State v. Goyette, 96-067

• Citation: 691 A.2d 1064,166 Vt. 299
• Decision Date: 28 February 1997
• Docket Number: No. 96-067,96-067
• Parties: STATE of Vermont v. Timothy GOYETTE.
• Court: United States State Supreme Court of Vermont

Page 1064

691 A.2d 1064

166 Vt. 299

STATE of Vermont v. Timothy GOYETTE.

No. 96-067.

Supreme Court of Vermont.

Feb. 28, 1997.

Sandra W. Everitt, Addison County Deputy State's Attorney, Middlebury, for plaintiff-appellee.

Thomas C. Nuovo of Nuovo, Gale & Fuller, P.C., Burlington, for defendant-appellant.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

JOHNSON, Justice.

Defendant, who was found guilty of violating a final relief-from-abuse order that had incorporated a stipulation prohibiting him from abusing or harassing his estranged wife, appeals the conviction on the grounds that the underlying order was invalid and that the trial court erred in instructing the jury on the definition of harassment. We conclude that the court's instruction requires reversal of the conviction.

Defendant and the complainant were married in 1983 and had three children before separating in September 1993, at which time a temporary relief-from-abuse ordered was issued against defendant. As the result of incidents occurring during this period of separation, defendant was charged with domestic assault and with violating the temporary abuse-prevention order. At the final relief-from-abuse hearing on October 12, 1993, defendant and the complainant, who were both represented by counsel, presented the family court with a stipulation (1) stating that defendant "shall be prevented and restrained for a period of one year from directly or indirectly harassing or abusing" the complainant; (2) establishing a schedule for temporary joint custody of the children; (3) making a temporary distribution of the parties' real estate and personal property; and (4) requiring the parties to attend various types of counseling. The stipulation was incorporated by reference into the family court's final relief-from-abuse order. In January 1994, defendant pled no contest to the charges of domestic assault and violation of the temporary relief-from-abuse order.

In July 1994, defendant was charged with violating the final relief-from-abuse order by making harassing statements and threatening phone calls to the complainant on several occasions in late June and early July 1994. After the district court denied his motion to dismiss and rejected a plea agreement reached by him and the State, defendant withdrew his no-contest plea. Following a two-day trial, a jury found defendant guilty of violating the final abuse-prevention order. The district court ordered defendant to serve four months in jail, to be followed by a two-and-one-half-year probationary period, during which time he would be subject to numerous conditions dealing with counseling, substance abuse, and contact with the complainant. On appeal, defendant argues that (1) the final relief-from-abuse order was defective because the family court failed to make findings that he had abused the complainant; (2) he was improperly prosecuted for and convicted of acts beyond the scope of the abuse-prevention statute; and (3) the definition of harassment contained in the district court's jury charge was overly broad and thus could have resulted in the jury convicting him for legitimate acts.

Defendant was convicted of a felony for violating a provision in a final relief-from-abuse order that incorporated by mere reference a stipulation dealing with not only harassment and abuse, but also parental rights and responsibilities, property distribution, and counseling. The family court incorporated the stipulation into its final abuse-prevention order without finding that defendant had abused the complainant or that the harassment provision in the stipulation was necessary to prevent future abuse. Thus, the sole basis for the felony criminal prosecution against defendant was a stipulation that did not confirm prior abuse and that dealt primarily with issues more properly reserved for divorce or other custody proceedings. See Rapp v. Dimino, 162 Vt. 1, 5, 643 A.2d 835, 837 (1993) (abuse-prevention statute is aimed at providing immediate relief for abuse victims, not at determining the parties' rights with respect to custody, support, or property; expedited nature of abuse hearings is ill-suited for custody determinations not involving abuse of children).

On appeal, the same attorney who agreed to the stipulation and offered it to the family court in the abuse proceedings now argues that the court did not have authority to adopt the stipulation in its final relief-from-abuse order. We have recently held that defendants may not collaterally attack abuse-prevention orders that they have been accused of violating, except on the basis of jurisdictional defects. State v. Mott, 166 Vt. 188, ----, 692 A.2d 360, 363 (1997). Thus, defendant's claim that the family court improperly relied on the parties' stipulation rather than making appropriate findings to support its final abuse-prevention order is an unpreserved and otherwise unavailing collateral attack on the underlying order. Id. at ----, 692 A.2d at 364 (failure to make findings in support of abuse-prevention order does not rise to level of jurisdictional defect that would allow collateral attack on order following prosecution for violation of order).

Nor are we persuaded by defendant's contention that the State's information was...