Katsenelenbogen v. Katsenelenbogen

WILNER, Judge. This is a domestic violence case in which the Court of Special Appeals vacated a protective order entered by the Circuit Court for Montgomery County and remanded the matter for further consideration of whether the order was appropriate. The case is now moot, as the protective order at issue expired, by its own terms, on January 3, 2001. The concern expressed by petitioner is that both the holding of the intermediate appellate court and some of the language used in its reported opinion, Katsenelenbogen v. Katsenelenbogen, 135 Md.App. 317 , 762 A.2d 198 (2000), can be construed as weakening the State’s effort to respond aggressively to incidents of violence in the home and frustrating the important objectives of the State’s domestic violence law.

As noted in Coburn v. Coburn, 342 Md. 244, 250 , 674 A.2d 951, 954 (1996), we will, on rare occasions, address the merits of a moot case when “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.” That is the situation here. BACKGROUND The incident that gave rise to this proceeding occurred on January 1, 2000. The parties had been married since 1986 and had three children, ages 8, 9, and 12. They lived in a single family home in Potomac.

Respondent husband is em ¹²⁶ ployed full-time as an engineer; petitioner wife is a nurse who, because of a back problem, was able to work only three days— 24 hours — a week. As a further consequence of her back problem, wife hired a live-in nanny to help with the children and various household chores. By the time of the altercation on New Year’s Day, the marriage was obviously in deep trouble. Both parties agree that wife had asked husband to leave the home.

Husband said that, in December, his wife admitted to him that, while he was away on a business trip, she had brought another man into the home and had sexual intercourse with him, that she had consulted an attorney, and that she intended to divorce him. Wife denied the affair but acknowledged that she had informed her husband that the marriage was over. She said that she wanted him to leave because “he was disruptive to the children” and was “behaving inappropriately in front of them.” The genesis of the January 1 incident was husband’s instruction to the nanny that she was fired and would have to leave the home at once. Husband said that, in light of his wife’s confession of infidelity, he was unwilling to continue occupying the marital bedroom and that he needed the nanny’s room.

Whether he truly needed the room she was occupying was one of the matters in dispute. When informed by the nanny of her discharge, wife called her attorney and was advised that, as wife had hired and was paying the nanny, husband had no right to discharge her and force her to leave the marital home. With the benefit of that advice, wife confronted her husband in their bedroom and informed him that the nanny was going to stay, which led to an argument over the matter. Husband picked up their cordless telephone and began walking down the stairs.

Wife followed him and continued to follow him despite his request that she “get away from him.” Wife said that he was calling the police and that she wanted to hear what he was saying. She overheard him say that he had an employee in the house whom he had fired but who was refusing to leave, and that he wanted the police to come and remove her from the house. She heard him add, “Please come quickly because the situation could escalate, and ¹²⁷ there could be some possible violence.” Wife said that she took that to be a threat. When the pair reached the foyer, their nine-year old son, Alexander, joined them.

Husband, still on the telephone, exited the house. Wife continued to follow him down the driveway, demanding that he give her the telephone. He said that he would give it to her when he was finished. At the time, she claimed, he was shouting profanities at her.

When he completed his call to the police, he made another call, apparently to his mother, and began speaking in Russian, which wife did not understand. She continued to demand that he give her the telephone. At that point, according to wife, husband, holding the phone in his right hand, put his left hand on her shoulder and shoved her, which “set her off balance.” Alexander then “dove in between us,” she said, and husband shoved him out of the way. With Alexander, wife ran to a neighbor’s house and called the police.

After the police arrived and interviewed the witnesses, wife packed some clothing and she and the children went to stay, temporarily, with her mother. There is no evidence that wife, or Alexander, required any medical treatment. She said that she felt faint at one point and was offered an ambulance, but she declined. Two days later, wife filed in the Circuit Court for Montgomery County a petition for protection from domestic violence, alleging some of the facts as set forth above.

