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  • Volume 10 | Spring 2008

case updates

The following are summaries of reported decisions involving domestic violence that we hope will be useful to practitioners. If you know of recent reported decisions that you would like to be included in future eNewsletters please send them to Rebecca Henry at Rebecca.Henry@americanbar.org.

CHILD CUSTODYCRIMINAL LAW
CHILD SUPPORTEMPLOYMENT LAW
CIVIL PROTECTION ORDERSHOUSING DISCRIMINATION
 TORTS

CHILD CUSTODY

Rivette v. Rose-Molina
--- N.W.2d ----, 2008 WL 818752 (Mich. App. 2008)

Holding: The appellate court held that a referee erred in making a custody determination without considering the ‘best interest of the child’ factors. Additionally, the trial court erred in accepting the referee's custody recommendation without satisfying itself that the best interest factors were considered.

Summary: The parties appeared before a referee for a hearing to determine parenting time. Defendant Rose-Molina asserted several times throughout the hearing that he would not seek custody at the hearing. The hearing lasted 35 minutes, only plaintiff and defendant testified, and the parties were limited to ten minutes of direct testimony and five minutes of cross-examination. The referee's custody conclusion consisted of two sentences of transcript and was expressed as an afterthought, prompted only by defense counsel's concluding question.

Rose-Molina appealed from the trial court’s order denying his amended petition for change of custody and other relief. On appeal, Rose-Molina argued that the referee erred in not making findings of fact or considering the best interest factors in determining custody of the parties' minor child and that the trial court erred in upholding the referee's custody recommendation and ruling that the issue of custody could not be revisited.

In this case, the best interest factors were not mentioned, let alone analyzed, when the referee made a custody determination. The trial court's order denying defendant's petition for change of custody and other relief was reversed and the case was remanded for a custody hearing in the circuit court where the best interest factors shall be evaluated. The trial court was instructed to consider the best interest factors and to determine custody as if no prior determination on custody has been made.


CHILD SUPPORT

Hayes v. Gibbs
2008 WL 682493 (Ohio App.1 Dist., 2008)

Holding: Appellate court held that state law required the trial court to consider the merits of Hayes’ request for child support in a civil protection order hearing.

Summary: On January 24, 2007, Hayes filed a petition for a civil protection order against her husband, Gibbs. The petition was on behalf of herself and her two sons. The petition also requested that Gibbs pay child support for the two minor children. Hayes and Gibbs had been living apart since 2006.

On February 5, 2007 an ex parte hearing was held and a protection order was issued. On February 20, 2007 a full hearing was held and the trial court entered a decision granting Hayes a protection order but denying an order of protection for the two children. The request for child support was also denied. The court reasoned that a divorce action is the more appropriate forum to establish a child support order. Hayes appealed alleging that the trial court erred in refusing to entertain her request for child support on the merits.

The appellate applied Ohio R.C. 3113.31(E)(1)(e) and (h) and found that the trial court erred in refusing to consider Hayes’ request for child support. R.C. 3113.31 provides that a trial court may award child support pursuant to a protection order. The appellate court ruled that the legislature intended child support to be one of the remedies available to victims of domestic violence.

The judgment of the trial court was reversed as to the issue of child support and the case was remanded for a hearing to consider the merits of Hayes’ request for support.


CIVIL PROTECTION ORDERS

People v. Fernino (violation of CPO; criminal contempt)
851 N.Y.S.2d 339 (N.Y.C. Crim.Ct., 2008)

Holding: MySpace “friend request” constitutes contact in violation of the no-contact requirement of a protection order.

Summary: A misdemeanor complaint was filed with the court on September 4, 2007 charging Melissa Fernino (defendant) with three counts of Criminal Contempt in the Second Degree. On January 22, 2008, defendant moved for an order dismissing the accusatory instrument.

