Coburn v. Coburn

²⁴⁸ CHASANOW, Judge. We are called on in this case to determine whether evidence of alleged prior abusive acts is admissible in a protective order hearing pursuant to Maryland’s domestic violence statute, Maryland Code (1984, 1991 Repl.Vol., 1995 Supp.), Family Law Article, §§ 4-501 through 4-516. We hold that such evidence is admissible in light of the remedial purpose of the domestic violence statute and affirm the decision of the circuit court. I. The instant case arose out of a petition for protection from domestic violence filed by Marcia Coburn against her estranged husband, William E. Coburn, Jr. The petition was filed pro se on March 3,1995 in the District Court of Maryland sitting in Baltimore City.

It alleged that on February 25, 1995, Mr. Coburn slapped, punched, and threatened Ms. Co-burn. Ms. Coburn also noted in the space provided for “other injuries” that she had been the victim of past abuse by Mr. Coburn sometime in July of the previous year, that an ex parte order had been granted and extended several times, and that Mr. Coburn had harassed her over the telephone at her place of employment. In response to Ms. Coburn’s petition, the District Court issued a temporary ex parte order for protection from abuse and scheduled a final protective order hearing for March 10, 1995. The court found that on February 25, 1995, Mr. Coburn shoved Ms. Coburn against a car, hit her in the face openhanded, chased her, and then punched her in the back of her head.

The judge also noted a “history of abuse” on the ex parte order. Mr. Coburn, although served with the ex parte order, failed to appear at the March 10, 1995 protective order hearing. The District Court granted a final protective order in favor of Ms. Coburn effective through September 26, 1995. The judge noted on the order that on February 25, 1995, Mr. Coburn pushed, shoved, punched, and threatened to shoot Ms. Coburn. ²⁴⁹ The order did not, however, mention any incidents of past abuse other than the February 25, 1995 occurrence.

Mr. Coburn appealed the decision and a de novo protective order hearing was held in the Circuit Court for Baltimore City. In addition to the alleged abuse occurring on February 25, 1995, the Honorable Kathleen O’Ferrall Friedman heard testimony from Ms. Coburn concerning alleged prior instances of abuse occurring on July 8, July 25, and November 9 of 1994. 1 A police officer who witnessed part of the November 9, 1994 incident also testified. Mr. Coburn repeatedly objected to the admission of evidence of past abuse, but the judge allowed the testimony. Judge Friedman asked, “do you understand this is not a criminal case, that this is a domestic violence case?

Prior injuries that have been caused by the same respondent are relevant in a domestic violence case.” At the conclusion of the hearing, the court found in favor of Ms. Coburn and granted her request for protection. The judge summarized her findings on the protective order as follows: “On 2/25/95 [Mr. Coburn] hit, punched and threatened [Ms. Coburn]. On previous occasions he has abused her and put her safety in jeopardy.” Mr. Coburn petitioned for a writ of certiorari to this Court, contending that the issue before Judge Friedman was limited to whether Mr. Cobum abused Ms. Coburn on February 25, 1995 and that accordingly, evidence of alleged instances of prior abuse was inadmissible. We granted certiorari to consider whether a trial judge may admit evidence of alleged prior abuse in a protective order hearing under the domestic violence statute.

We hold that due to the remedial, preventive purpose of this legislation, evidence of alleged past abuse is highly relevant to establish the need for protection and the ²⁵⁰ appropriate remedy, and thus is admissible in a protective order hearing.

II

Preliminarily, we note that the instant case is moot because the final protective order at issue expired on September 26, 1995. A case is moot when there is no longer an existing controversy between the parties at the time it is before the court so that the court cannot provide an effective remedy. Robinson v. Lee, 317 Md. 371, 375 , 564 A.2d 395, 397 (1989). Generally, a moot case is dismissed without our deciding the merits of the controversy.

State v. Peterson, 315 Md. 73, 82 , 553 A.2d 672, 677 (1989). This Court in rare instances, however, may address the merits of a moot case if we are convinced that the case presents unresolved issues in matters of important public concern that, if decided, will establish a rule for future conduct. See Peterson, 315 Md. at 82-83 , 553 A.2d at 677 . We stated in Lloyd v. Supervisors of Elections, 206 Md. 36 , 111 A.2d 379 (1954), that if “the matter involved is likely to recur frequently” and “the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision,” we would be justified in deciding a moot issue. 206 Md. at 43 , 111 A.2d at 382 .

