MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 192 Docket: Pen

- 16

- 442 Submitted

On	Briefs: May	25,	2017 Decided: September	12,	2017
Panel: SAUFLEY,	C.J.,	and ALEXANDER ,	GORMAN,	JABAR , HJELM, and HUMPHREY, JJ. Majority: GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ. Dissent: SAUFLEY,	C.J. ,	and	ALEXANDER,	J. Dissent: ALEXANDER,	J.

SUSAN	CHRETIEN

v. RUSSELL	CHRETIEN

HJELM ,	J. [¶1] Russell	Chretien	appeals	from	a now - expired order	for protection from	 abuse	 entered	in	 the	 District	 Court	 (Newport, Budd,	J. ) on	 a complaint filed	by	Susan	C h retien. Russell contends t hat	the	court	erred	by	issuing	the protective order after	explicitly	finding	that he had	not	abused	Susan	but that he	 posed	 a	 “credib le	 threat”	 to her

. 1 We	 conclude ,	 first, that this	 appeal
remains justiciable even	though	the	protective order has	expired ; and ,	second, that	 because	 the	 court explicitly did	 not	 find that	Russell	 had	abused Susan, the	court erred by	issuing	the	order

.

1 Susan	did	not	file	a	brief	in	this	appeal.2 I. BACKGROUND [¶ 2 ]		Susan	Chretien	 filed	a petition for a protection	 from	abuse order against	 her	 husband,	 Russell	 Chretien, in	 August 2016

. The	 court ( Budd,	J. ) held	 a	 hearing on	 the	 complaint on September 1,	 2016. During	 the	 hearing, Susan	testified	about	two	incidents of	Russell’s	angry	behavior in the	summer of	20 16

. [¶3 ] At	the	conclusion	of	the	hearing,	the	court orally	found that	both	of the alleged incidents	had	occurred

. The court also stated ,	“ I’ m	[going	to]	find that	the	defendant	presents	a	credible	threat. I’ m	not	[going	to]	find	that	the plaintiff	was,	in	fa ct,	abused	by	the	defendant

. ” (Emphasis	added.) [¶ 4 ] Based	 on	 its	 finding of	 a credible	 threat ,	 the	 court	 issued	 a
pro tective	order that	was	to	be	effective	for	six	months,	expiring	on	March	1,
2017. See 19

- A	 M.R.S.	 §	 4007(2) (2016) (authorizing	 the	 court	 to	 issue	 an order	for	“a	fix ed	period	not	to	exceed	2	years ”).		The	order	enjoined Russell from t hreatening	 or assaulting	Susan, but	 t he	 order	 did	 not	 prohibit	Russell from	 possessing	 a	 firearm because the	 court determin ed that	 such	 a3 prohibition	 was	 not	 warranted. 2 Russell	 timely	 appealed	 from	 the	 order.
19

- A	M.R.S.	§	4010(1)	(2016) ;	M.R.	App.	P.	2(b)(3).
II. DISCUSSION [¶ 5 ] Because	the	protective	order	expired	of	its	own	terms	during	the pendency	of	 this	appeal,	we	 first consider whether	Russell’s	challenge to	 the issuance	of	that	order is	justiciable. 3 [¶6 ] We “will	 decline	 to	 hear	 a	 case	 that	 has	 lost	 [its]	 controversial vitality	 and	 is	 moot	 because	 a	 decision	 by	 this	 court	 would	 not	 provide	 an appellant	 any	 real	 or	 effective	 relief.” Sparks	 v.	 Sparks ,	 2013	 ME	 41,	 ¶	 9, 65 A.3d	1223	(quotation	marks	omitted). Even	if	a	case	has	become	moot,	we may	 nonetheless	 address	 the	 issues	 presented on	 appeal if “sufficient collateral	 consequences	 will	 result	 from	 the	 determination	 of	 the	 questions
pr esented	 so	 as	 to	 justify	 relief .” Maine rs	 for	 Fair	 Bear	 Hunting	 v.	 Dep’ t	 of Inland	Fisheries	&	Wildlife ,	2016	ME	57,	¶	7,	136	A.3d	714	 (quotation	marks omitted). We	also	will	consider	issues	that	are	“capable	of	repetition”	if	they

2 The	court	concluded	that	"there's been	no	testimony, other	than [Russell’s] testimony	that	he's a	certified	NRA	safety	instructor,	that	would	cause	[prohibiting	Russell	from	possessing	firearms]	to be	something	I	need	to	order	in	this	case.”

