Piper v. Layman

ADKINS, Judge. This case reaches this Court on appeal from a protective order issued by the Circuit Court for Carroll County pursuant to Md.Code (1984, 1991 RepLVoL, 1998 Supp.), § 4-501 et seq. of the Family Law Article (FL) (Domestic Violence Act). The protective order was issued at the request of appellee, Teresa Layman, upon a complaint of stalking. A hearing was held and the court ordered that appellant, Curtis Piper, shall not: 1) abuse or threaten to abuse appellee, 2) contact or harass appellee, or 3) enter the residence of appellee.

Appellant asks us to determine whether the issue is moot, and if not, whether the trial court was clearly in error in finding that there was clear and convincing evidence of abuse. Appellee filed no brief. For the following reasons, we vacate the order of the trial court granting appellee a domestic protective order. Facts and Legal Proceedings On March 23, 1998, appellee filed a petition in the circuit court for protection from domestic violence against Curtis Piper, her ex-fiancé and the father of her child.

Appellant has ⁷⁴⁸ custody of the parties’ child, and appellee has weekend visitation with the child. Appellee alleged that on or about March 10, 1998, and on other occasions, appellant stalked and harassed appellee, and mentally abused the parties’ minor child. In response to appellee’s petition, the court issued a temporary ex parte order for protection from abuse and threats. The court found that the acts that placed appellee in fear of imminent serious bodily harm were “stalking, harassment at work, threats etc.” The ex parte order directed that appellant: 1) not abuse or threaten to abuse appellee; 2) not contact or harass appellee in any manner, in person, by telephone, or in writing, except for visitation purposes; 3) not enter into appellee’s home; and 4) stay away from appellee’s place of employment.

The court held the requisite second hearing on March 30, 1998. At the end of that hearing, the court found that appellant placed appellee in fear of imminent bodily harm by stalking her. It issued a protective order, effective until July 1, 1998, ordering appellant not to contact or harass appellee and to stay away from appellee’s place of employment and residence. There is no evidence that appellant violated or was alleged to have violated the protective order.

I. Mootness of the Appeal Anticipating our concern that the validity of an expired protective order may be a moot issue, appellant argues that the existence of the court’s finding and order leaves a residual stigma on his record, which merits removal. This finding and order, he argues, may cause him to “run the risk of being punished as a sort of repeat offender if he has the misfortune to lose another case of the same type.” He also draws an analogy to a contempt proceeding, and relies upon the law that although a “party held in contempt cannot be made “whole,’ the party remains entitled to seek exoneration.” Droney v. Droney, 102 Md.App. 672, 682 , 651 A.2d 415 (1995). ⁷⁴⁹ The protective order at issue expired on July 1, 1998. Generally, a case is moot if at the time it is before the corat there is no longer an existing controversy between the parties and the court cannot provide an effective remedy. See Robinson v. Lee, 317 Md. 371, 375 , 564 A.2d 395 (1989).

In Coburn v. Coburn, 342 Md. 244 , 674 A.2d 951 (1996), involving an appeal from the issuance of a domestic violence protective order, the Court of Appeals stated: Preliminarily, we note that the instant case is moot because the final protective order at issue [has] expired.... 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. Generally, a moot case is dismissed without our deciding the merits of the controversy. 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.

Id. at 250 , 674 A.2d 951 (citations omitted). The Court decided to “exercise [its] discretion to decide the issue raised in the ... case because it is likely to recur frequently but will escape judicial review ... due to the limited duration of protective orders.” Id. Appellant asks us to decide the present case on its merits (even though the protective order has expired) for a different reason, one not addressed by the Court of Appeals in Cobum. He asks us to decide his case because the court’s findings and order place a stigma upon his record, and argues that, like the litigant in Droney who was held in contempt of court, he is entitled to seek exoneration from this stigma at the appellate level.

In Droney , a divorce action, the wife was found by the trial court to be in contempt by refusing to convey to her husband her interest in a mobile home owned by the parties. After a contempt hearing, the court sentenced Ms. Droney to two years of incarceration, suspending all but one year. The court ⁷⁵⁰ also directed that Ms. Droney could purge the contempt by executing the necessary documents to effectuate transfer of the mobile home to Mr. Droney. After the hearing, Ms. Droney signed the transfer documents, thereby purging the contempt.

On Ms. Droney’s appeal from the finding of contempt, Mr. Droney argued that when “she purged herself of the contempt she rendered all issues moot.” Droney, 102 Md.App. at 681 , 651 A.2d 415 . We rejected this contention, and held that [ w]ith contempt ... even if the purge cannot be undone, and thus the party held in contempt cannot be made ‘whole,’ the party remains entitled to seek exoneration____ Even if Ms. Droney cannot recover her interest in the home, she still may be entitled to a vacation of the contempt finding. Accordingly, the issues pertaining to the contempt itself ... are not moot. Id. at 681-82 , 651 A.2d 415 (citations omitted).

