Bacigalupo v. Bacigalupo, 21-AP-284

Docket Nº21-AP-284
Citation2022 VT 43
Case DateSeptember 02, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 43

Katlyn Bacigalupo
v.

Daniel Bacigalupo

No. 21-AP-284

Supreme Court of Vermont

September 2, 2022


On Appeal from Superior Court, Windham Unit, Family, Division Michael R. Kainen, J.

Laura Bierley, Vermont Legal Aid, Inc., Burlington, for Plaintiff-Appellee.

Aimee R. Goddard of Buehler & Annis, PLC, Brattleboro, for Defendant-Appellant.

Breanna Weaver and Harrison Drapo, Montpelier, for Amicus Curiae Justice for Victims Legal Clinic of Vermont Network Against Domestic and Sexual Violence.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

CARROLL, J.

¶ 1. This appeal concerns whether a non-resident plaintiff may obtain a relief-from-abuse (RFA) order under Vermont's Abuse Prevention Act. The family division concluded that plaintiff mother, a resident of Massachusetts, could obtain both an emergency and final RFA order against defendant father, a Vermont resident. We affirm.

I. Background

¶ 2. The family division found the following. Mother and father were married in Massachusetts in 2015. They remain married. Together, they have a daughter, age six, and a son, age five. The family's relationship has been affected at times by father's violent behavior and by

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mother's substance abuse. Since 2019, father has lived in Dummerston, Vermont, while mother has maintained residency in Massachusetts.

¶ 3. In early 2017, father strangled mother and mother blacked out. On a different occasion father punched mother. Mother did not report these two incidents to the police. In November 2017, father attempted to cut mother's wedding ring off her finger with a pair of tin snips, punched her in the face, slammed her head against the floor, and threatened to kill her. Mother reported this incident, and father was prosecuted for felony domestic violence, and his contact with mother and the children was limited by a Massachusetts court. There were other times when father became angry at mother. Father yelled at mother and called her names; he threw objects at mother in anger, including an ironing board, which did not hit her. Father once drew back his fist as if to hit mother.

¶ 4. In June 2018, father sought emergency custody of the children in Massachusetts. He alleged that the Massachusetts Department of Children and Families had investigated mother for child neglect and that mother had been arraigned on a DUI, second offense, in early July 2018. In 2019, the Massachusetts court held that despite father's history of domestic violence, mother's substance abuse impaired her ability to parent. The court awarded custody to father and ordered that mother's time with the children be restricted to supervised visits. The order also allowed father to move with the children to Vermont.

¶ 5. Soon thereafter, father moved to Vermont. Mother visited the children in Vermont, and on several occasions, father drove the children to Massachusetts to visit mother. When mother and father were getting along, mother had father's permission to spend the night at his house. Mother's time with the children was often unsupervised by father. They often spent time with the children together. Between January and April 2021, mother and father reconciled their relationship.

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¶ 6. By May 2021, this reconciliation had ended. Father told mother she could no longer see the children during unsupervised periods. However, mother still apparently spent considerably more time with the children than the Massachusetts court order allowed.

¶ 7. Father subjected the children to corporal punishment and inappropriate outbursts of anger. Father spanked son several times in front of mother. In October 2020, father slapped son's leg hard enough to leave a welt. In both March and May of 2021, father spanked daughter leaving handprints. In the summer of 2021, father became angry at daughter and pulled a water bottle out of her mouth with enough force to make daughter's tooth bleed. On different occasions, father threatened to strike the children with his belt. While mother never saw father use the belt, father told mother that he had followed through with the threats before.

¶ 8. In August 2021, mother filed a complaint for an emergency RFA order in Windham County, Vermont. The family division issued a temporary RFA order for mother and the children the same day. The order prohibited father from having any contact with mother and the children and granted temporary custody to mother.

