Katsenelenbogen v. Katsenelenbogen

³²² EYLER, Judge. Appellant, Sergey Katsenelenbogen, appeals from a protective order entered by the Circuit Court for Montgomery County in favor of appellee, Janet Katsenelenbogen, pursuant to the Maryland Domestic Violence Statute, Md.Code (1999 Repl.Vol.) §§ 4-501 et seq. of the Family Law Article (“FL”). Appellant contends that (1) the evidence was legally insufficient to support the issuance of a protective order and (2) if appellee was entitled to some relief, the relief granted was not supported by the evidence. We hold that (1) if the basis is fear of imminent serious bodily harm, the fear must be reasonable and (2) the relief must be tailored to the situation being addressed.

As a result, we vacate the order and remand for further consideration. Factual Background The parties were married in April 1986, and had three children as a result of the marriage. The marital home was titled in the names of both parties. Appellee was a pediatric nurse and worked approximately 24 hours per week.

Appellee had a chronic back problem, for which she took medication. The parties had a live-in nanny who helped to care for the minor children. On or about December 9, 1999, appellee asked appellant to move out of the marital home. Appellant did not leave.

On January 1, 2000, appellant advised the live-in nanny that she was fired and would have to vacate the marital home because appellant wanted to use the room that she had been occupying. When appellee learned of this, she disapproved, and after consulting her lawyer, took the position with appellant that he could not force the nanny to leave. During that conversation between the parties, appellant used the cordless telephone to call the police. While making the call, appellant walked out of the house onto the driveway, and appellee followed him.

One of the parties’, children, Alexander, age 9, followed appellee. After appellant finished his conversation with the police, he dialed another number and ³²³ began speaking in Russian. Appellee continued to request the phone, and according to appellee, appellant shoved her by placing his left hand on her shoulder. Also, according to appellee, Alexander placed himself between them, and appellant shoved Alexander.

Appellant testified that appellee followed him, but he denied any contact. Prior to January 1, 2000, appellant had never harmed appellee or contacted her in an improper or offensive manner. On January 3, 2000, appellee filed a petition for protection from domestic violence. In that petition, she stated that she was filing it on behalf of herself and Alexander, claiming, “shoving,” “threats of violence,” and “mental injury of a child.” An attachment to the petition described the incident which occurred on January 1.

An ex parte order was issued on January 3, and a hearing was scheduled for January 10. At the hearing on January 10, appellant and appellee testified. At the conclusion of the heai-ing, the circuit court issued a protective order, reciting that appellee was a person eligible for relief as the current spouse of appellant, and that on January 1, during a verbal argument, appellant shoved appellee and their nine-year-old son. The order recites that “she was badly shaken.

Is afraid for her safety.” The protective order was a printed form completed and executed by the court. The form described acts of abuse with boxes beside them. The only box checked as an act of abuse was described as an act “which placed person eligible for relief in fear of imminent serious bodily harm.” By its terms, the order was effective until January 3, 2001; appellant was ordered not to contact appellee except for purposes of visitation; appellant was ordered to vacate the marital home; custody of the three minor children was awarded to appellee; emergency family maintenance was awarded to appellee; and exclusive use and possession of a certain vehicle was awarded to appellee. We shall set forth in detail the testimony of appellee and the findings of the trial court in order to discuss the issues presented. ³²⁴ Discussion Family Law § 4-506(c)(ii) provides that a court may grant a protective order to any person eligible for relief from abuse if the court finds by dear and convincing evidence that the alleged abuse has occurred.

Section 4-501 states that abuse means “(i) an act that causes serious bodily harm; (ii) an act that places a person eligible for relief in fear of imminent serious bodily harm; (iii) assault in any degree; (iv) rape or sexual offense as defined by Art. 27, §§ 462 through 464C of-the Code or attempted rape or sexual offense in any degree; or (iv) false imprisonment.” We are concerned only with (ii), as that is the finding made by the circuit court as the sole basis for the protective order. The petition and order were based on the January 1 incident. Under the statute, therefore, to support the issuance of a protective order in this case, there must be evidence to support a finding that on January 1 appellee was in fear of imminent serious bodily harm. Appellee testified in pertinent part as follows: [Appellee’s Counsel]: Q You filed a petition for protection from domestic violence in this Court on January 3rd, that is correct?

A Correct. Q And where did the' events occur which you describe in the petition? A At Lautrec Court, at our home. Q And on what date did those events occur?

