Fleet v. Fleet, 14–FM–391.

• Decision Date: 05 May 2016
• Docket Number: No. 14–FM–391.,14–FM–391.
• Citation: 137 A.3d 983
• Parties: Edmund FLEET, Appellant, v. Ericka FLEET, Appellee.
• Court: D.C. Court of Appeals

137 A.3d 983

Edmund FLEET, Appellant

v.Ericka FLEET, Appellee.

No. 14–FM–391.

District of Columbia Court of Appeals.

Argued March 26, 2015.

Decided May 5, 2016.

Matthew Bechak and Jennifer Anukem, Bethesda, MD, for appellant.

Daniel S. Shaivitz, Rockville, MD, for appellee.

Before GLICKMAN and McLEESE, Associate Judges, and RUIZ, Senior Judge.

McLEESE, Associate Judge:

Appellant Edmund Fleet challenges the trial court's order granting a civil protection order (CPO) to appellee Ericka Fleet and denying a CPO to Mr. Fleet. We affirm.

I.

Mr. Fleet and Ms. Fleet were married in 2010 and separated in 2013. They have a child in common who was born in 2013. In connection with an ensuing divorce action, the trial court granted Ms. Fleet temporary custody over the child, with scheduled visitation for Mr. Fleet. In March 2014, Ms. Fleet and Mr. Fleet each filed a petition for a CPO against the other. The trial court held a hearing on the petitions. In pertinent part, the evidence at the hearing was as follows.

On March 4, 2014, at a hearing in the divorce matter, the trial court addressed interim arrangements with respect to the Fleets' cars. Mr. Fleet wanted to arrange an exchange of the cars that each possessed at that time. The parties could not agree, so the trial court stated that “[e]verything stays status quo.” On the morning of March 10, 2014, Ms. Fleet went with the child to the parking lot outside of Mr. Fleet's place of work. Ms. Fleet intended to take possession of the car that Mr. Fleet had been driving, which was titled in her name. After Ms. Fleet placed the child in the back seat of the car, Mr. Fleet came out of the building and sat in the front seat of the car.

Ms. Fleet testified that she told Mr. Fleet to leave the car, but he ignored her and instead screamed to a bystander to call the police and to videotape the incident. Ms. Fleet asked Mr. Fleet to let her leave with the child, but Mr. Fleet refused and insisted that they wait until the police arrived. Ms. Fleet called the police, because Mr. Fleet would not let the child out of the car. The police arrived after five or ten minutes and determined that Ms. Fleet was the owner of the car. The officers therefore told Mr. Fleet that Ms. Fleet could take the car and that he should remove his belongings from the car.

Mr. Fleet then took the child out of the car and into his office building. The officers asked Ms. Fleet whether Mr. Fleet was supposed to have the child, and she indicated that he was not, because she had custody of the child at that time. Ms. Fleet had a copy of the custody order on her phone and showed it to the police. A police officer went into the building and returned with the child within less than three minutes. Ms. Fleet was nervous and distressed, and the child was crying. Ms. Fleet left with the child and did not take the car.

Ms. Fleet also introduced evidence of an incident in February 2014 during a doctor's appointment for the child. According to Ms. Fleet, she and Mr. Fleet had an argument in the waiting room about the child's visitation schedule. During the argument, Mr. Fleet cursed at Ms. Fleet and physically blocked Ms. Fleet and the child from leaving the room. After Ms. Fleet screamed for help, a nurse asked Mr. Fleet to leave, but he became belligerent and refused to leave. The police were called, but by the time they arrived the situation had calmed down. The incident scared Ms. Fleet and left her upset and intimidated. She concluded that Mr. Fleet hated her and was angry at her.

With respect to the incident on March 10, 2014, Mr. Fleet testified that he saw through the window of his office that Ms. Fleet was trying to take the car he had been driving. Mr. Fleet understood the trial court to have previously ordered that he and Ms. Fleet should keep possession of the cars they had been driving. He therefore ran outside, locked himself in the car, and called the police. Ms. Fleet was standing outside the car cursing at Mr. Fleet. Even after the police arrived, Ms. Fleet was agitated and out of control. Mr. Fleet therefore took the child from the car into his office. Police officers came into the office and told Mr. Fleet that he could not keep the child. Mr. Fleet immediately surrendered the child. Although he knew that he did not have custody of the child at the moment he took the child, he took the child because the child was in an unsafe environment, with Ms. Fleet “acting crazy and spewing expletives.”

With respect to the incident at the doctor's office, Mr. Fleet testified that it was Ms. Fleet who began yelling and that he never tried to block the door.