We exercise our discretion to decide the issue raised in the instant case because it is likely to recur frequently but will escape judicial review by this Court due to the limited duration of protective orders. See § 4-506(g) (protective orders not to exceed 200 days in duration). 2 In addition, the issue involves construction of a statute routinely applied by courts of this state, and our interpretation of it will assist judges in determining whether victims of abuse are in need of protection. See Peterson, 315 Md. at 85 , 553 A.2d at 678 . Because the issue is of public importance, we find more than adequate justification in proceeding to review the merits. ²⁵¹ III.

A. Domestic violence is the leading cause of injury to women in this country. 3 Elizabeth M. Schneider, The Violence of Privacy, 23 Conn.L.Rev. 973, 981 (1991). According to some estimates, there are approximately four million incidents of domestic violence against women annually. Developments in the Law—Legal Responses to Domestic Violence, 106 Harv.L.Rev. 1498, 1501 (1993). The problem of domestic abuse, however, remained largely ignored by our society until the last two decades, when national efforts toward legal and social reform began to surface.

See Developments in the Law, 106 Harv. L.Rev. at 1502, 1505 n. 1; Catherine F. Klein and Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L.Rev. 801, 810 (1993). Since then, domestic abuse has gained widespread public attention. Social service agencies developed battered women’s shelters and hotlines, and state legislatures recognized that domestic violence needed to be adequately addressed. 4 See The Violence of Privacy, 23 Conn.L.Rev. at 974. ²⁵² B. It is against this background that in 1980 the Maryland General Assembly enacted the domestic violence statute (the statute). §§ 4-501 through 4-516. 5 The statute grants courts the power to issue civil protection orders, which can prohibit a perpetrator of domestic violence from, among other things, abusing, contacting or harassing the victim. 6 See §§ 4-505 and 4-506.

Through the statute, victims of domestic abuse are offered access to the judicial system to seek emergency relief and protection from their abusers. It has been reported that fourteen-thousand victims sought relief from abuse through filing petitions for temporary protective orders in the courts of this state in 1994 alone. Christina Asquith, Domestic Abuse Cases Multiply, The Baltimore Sun, November 5, 1995, at 1C, col. 7. The purpose of the domestic abuse statute is to protect and “aid -victims of domestic abuse by providing an immediate and effective” remedy.

Barbee v. Barbee, 311 Md. 620, 623 , 537 A.2d 224, 225 (1988). The statute provides for a wide variety and scope of available remedies designed to separate the parties and avoid future abuse. Thus, the primary goals of the statute are preventive, protective and remedial, not punitive. The legislature did not design the statute as punishment for past conduct; it was instead intended to prevent further harm to the victim. ²⁵³ c.

The statute defines “abuse” as an act that causes serious bodily harm or places a person eligible for relief in fear of imminent serious bodily harm, battery, assault and battery, rape, sexual offense, or false imprisonment. § 4-501(b)(l). Individuals at risk of domestic violence are covered under the statute as “person[s] eligible for relief’ and include current or former spouses, cohabitants, relatives by blood, marriage or adoption, parents, stepparents, children or stepchildren, individuals who reside or resided with an alleged abuser for at least 90 days out of the last year before filing a petition, vulnerable adults, and individuals who have a child in common with an alleged abuser. § 4-501(h). Section 4-504 of the statute authorizes a person eligible for relief (petitioner) to file a petition alleging abuse against the alleged abuser (respondent) 7 and requesting immediate and temporary relief from the violence. 8 § 4-504(a). A petition may be filed in either a circuit court or District Court. § 4-501(d).

The statute requires that the petition be under oath, § 4-504(b)(l)(i), include information of prior or pending action between the parties in any court, provide the nature and extent of the abuse for which relief is being sought, state any previous injury resulting from abuse by the respondent, and provide the whereabouts of the respondent, if known, to facilitate service. § 4—504(b)(l)(ii). The court can waive the filing fee where appropriate. § 4-504(c). ²⁵⁴ Since relief under the statute is designed to be available for pro se applicants, standard petition forms are provided and kept readily available by the courts. 9 These pre-printed forms aid potential petitioners who are not familiar with the specific requirements of the statute. The forms provide space for a petitioner to describe, inter alia, the alleged abusive act or acts that occurred and any resulting injuries. A petitioner can then check the desired types of relief on the back of the petition.