A New Year’s Day, January 1st. Q At about what time? A 2:30 in the afternoon. Q And what happened at 2:30 in the afternoon?

A I returned home with my children from my mother’s house. We had spent New Year’s Eve there. I got out of the car. My nanny appeared to be very upset, and she said she needed to talk to me.

I pulled her aside so that we could speak privately. She told me that my husband had told her that she needed to ³²⁵ move out, that although he like[d] her that she would need to go, that her services would no longer be required. Q What happened after your conversation? A After our conversation I learned that she was to be terminated.

I then went and called [appellee’s counsel]. I was in a panic because this is somebody that I have come to depend on. This is somebody that I care about deeply. This is someone that my children love, and that she loves them, and I trust with my children, and I didn’t know whether he could make her leave or not make her leave, legally.

Q Did you want her to leave? A I did not want her to leave, and I was scared to death that she was going to, and I didn’t know where that was going to lead. You know, so I called you to find out what—what my legal rights were. You said that I hired her, and as long as -I was paying her that he could not make her leave the home.

After learning this—and you also said that it depended on how much she could tolerate. I explained this to her. I told her that I needed her to stay. I really wanted her to stay.

I walked upstairs. My husband was in the bathroom. I sat on the edge of the bed and waited for him to come out. He came out.

I told him that I had learned of his intention to let Nanette go—Nanette is our nanny—and that I wanted her to stay, that I needed her there, and he said that she had to go, and I said, “Well, I hired her. I’ve been paying her. I need her services, and I need her help. I depend on her and she’s not leaving.” He said, “Yes she is.” I said, “No, she’s not.” ³²⁶ We went back and forth two or three times.

He said, “Okay, do you want to do this now, or would you like to do this later?” I did not know what he meant by that, but I said, “I want to do it now.” He picked up the cordless phone and started walking down the stairs. I started following him. He told me to get away from him. I asked him what he was doing.

He said he was calling the police. I followed him down the stairs as he was calling the police. As we got downstairs to the foyer, my nine-year-old son then joined us. He exited the house. [He was] [o]n the phone with the police while I was repeatedly requesting for him to give me the phone.

He was telling them that he had an employee that he had fired that was refusing to leave the home, that he wanted her—the police to come and remove her from the house. He said, “Please come quickly because the situation could escalate, and there could be some possible violence.” Which I took to be a threat. I continued to follow him down the driveway, and I asked him to hand me the phone so I could speak to the police. He said, “I will give you the phone when I’m done speaking to the police.” The whole time he was shouting profanities at me.

He then hung up with the police and began to dial another number. He began speaking in Russian. Again, I requested that he hand me the phone. Q Do you speak Russian?

A No, I do not. I assume he was speaking with his mother. I was facing him. He had the phone in his right hand.

He shoved me with his left hand, which set me off balance. Q Where did he touch you? A He touched me on my right shoulder. ³²⁷ Q Okay. A And shoved me.

At that point my son dove in between us. He then shoved my son out of the way. At that point I—the adrenalin started running. I ran over [to] my neighbor’s house.

They asked if I was okay. I told them I really didn’t know, but 1 needed to use the phone, and I need[ed] to use it immediately, and they handed me the telephone and left the room to give me privacy to talk. My son was with me at their house. I called the police and told them what happened from my perspective and that he had shoved me.

The police—the lady—or the dispatcher told me that there was already a car in route, but that she would call them and let them know the situation, and to stay at the neighbor’s house until the police got there. [APPELLANT’S COUNSEL]: Object to what ever [sic] the police told her, again. THE COURT: Sustained. THE WITNESS: Okay. At that point I was waiting for the police, but I was concerned because Nanette was still in the house with him, and he also reeked of alcohol.

I had—I asked my neighbor to go over there to tell Nanette to come over to their house. As we opened the door we saw Nanette standing in the driveway. I flagged her back, and I’m sorry, Your Honor, but I forgot one part of it. After he shoved me and my son, he then placed the phone in the crook of his neck, stuck his hands in his pockets, smiled sarcastically, and said, “See, I didn’t even”— [APPELLANT’S COUNSEL]: Objection.

THE COURT: Overruled. This is what he Mr. Katsenelenbogen— [APPELLANT’S COUNSEL]: The term sarcastic is what my— THE COURT: Overruled. ³²⁸ THE WITNESS: And he said, “See, I didn’t even touch you. I didn’t even touch you. My hands were in my pocket[s].