The trial court granted a CPO to Ms. Fleet. The trial court found that there was good cause to believe that Mr. Fleet committed parental kidnapping during the incident on March 10, 2014. See D.C.Code § 16–1005(c) (2015 Supp.) (trial court may issue CPO on finding good cause to believe that respondent committed or threatened to commit criminal offense against petitioner). In pertinent part, the trial court concluded that Mr. Fleet took the child with the intent to prevent Ms. Fleet from exercising her right to custody of the child. See D.C.Code § 16–1022(b)(1) (2012 Repl.) (parent commits parental kidnapping if parent knowingly abducts, takes, or carries away child from lawful custodian, intending to prevent lawful custodian from exercising right to custody). Specifically, the trial court found that Mr. Fleet knew that he did not have a right to custody at the time he took the child; that Mr. Fleet's act of taking the child from the car into his office constituted a taking or carrying away within the meaning of the parental-kidnapping statute; and that Mr. Fleet intended to prevent Ms. Fleet from exercising her rights to custody of the child. The trial court acknowledged Mr. Fleet's claim that he was acting to protect the child from harm, but concluded that there was no evidence that the child was in imminent danger of physical harm or was suffering any emotional harm. See D.C.Code § 16–1023(a)(1) (2012 Repl.) (parent has defense to parental kidnapping if action was “taken to protect the child from imminent physical harm”).

The trial court further found that issuing a CPO against Mr. Fleet would be consistent with the underlying purposes of the Intrafamily Offenses Act, D.C.Code § 16–1001 et seq. (2012 Repl.). Specifically, the trial court explained that the parties “have had a turbulent relationship that has often teetered on the edge of violence.” The trial court described the parental-kidnapping offense as troubling, noting that such offenses can “escalate to a violent situation quickly as emotions easily would be expected to run high in matters involving children being taken away from a parent.” The trial court further noted that Mr. Fleet himself had recognized that the incident on March 10, 2014, created a “volatile situation,” leading Mr. Fleet to send one of his parents to pick up the child for the next visitation. The trial court pointed out that, in their petitions in the present case, the Fleets had also accused each other of committing assault, theft, and unlawful entry, arising from the February 2014 incident at the doctor's office; an incident earlier on March 10, 2014, at the marital residence; and the March 10, 2014, incident outside of Mr. Fleet's office. Although the trial court did not find good cause to believe those alleged crimes had been committed, the trial court viewed those allegations as demonstrating a contentious relationship. Finally, the trial court noted that there had been two other CPO cases in 2013, in which the parties accused each other of destruction of property, assault, and threats, including a death threat. Acknowledging that the parties had voluntarily dismissed those CPO petitions, the trial court concluded that there was a pattern of allegations and discord that could eventually threaten the safety of the Fleets and their child.

The trial court denied Mr. Fleet's petition for a CPO. In pertinent part, the trial court concluded that there was not good cause to believe that Ms. Fleet had committed or threatened to commit theft of the car during the incident on March 10,2014, because Ms. Fleet was the legal owner of that car.

II.

Mr. Fleet challenges the trial court's issuance of the CPO against him on four principal grounds. We are not persuaded by those challenges.

A.

Mr. Fleet argues that briefly taking the child into his office building did not amount to an abduction, taking, or carrying away of the child within the meaning of the parental-kidnapping statute. We conclude otherwise.

As a matter of ordinary language, Mr. Fleet indisputably took the child from the car, and from the physical custody of Ms. Fleet, and carried the child away and out of sight into the office building. Although Mr. Fleet argues that the taking and carrying away were minimal in duration and distance, we see no basis for interpolating minimum duration or distance requirements into § 16–1022(b)(1), which by its terms extends to any abduction, taking, or carrying away, without regard to duration or distance. We have held with respect to the general kidnapping statute that “there is no requirement that the victim be moved any particular distance or held for any particular length of time.” Richardson v. United States, 116 A.3d 434, 439 (D.C.2015). We reach the same conclusion with respect to § 16–1022(b)(1). In contrast, another provision of the parental-kidnapping statute does contain an explicit durational requirement. D.C.Code § 16–1002(b)(3) (addressing situation where relative with limited custody of child retains custody for more than 48 hours after lawful custodian demands return).

Mr. Fleet also argues that he did not conceal the child, but rather simply took the child to his nearby office, where Ms. Fleet and the officers could readily locate him and the child. The trial court held to the contrary that Mr. Fleet did conceal the child, in violation of D.C.Code §...