3 The	 issue	 of	 mootness	 has	 not	 been well	 d eveloped	 by	 the	 parties. Nonetheless, we will consider	 a	 question	 of	 mootness even sua	 sponte to en sure	 that	 we	 do	 not	 reach	 the	 merits	 of nonjusticiable	cases. See In	re	Christopher	H. ,	2011	ME	13,	¶	10,	12	A.3d	64 ; see	also In	re	Steven	L. , 2017	ME	5, ¶	7	n.2,	153	A.3d	764

.4 would	“escape	appellate	review”	because	they	are	temporally	fleeting. Ewing
v.	Me.	Dist.	Ct. , 2009 ME	16,	¶	11 n.4,	964	A.2d	644. [¶7 ] Twenty	 years	 ago,	 we declined	 to	 reach	 the	 merits	 of	 an	 appeal from	 an	 expired protective order where the	 defend ant
- appellant “implie [ d ] ” that	 the	 case	 remained	 justiciable because	 “the	 finding	 of	 abuse	 could	 have collateral	consequences in	later	litigation.” Sordyl	v. Sordyl , 1997	ME	87,	¶	6, 692	A.2d	1386

. [¶8 ] Since we	 issued	 our	 opinion	 in Sordyl , a	 growing	 number	 of jurisdictions have	 observed	 that	 protective orders predictably generate collateral	consequences affecting a	party	against	whom	the	order	was	issued and , therefore , a	presumption	against	mootness	should	apply	to	appeals	from orders that	 have	 expired

. See,	 e.g. , Cardoso	 v.	 Soldo ,	 277	 P.3d	 811,	 815 (Ariz. Ct.	 App.	 2012); Putman	 v.	 Kennedy ,	 900	 A.2d	 1256,	 1258

- 59 (Conn. 2006) ; Hamilton	 v.	 Lethem ,	 193	 P.3d	 839,	 849	 (Haw.	 2008) ; Roark	 v. Roark ,	 551 N.E.2d	 865,	 868	 (Ind.	 Ct. App. 1990); Piper	 v.	 Layman ,	 726	 A.2d 887,	 891	 (Md.	 Ct.	 Spec.	 App.	 1999); E.C.O.	 v. Compton ,	 984	 N.E.2d	 787,	 791 n.12	 (Mass.	 2013)	 (citing Wooldridge	 v.	 Hickey , 700	 N.E.2d	 296,	 298	 (Mass.
Ct. App.	 1998)); Smith	 v.	 Smith ,	 549	 S.E.2d	 912,	 914	 (N.C.	 Ct.	 App.	 2001); Hudson	v.	Hudson ,	328	S.W.3d	863,	865

- 66	(Tenn. 2010).5 [¶9 ] T he ongoing effects	 of	 a	 protective	 order

— even	 one	 that	 has expired

— can	 arise	 in	 various	 contexts ,	 including family	 law	 proceedings ,

see 19

- A	M.R.S.	§ 1653 (1)(B), (3)(L) 4 (2016) ; see	also	Guardianship	of	Jewel	M. , 2010	 ME	 80,	 ¶¶ 24,	 36,	 2	 A.3d	 301 ; Pechovnik	 v.	 Pecho vnik ,	 76 5	 N.W.2d	 94,
97

- 98	 (Minn. Ct. App. 2009); Cardoso ,	 277	 P.3d	 at	 815	 (Ariz.	 Ct.	 App.	 2012) , and employment ,	 housing, and	 educational	 opportunities, s ee, e.g. , Hamilton , 193 P.3d	 at	 849	 (Haw.	 2008) , Piper ,	 726	 A.2d	 at	 891 ; Jessica	 Miles,	We	 Are
Never Ever	 Getting	 Back	 Together:	 Domestic	 Violence	 Victims,	 Defendants, and	Due	Process,	35	Cardozo	L.	Rev.	141,	151	(2013). [¶1 0 ] Were	 the	 expiration	 of	 a	 protective	 order	 sufficient	 to	 bar its appellate	 consideration ,	 a	 person	 against	 whom	 an	 order	 was	 erroneously issued	would	be	deprived	of	an	opportunity	 to	gain	relief	 from	 the	very	real consequences	 of	 that	 order. Therefore,	 w e now	 conclude	 that an	 appellate challenge	 to the	 issuance	 of a protective order remains justiciable after	 the order	 has	 expired , and we o verrule Sordyl to	 the	 extent	 it states	 otherwise

. S ee 1997 ME	87,	¶	6,	692	A.2d	1386

.

4 For	e xample,	19

- A	M.R.S.	§	1653(3)(L) (2016) provides that	when	a	court	adjudicates	parental rights	and	responsibilities	with	respect	to	a	child,	the	court’s	best	interest	determination	requires consideration	 of,	among	 other	 facto rs,	 “[t] he	existence	 of	domestic	abuse	between	 the	parents, in the	 past	 or	 currently , and	 how	 that	 abuse	 affects ”	 the	 child’s	 emotions	 and	 safety.	 	 (Emphasis added.)6 [¶1 1 ] Reaching	the	merits,	we now consider	Russell’s	assertion that the issuance	 of a protective order	against	 him was	erroneous	 because	 the	 court explicitly stated	 that	 it	 was	 not	 finding	 that Russell had	 abused	 Susan. We “r eview d e	 novo	 a	 challenge	 to	 the	 court’ s	 interpretation	 of	 the	 protection from	 abuse	 statute.” Sparks ,	 2013	 ME	 41,	 ¶	 14,	 65	 A.3d	 1223	 (quotation marks	omitted). [¶1 2 ] When	 a complaint for	 a protective	 order	 is	 contested, “[t] he court,	after	a	 hearing	and upon	finding	 that	 the	 defendant has	 committed	 the alleged	abuse