In addition, a petition form requests that a petitioner include and describe information “of other injuries the Respondent has caused the victim in this case.” Petition for Protection, Form DV-1. Once a § 4-504 petition is filed, the petitioner appears before a judge for an ex parte hearing. § 4-505(a)(l). At the hearing, the presiding judge may enter a temporary order to protect a petitioner from abuse and grant emergency relief if the judge finds that there are “reasonable grounds” to believe that abuse occurred. § 4-505(a)(l). To support the allegations of abuse, the victim may present the court with photographs, medical records, witnesses, the victim’s own testimony or any other available proof.

See, e.g., Christopher L. Beard and Jacqueline J. Judd, Victims No More: Changes in Domestic Violence Law, 25 The Maryland Bar Journal 29, 30 (July/August 1992). The statute gives the court discretion to determine whether to issue an ex parte protective order based on the affidavit, testimony and other facts presented. If ²⁵⁵ abuse is found, the judge may order that a respondent refrain from abusing, contacting or harassing a petitioner, from entering a petitioner’s residence and place of employment, and may additionally award temporary use and possession of the home and temporary custody of any minor children. § 4-505(a)(2). The temporary order also states the time and date of a second hearing to determine if a final protective order should be issued.

See § 4-506(a) and (b). The ex parte order expires a maximum of seven days after a law enforcement officer serves a respondent, and can be extended only up to 30 days in order to effectuate service on the respondent. See § 4-505(b) and (c). It is not until the second, full hearing, held within seven days of service of the temporary order on the respondent, that the court can grant extended relief to the victim for up to 200 days.

See § 4-506(g). At the second hearing, the alleged abuser is given an opportunity to contest the allegations of abuse and be heard on the issue of whether a final protective order should be granted to the petitioner. § 4-506(a). Even if the respondent fails to appear at the hearing, as in the instant case, the court may issue a final protective order based on evidence presented by the petitioner, as long as the respondent has been served with the temporary protective order or the court otherwise has personal jurisdiction over the respondent. See § 4-506(c)(l).

The court is authorized to grant a final protective order, not to exceed 200 days, § 4-506(g), if the court finds by clear and convincing evidence that abuse occurred. § 4-506(c)(l)(ii). The court may, in addition to ordering any or all of the remedies available for the temporary order, establish temporary visitation with a minor child, direct the respondent to participate in a domestic violence program or counseling, award emergency family maintenance and temporary use and possession of a jointly owned vehicle, and order the respondent to pay court costs. § 4-506(d). The statute provides for modification or rescission of the protective order within the duration of the order after notice ²⁵⁶ to both parties and a hearing. § 4-507(a). A de novo appeal in the circuit court from the District Court’s order is available to either a petitioner or respondent. § 4—507(b)(2).

See also Barbee, supra. The District Court protective order remains in effect pending appeal. See Maryland Rule 7-112(b).

IV

A. To determine whether evidence of past abuse is admissible in a protective order hearing, it is essential that we look to the legislature’s purpose in adopting the domestic violence statute. This Court has made clear that the cardinal rule in construing any statute is to ascertain and effectuate the intent of the legislature. Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995). The primary source from which to determine this intent is the language of the statute itself.

Vest v. Giant Food Stores, Inc., 329 Md. 461, 466 , 620 A.2d 340, 342 (1993). In seeking out the legislative intent, we examine the statute as a whole, considering the interrelationship or connection among all of its provisions. Vest, 329 Md. at 466-67 , 620 A.2d at 342 . Furthermore, remedial statutes are to be liberally construed to “suppress the evil and advance the remedy.” Harrison v. John F. Pilli & Sons, Inc., 321 Md. 336, 341 , 582 A.2d 1231, 1234 (1990).

With these principals in mind, we turn to the domestic violence statute. Section 4-506 does not specifically address what evidence is admissible in a final protective order hearing. It provides that “if the court finds by clear and convincing evidence that the alleged abuse has occurred” it may grant a protective order. § 4-506(c)(1)(ii) (emphasis added). This section also lists a number of factors for a judge to assess in determining whether to order a respondent to vacate the home, § 4-506(e), and includes “the history and severity of abuse in the relationship between the respondent and any person eligible for relief." § 4-506(e)(5) (emphasis added).

The only other language concerning evidence found in the statute provides that a petition for temporary relief from ²⁵⁷ abuse shall include information concerning “the nature and extent of the abuse for which the relief is being sought, including information known to the petitioner concerning previous injury resulting from abuse by the respondent.” § 4—504(b)(1)(ii)(1) (emphasis added). The language found in both sections indicates that the legislature recognized the importance of evidence of a pattern of abuse in determining the need for protection against future abuse. To allow evidence of past injury to be admitted at the ex parte hearing for temporary relief, but preclude its introduction at the final protective order