The court entered an immediate ex parte order in which it found reasonable grounds to believe that (1) wife was a person eligible for relief, (2) husband committed an act that placed her in fear of imminent serious bodily harm, and (3) the act having that effect was that “Respondent shoved petitioner.” Upon those findings, the court directed husband to vacate the marital home and to refrain from abusing or contacting wife, awarded custody of the children to wife, and set a hearing on the matter for January 10. Pursuant to that order, wife resumed occupancy of the marital home. ¹²⁸ Through the checking of boxes on the pre-printed petition form, wife contended that the acts of abuse perpetrated against her consisted of shoving, threats of violence, and mental injury of a child. She asked for a panoply of relief, including continued possession of the marital home, to the exclusion of husband, emergency maintenance to be paid by husband, and an order that husband have no contact with her or the children. At the hearing on January 10, wife acknowledged that husband had not struck her prior to the incident on January 1.

Nor did she present any evidence that he had ever attempted or threatened to strike her. She stated that he had “displayed violent behavior and anger control problems” in the past, however, and described one incident in which, in a failed attempt to kick the family dog, he put a hole in the wall. Without explaining the specific circumstances of their creation, she added that there were “several holes in the wall.” She stated further that husband had used profanity in front of the children and that he had “exhibited anger and threatened to throw things against the wall in front of the children.” Finally, she said that, at the time of the January 1 incident, respondent’s breath was “reeking” from alcohol. Husband denied having shoved his wife and son, and he also denied that he had been drinking.

Although Alexander was apparently brought to the courthouse, he was not called to testify. On this evidence, supplemented by evidence of the parties’ respective financial situations, the court found that “there is a volatile situation here,” although it did not know the cause of that situation — whether “it is the extra-marital affair or if it is the alcoholic consumption” — and that “these folks should be separated.” The court was “convinced” that wife was shoved and decided, therefore, to grant the protective order. The order, which ran for the better part of a year, until January 3, 2001, afforded nearly all of the relief requested by wife. Among other things, it directed that husband vacate the family home and not return, that he not contact wife in any way, except for visitation with the children, that he not abuse or threaten to abuse the wife, and that he pay emergency family maintenance to wife in the amount of $2,000/month. ¹²⁹ The order awarded sole custody of the three children to wife, subject to liberal visitation “without consumption of alcohol,” and awarded her as well exclusive use and possession of one of the two family cars.

Obviously anticipating further litigation regarding the dissolution of the marriage, which it suggested be “filed immediately,” the court stated: “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.” In the actual protective order, the court stated, as part of the visitation provision, that “[tjhis is without prejudice to respondent to seek custody of children.” Husband appealed from the order, arguing to the Court of Special Appeals that (1) wife had failed to prove “abuse,” within the meaning of the domestic violence law, and (2) if there was abuse, it was limited to the one “isolated and relatively non-serious” incident and that the court erred in granting, as a remedy, the maximum relief affordable under the statute. The appellate court began its opinion by recognizing the seriousness of domestic violence, both on the persons directly abused and on children in the household, and it expressed its view that, because of the widespread occurrence and frequent catastrophic effect of such violence, “preventive measures to halt the occurrence of further violence are to be applauded.” Katsenelenbogen, supra, 135 Md.App. at 335 , 762 A.2d at 207 . The court also noted: “For those same reasons, allegations of domestic violence are very serious, and the issuance of a protective order normally carries with it grave consequences for the perpetrator.

If a protective order is issued without a sufficient legal basis, those consequences frequently cannot be erased. ¹³⁰ In that situation, the alleged perpetrator may suffer unfairly from the direct consequences of the order itself, which may include removal from his or her home, temporary loss of custody of his or her children, or temporary loss of a family car____The alleged perpetrator may also suffer from the social stigma that attaches to the order.” Id. Expounding on that theme, the court observed that, although domestic violence protective orders do not award permanent custody of children, they can affect ultimate custody decisions in a variety of ways. A court adjudicating the custody issue might consider the issuance of a protective order against one parent when looking at the fitness, character, and reputation of the parents; it might also consider the effect on the child of changing his or her residence; and, if the order states that a child was abused, the court might be required to make a specific finding that there is no likelihood of further abuse in order to award custody, or even visitation. The appellate court also noted a recent addition to the divorce law, Maryland Code, Family Law Article, §§ 7 — 103(a)(7) and (8), permitting as grounds for absolute divorce, without any required waiting period, cruelty of treatment or excessively vicious conduct toward the complaining party, if there is no reasonable expectation of reconciliation.