.	.	. m ay	grant	a	protective	order.” 5 19

- A	M.R.S. §	4007(1) (2016) (emphasis	added). Here,	a fter	the	parties	had	presented	their	evidence	during the	 contested	 hearing ,	 the	 court explicitly	 stated	 that	 it	 did not find	 that Russell had	 abused	Susan. Rather,	 t he	 court found that he posed	 a	 credible threat to her safety and issued	the	protective	order	on	that	basis

. [¶1 3 ] In	making	 a	 finding	 of	 a	 credible	 threat, the	 court	 drew	 on	 the part	 of	 section	 4007(1)	 that	 states,	 “The	 court	 may	 enter	 a	 finding	 that	 the defendant	 represents	 a	 credible	 threat	 to	 the	 physical	 safety of	 the plaintiff

. . . .” We have held ,	 however, that	 a	 protective order cannot be supported	 by	 a	 court’s	 finding that	 the	 defendant	 poses only a	 “credible

5 Title 19

- A	 M.R.S.	 §	 4007(1)	 (2016) also	 authorizes	 the	 court	 to	 issue	 a	 protective order wi thout	making	a	finding	of	abuse	if	both	parties	consent

— a	circumstance not	present	here

.7 threat”	 to	 the	 plaintiff’s	 safety. L’Heureux	 v.	 Michaud , 2007	 ME	 149,	 ¶	 11,
938 A.2d	 801; see	 also Seger	 v.	 Nason ,	 2016	 ME	 72,	 ¶ ¶ 8

- 9 ,	 138	 A.3d	 1221. Rather,	“section	4007	mandates	that	an	order	for	protection	from	abuse	may be	issued only with	a	hearing	and finding	 of	abuse ,	or	with	 the	agreement	of the	parties.” L’He u reux ,	2007	ME	149,	¶	11,	938	A. 2d	801 (emphasis	added)

. As	we	explained: [T]he	credible	threat	language	included	in	19

- A	M.R.S.	§	4007	and 15	M.R.S.	§	393	was	intended	to	bring	Maine	into	compliance	with federal	 firearms	 provisions.	 	 The	 amendment	 to	 section	 4007 [adding	 the	 “credible threat”	 language]	 affects	 firearms possession,	 but	 was	 not	 intended	 to	 directly	 impact	 whether	 a protection	 order	 is	 or	 is	 not	 entered. The	 amendment	 does	 not change	 the	preexisting	and	still

- explicit	requirement	 that	a	finding of	abuse	is	necessary	to	t he	issuance	of	a	contested	protective	order. In	short,	the	credible	threat	language	in	section	4007	is	to	be	used in	 protection	 from	abuse	 orders	 for	 the	 purpose	 of	 supporting	a firearms	 prohibition	 provision	in	 an	 order	 based	 on	 a	 finding	 of abuse,	or	to which	the	parties	have	agreed. Id. ¶	10	(emphasis	added)	(citation	omitted). The	finding	of	a credible	threat , therefore , is	not	a	substitute	for	the	finding	of abuse that	the	court must make to	 issue	 a	 protective	 order	 in	 a	 contested	 protection	 case. See L’Heureux , 2007 ME	149,	¶ 10,	938	A.2d	801. Consequently ,	the	court	erred	by	entering	a protective	 order	 based	 solely	 on	 its	 determination	 that	 Russell	 posed	 a8 credible	 threat	 to	Susan’s	 safety, 6 without also making	a	 finding	 that	 he	 had abused	Susan. 7 [¶1 4 ]	 	 Our	 conclusion	 that	 the	 court	 erred	 by	 issuing	 the	 protective order	based only on	its	finding	that	Russell	posed	a	credible	threat,	when	the court	did	not also find	 that	Russell	had	 “abuse[d]”	Susan,	is	not	a	dilution	of the	critical	authority	gra nted	to	the	courts	“to	respond	effectively	to	situations of	 domestic	 abuse	 .	 .	 .	 [and]	 to	 provide	 immediate,	 effective	 assistance	 and protections	for	victims	of	abuse.”		19

- A	M.R.S.	§	4001(4)	(2016).		As	we	have discussed	in	other	opinions	and	 reiterate	he re,	whether	a	defendant	poses	a “credible	threat”	to	the	party	seeking	issuance	of	a	protective	order	bears	only on	the	court’s	authority	to	include	a	firearms	restriction	in	a	protective	order

