Ricker v. Ricker

SONNER, Judge. Appellant Mary Frances Ricker has taken this appeal from the denial by the Circuit Court for Queen Anne’s County of her domestic violence petition against her husband, Mark Stephen Ricker, appellee. She has presented three issues, which we have restated somewhat: 1. Did the circuit court abuse its discretion in refusing to issue an order of domestic violence protection? 2.

Did the court violate appellant’s right to a fair hearing by threatening her with a finding that she was unfit to have custody of her minor child if she continued with the presentation of her case? 3. Did the court err in refusing to allow appellant to introduce evidence of appellee’s alcohol abuse? Mr. and Mrs. Ricker were married on February 19, 1993. On February 28,1995, Mrs. Ricker gave birth to a child, Mark Stephen Ricker (Baby Mark).

In December 1995, while the Rickers were visiting Mrs. Ricker’s parents in Wallingford, Pennsylvania, the couple had an argument, apparently about when they would return to their home in Centreville, Maryland. Mr. Ricker left abruptly without taking Mrs. Ricker or Baby Mark with him. The Rickers have not lived together since then. On February 12, 1996, Mrs. Ricker filed a Petition for Protection from Domestic Violence in the Circuit Court for Queen Anne’s County.

The next day, the court, pursuant to a second amended petition from Mrs. Ricker, issued an ex parte Order for Protection from Abuse, and scheduled a hearing for February 20, 1996. In her petition, Mrs. Ricker alleged a course of abusive and violent conduct by her husband extend ⁵⁸⁶ ing from January 1994 until the date in December when he left her in Wallingford, Pennsylvania. She also alleged “that the endangering conduct of [Mr. Ricker] has not been limited to threats to [Mrs. Ricker] but recently had extended to the parties’ son.” Mrs. Ricker’s complaint requested relief from alleged abuse pursuant to Md.Code, Family Law Article (hereinafter FL), Sec. 4-504. The procedure established by the General Assembly in the spousal abuse statute is for the spouse seeking protection to file a petition with the court under oath setting out the nature and extent of the abuse.

If the court thereafter finds reasonable grounds to believe that the petitioner has been abused, the court, in an ex parte hearing, may issue a temporary ex parte order granting relief. The temporary order can last no more than seven days after service of the order unless continued for good cause. The respondent is entitled to a hearing at which the petitioner must carry the burden of showing by clear and convincing evidence that the abuse has occurred. If the court finds that the petitioner has met the burden, it may issue a protective order tailored to fit particular needs that the petitioner has demonstrated are necessary to provide relief from abuse.

The applicable section of the Maryland Code provides: The protective order shall order the alleged abuser to refrain from abusing household members and may: (1) except in a case of alleged child abuse or alleged abuse of a vulnerable adult, order the alleged abuser to vacate the family home immediately and grant temporary possession of the family home to the petitioner for not more than 30 days; (2) in a case of alleged child abuse or alleged abuse of a vulnerable adult, order the alleged abuser to vacate the family home immediately and grant temporary possession of the family home to an adult household member for not more than 30 days; (3) award temporary custody of a minor household member; ⁵⁸⁷ (4) direct any or all of the household members to participate in a professionally supervised counseling program; and (5) order any other relief as necessary. FL Sec. 4-506(e). The court, after the February 20th hearing, denied the petition. Mrs. Ricker contends that the court’s denial was in error because she had met her burden and, therefore, the circuit court should have issued a protective order.

As we pointed out above, the burden is on the petitioner to show by clear and convincing evidence that the alleged abuse has occurred. FL Sec. 4 — 506(d)(2). This Court will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the trial judge’s assessment of the credibility of witnesses. Maryland Rule 8 — 131(c).

See Mayor of Rockville v. Walker, 100 Md.App. 240 , 640 A.2d 751 (1994). Here, the evidence Mrs. Ricker presented consisted of her testimony that Mr. Ricker struck her and shoved her into a door at their home on December 16, 1995. She testified that on February 6, 1996 Mr. Ricker cornered her and refused to let her pass through a doorway at the University of Maryland, where she was attending a class. She also testified that Mr. Ricker “frequently” struck her infant son in the face, and she related an incident in which appellee sprayed her in the face with bathroom cleaner and “shoved her.” She testified that Mr. Ricker frequently became intoxicated and that his behavior was “affected by alcohol consumption.” Her next door neighbor testified that she had seen Mr. Ricker strike Baby Mark in his face “very, very hard — more than I thought necessary — which made him cry and [Mrs. Ricker] came and took him away.” Mrs. Ricker’s mother testified that she had seen appellee strike Baby Mark on his face to the point that she expressed concern that the baby would suffer “brain damage.” The last witness, Mrs. Ricker’s sister, testified that when Baby Mark was twelve days old, she attended his christening and on that weekend observed that ⁵⁸⁸ there were “numerous occasions” that Mr. Ricker would slap Baby Mark’s face until it was red and take the baby and shake him.