The court expressed concern that the domestic violence statute “could be used to seek an advantage with respect to issues properly determined in a divorce, alimony, or custody proceeding.” Id. at 337, 762 A.2d at 208 . With that introduction, the court turned to the requirements of the domestic violence statute in light of the evidence presented in this case. It noted that, under § 4-506(c) of the Family Law Article, a protective order may be issued only if at least one act of “abuse” has been established by clear and convincing evidence, and that § 4-501(b) defined “abuse,” in relevant part, as (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) ¹³¹ rape, sexual offense, or attempted rape or sexual offense in any degree, or (v) false imprisonment. Apparently overlooking the fact that the “shoving” testified to by wife and found by the court to have occurred would constitute a second degree assault under Article 27, § 12A of the Code, 1 the court regarded as the only act of abuse at issue the placing of wife in fear of imminent serious bodily harm.

As to that, the court noted that wife never testified that she was in imminent fear of serious bodily injury at the time of the January 1 incident and assumed that the trial court inferred that fact from her testimony describing the incident, “coupled with her testimony with respect to [husband’s] prior behavior, particularly when under the influence of alcohol.” Id. at 339-40, 762 A.2d at 210 . Focusing, then, on that one aspect of abuse, the court concluded that § 4-501(b)(ii) requires more than actual fear. It stated: “We hold that the fear must be reasonable, i.e., the conduct must be such as to cause a reasonable person under the same or similar circumstances to fear serious bodily harm. The circumstances include but are not limited to the age, intelligence, gender, health, and physical attributes of the parties.” Id. at 342-43, 762 A.2d at 211 .

In a footnote, the court added that “[i]t may be sufficient if the offending party knows of a ¹³² victim’s particular susceptibilities and seeks to take advantage of them.” Id. at 343 n. 2, 762 A.2d at 211 n. 2. The court held that “[i]n this case, there is no indication that the trial court applied an objective standard, and in the absence of controlling case law, no reason to presume it did so.” Id. at 343 , 762 A.2d at 211 . That, apparently, was the first basis for vacating the protective order. The appellate court then went on to consider the relationship between the possible act of abuse committed and the remedy afforded by the trial court.

Noting that the domestic violence law “was not intended as a vehicle to produce pendente lite orders relating to custody, support, and marital property, effective for a year,” but rather “to protect victims of domestic violence,” the court held that “[t]he terms and duration of an order ■... should be tailored to the facts of each case, designed to address the threat of violence and not other Family Law issues not required to be addressed to accomplish that goal.” Id. Prior abuse and the nature and severity of abuse “may be relevant to certain types of relief,” it said. Id. at 343 , 762 A.2d at 212 . On that premise, the court concluded: “In our view, the circuit court did not attempt to tailor the order to the perceived harm, thereby inducing the parties to address separation and divorce issues in a separate action, but granted maximum relief for the maximum duration on the ground that it would be ‘without prejudice.’ Such an order would almost always have the effect, although unintended by the court, of giving an unfair advantage to a party in a subsequent divorce, support, or custody action.

The court should carefully consider the terms and duration of the order to ensure that the resulting prejudice is justified.” Id. Having concluded that there was no reason to presume that the trial court applied an objective standard to the determination of the reasonableness of any fear on the part of wife and “no indication that the court attempted to tailor the terms and duration of the order to the conduct,” the Court of Special Appeals held that it could not determine the appropriateness ¹³³ of the protective order. It therefore vacated the order and remanded the case for the Circuit Court to consider “whether an order is now appropriate, and, if so, its terms.” Id. at 344 , 762 A.2d at 212 . DISCUSSION As we observed, the protective order at issue in this case has expired, and the controversy over it, as between the Katsenelenbogens, is now moot.

The Domestic Violence Clinic of the House of Ruth, which has acted as counsel to the wife and has long been an advocate for abused women, is deeply concerned over the implications of the Court of Special Appeals disposition in this case and some of the language in its opinion, however, and, on behalf of the wife, asks that we