6 Even	beyond	improperly	issuing	the	protective	order	based	entirely	on	a	finding	of	a	credible threat,	 the	 court’s	 invocation	 of	 the	 “credible	 threat”	 la nguage	 itself	 was	 erroneous.	 	 The	 court explicitly	found	that	the	firearms	restriction	was	not	warranted,	and	the	protective	order	issued	by the	court	did	not	prohibit	Russell	from	using	or	possessing	firearms.		Because,	as	we	discuss	in	the text,	 the	 only proper	 purpose	 for	 a	 finding	 of	 a	 credible	 threat	 is	 to	 prohibit	 a defendant	 from possessing	firearms	or	other	dangerous	wea pons,	the	error	created	by	the	credible	threat finding	is demonstrated	by	the	court’s	own	reasoning.

7 The	Chief	Justice ’s d issent ing	opinion states that	because	neither	party	requested	the	court	to issue	 further	 findings	 of	 fact,	 we	 should	 infer	 that	 the	 court made	 the finding	 of	 abuse that is	 a necessary	predicate	to	the	i ssuance	of	a protective	order.		Saufley,	C.J.,	Dissent ing	Opinion	¶ 23

. As is suggested in	the	case	cited	in	that dissent ing	opinion ,	however,	that	inferential	device	is	used to fill	 gaps in	 a	 court’s	 factual	 analysis

. See Wardwell	 v.	 Duggins ,	 2016	 ME	 55,	 ¶	 12 ,	 136	 A.3d	 703 (stating	that	in	our	review	of	a court’s	factual	analysis	after	the	parties	had	not	moved	for	the	court to	issue	findings	beyond	those	set	out	in	its	judgment,	“we	consider	the	facts	as	found	expressly	by the	court,	and	.	.	.	we	will	also	infer	that	the	court	found	any	additional	facts	ne cessary	to	support	its determination.”).	 	Here,	 the	 court’s	explicit	 statement that it	 did	not	 find	 that	Russell	had	abused Susan	is	dispositive	of	the	issue,	and	were	we	to	infer	that	the	court	made	a	finding	that	is	contrary to	its	express	finding,	we	would	improper ly	rewrite the	court’s own assessment	of	the	evidence.9 and	 is	 not	 dispositive	 of	 whether	 the	 defendant	 has	 abused	 pla intiff	 and whether	 a	 protective	 order	 should	 be	 issued	 in	 the	 first	 place. 19

- A	 M.R.S. § 4007( 1 ); s ee Seger ,	 2016 ME	 72,	 ¶	 9,	 138	 A.3d	 1221; L’Heureux ,	 2007	 ME 149,	¶	11,	938	A.2d	801.		When,	after	a	contested	hearing,	a	court	is	persuaded that	the	defend ant	engaged	in	any	 type	of	“abuse,”	including	engaging	in any of	 the specific types	 of threatening	 conduct defined	 as	 “abuse” in	 section 4002(1), 8 the	court	is	 fully	authorized	 to	issue	an	order	specifically	designed to	provide	the	victim	with	enforceable	measures	of	protection	and	safety. See
19

- A	M.R.S.	§ 4007(1). [¶1 5 ] Here,	 notwithstanding	 its	 finding	 that	 Russell	 posed	 a credible threat to Susan,	the	court	concluded	that	Susan	had	failed	to	prove	any	form	of abuse

. Without	the	necessary	predicate	of	a	finding	of	abuse,	the	court	erred in	 issuing	 a	 protective	 order , and the order

— even	 though	 it	 has	 since expired

— is	void	ab	initio.		We	remand with	instructions for	the	court to	enter judgment	against	Susan	on	her	petition	for	issuance	of	a	protective	order.

8 The	 forms	 of threatening	conduct	constituting	 “abuse”	within	 the	meaning	 of	 the	protection statutes	are:	“[a]ttempting	to	place	or	placing	another	in	fear	of	bodily	injury	through	any	course	of conduct,	including	.	.	.	threatening	.	.	.	behavior”;	“[c]ompelling	a	perso n	by	.	.	.	threat”	to	engage	in, or	 abstain	 from,	 certain	 conduct;	 and	 “[c]ommunicating	 to	 a	 person	 a	 threat	 to	 commit”	 certain crimes	of	violence	in	specified	circumstances. 19

- A	M.R.S.	§	4002(1)(B),	(C),	(E)	(2016)

.10 The	entry	is: Judgment vacated

. Remanded	 for	 entry	 of judgment	for	the	defendant.