I didn’t even touch you.” He went into the house saying, “I didn’t even touch you.” Anyhow, at that point Nanette came over to their house and we waited for the police officers to arrive. They interviewed Nanette. They interviewed my husband, and they interview[ed] myself. They said that they— [APPELLANT’S COUNSEL]: Objection.

THE COURT: Sustained. THE WITNESS: I’m sorry. They did not interview my son. They wanted to call an ambulance because at that point I was feeling faint and I was badly shaken.

I declined. [APPELLANT’S COUNSEL]: Objection. How would she know what they wanted to do or not do? THE COURT: Overruled. THE WITNESS: Okay.

They stated that they wanted to call an— THE COURT: All right, well just tell me what happened. THE WITNESS: I stuck my—I got a glass of water, put my head between my legs and waited, and the police at that point asked me if I had somewhere to go because they said that my husband did not. [APPELLANT’S COUNSEL]: Objection. THE COURT: All right. Just tell me what you did.

What happened? THE WITNESS: I’m sorry. I’m a little nervous. At that point I told the police that I could go to my parents’ house.

I requested that they stay with me while I packed my things. They agreed to do so. I packed—but they said they couldn’t— [APPELLANT’S COUNSEL]: Objection. ³²⁹ THE WITNESS: Oh, sorry. They—I packed everything into the car for the three kids.

I stuck all three kids in the car. I packed the pet rabbit and the dog because I didn’t know what he would do to them. I had actually tried to— [APPELLANT’S COUNSEL]: Objection. THE COURT: All right.

So you went to your parents’ house. Have you been there since this—since January 1st? Or have [you] returned to the— THE WITNESS: Have returned to my—no, I returned to my own home after I got the order—restraining order. THE COURT: Okay.

THE WITNESS: But—I’m sorry. [APPELLEE’S COUNSEL]: Q Has your husband ever physically touched you like that before, or harmed you in any way like that? A He has not physically touched me before. He has displayed violent behavior and anger control problems before. There are several holes in our wall.

He did try to kick my dog, and fortunately missed. Had he got him, he most certainly would have killed him. [APPELLANT’S COUNSEL]: Objection. Draws a conclusion. THE COURT: Sustained.

THE WITNESS: There are several holes in the wall. - He has been calling me, using profanity in front of the children. He has exhibited anger and threatened to throw things against the wall in front of the children. I arrived home one night, after he had come back from a long trip, and he was not giving me any money— [APPELLANT’S COUNSEL]: Objection. Time frame.

THE COURT: When was this? THE WITNESS: Just about a couple of days before the January 1st event. I told him—I called—I told him that if he wanted food in the house that he would have to buy it becat • he wasn’t ³³⁰ giving me any money and I did not have enough to buy food for the children, and he left to go grocery shopping. While he was out, I had forgotten to ask him to buy litter for the rabbit.

I did have $2.50 in my wallet. I came home with the litter. He started shouting at me, in front of children, that, “You have money to buy litter for the rabbit, but you don’t have money to feed our children.” He starts pulling things out of the trash can, saying, “See, this only costs $1.39. See, this only costs $.69.” [APPELLEE’S COUNSEL]: Q Are you afraid for your safety due to your husband’s conduct on January 1st?

A I am, and the fact that he also, on other occasions, has been— [APPELLANT’S COUNSEL]: Objection. Not responsive. THE COURT: Overruled. THE WITNESS:—and has been drinking alcohol, and acting—behaving irrationally. [APPELLEE’S COUNSEL]: Q Do you believe your physical safety will be in jeopardy unless the Court grants your request for protective order?

A Ido. Q Are you requesting this Court grant your request for protective order? A I am. [APPELLANT’S COUNSEL]: Q And looking at the incident that you have described, when he came out of the shower, you were sitting there, isn’t that correct—on the bed? A I don’t know that he came out of the shower, he came out fully dressed, but I was sitting on the edge of the bed, correct. ³³¹ Q Did he hit you at that time?

A No he did not. Q And then he went to grab the telephone and you pursued him, yes or no? A I followed him. I wanted to hear what he was going to do.

Q And you were going down the steps and he was going down the steps, and you were following him down the steps? A I was walking down the steps. I wanted to hear what he was going to do, yes. Q Okay, and he told you to get away from him, didn’t he?