The complaint alleged that the defendant violated Family Court orders of protection that were issued in favor of Sandra Delgrosso and her two daughters, by sending each of them a Friend Request Message via MySpace.com, a social networking website. The People filed with the court a certified copy of the temporary order of protection with stated which “Respondent shall have NO CONTACT with Sandra Delgrosso.”

The court found that the MySpace Friend Request falls within the court’s mandate that “Respondent shall have NO CONTACT with Sandra Delgrosso.” The court observed that while it is true that a person can deny the request to become friends, that request was still a contact, which violated the no contact requirement of the protection order.

The court concluded that there were sufficient factual allegations that defendant violated the temporary order of protection and therefore the defendant’s motion to dismiss the counts charging violation of Criminal Contempt in the Second Degree were denied.


In Re John Robertson (enforcement; criminal contempt)
--- A.2d ----, 2008 WL 189681 (D.C., 2008)

Holding: The court held that the trial court did not violate Mr. Robertson’s plea agreement with the United States’ Attorney’s office by permitting Ms. Watson to enforce her CPO against him, and for that reason, correctly ruled that Robertson’s right to the effective assistance of counsel had not been violated. In addition the court concluded that the trial court correctly rejected Robertson’s claim of self defense and his demand for a jury trial.

Summary: On March 29, 1999, Watson filed a “Petition and Affidavit For Civil Protection Order” which alleged that on March 27, 1999, Robertson repeatedly pursued and hit her on various parts of her body with his closed fist; kicked her several times in the head with his heavy work shoes; and threatened to kill her while holding a pocket knife. On the same day Robertson was charged by complaint in the Superior Court, Criminal Division, with one count of aggravated assault based on the March 27 incident. On April 26, 1999, the Domestic Violence Unit of the Superior Court issued a civil protective order (“CPO”), effective for twelve months, ordering that Robertson not assault, threaten, harass, or physically abuse Watson in any manner.

On July 8, 1999, a grand jury indicted Robertson on one count of aggravated assault and two counts of assault with a dangerous weapon. Robertson filed a demand for a jury trial on April 3, 2000, which Watson opposed. The Family Court entered an order rejecting Robertson’s jury trial demand and proceeded with a bench trial to resolve the motion to adjudicate criminal contempt and the motion to modify and extend the CPO. Following the trial court’s finding on May 11, 2000, that Mr. Robertson was guilty of three counts.

Robertson filed a timely appeal. The appeal concerned a defendant's challenge to the private enforcement of a victim's Civil Protection Order through a criminal contempt action brought on the victim's behalf by DC's Office of the Attorney General. The court affirmed the judgment of the trial court and additionally found that self-defense may not be claimed by one who deliberately places himself in a position where he has reason to believe his presence would provoke trouble.


Caplan v. Donovan (personal jurisdiction)
450 Mass. 463, 879 N.E.2d 117 (Mass., 2008)

Holding: Courts may issue protective orders that prohibit certain acts against out-of-state defendants without personal jurisdiction; however, courts may not impose an affirmative duty on a defendant in a protective order without personal jurisdiction.

Summary: Ariana Caplan (plaintiff) and David Donovan (defendant) lived together in Massachusetts for two years before moving to Florida in 2002. Caplan took numerous trips back to Massachusetts although Donovan never returned to the state. Caplan alleged that Donovan became abusive in 2004 after the couple had their first child.

After a violent incident on May 14, 2006, Caplan fled to Massachusetts to live with her mother, where she then filed a complaint seeking an abuse prevention order. Following an ex parte hearing, an order was issued directing Donovan not to abuse or contact Caplan, prohibiting him from coming within 50 yards of her home, and awarding Caplan sole custody of their child. The order also directed Donovan to surrender his firearms and to compensate Caplan in an amount to be determined at a later hearing. At the hearing on the abuse order, counsel appeared on behalf of Donovan and moved to dismiss the complaint and the protective order due to the court’s lack of personal jurisdiction over the defendant. The motion was denied and Donovan appealed.