SAUFLEY,	C.J.,	with	whom	ALEXANDER,	J.,	joins in	part,	dissenting. [¶16]		I	must	respectfully dissent .		I	agree	with	the	Court	that	the	appeal is	not	moot,	and	I	agree	with	the	Court’s	interpretation	of	the	protection	from abuse	statutes.		 I	do	not	agree,	however,	 that,	in	 the	absence	of	a	motion	 f or findings	 of	 fact	 and	 conclusions	 of	 law, see M.R.	 Civ.	 P.	 52(b),	 the	 judgment entered	here	should	be	vacated. [¶17]	 	 Perhaps	 because	 of	 the	 unfortunate	 confusion	 created	 by	 the internally	contradictory	 findings	of	 the	 trial	court,	 the	Court	 today	has	g iven too	little	deference	to	the	trial	court’s	order	and	the	findings	of	the	court.		This has	 occurred	 in	 a	 proceeding	 where	 the	 Legislature	 has	 instructed	 that	 the court	“shall	liberally	construe	and	apply”	the	domestic	violence	laws	in	order to	 “recogniz e	 domestic	 abuse	 as	 a	 serious	 crime	 against	 the	 individual	 and society”	and	to	“expand	the	power	of	the	justice	system	to	respond	effectively to	situations	of	domestic	abuse.”		19

- A	M.R.S.	§	4001(1),	(4)	(2016). [¶18]	 	 In	 this	 context,	 where	 the	 trial	 cou rt did	 enter an	 order	 of protection	 from	 abuse,	 and did	 find that	 Chretien’s	 angry	 and	 very	 physical11 behavior	was	intended	to	intimidate	Susan	Chretien	and	that	he	did	present	a threat	to	her	safety,	and	where	the	law	does	allow	the	entry	of	an	order	based on	 conduct	 that	 presents	 a	 threat	 to	 the	 alleged	 victim, see 19

- A	 M.R.S. §§ 4002(1)(B),	 (C),	 4005(1),	 4007(1)	 (2016),	 the	 Court	 should	 apply	 its regularly	 applied	 jurisprudence	 to	 interpret	 the	 trial	 court’s	 findings	 to support	the	order	that	was	explicit ly	entered.		As	the	Court	acknowledges,	an order	 of	 protection	 from	 abuse	 may	 be	 entered	 upon	 a	 finding	 that	 the defendant’s	conduct	included	either

• “Attempting	to	place	or	placing	another	in	fear	of	bodily	injury	through any	 course	 of	 conduct,	 including, but	 not	 limited	 to, threatening , harassing	or	 tormenting	behavior,” id. §	4002(1)(B)	(emphasis	added), or

• “Compelling	a	person	by	force, threat	of	force	or	intimidation to	engage in	conduct	 from	which	the	person	has	a	right	or	privilege	to	abstain	or to	a bstain	 from	conduct	in	which	 the	person	has	a	right	 to	engage,” id. § 4002(1)(C)	(emphasis	added). [¶19]	 	 Here,	 the	 trial	 court	 did	 find	 that	 the	 defendant	 presented	 a credible	 threat	 to	 Susan.	 	 The	 Court	 today	 has	 carefully	 and	 correctly reminded	the	li tigants	and	the	trial	courts	that	the	phrase	“credible	threat”	is read	 as	 a	 term	 of	 art	 intended	 to	 address	 only	 the	 findings	 related	 to	 a potential	 weapons	 restriction.	 	 Court’s	 Opinion	 ¶	 18.	 	 When,	 however,	 a finding	 of	 a	 “credible	 threat”	 is	 accompanied by	 the	 entry	 of	 an	 order	 for12 protection	 from	abuse,	we	should	read	 the	 trial	court’s	decision	as	intending to	 address	 not	 the	 weapons	 restriction,	 but	 the	 threat	 addressed	 in	 section 4002(1)(B)	and	(C). [¶20]		Neither the	protection	 from	abuse	statutes	nor	any	Rule	of	Civil Procedure	requires	a	court	to	explicitly	state	findings	when	it	initially	decides to	 issue	 a	 protection	 from	 abuse	 order. See	 generally 19

- A	 M.R.S. §§ 4001

- 4014	(2016).		If	a	court	has	nonetheless stated	findings,	a	party	who disagrees	 with	 the	 court’s	 findings	 of	 fact	 or	 conclusions	 of	 law	 may	 file	 a motion	within	 fourteen	days	after	entry	 of	 the	judgment	 requesting	 that	 the court	“amend	its	findings	or	make	additional	findings.”		M.R.	Civ.	P.	52(b ).		The motion	 “must	 include	 the	 proposed	 findings	 of	 fact	 and	 conclusions	 of	 law requested.” Id. Upon	 such	 a	 motion,	 a	 court	 “may	 amend	 the	 judgment	 if appropriate.” Id. The	court’s	ultimately	resulting	“[f]indings	of	 fact	shall	not be	set	aside	unles s	clearly	erroneous.”		M.R.	Civ.	P.	52(c). [¶21]		Here,	the	court	found	that,	by	punching	a	visor,	throwing	a	dolly, and	throwing	a	strap	“like	a	major	league	pitcher	trying	to	throw	a	fastball	by a	 hitter,”	 Russell	 Chretien	 “meant	 to	 express	 anger”	 towar d	 Susan	 Chretien, and	 “she	was	intimidated	 by	 him.”	 	 The	 court	 applied	 the	 preponderance	 of the	 evidence	 standard	 of	 proof, see 19