A He did. Q And did you listen to him? A No, because— Q Thank you. A —I needed to know what he was going to tell the police.

Q But you didn’t have to follow him, did you? A I felt I did. Q You felt you did. A I felt I did.

Q Because you knew that he was going to hit you. A No— [APPELLEE’S COUNSEL]: Objection. THE WITNESS:—because I needed to protect my children. [APPELLANT’S COUNSEL]: Q Protect your children? He was walking out of the house, out of the door, isn’t that correct?

A Yes, and the children were there. Q And he was trying to get away from you wasn’t he? A He was trying to get away from me so I wouldn’t [hear] what he was telling the police. Q And you pursued him.

A And I pursued him because I did not want my children to see someone they loved dragged out of the house. ³³² Q And did you—so you agree. You didn’t need, to follow him? A Yes, I did need to follow him. Okay.

Did anything stop you from picking up a phone, or going to a neighbor’s house, or using some other phone? Yes or no? A Well, I attempted to hang up our phone on another line, but it did not work, and I didn’t see a reason to run to the neighbors because he told me that when he was finished talking to the police he was going to hand me the phone. Q And' you were in fact, at all times though this whole incident, pursuing your husband who was not pursuing you?

A That is correct— Q Thank you. A —but that does not justify putting your hands on someone else’s person. Q And you were trying to get the phone. You were trying to give him the phone, isn’t that correct?

A No, that is not correct. Q You weren’t trying to get the phone? A No. I was following him and I repeatedly asked him for the phone. Q So you weren’t trying to get the phone?

Yes or no? A I did not touch his person. I was attempting verbally to get the phone. [APPELLEE’S COUNSEL]: Q Did you do anything to encourage your husband to strike you? A No, I did not.

Q And your husband had never hit you before, correct? A No, he’d never hit me, but he has—as I told the Court before, displayed violent behavior many many times. ³³³ Q Did you pursue him anticipating that he would strike you? A No, I did not. The court concluded: All right.

Well, as I said at the conclusion of the case, the legislature has seen fit to pass this law that will require the Court to act if they are convinced that there is clear and convincing evidence that there is perhaps a situation which may become volatile or result in something happening where someone is injured, and I think that there is a volatile situation here, unfortunately, and I don’t know what the cause of it is. I don’t know if it is the extra-marital affair or if it is the alcoholic consumption, or what it is, but obviously these folks are not getting along. By both testimonies, Mr. Katsenelenbogen is going to move to another place in the house, so obviously the marriage is not going well, and again, I understand that he wants a reconciliation; perhaps she doesn’t; perhaps when this matter gets into Court the grounds for the divorce may well lie with Mr. Katsenelenbogen, but until that happens, I think these folks should be separated. I am convinced that there was a voluntary separation on this incident and that Ms. Katsenelenbogen was in fact shoved, and I will grant the protective order.

This has no bearing on the final outcome of this case whatsoever. This is merely a band-aid attempt to separate these folks so nobody gets hurt, but it is not a situation where Mr. Katsenelenbogen is going to lose everything or whatever as a result of this hearing because I am going to put on here that it is without prejudice and should not have any bearing on the ultimate decision as to the merits hearing, both on the monetary and the award of custody, but I am going to grant the protective order that will remain in effect through January 3 of the year 2001, that there should be no contact between the petitioner and the ³³⁴ respondent, and [the respondent] shall vacate the family-home, which I will grant a use and possession, at this time, to the petitioner, without prejudice. Again, I suggest that the matters be filed immediately so this can get on for a full hearing. I will indicate that the residential custody of the minor children be awarded to the petitioner at this time, that is residential, and that liberal visitation be granted to the respondent without the consumption of alcohol, and again this would be without prejudice to the respondent seeking custody of the children, and I will also order that family maintenance in the amount of $2,000.00 be paid commencing February 1st, the year 2000, that the exclusive use and possession of the Toyota Previa be awarded to the petitioner, and that if there are any firearms, that all firearms be surrendered to the Montgomery County Sheriffs Department.

Victims of domestic violence are not limited to a particular age or gender, but such violence is a particular threat to women. See Philip C. Crosby, Custody of Vaughn: Emphasizing the Importance of Domestic Violence in Child Custody Cases, 77 B.U.L.Rev. 483, 483 (1997). Women are “more likely to be assaulted and injured, raped, or killed by a current or ex-partner than by all other types of assailants combined.” Id. (citing Council on Scientific Affairs,