On appeal, the Supreme Judicial Court of Massachusetts found that the trial court lacked personal jurisdiction over the defendant as Donovan’s phone calls to Caplan while she was in Massachusetts did not amount to “tortious injury” sufficient to for the state to establish jurisdiction via its long-arm statute. Nonetheless, the court held the order's prohibition against the defendant’s abusing, contacting, or approaching the plaintiff or their child contained no affirmative obligation, and therefore personal jurisdiction was not required. However, the Court held the portion of the order that imposed an affirmative duty on the defendant to surrender his firearms was invalid.

Donovan’s petition for certiorari to the U.S. Supreme Court was denied on April 28th, 2008.


CRIMINAL LAW

State of Maryland v. Maouloud Baby (sexual assault)
--- A.2d ----, 2008 WL 1734610 (MD, 2008)

Holding: A woman may withdraw consent for vaginal intercourse after penetration has occurred and, after consent has been withdrawn, the continuation of vaginal intercourse by force or the threat of force may constitute rape.

Summary: In December 2004, a jury convicted Maouloud Baby of first degree rape and related charges. During deliberations, the jury had questions about the elements of the crime; particularly, whether the victim’s withdrawal of consent during intercourse to which she initially consented constituted rape. The court refused to answer the jury’s question, instead redirecting them back to the previously provided instructions on the elements of rape. However, the legal definition of rape was insufficient because it did not address the issue of post-penetration withdrawal of consent.

Baby appealed his conviction, arguing the trial court erred in not instructing the jury to return a verdict of not-guilty if it found the victim consented to intercourse then withdrew consent after penetration. The Special Court of Appeals reversed Baby’s conviction, finding the trial court erred in failing to appropriately instruct the jury. Looking to common law definitions of rape, the intermediate appellate court also held that if a woman consents to sexual intercourse prior to penetration, and then withdraws consent post-penetration, there is no rape.

The Court of Appeals (Maryland’s highest court) granted the State’s petition for certiorari. In an opinion dated April 16, 2008, the Court of Appeals vacated the judgment of the intermediate court of appeals and the judgments of the trial court were reverse. The case was remanded for a new trial. The Court concluded that Maryland’s rape statute criminalized the act of penetration which persists, through force or threat of force, after the withdrawal of consent and that the trial court erred in not addressing the jury’s questions on the issue.


State of Washington v. Becklin (third party stalking)
--- P.3d ---, 2008 WL 1903464 (Wash., 2008)

Holding: The crime of stalking can include directing or manipulating third parties to follow a victim in violation of a protective order.

Summary: Mary Alison McGee obtained a protective order against her abusive ex-boyfriend, Andre Paul Becklin, in December 2003. The protective order prohibited Becklin from having any contact with McGee and from coming within 100 feet of her or her home. The order also explicitly prohibited contact through third parties. McGee alleged that between March 13-26, 2004, she saw a number of Becklin’s friends driving by her home and circling her block. On at least one occasion, one of Becklin’s friends followed her home from a court hearing, circled her block several times, then followed her while she ran an errand. McGee also alleged that Becklin himself followed her home from her court appearance and that she saw him driving near her home.

Becklin was arrested on April 1, 2004 and charged with stalking in connection with the incidents that occurred on March 13-26. The stalking allegations included “violation of a protective order” in order to elevate the crime to a felony offense. At trial, evidence was presented that Becklin had directed his friends to follow McGee and report back to him regarding her activities. During deliberations, the jury asked the court if stalking could be accomplished through a third party, to which the court answered “yes.” The jury then convicted Becklin of stalking, and also included a special verdict indicating that the stalking “was in violation of a protective order.”

Becklin appealed, arguing that among other things, the trial court improperly answered the jury’s question regarding third-party participation in stalking. The Court of Appeals concluded that the crime of stalking could not be accomplished through a third person. The Court also concluded that the court’s instruction (the “Yes” answer) was too late and was an incorrect statement of the law. Becklin’s conviction was reversed.