- A	 M.R.S.	 §	 4006(1),	 and	 determined13 that	an	order	of	protection	from	abuse	should	issue	for	six	months.		The	court then	asked if	there	were	any	other	findings	that	Russell	would	like	it	to	make, and	Russell	indicated	that	there	were	not	any. [¶22]	 	 The	 court	 found	 that	 Russell	 presented	 a	 credible	 threat	 to Susan’s	physical	safety,	but	it	also,	somewhat	inexplicably,	stated	th at	it	would not	 find	 that	 Susan	 was	 abused	 by	 him.	 	 Neither	 party	 drew	 the	 court’s attention	 to	 the	statutory	definition	of	abuse	or	 to	 the	necessity	 to	 find	 facts satisfying	that	definition	of	abuse	before	entering	an	order	of	protection	from abuse. 9 See 19

- A M.R.S.	 §§ 4002(1),	 4005(1),	 4007(1); see	 also	 L’Heureux	 v. Michaud ,	2007 ME	149,	¶	11,	938	A.2d	801.		Nor	did	Russell,	within	fourteen days,	move	for	findings	of	fact	and	conclusions	of	law	so	that	the	court	would reach	 findings	 consistent	 with	 th e	 statutes,	 and	 he	 did	 not	 point	 out	 to	 the court	 that	 the	 finding	 of	 a	 “credible	 threat”	 and	 order	 of	 protection	 would have	 firearms	consequences	 that	 the	court	explicitly	stated	it	did	not	intend.
See M.R.	 Civ.	 P.	 52(b); Seger	 v.	 Nason ,	 2016	 ME	 72,	 ¶	 9, 138	 A.3d	 1221; L’Heureux ,	2007	ME	149,	¶	10,	938	A.2d	801.

9 Title	19

- A	M.R.S.	§	4007(1)	(201 6)	authorizes	the	entry	of	an	order	of	protection	from	abuse upon	 a	 finding	 that	 a	 person engaged	 in “ conduct	 described	 in [19

- A	 M.R.S.	 § 4005(1) (2016)].” Although	 section	 4005(1)	 includes,	 in	 addition	 to	 “abuse” as	 defined	 in	 19

- A	 M.R.S.	 §	 4002(1) (2016 ),	 the	 commission	 of	 certain	 crimes,	 Susan	 did	 not	 allege,	 assert,	 or	 offer	 evidence	 of	 such criminal	conduct.14 [¶23]	 	 In	 the	 absence	 of	 such	 a	 motion,	 I	 would	 “infer	 that	 the	 court found	any	additional	facts	necessary	to	support	its	determination.” Wardwell v.	Duggins ,	2016	ME	55,	¶	12,	136	A.3d	703. Thus,	I	would	infer	that	the	court found	that	Russell,	through	his	intimidating	behavior,	abused	Susan	by	placing her	 in	 reasonable	 fear	 of	 bodily	 injury,	 even	 though	 he	 had	 not	 actually physically	assaulted	her	and	she	had	not	suffered	any	actual	bodily	i njury. See Jusseaume	 v.	 Ducatt ,	 2011	 ME	 43,	 ¶¶	 17

- 18,	 15	 A.3d	 714; see	 also	 Smith v. Hawthorne ,	2002	ME	149,	¶¶	4,	6,	13

- 20,	804	A.2d	1133	(affirming	a	finding	of abuse	when	the	defendant	yelled	angrily,	took	the	plaintiff’s	car	keys,	ordered her	out	of	t he	house,	and	kicked	a	car	in	the	yard	after	the	plaintiff	had	locked herself	in	another	car).		Put	another	way,	in	light	of	the	entry	of	the	protection order,	 I	 would	 conclude	 that	 what	 the	 court	 meant	 when	 it	 found,	 “I’m	 not [going	 to]	 find	 that	 the	 plai ntiff	 was,	 in	 fact,	 abused	 by	 the	 defendant,”	 was that	she	had	not	been	physically	assaulted	by	him. [¶24]	 	 Although	 the	 Court	 has	identified	 a	legal	 error	in	 the	judgment due	 to	 the	 trial	 court’s	 imprecise	 use	 of	 legal	 terminology,	 the	 judgment
contai ns	factual	findings	sufficient	to	support	a	finding	of	abuse	if	read	in	the light	most	favorable	to	the	trial	court’s	order, see	Smith ,	2002	ME	149,	¶¶	4,	6,
13

- 20,	 804 A.2d	 1133,	and	 because	 the	 court	entered	an	 order	 of	 protection15 from	abuse,	 I	would	inf er — in	 the	absence	of	a	motion	 for	 findings	of	 fact	or conclusions	 of	 law