We relied in Droney upon our earlier decisions in Jones v. State, 61 Md. App. 94 , 484 A.2d 1050 (1984), and Williams v. Williams, 63 Md.App. 220 , 492 A.2d 649 , aff'd, 305 Md. 1 , 501 A.2d 432 (1985). A review of these cases is helpful. Jones involved an appeal from a circuit court’s summary finding of criminal contempt on the part of Ms. Jones after she failed to appear as a defendant in a criminal trial. When she failed to present herself in court on the date and time of trial, a bench warrant was issued.

Later the same day, Ms. Jones appeared in the courtroom and told the judge that she went to the wrong courthouse. The trial court rejected this defense and said, “I find [Ms. Jones] guilty of contempt for failure to appear. She’s had notice. In addition, her failure to appear obstructed the proceedings in this case.

We had to discharge the witnesses in this case.” The judge sentenced Ms. Jones to an eighty-nine day jail term, which she had completed at the time of her appeal. On appeal, we held that even though Ms. Jones already served her full sentence, “the matter is not moot, because Ms. Jones is entitled to seek exoneration through having the ⁷⁵¹ contempt finding set aside.” Jones, 61 Md.App. at 96 , 484 A.2d 1050 . On the merits of the case, we applied the rule that one can be punished summarily for contempt only if the contemptuous act was direct criminal contempt. See id. at 98 , 484 A.2d 1050 .

We concluded that, under the particular circumstances of that case, her failure to appear did not constitute direct contempt of the court because it was not “an open insult to the court, the judge or a resistance to the powers of the judge.” Id. at 99 , 484 A.2d 1050 . In Williams , we were presented with an appeal from a finding of civil contempt based upon Mr. Williams’s failure to make alimony payments required by a separation and property settlement agreement that had been ratified, approved, and adopted by the court, but not incorporated into the parties’ divorce decree. Prior to the appeal from the actual judgment of contempt, there had been an earlier appeal from the trial court’s determination that Mr. Williams was subject to contempt if he was found to have violated the separation agreement. On that earlier appeal, in an unreported decision, we held that “an agreement that was neither incorporated nor merged into a divorce decree, could [not] form the basis for a contempt action,” and remanded the case to the trial court.

Williams, 63 Md.App. at 224 , 492 A.2d 649 . Mr. Williams, however, was held in contempt while the first appeal was pending. Upon Mr. Williams’s appeal from the adjudication of his contempt, Ms. Williams argued that our ruling in the first case rendered his appeal moot because any decision therein would not affect what already occurred, and therefore no controversy existed. See id.

We rejected her contention. Although we agreed that the holding in the first appeal governed the outcome of the contempt issue, we further found that there is an effective remedy that this [C]ourt can provide .... In one of the orders, ... there is an explicit finding of “willful and deliberate’ conduct. Were we to dismiss this appeal, those orders would remain spread out among the records of the Circuit Court ... for all to see.

While they may not ever be utilized and while their effect ⁷⁵² beyond mere existence is not known, and may be none, that existence, uncontradicted, gives substance to this appeal. Id. at 226 , 492 A.2d 649 . In the instant case, the circuit court found appellant to have committed acts against appellee which placed her “in fear of imminent serious bodily harm.” The court’s finding led to the issuance of a protective order pursuant to the Domestic Violence Act. This order is a permanent record of the circuit court.

It could have significant repercussions for Mr. Piper in several ways. One potential consequence of the existing finding will occur in the event Ms. Layman ever files another petition for relief against domestic violence. She will be asked, on the form petition, to list all court cases involving her and appellant, or the minor child and appellant. See FL § 4-504(b).

Thus, if another petition is filed, a judge would review the record of this case and assume that appellant had previously placed appellee “in fear of imminent serious bodily harm.” As was explained by the Court of Appeals in Cobum, this information would appropriately be considered by the court: One act of abuse may not warrant the same remedy as if there is a pattern of abuse between the parties. Different remedies are required when there has been an isolated act of abuse that is unlikely to recur, as compared to an egregious act of abuse preceded by a pattern of abuse. The more abuse that occurred in the past, the higher the likelihood that future acts of abuse will occur and thus, the need for greater protective measures. Thus, the statute appropriately gives discretion to the trial judge to choose from a wide variety of available remedies in order to determine what is appropriate and necessary according to the particular facts of that case.

Evidence of prior incidents of abuse is therefore highly relevant both in assessing whether or not to issue a protective order and in determining what type of remedies are appropriate under the circumstances. Coburn, 342 Md. at 258, 674 A.2d 951 (citations omitted); see also Streater v. State, 352 Md. 800, 724 A.2d 111 (1999) ⁷⁵³ (holding that a prior protective order was admissible in a stalking and harassment trial subject to evaluation under Maryland Rule 5-404(b)). There may well be consequences for