¶ 9. Father moved to dismiss the emergency RFA order. He contended that because mother is a resident of Massachusetts, she could not proceed under the Abuse Prevention Act. Father cited 15 V.S.A. § 1102(c), which provides that a plaintiff "may" file an RFA petition in the county where the plaintiff "resides." Alternatively, § 1102(c) provides that a plaintiff who has relocated due to abuse may file in the county of the plaintiff's new residence or household, or in the county of the previous residence or household. Id. § 1102(c). Father argued that the more specific venue requirements in § 1102(c) supersede the civil division's general requirements in 12 V.S.A. § 402(a), which provides that actions "shall be brought in the unit in which of the parties resides, if either resides in the State . . . [or] [i]f neither party resides in the State, the action may be brought in any unit." Unlike § 402(a), § 1102(c) does not state that mother may proceed in father's county of residence. Furthermore, father maintained that the term "resides"-which is

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undefined in the Abuse Prevention Act-is synonymous with domicile. Because mother is not domiciled in Vermont, father argued that § 1102(c) prohibits her from filing for an RFA order in Vermont. Accordingly, father believes the family division lacked subject-matter jurisdiction to issue the RFA order.

¶ 10. The family division denied father's motion. It disagreed that § 1102(c) requires mother to be a Vermont resident to obtain an RFA order. The family division interpreted § 1102(c) as expanding § 402(a)'s venue options for mother's convenience, rather than § 1102(c) entirely displacing § 402(a). Accordingly, the family division held that mother could maintain the RFA action in father's county of residence because it was an appropriate forum under § 402(a). The family division therefore found it unnecessary to reach father's arguments about what constitutes "residency" under § 1102(c).

¶ 11. The family division held several contested hearings on the petition which culminated on October 20, 2021. On November 5, the court issued an extended temporary RFA order on behalf of the children with an April 2022 expiration date. It concluded that the children were at "risk of harm" if left in father's custody. The court granted mother custody of the children and awarded father supervised visits at mother's residence in Massachusetts. The family division stipulated the RFA order for the children would either: (1) lapse upon an order by a Massachusetts court regarding custody of the children, or (2) become permanent upon a Massachusetts court order concluding that Vermont would be the more appropriate forum.

¶ 12. On the same date, the court issued a final RFA order for mother.[1] The court found that father's past abuse toward mother-especially the serious harm inflicted in 2017-made it reasonable for mother to fear "imminent bodily harm." Father's yelling, threatening, throwing an ironing board, and drawing back his fist as if to punch mother-in conjunction with the adverse

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custody order-led the court to conclude that mother's fear of father's anger warranted the court's protection.

¶ 13. Father appeals the family division's final RFA order for mother. He renews his argument that the family division lacked subject-matter jurisdiction because mother is not a Vermont resident. He maintains that under 15 V.S.A. § 1102(c), only those domiciled in Vermont may petition the family division for an RFA order. Finally, father contends that the family division erred by finding that 15 V.S.A. § 1102(c) was merely another venue option for mother in addition to 12 V.S.A. § 402(a).

II. Discussion

A. Standard of Review

¶ 14. Whether the family division has subject-matter jurisdiction to issue a final RFA order is a legal question we review de novo. In re K.S., 2021 VT 51, ¶ 20__ Vt. __,260 A.3d 387. "Because the jurisdiction of the trial courts is shaped by the legislature, subject[-]matter jurisdiction is a question of statutory interpretation." Id. We review issues of statutory interpretation de novo. In re Guardianship of S.O., 2021 VT 89, ¶ 13__ Vt. __,268 A.3d 49.

B. The Abuse Prevention Act

¶ 15. The Abuse Prevention Act "provides a private remedy by permitting a family or household member to seek a protective order against another family or household member when abuse has occurred and there is a danger of further abuse." Hinkson v. Stevens, 2020 VT 69, ¶ 56, 213 Vt. 32, 239 A.3d 212 (Reiber, C.J., dissenting); see 15 V.S.A. §§ 1101(1), 1103(a), (c). Its purpose is "to protect victims from future abuse, rather than to hold perpetrators liable for past acts of violence," by providing "immediate relief" through "inexpensive and uncomplicated proceedings." Raynes v. Rogers, 2008 VT 52, ¶ 8, 183 Vt. 513, 955 A.2d 1135 (quotation omitted). The RFA order is "a unique legal remedy . . . aimed at ending the cycle of domestic violence before it escalates." Id.

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1. Section 1102(c)

¶ 16. Section 1102(c) provides:

Proceedings under this chapter may be commenced in the county in which the plaintiff resides. If the plaintiff has left the residence or household to avoid abuse, the plaintiff shall have the option to bring an action in the county of the previous residence or household or the county of the new residence of household.
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