— that	 the	 court	 found	 abuse	 pursuant	 to	 19

- A	 M.R.S. § 4002(1)(B), 10 despite	 the	 inelegance	 of	 the	 court’s	 stated	 reasoning	 at	 the close	of	the	hearing. See	Wardwell ,	2016	ME	55,	¶	12, 136	A.3d	703. [¶25]		 In	sum,	 I	would	conclude	that	a	trial	court	must	be	afforded	the opportunity	 to	 clarify	 and	 amend	 its	 findings	 if	 the	 findings	 are	 unclear	 or contradictory,	and	that	in	the	absence	of	a	motion	for	amended	or	additional findings, see M .R.	 Civ.	 P.	 52(b),	 all	 inferences	 must	 be	 made	 in	 favor	 of	 the judgment. See	 Wardwell ,	 2016	 ME	 55,	 ¶	 12,	 136	 A.3d	 703. 11 This	 is particularly	 important	 where	 the	 judgment	 is	 intended	 to	 protect	 a	 litigant from	actual	harm	and	where	 the	Legislature	has	urg ed	 the	courts	 to	provide “expeditious	and	effective	protection	against	further	abuse	so	that	the	lives	of the	 nonabusing	 family	 or	 household	 members	 are	 as	 secure	 and uninterrupted	as	possible.”		19

- A	M.R.S.	§	4001(2). [¶26]		Accordingly,	I	would	affirm	th e	judgment.

10 As	noted	above,	by	definition,	“abuse”	includes	“[a]ttempting	to	place	or	placing	[a	family	or household	 member]	 in	 fear	 of	 bodily	 injury	 thro ugh	 any	 course	 of	 conduct,	 including,	 but	 not limited	 to,	 threatening,	 harassing	 or	 tormenting	 behavior.”	 	 19

- A	 M.R.S.	 §	 4002(1)(B); see	 also 19

- A M.R.S.	§ 4005(1).

11 M oreover,	even	if	 findings cannot be	inferred,	 because	 of	 the	interplay	 between	 the	 cou rt’s announced	 findings	 and	 conclusions,	 the	 matter	 should	 be	 remanded	 for	 the	 court	 to	 announce clearer	findings	and	apply	the	statute	as	the	Court	has	construed	it.		If	the	finding	that	Susan	failed to	 prove	 abuse	 arose	 from	 a	 misunderstanding	 of	 the	 def inition	 of	 that	 term,	 for	 instance, remanding	the	matter	for	entry	of	a	judgment	in	Russell’s	favor	is	improper.16

ALEXANDER,	J.,	dissenting. [¶27]		I	respectfully	dissent. [¶28]	 	 In	 this	 appeal,	 the	 challenged	 protection	 from	 abuse	 order	 has expired.	 	 Because	 the	 challenged	 order	 had	 a	 duration	 of	 only	 six	 months, Russell	 Chretien,	 prosecuting	 this appeal	 assisted	 by	 very	 experienced counsel,	certainly	knew	 that	 the	challenged	order	would	likely	expire	before we	 could	 reach	 the	 merits	 of	 his	 appeal.	 	 Despite	 that	 knowledge,	 Russell Chretien	 made	 no	 effort	 to	 expedite	 his	 appeal	 so	 that	 the	 issue	 cou ld	 be reached	 while	 the	 protection	 from	 abuse	 order	 and	 the	 appeal	 were	 still viable.	 	 Further,	 Chretien’s	 brief	 does	 not	 address	 the	 issue	 of	 mootness	 or suggest	 any	 exception	 to	 the	 mootness	 doctrine	 that	 might	 support	 our reaching	the	merits	of	his	appe al	from	the	now

- expired	protection	from	abuse order. [¶29]	 	 Perhaps	 more	 significantly,	 the	 individual	 who	 sought	 and received	 protection	 by	 the	 court’s	 order	 has	 not	 appeared,	 whether	 from indifference	or	 fear	we	know	not.		Thus,	on	 the	appeal,	we	have only	Russell Chretien’s	 advocacy	 about	 the	 merits	 of	 the	 appeal,	 one	 side	 of	 what	 is certainly	a	two

