Scheffler v. Harrington, No. 2020-102

• Docket Nº: No. 2020-102
• Citation: 2020 VT 93
• Case Date: October 16, 2020
• Court: United States State Supreme Court of Vermont

2020 VT 93

Melissa L. Scheffler
v.
Raymond G. Harrington

No. 2020-102

Supreme Court of Vermont

September Term, 2020
October 16, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Bennington Unit, Family Division

David A. Howard, J.

Melissa L. Scheffler, Pro Se, Bennington, Plaintiff-Appellee.

David G. Reid of David G. Reid, Attorney at Law, PLLC, Brattleboro, for Defendant-Appellant.

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

¶ 1. CARROLL, J. Defendant appeals the issuance of a relief-from-abuse order requiring him to have no contact with and stay a hundred feet away from plaintiff (his sister), her residence, and their mother's home. The trial court issued the order because it concluded that defendant stalked plaintiff, within the meaning of 12 V.S.A. § 5131, by driving by her home on multiple occasions and honking his horn, which the court found constituted surveillance. On appeal, defendant argues that his actions do not amount to surveillance because surveillance requires "an intent to engage in a close watch or observation." We agree, and reverse because, based on the trial court's findings, there is no evidence defendant was closely watching or observing plaintiff.

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¶ 2. The court's findings of fact indicate the following. Plaintiff and defendant are siblings. Due to childhood allegations of "possible abuse," they did not have contact for approximately twenty years. The parties, however, had "indirect contact" through their mother. Around 2017 or 2018, their mother developed serious medical issues. She arranged a "truce" where plaintiff and defendant agreed to keep their dispute "to the lowest key possible" so they could cooperate for the mother's health and benefit. For a period of time, plaintiff and defendant communicated, "sometimes about pretty minor matters; sometimes, a little bit more involved."

¶ 3. A day or two before the parties' mother died, she executed a deed to plaintiff that effectively removed the mother's house from her estate. As one of the ten people named in his mother's will, defendant was upset about the house being removed because this would reduce the amount he would inherit. Defendant sent plaintiff an email expressing his anger and concern about the deed. In the email, defendant told plaintiff that he hired an attorney to fight the deed in probate court and warned plaintiff that if she did not want the "estate eaten up," she should come clean because her "sneaky little ways of everything will be brought to the witness stand." Defendant filed an action in the probate court, which is still pending, challenging the deed. Plaintiff opposes the probate action, arguing that nothing improper occurred. This ended the "truce" between plaintiff and defendant.

¶ 4. During the late summer and fall of 2019, defendant, by his own admission, drove by plaintiff's house and honked, in short beeps, to show his annoyance at plaintiff's actions. This occurred more than ten times. On some of the occasions, defendant would drive by more than once a day and honk several times or for longer "than a short beep." During this time period, plaintiff noticed that on several occasions defendant's vehicle was behind her as she was driving in town.

¶ 5. On January 9, 2020, plaintiff filed a request for relief from abuse from a family member under 15 V.S.A. § 1103. The trial court issued a temporary relief-from-abuse order, which

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was extended until the relief-from-abuse hearing on February 13. At the end of the hearing, the court made findings of fact and concluded that defendant abused plaintiff within the meaning of 15 V.S.A. § 1101(1)(D). Under that subsection, abuse is defined to include "stalking" under 12 V.S.A. § 5131(6). Under § 5131(6), stalking is defined as purposefully engaging "in a course of conduct directed at a specific person that the person engaging in the conduct knows or should know would cause a reasonable person to: (A) fear for his or her safety or the safety of a family member; or (B) suffer...