In an opinion dated May 1, 2008, the Supreme Court of Washington reinstated Becklin’s conviction. The Court concluded that the trial court’s answer to the jury’s question accurately addressed the law, and that the crime of stalking encompasses the act of directing or manipulating others to harass a victim.


EMPLOYMENT LAW

Steele v. Snowline Manufacturing

Jury Ruling: Domestic violence victim seeking a restraining order is protected from retaliation by her employer under Oregon law.

Summary: Allison Steel sought and was granted a civil protection order against an abusive co-worker, which prevented him from coming to work. Soon after, she was fired by their employer Snowline Manufacturing in Bend, Oregon.

On April 7, 2008 a jury found that the Snowline’s termination of Steele’s employment violated ORS 659A.230 and that the employer was guilty of wrongful discharge under Oregon common law. The jury awarded Steele her back pay and punitive damages against her employer of $17,500 on the statutory claim and $10,000 on the wrongful discharge claim.

This decision may be the first time that a jury has found that the Oregon statute ORS 659A.230, which prohibits retaliation for initiating or testifying in a civil proceeding or for filing a criminal complaint, applies to a domestic violence victim’s application for or seeking enforcement of a restraining order or reporting an abuser’s criminal activity.


Rayburn v. Wady Industries, Inc.
Slip Op., 2008 WL 1325914 (N.D.Iowa, 2008)
Ruling on Motion for Summary Judgment

Holding: Court found a public policy in Iowa which favors reporting the violation of a no contact order, and concluded that such a policy would be undermined if an employer were allowed to discharge an employee for reporting the violation of a no-contact order in the workplace. The Court also determined that a reasonable jury could conclude the employee had been discharged due to her reports of the violations of her no-contact order, as other justifications for her discharge were lacking.

Summary: In 2005, Vicki Ann Rayburn (plaintiff) began working for Wady Industries, Inc. (defendant). In July 2005 Rayburn began living with her co-worker John Milller. Three months later, Rayburn asked Miller to move out because of his drinking habit. Miller complied, but had moved back into Rayburn’s home by March 2006. On April 28, 2006, Miller assaulted Rayburn while drinking and Rayburn obtained a civil protective order. Miller was ordered to have no contact with Rayburn, except as necessary for work since they were both still employed by Wady. Between May-June 2006, Rayburn reported numerous violations of the no-contact order that occurred both at work and outside of work. Wady warned Rayburn against reporting while at work, stating that the police visits to the office disrupted the work environment. On June 26, 2006, Rayburn contacted the police to report that Miller had violated the no-contact order while they were both working. Wady subsequently terminated Rayburn for disrupting the workplace.

On April 7, 2007, Rayburn filed a complaint with the U.S. District Court for the Northern District of Iowa alleging, amongst other things, that she was wrongfully discharged by Wady in violation of public policy. Wady filed a motion for summary judgment alleging that Rayburn’s discharge did not violate public policy as a matter of law. The court considered whether reporting to the police a violation of a no-contact order, which was entered as a result of a domestic abuse assault, is an activity protected by a clearly defined Iowa public policy.

The court concluded that there is a clear public policy in favor of reporting the violation of no-contact orders; it reasoned that the protections afforded by no-contact orders are meaningless if they are not enforced. Further, the court found that it would be contrary to public policy to allow an employer to discharge an employee for reporting the violation of a no-contact order, especially one that occurred while at work.


HOUSING DISCRIMINATION

Lewis v. North End Village, et al.
Settled

Settlement: Michigan property management company will not evict or discriminate against individuals in the terms, conditions, or privileges of their tenancy because they have been the victims of domestic violence, dating violence, sexual assault or stalking, whether or not the abuser is residing in the tenant's household. The property management company will also offer early lease termination and relocation to tenants who have been the victims of such abuse and need to leave their homes to ensure their safety.

