFA order was the following: (1) defendant leaving
some undetermined message on a therapist’s answering machine; and (2) defendant expressing
frustration with the legal process in the courthouse without even realizing that plaintiff was
nearby. According to defendant, these two acts cannot possibly be considered abuse sufficient to
support the court’s new RFA order because they were not directed at plaintiff and posed no
imminent threat of physical harm to plaintiff.

        We agree, but only to a limited point. The absence of any record evidence as to the
content of defendant’s message to the therapist cannot support a finding or conclusion of abuse.
Plaintiff’s purely subjective fear in reaction to just hearing defendant’s voice is no proof that the
message was abusive. Similarly, the fact that defendant behaved angrily coming out of a case
manager’s conference and declared anticipation of his day in court, in and of itself, hardly
supports the trial court’s characterization of defendant failing to maintain self control in a
threatening manner. The court also found, however, from plaintiff’s testimony about her
observations of defendant leaving the manager’s conference, that defendant angrily asserted
hatred for plaintiff.

        Given the history of past abuse evinced at the hearing, the ongoing acrimonious divorce
action, and defendant’s declaration of continued animus towards plaintiff, the record supports the
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court’s order based on plaintiff’s fear of imminent serious harm. 15 V.S.A. § 1101(1)(B). As an
initial matter, we reject defendant’s suggestion that mother was precluded from raising instances
of abuse cited in the earlier RFA proceeding and could not obtain a new RFA order unless she
proved new abuse by defendant since the initial order issued. As noted, the family division is
required to issue a RFA order “if the court finds that the defendant has abused the plaintiff” and,
in relevant part, “there is a danger of further abuse.” Id. § 1103(c)(1)(A). Beyond that threshold,
the statute imposes no limit on its injunctive remedy, nor does defendant posit how his
invocation of res judicata precludes further relief against a currently extant risk of abuse. As
long as there has been past abuse and a danger of further abuse, the court must issue an order.
See Raynes v. Rogers, 2008 VT 52, ¶ 8, 183 Vt. 513 (“Abuse-prevention orders are unique in
that they are intended to provide immediate relief from intrafamily violence as well as to protect
victims from future abuse, rather than to hold perpetrators liable for past acts of violence.”).

        The relief sought depends not on defendant’s intent, but on the reasonableness of
plaintiff’s fear attributable to defendant’s action. See, e.g., Smith v. Hawthorne, 2002 ME 149,
¶ 18, 804 A.2d 1133, 1139 (recognizing that victim’s fear had to be reasonable for abuse to be
found); Ginsberg v. Blacker, 852 N.E.2d 679, 683 (Mass. App. Ct. 2006) (holding that victim’s
fear resulting from defendant’s words or conduct must be reasonable and not just subjective).
That an expression of hatred can combine with other facts to create grounds for relief does not,
as defendant claims, punish protected speech. The court’s order was not based on words alone,
but on the egregious history of abuse, the tinder of the family court proceedings, and defendant’s
recently expressed animosity. We cannot conclude the trial court exceeded its discretion in
issuing the order. See Raynes, 2008 VT 52, ¶ 9 (stating that trial court’s decision to deny or
grant protective order is reviewed for abuse of discretion because “[i]n 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”); Ferrisburgh Realty
Investors v. Schumacher, 2010 VT 6, ¶ 13, 187 Vt. 309 (noting well-settled rule that trial court’s
decision may be affirmed on any viable ground).

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Brian L. Burgess, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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