Smith v. Hawthorne

• Decision Date: 05 September 2002
• Citation: 2002 ME 149,804 A.2d 1133
• Parties: Randy S. SMITH o/b/o Kate L. v. Wayne HAWTHORNE.
• Court: Maine Supreme Court

804 A.2d 1133

2002 ME 149

Randy S. SMITH o/b/o Kate L. v. Wayne HAWTHORNE.

Supreme Judicial Court of Maine.

Argued: April 4, 2002.

Decided: September 5, 2002.

Paul J. Morrow, Esq. (orally), McCue Law Office, L.L.C., Hampden, for plaintiffs.

Charles W. Cox, Esq. (orally), Jude, Cox & Tardy, Newport, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

LEVY, J.

[¶ 1] Wayne Hawthorne appeals from the entry of a protection from abuse order entered against him in the District Court (Newport, Murray, J.). His appeal presents several questions regarding Maine's protection from abuse statute, 19-A M.R.S.A. §§ 4001-4014 (1998 & Supp. 2001), including whether a defendant can be found to have committed "abuse" by "attempting to place or placing another in fear of bodily injury," id. § 4002(1)(B), when the defendant did not verbally threaten or commit acts of violence against the victim. We answer this question in the affirmative and, finding no error, affirm the judgment.

I. BACKGROUND

[¶ 2] Randy S. Smith filed a protection from abuse complaint on behalf of his daughter Kate L., then age seventeen, against her stepfather, Wayne Hawthorne, on September 18, 2001. The complaint alleges that:

Kate ... has had abuse in the past 2 weeks. Included is being kicked out of her house on 9-1-01. This includes many cases of being sworn at and tortured mentally. This also includes threatening notes left in her car at school after he kicked her out — Kate is presently being counceled [sic] at school.

Until September 1, 2001, Kate had resided with her mother and Hawthorne for seven years pursuant to a divorce judgment that awarded Kate's primary residential care to her mother and rights of parent-child contact to Smith. The court (MacMichael, J.) granted a temporary order for protection. The court (Murray, J.) subsequently held a hearing on October 4, 2001, and granted a final order for protection from abuse the same day.

[¶ 3] During the seven years that Kate resided with her mother and Hawthorne, Hawthorne regularly yelled and subjected Kate to foul language. The frequency of this behavior intensified on August 31 and September 1, 2001. On three separate occasions during these two days, Hawthorne directed foul language and yelled at Kate first at a restaurant, next at a Wal-Mart store, and finally at their residence. Although the arguments at the restaurant and the Wal-Mart store were over trivial matters, both Kate and Hawthorne testified that the underlying reason for all three of the arguments was a disagreement related to Kate's sexuality.

[¶ 4] Kate testified that sometime between 9:30 and 10:00 in the evening of September 1, Hawthorne kicked her out of the house after a heated argument. After telling her to leave, Hawthorne took her car keys from her claiming that she was too upset to drive. Hawthorne testified that he then called Smith to pick up Kate. Once outside, Kate found herself without a coat on a cold evening. She got into a car while waiting for Smith to arrive. Approximately twenty minutes later, Hawthorne and Kate's mother came outside, and following another argument and after telling her to "have a good life," he kicked another car, which Kate considered hers and which was parked in close proximity to the car she was sitting in. Kate was shaking and crying, and she was scared of Hawthorne because she "didn't know what he was gonna do next" and "didn't know if he was gonna come try to get [her]."¹ At that point, she testified that she locked the car she was sitting in. When Smith arrived, Hawthorne gave him the car keys, and Smith and Kate left.

[¶ 5] During the following two weeks, Hawthorne left three offensive notes on the windshield of Kate's car while it was parked at her school. The first note begins: "Some people don't take kindly to being [expletive deleted] over. So far this is between you and me." The second note threatened that Kate should "wise up" or he would post a written notice at her school warning the students and faculty that she suffers from a sexually transmitted disease (a claim that Kate and her father testified is false) and reveal her sexual preferences. A third note, although conciliatory in part, threatened that Hawthorne and Kate's mother were "considering having you [(Kate)] legally and permanently severed as a daughter. Don't be surprised if you are served to appear in an action." Kate, her father, and her school counselor all testified that Kate believed her step-father's anger towards her was escalating and that she was very scared of him.