Certainly, Mrs. Ricker, through the witnesses’ testimony as well as her own, presented a prima facie case which, if believed, would have supported the court in issuing a protective order. Mr. Ricker, in his case, denied that the incidents had occurred or stated that they were “grossly mischaracterized” by Mrs. Ricker and her witnesses. Mr. Ricker offered his brother and two witnesses, who were acquaintances of both parties. They all testified in support of his position that the incidents Mrs. Ricker alleged never occurred.

During argument to the court at the close of all the evidence, the attorney for Mrs. Ricker had the following exchange with the court: MR. TOBIN: The psychology of this offense, Your Honor, is such that it’s known over and over again that women in this situation act in a way which under other circumstances might appear to be inadequate to protect themselves, yet they’re seeking all the time to protect themselves. I recognize that the Court finds that Mrs. Ricker has behaved in that way, but that is simply the standard way in which the experts— THE COURT: Counsel, then it’s a no win situation, isn’t it? MR.

TOBIN: Yes, it is. THE COURT: The situation is always that if the wife reacts, then she’s reacting improperly, and if she doesn’t react, she’s evidencing that she’s been abused. So how is a trier of fact — what is it that she can do? Must I just regard her. testimony as neutral?

MR. TOBIN: No, because— THE COURT: Because it means one or the other thing. Go ahead. MR.

TOBIN: I think Your Honor has the opportunity not only to hear her testimony but has the opportunity to hear the testimony of unrelated people who have come into this court and said what they observed that was in public. And the Court is then left with the testimony of the two parties, ⁵⁸⁹ a husband who says there never was any contact of any kind, the wife has made the entire matter up, that it’s a complete lie. Your Honor, I respectfully— THE COURT: Counsel, why is it that the written record is totally silent until today with regard to any physical abuse to the child? Absolutely silent.

All the papers that she’s filed, including this one-— MR. TOBIN: I think— THE COURT: I read it and read it and I read for it [sic] in vain. It’s not even hidden in any of these papers, sir. MR.

TOBIN: I think, Your Honor, if I may— THE COURT: Yes. MR. TOBIN: I think it is mentioned in the papers that she’s concerned about the well being of her child. THE COURT: Counsel, then how do you come in here today with all this squeezing of the cheeks and everything that’s supposed to be child abuse?

If it was that, you certainly would have run that banner up first, and you and I both know it, and the only thing that’s said here in the papers in the other cases that were filed, as recently as the 12th of this month, the same time you did this, the only thing said about the child is something about the child being harmed by his conduct toward her, about which, incidentally, I heard nothing today. So the entire focus on the child is entirely — the whole scenario with regard to the child is different today than what is reflected in the papers you’ve filed. MR. TOBIN: That doesn’t make it any less so, Your Honor.

THE COURT: Counsel, I want you to know, when you’re sitting as a trier of fact and when the standard is clear and convincing, it comes close to it. Go ahead. MR. TOBIN: Thank you, Your Honor.

THE COURT: Anything else? MR. TOBIN: No, sir. Mrs. Ricker asserts that the court, by its statements in this exchange, ignores the nature of spousal abuse.

She argues ⁵⁹⁰ that the circuit court should have excused her from having to assemble evidence of Baby Mark’s abuse before the initiation of custody proceedings because the nature of the “Battered Spouse Syndrome” explains her failure to take any public action. That the spousal abuse syndrome can explain a failure to make a public complaint is a fact that we accept, but, first, the trier of fact must find some believable other evidence that the allegations of abuse did occur, which would mean that he would have had to give some credence to Mrs. Ricker’s testimony. The trial judge apparently did not believe that it was entirely credible, as can be seen when we examine an exchange between the court and counsel for Mrs. Ricker. After the court’s ruling, Mr. Ricker’s attorney pointed out that, since the judge had denied the petition, visitation was not provided for.

He informed the court of the pending domestic case in which he had petitioned for an emergency pendente lite hearing and attempted to have the court consider that petition as well. That is when the following transpired: MR. TOBIN: We would object to an unsupervised visit without an opportunity to put on our case. THE COURT: Why?

MR. TOBIN: Because my client feels the child is in danger, for the reasons presented. THE COURT: Your client then should have mentioned that in the cases here, prepared by you and signed by her, in which she doesn’t even hint at it, Counsel, and, Counsel, I’m telling you, she’s going to have to do a mighty lot of convincing to bring that up now. She’s just a little late in thinking that one up.

MR. TOBIN: I would respectfully suggest she didn’t think it up. It’s part of the entire malady. THE COURT: As I said, you can’t — I don’t mean you — one can’t lose with that one, you see, but there are always, as the standard instructions to the jury indicate, we can’t look into someone’s mind, but there are little indicators we can see, and as one of the witnesses testified, there are little ⁵⁹¹ things you can see and sense about a situation and a relationship.