Summary: Tanica Lewis ended a relationship with Reuben Thomas in 2005 and obtained a protection order a few months later in 2006 after he harassed and stalked her. She informed the management company at her apartment complex of the order that prohibited Thomas from coming near her home in North End Village. On March 1, 2006, however, Thomas broke the windows of her home and kicked in her door. Lewis immediately reported the incident to the police as well as to the residential manager of the property.

Thomas was ultimately convicted of home invasion and ordered to pay restitution. Nonetheless, based on this incident, Management Systems Inc. issued Lewis a 30-day notice of eviction, stating that she had violated the portion of her lease that said she would be liable for any damage resulting from “lack of proper supervision” of her “guests.”

A federal sex discrimination lawsuit was filed by the American Civil Liberties Union and the ACLU of Michigan on behalf of Lewis against the property management company Management Systems, Inc., its residential manager, and landlord North End Village. The lawsuit charged that Management Systems’ policy of evicting domestic violence victims because of their abusers’ actions constituted sex discrimination in violation of the federal Fair Housing Act and Michigan’s Civil Rights Act.

The parties reached a ground-breaking settlement in February 2008. Under the settlement, North End Village and Management Systems, Inc. will not evict or discriminate against individuals in the terms, conditions, or privileges of their tenancy because they have been the victims of domestic violence, dating violence, sexual assault or stalking, whether or not the abuser is residing in the tenant's household. The property management company will also offer early lease termination and relocation to tenants who have been the victims of such abuse and need to leave their homes to ensure their safety. The Defendants also agreed to pay monetary damages and attorneys' fees to Ms. Lewis.


TORTS

Snyder v. Cedar (defamation)
2006 WL 539130 ( Conn.Super., 2006)

Holding: Although repeating allegations of child molestation was defamatory, it was not malicious; therefore, no punitive or equitable relief was ordered.

Summary: On April 28, 1997, Deborah Cedar received a call from a middle school social worker regarding her minor daughter Aviva, indicating that Aviva was troubled by some kind of physical contact between Aviva and her father, Daniel Snyder. Cedar assisted Aviva in making a report to the Branford Police Department. Cedar filed paperwork in court for a restraining order against Snyder. Upon inquiry from others who knew that Aviva was refusing all contact with her father, Cedar repeated the general allegation made by Aviva: that Daniel Snyder had sexually molested Aviva. Snyder denied molesting Aviva and filed a defamation action against Cedar and her husband Edwin R. Vincent, Jr. Snyder’s complaint alleged that Cedar and Vincent each made specific defamatory statements to third persons to the effect that Snyder was a child molester. Snyder also claimed that Cedar directed Aviva to fabricate the allegations against him, with the intention of causing him to suffer severe emotional distress.

The defendants did not deny making certain statements about what Aviva said. They did deny that any such statement was defamatory, and denied that any conduct that amounted to intentional infliction of emotional distress. Cedar and Vincent alleged by way of special defense that their statements were privileged or that their statements were matters of opinion rather than statements of fact.

The court found that many of the challenged statements were privileged either by truth or were protected because they were made in affidavits during court proceedings. Statements in judicial proceedings were protected by an absolute privilege. Moreover, statements in a police report were actually made by the daughter, not the mother.

The court found that Snyder had proved common-law slander and slander per se by Cedar, however, that Snyder had failed to prove malice and accordingly no punitive damages were awarded against Vincent or Cedar on any of the counts. The court awarded no equitable relief.


Bjerke v. Johnson
742 N.W.2d 660 (Minn. 2007)

Holding: An adult with custodial responsibility for a minor residing on her property has a duty to protect the child from sexual abuse.

Summary: The issues presented on appeal were whether a homeowner has a duty to protect a child invitee from sexual abuse by another adult resident in the home and whether the child has the legal capacity to assume the risk of that abuse.