[¶ 6] At the end of the trial, the court stated:

I have listened carefully to the evidence here. The conduct of the defendant with respect to the notes is despicable. I think it's hateful and immature behavior, but I don't think it meets the definition of abuse under the statute.... [B]ut I do find that the defendant did place Kate ... in fear of bodily injury ... through a course of conduct ... including, among other things, arguments and yelling in public places, heated arguments ... in the house, telling her that she had to leave ... right then, immediately, yet taking keys from her, and even believing the defendant's testimony that 20 minutes later at that time he was still so angry that he had to vent to kick the car — and I do find that Kate... was in reasonable fear of whether he'd come after her next. I do think she locked the doors, and I think that is ... objective ... or an active act, demonstrating... that she did have the fear that she talked about, and therefore, for that particular ... incident, I am finding that the abuse occurred, and I am going to issue the order for protection.

The court entered an order for protection from abuse, making her father's residence Kate's primary residence and relieving him of his child support obligation "unless Kate ... resumes residency with [her mother]." The court ordered that Hawthorne have no contact, direct or indirect, with Kate.

[¶ 7] Hawthorne filed a motion for findings of fact and conclusions of law, which the court denied on October 11, 2001, stating that it had made its findings of fact on the record at the conclusion of the hearing. On its own initiative, two days later, the court amended its order to address the child support: "the suspension of [the father's] child support obligation is TERMINATED effective [the next day] and [the father] must file the appropriate Motions in the Family Court matter ... if he wishes to be relieved of his child support obligations and/or wishes other action with respect to child support."

[¶ 8] Hawthorne filed a timely notice of appeal and also moved to amend the judgment because Kate's mother was supposed to have primary custody of Kate pursuant to a divorce judgment. The court denied the motion, stating that

[t]he 10-4-01 order is not deemed by the court to constitute a custody award, but instead addressed child support. Child support was readdressed in the 10-11-01 order. While the practical effect of the 10-4-01 order might or might not be that the child lives/lived someplace other than with mother, neither custody nor primary residence was changed by the 10-4-01 order.

II. ISSUES

[¶ 9] On appeal Hawthorne contends that the court erred by (1) finding abuse based on conduct not alleged in the complaint; (2) finding that Kate had a reasonable fear of bodily injury as required by 19-A M.R.S.A. § 4002(1)(B); (3) failing to consider whether his actions were justified under the parental control justification defense; and (4) awarding Kate's primary residence to Smith even though Kate's mother was not a party to the action.

III. DISCUSSION

A. Adequacy of the Complaint

[¶ 10] Hawthorne contends that the court's finding of abuse was not based on the conduct alleged in the complaint, which "focused primarily upon several notes Mr. Hawthorne left for Kate ... after she moved out." He argues that the statute, which authorizes a summary proceeding, must be strictly construed to require notice to a defendant of the allegations against him. He contends that he lacked adequate notice of the claim against him because the complaint did not allege that he placed Kate in fear of bodily injury and did not describe the car incident. Smith asserts that the complaint was adequate pursuant to current notice pleading practice. [¶ 11] The protection from abuse statute provides that a complaint must allege the abuse that is the basis for the complaint. 19-A M.R.S.A. § 4005(1) (1998) ("An adult who has been abused by a family or household member may seek relief by filing a complaint alleging that abuse."). Pleading practice in Maine requires that a claim for relief include "a short and plain statement of the claim showing that the pleader is entitled to relief." M.R. Civ. P. 8(a). Courts construe pleadings "to do substantial justice." M.R. Civ. P. 8(f). "[T]he purpose of the complaint is to provide the defendant with fair notice of the claim against him." Richards v. Soucy, 610 A.2d 268, 270 (Me. 1992) (internal quotation marks omitted).

[¶ 12] The court's finding of abuse was based upon a course of conduct involving verbal abuse and the September 1, 2001, incident, both of which were cited in the complaint. The complaint did, therefore, apprise Hawthorne of the gravamen of Smith's claim. Construing the complaint to do substantial justice, we conclude that Hawthorne had fair notice of Smith's allegation against him.

B. Finding of Reasonable Fear of Bodily Injury

[¶ 13] The protection from abuse statute's definition of abuse includes "[a]ttempting to place or placing another in fear of bodily injury through any course of conduct, including, but not limited to, threatening, harassing or tormenting behavior." 19-A M.R.S.A. § 4002(1)(B). Hawthorne does not challenge the court's finding that his course of conduct constituted "threatening, harassing or tormenting behavior" under section 4002(1)(B). He...