And there are also things that one can see, when she’s now in a place of safety, where she’s totally bared her soul, where her venom is obvious, and she says absolutely nothing in any of these papers about the child being harmed — nothing. And now for the first time at four o’clock on the 20th of February, that whole thing surfaces and I’m to believe it? That would strain the credulity of the most credulous. I’m sorry.

MR. TOBIN: Well, Your Honor— THE COURT: And there’s been nothing shown to me today that I think this man represents the slightest harm to his child. MR. TOBIN: May I proffer to the Court, a great deal of what’s been presented to the Court today has been presented as a result of my investigation and talking with witnesses other than Mrs. Ricker, and dealing with her on recognizing what in fact was going on and I think that’s a characteristic of household domestic abuse.

THE COURT: Counsel, I’ve read the books, too. I know that’s what they say, and, as I say, it’s a Catch-22 situation for the person accused of it, because it’s said that if there is abuse or the person does something, well, that was because they were abused. If the person says nothing, that’s a sign that they were abused. This is a better form.

Its worst form is the situation of the poor children who are supposed to have been sexually abused and all that silence portends. But I’m sorry sir, I just cannot see that in her situation. I could go for the whole bit of being in fear but she’s not been in any fear at least since December 31st, she’s been out of it, and she’s been going at it tooth and nail ever since then, keeping her child from his father, and on very specious grounds, because you’re the one that dug this up. She didn’t even know about it.

Very specious grounds, You’re the one. She didn’t even know it— MR. TOBIN: I— ⁵⁹² THE COURT: — which makes her conduct, by definition, groundless.... The trial judge, in this exchange, makes clear that he considered Mrs. Ricker’s testimony, indeed her entire case, to be suspect.

Certainly, Mrs. Ricker can argue to the court that such a phenomenon occurs and that it is widespread. She, however, would have the law go further and require that the court must infer spousal abuse and child abuse from her silence. The General Assembly acknowledged the “Battered Spouse” phenomenon by enacting the Courts and Judicial Proceedings Article of the Maryland Code, Sec. 10-916, which allows criminal defendants to introduce evidence that he or she has been battered, and to put on expert testimony as to the effects of “Battered Spouse Syndrome.” But such recognition by the Assembly does not require that the court, under all circumstances, accept “Battered Spouse Syndrome” as an explanation for a spouse’s failure to complain. Before the court was evidence from Mrs. Ricker and her witnesses, two of whom are related to her, that she was, indeed, suffering from abuse.

The court would, of course, have to believe some of the testimony that she was a battered spouse before he could assign the Battered Spouse Syndrome as an explanation for the lack of supporting evidence in the form of an earlier complaint. He would have to find the evidence credible. The determination of credibility is a matter left entirely to the trial judge who has the opportunity to gauge and observe the witnesses’ behavior and testimony during the trial. Maryland Rule 8-131(c).

See Mayor of Rockville v. Walker, 100 Md.App. 240 , 640 A.2d 751 (1994). The trial judge in this case apparently did not believe that Mrs. Ricker supplied sufficient evidence to indicate that she was a battered spouse. Therefore, he did not have to infer from the evidence that Mrs. Ricker was intimidated into remaining silent about Mr. Rick-er’s abuse of their infant child. Accordingly, we find that the circuit court did not abuse its discretion in refusing to issue an order for domestic violence protection. ⁵⁹³ In the second issue, Mrs. Ricker’s specific allegation of error is that, during the presentation of her evidence at the hearing, the judge threatened her with a finding that she is unfit to have custody of Baby Mark.

She alleges that she felt compelled, as a consequence, to restrict her presentation of evidence rather than risk losing her infant child. After a review of the record, we do not find error here either. At the February 20th protective order hearing, Mrs. Ricker testified first and then called three other witnesses, a next door neighbor, her mother, and her sister. During her sister’s testimony, the following occurred: [MR.

TOBIN:] I want to direct your attention to the time when young Mark came home from the hospital, the baby, Mark. Was there an event which caught your attention? THE COURT: Counsel, you know, I want to tell you, I heard your client say that she did nothing for a very long time, and you should know that you’re building a very strong case, if she was unable to take care of her child for the protracted period of time that you’re telling me, I have great fears about her having the child in the future. Now, I think you’re indulging, sir, in a bit of overkill.

MR. TOBIN: Your Honor— THE COURT: He was good enough for her to live with for a rather extended period of time. You sat on this, sir, by your own statement, this which is supposed to be an emergency situation for domestic violence, this, you say, was signed many days before it ever got filed— MR. TOBIN: I don’t think Your Honor is acquainted with the circumstances behind that.

We have not gone into that, but the fact of the matter is, Your Honor, my client was protected during that time by an order from a court in Pennsylvania, as the Court well knows. I am not trying to indulge in overkill, Your Honor, I’m trying to see to it that my client gets the hearing