Aja Bjerke (Respondent) stayed at a horse farm owned by Suzette E. Johnson (Appellant). Bjerke was between the ages of 14 and 18 during this time. While staying on Johnson’s property, Bjerke entered into a sexual relationship with Kenneth Bohlman. Bohlman was Johnson’s live-in male friend. Several people, including Johnson, observed the interaction between Bjerke and Bohlman and commented that their conduct was inappropriate. As a result of their sexual relationship, Bohlman was convicted of criminal sexual conduct, and Bjerke brought a negligence action asserting that Johnson failed to protect her from sexual abuse.

The district court granted partial summary judgment in favor of Johnson dismissing the negligence claims. The district court held that Johnson had no duty to protect Bjerke and that Bjerke's assumption of the risk of sexual abuse barred Bjerke's claims against Johnson. The court certified these issues for immediate appeal. The court of appeals reversed, and the Supreme Court of Minnesota granted Johnson's petition for review and affirmed the court of appeals’ decision.

The court found that Bjerke, both by virtue of her age and her specific circumstances, lacked normal opportunities for self-protection, and as a matter of law that a special relationship existed during the time Bjerke was in Johnson’s care. Regarding Johnson’s argument of assumption of risk, the court applied Minnesota law which renders consent irrelevant in criminal prosecutions for the sexual abuse of a child, thus making the defense unavailable.


McSwane v. Bloomington Hosp. and Healthcare System
--- N.E.2d ----, 2008 WL 650618

Holding: The court held that as matter of apparent first impression, a duty not to discharge a patient to the care of a suspected abuser might sometimes be included in a hospital's general duty of care toward a patient, or in the alternative might arise by virtue of statutory requirements to report abuse of certain endangered adults. The court also held that an issue of fact as to whether hospital unreasonably disregarded that which was readily there to be seen and heard, alerting it to the risk of misconduct that could have been prevented, precluded grant of summary judgment to hospital.

Summary: Malia and Monty Vandeneede were married for about a year. They divorced, but continued to live together for another two years. On November 25, 2005, Monty took Malia to Bloomington Hospital for treatment of lacerations. The hospital treated Malia for injuries she said she sustained when she fell of a horse onto some debris. The triage nurse noted that Monty would not let her get close to Malia and he was answering questions for her. The nurse noted other things that tipped her off that Malia’s injuries were not sustained from horse riding.

According to hospital policy, suspicions of spousal abuse after screening must be conveyed to the attending physician. There was no evidence that the triage nurse conveyed any suspicion to the emergency room physician who next saw Malia: Dr. Eelma, a surgeon. The surgical nurse noticed Monty’s defensive stance and suspected that Monty was involved in Malia’s injuries, however, Malia stuck to her story. Dr. Eelma told the surgical nurse that Malia’s mother, Ava McSwane, had reported that the injuries did not occur as Malia had stated. McSwane told a nurse that Monty had beaten Malia with a fireplace poker.

After treatment, Malia was discharged into Monty’s custody. Soon after Malia was discharged, Monty killed her, and then committed suicide. McSwane, Malia’s mother and personal representative, sued the hospital and Dr. Eelma, who treated Malia, asserting they had a duty to protect her from domestic violence. The trial court granted summary judgment for the hospital and Dr. Eelma on the grounds they had no duty toward Malia, and that Malia was contributorily negligent.

The appellate court affirmed the summary judgment for Dr. Eelma on a procedural technicality, but found that the hospital was not entitled to summary judgment, on the ground that it may have had a duty to Malia. There was designated evidence of actually observed or readily observable conduct and information that could have alerted the hospital that there was a risk of harm to Malia. The evidence provided a sufficient basis from which a jury could determine that the hospital unreasonably discharged Malia despite that which was readily there to be seen and heard, alerting it to the risk of misconduct that could have been prevented.