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	Chretien.		Russell	contends that	the	court	erred	by	issuing	the

protective order	after	explicitly	finding	that	he had	not	abused	Susan	but	that	

he	 posed	 a	 “credible	 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	2016. 		

[¶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	fact,	abused	by	the	defendant.” (Emphasis	added.)

[¶4]	 	 Based	 on	 its	 finding of	 a	 credible	 threat,	 the	 court	 issued	 a	

protective	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	fixed	period	not	to	exceed	2	years”).		The	order	enjoined Russell	

from	threatening	 or	 assaulting	Susan, but	 the	 order	 did	 not	 prohibit	Russell	

from	 possessing	 a	 firearm because the	 court determined that	 such	 a	
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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	

presented	 so	 as	 to	 justify	 relief.” Mainers	 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	 developed	 by	 the	 parties.	 	 Nonetheless,	 we	 will	

consider	 a	 question	 of	 mootness even sua	 sponte to	 ensure	 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	 defendant-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).		
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[¶9] The 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.	 Pechovnik,	 765	 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,	see, 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).

[¶10]	 	 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,	 we now	 conclude	 that an	 appellate	

challenge	 to the	 issuance	 of a protective order remains justiciable after	 the	

order	 has	 expired, and we overrule Sordyl to	 the	 extent	 it states	 otherwise.		

See	1997 ME	87,	¶	6,	692	A.2d	1386.

 4 For	example,	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	 factors,	 “[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

[¶11]	 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

“review de	 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).

[¶12]	 	 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 .	.	. may	grant	a	protective	order.”5		19-A	M.R.S. §	4007(1)	(2016)	

(emphasis	added).		Here,	after	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,	 the	 court	found that	he posed	 a	 credible	

threat to	her safety and issued	the	protective	order	on	that	basis.		

[¶13]	 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	

without	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’Heureux,	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	the	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	 a	
8

credible	 threat	 to	Susan’s	 safety,6 without	also making	a	 finding	 that	 he	 had	

abused	Susan.7

[¶14]	 	 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	granted	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	here,	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”	 language	 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	weapons,	the	error	created	by	the	credible	threat finding	is	

demonstrated	by	the	court’s	own	reasoning.

7		The	Chief	Justice’s	dissenting	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	issuance	of	a protective	order.		Saufley,	C.J.,	Dissenting	Opinion	¶	23.		As	

is	suggested in	the	case	cited	in	that dissenting	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	necessary	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	improperly	rewrite the	court’s own assessment	of	the	evidence.
9

and	 is	 not	 dispositive	 of	 whether	 the	 defendant	 has	 abused	 plaintiff	 and	

whether	 a	 protective	 order	 should	 be	 issued	 in	 the	 first	 place.	 19-A	 M.R.S.	

§ 4007(1); see 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	defendant	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).	

[¶15]	 	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	person	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	 for	

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	given	

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	 “recognize	 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	 court	 did	 enter an	 order	 of	

protection	 from	 abuse,	 and	 did	 find	that	 Chretien’s	 angry	 and	 very	 physical	
11

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	explicitly	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	abstain	 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	litigants	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	 for	
12

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	unless	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”	 toward	 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	 determined	
13

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	that	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	 the	 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)	(2016)	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	injury.		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	the	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	 plaintiff	 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	

contains	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	 protection	
15

from	abuse,	 I	would	infer—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	urged	 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	the	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	 through	 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	 	Moreover,	even	if	 findings	 cannot be	inferred,	 because	 of	 the	interplay	 between	 the	 court’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	 definition	 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	 could	 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	appeal	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’s	
17

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	advocacy	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	some	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	guidance	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	 persuade	 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

[¶33]		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	she	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	 Russell	 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

Susan	Chretien	did	not	file	a	brief

Newport	District	Court	docket	number	PA-2016-116

FOR	CLERK	REFERENCE	ONLY