- sided	story.		The	record,	viewed	most	favorably	to	the	court’s17 findings,	 indicates	 that	 the	 victim	 faced	 very	 real	 risks	 and	 threats	 from Russell	Chretien’ s	conduct. 12 [¶30]		Despite	having	before	us	only	one	side	of	 the	story	and	hearing only	 advocacy	 by	 a	 party	 who	 did	 not	 seek	 to	 expedite	 his	 appeal	 or	 to preserve	 and	 present	 the	 mootness	 issue,	 the	 Court,	 sua	 sponte,	 raises	 the mootness	issue.		Without	a dvocacy	from	either	side,	the	Court	reaches	out	and makes	 a	 major	 pronouncement	 of	 law,	 overruling	 an	 important	 precedent, Sordyl	v.	Sordyl ,	1997	ME	87,	¶	6,	692	A.2d	1386.		We	 should	not	 reach	 out, overrule	precedent,	and	change	the	law	without	at	least	s ome	advocacy	from the	parties	to	the	appeal. [¶31]		There	are	three	generally	recognized	exceptions	to	the	mootness doctrine.	 	 These	 circumstances	 may	 justify	 addressing	 the	 merits	 of	 an otherwise	moot	issue	on	appeal	if (1) sufficient	 collateral consequences	 will	 result	 from	 the determination	of	the	issues	appealed	to	justify	relief; (2) the	 appeal	 involves	 a	 question	 of	 public	 interest	 or	 great public	concern	that	may	repeat	itself	and	should	be	addressed	in the	interest	of	providing	future	guid ance	to	the	bar	and	the	public; or

12 The	 Chief	 Justice’s	 dissent,	 which	 I	 join,	 notes	 the	 serious	 risks	 and	 dangers	 to	 the	 victim indicated	in	the	record.18 (3) the	issue	may	be	repeatedly	presented	to	the	trial	court	yet escape	 review	 at	 the	 appellate	 level	 because	 of	 its	 fleeting	 or determinate	nature. Bailey	 v.	 Dep’t	 of	 Marine	 Res. ,	 2015	 ME	 128,	 ¶	 4,	 124	 A.3d	 1125;
In re Christopher H. ,	 2011	 ME	 13,	 ¶	 11,	 12	 A.3d	 64; Lewiston	 Daily	 Sun	 v. Sch. Admin.	Dist.	No.	43, 1999 ME	143,	¶	17,	738	A.2d	1239. [¶32]	 	 Russell	 Chretien,	 the	 appellant,	 the	 party	 with	 the	 burden	 of persuasion	 on	 appeal, 13 has	 not	 attempted	 to	 persuad e	 us	 on	mootness.	 	He has	presented	nothing	to	suggest	that	any	exception	to	the	mootness	doctrine should	 apply	 to	 his	 appeal	 of	 the	 now

- expired	 protection	 order.	 	 Russell Chretien’s	 silence	 on	 the	 mootness	 issue	 is	 particularly	 problematic	 here where	 the trial	 court	 adjusted	its	 findings,	 perhaps	 erroneously,	 to	issue	 an order	protecting	 the	victim,	while	avoiding	 the	major	collateral	consequence of	an	abuse	finding	by	allowing	Russell	Chretien	to	keep	his	many	guns.		With the	major	collateral	consequence of	the	protection	order	having	been	avoided by	 the	 trial	 court’s	 drafting,	 and	 with	 Russell	 Chretien	 having	 suggested	 no other	 collateral	 consequence	 of	 concern	 from	 the	 expired	 order,	 what collateral	consequences	there	might	be	is	left	to	speculation.

13 The	 appellant,	 the	 party	 seeking	 to	 vacate	 a	 trial	 court	 judgment	 or	 agency	 decision	 on appeal,	bears	the	burden	of	persuasion	to	demonstrate	error. See	Beal	v.	Town	of	Stockton	Springs , 2017 ME 6,	¶	13,	153	A.3d	768.19 [¶3 3]		Speculating	about	collateral	consequences	 that	may	 remain,	 the Court	makes	its	major	 pronouncement	 of	 law,	 overrules Sordyl ,	 and	 vacates the	protection	order.		By	its	action,	the	Court	tells	the	victim	that	she	did	not deserve	protection	on	 the	 facts	s he	presented,	and	it	 frees	Chretien	 from	 the effects,	 if	 any,	 of	 an	 order	 that,	 less	 than	 a	 year	 ago,	 the	 trial	 court	 felt compelled	to	issue	to	protect	the	victim	from	the	credible	threat	that	Chretien posed	to	her. [¶34]	 	 In	 the	 circumstances	 where	 Russ ell	 Chretien	 failed	 to	 seek	 to expedite	his	appeal	and	failed	to	preserve	and	present	the	mootness	question to	us,	we	should	dismiss	 the	appeal	as	moot	 to	ensure	 that,	by	having	heard only	one	side	of	the	story,	we	do	no	harm. [¶35]		I	would	dismiss	this appeal	as	moot.		As	the	Court	elects	to	reach the	merits	of	 the	issue,	 I	also	join	 the	Chief	 Justice’s	dissent,	as	 to	all	but	 the
mootness	issue.

Martha	J.	Harris,	Esq.,	Paine,	Lynch	&	Harris,	P.A.,	Bangor,	for	appellant	Russell Chretien
S usan	Chretien	did	not	file	a	brief

Newport	District	Court	docket	number	PA

- 2016

- 116 F OR C LERK R EFERENCE O NLY