NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

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before this opinion goes to press.

2019 VT 85

No. 2019-019

Carrie McCool Supreme Court

On Appeal from

 v. Superior Court, Washington Unit,

Family Division

Joshua Macura October Term, 2019

Kirstin K. Schoonover, J.

Carrie McCool, Pro Se, Barre, Plaintiff-Appellee.

Craig S. Nolan of Sheehey Furlong & Behm P.C., Burlington, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Skoglund, J. (Ret.) and 

Howard, Supr. J. (Ret.), Specially Assigned

¶ 1. SKOGLUND, J. (Ret.), Specially Assigned. Defendant appeals a final relieffrom-abuse (RFA) order issued by the Washington County family division of the superior court. 

We conclude that the record does not support the court’s determination that defendant abused 

plaintiff by placing her in fear of imminent serious physical harm. Accordingly, we vacate the 

RFA order.

¶ 2. The parties had an intimate relationship and began living together in 2011 in a 

house originally owned by plaintiff’s family but later purchased by the parties. The relationship 

ended in December 2017. In June 2018, plaintiff filed a motion for relief from abuse, asking the 

Orange County family division to order defendant to stay away from her and the parties’ home. A 
2

final RFA hearing was held on June 26, 2018. Following testimony from the parties, the Orange 

County family division concluded that defendant had engaged in abuse by stalking, and that there 

was danger of further abuse. Defendant’s counsel asked the court to enter a continued temporary 

order rather than a final order so that defendant did not lose his job as a police officer.1 The court

ultimately decided, with the agreement of both parties, to issue an extended temporary order with 

the same provisions that would have been in a final order, for a period of six months.

¶ 3. On December 18, 2018, at the end of the six-month period, the same judge in the 

Orange County family division held a hearing on plaintiff’s request to make the order final and 

extend it. Following the testimony of both parties, the court declined to extend the RFA order, 

stating that the parties at that point were engaged primarily in a property dispute. The court stated 

that it would not issue a further extended order because it could not find there was a danger of 

further abuse. The court informed the parties “you’ll have no orders in place but need to engage 

in behavior . . . appropriately.”

¶ 4. On December 19, 2018, the day after the Orange County family division denied 

plaintiff’s motion to extend the previous RFA order, plaintiff filed a new request for an RFA order 

in the Washington County family division. In her affidavit, she alleged that a few hours after the 

previous day’s hearing, defendant entered her residence without her consent to retrieve his 

belongings. Plaintiff further alleged that defendant got inside the house through forced entry2and 

disabled the outside security cameras. She stated that defendant had a history of restraining her 

and that the previous RFA order had expired only hours before he entered her residence.

1

 Plaintiff was also a law enforcement officer at one time. At the time of these proceedings, 

she was working as a police dispatcher at the same police department where defendant worked.

2

 Defendant testified that the sliding glass door at the back of the house was unlocked and 

offered video evidence of his entry to show that the door was unlocked. The court declined to 

admit the video evidence but did not assume that defendant’s entry into the house was forced. 
3

¶ 5. The Washington County family division granted a temporary RFA order and 

scheduled a hearing for January 2, 2019, at which time both parties testified. Following the 

hearing, the court issued a final RFA order based on the court’s determination that defendant had 

abused plaintiff by placing her in fear of imminent serious physical harm. Defendant appeals that 

order, arguing that: (1) the record does not support the court’s determination that plaintiff was 

placed in reasonable fear of imminent serious harm; (2) the court failed to make findings 

concerning any danger of future abuse3; and (3) the court abused its discretion by not allowing him 

to cross-examine plaintiff,4unfairly limiting defendant’s direct testimony, and not admitting 

relevant video evidence of defendant entering plaintiff’s residence.

¶ 6. On appeal “we review the family court’s decision to grant or deny a protective order 

only for an abuse of discretion, upholding its findings if supported by the evidence and its 

conclusions if supported by the findings.” Raynes v. Rogers, 2008 VT 52, ¶ 9, 183 Vt. 513, 955 

3

 The court did not address the danger of future abuse in its oral findings on the record, 

but it checked the box on the RFA final order form indicating that there was danger of future abuse.

4

 After the court finished questioning the unrepresented plaintiff concerning the nature and 

circumstances of her complaint, defendant’s attorney indicated that he wanted to cross-examine 

plaintiff. The court responded as follows: “We don’t generally allow that to happen. Why don’t 

I hear from your client first, and then, if we need the opportunity for cross-examination, the court 

will allow it.” Vermont Rule of Evidence 611(a) generally directs the court to “exercise reasonable 

control over the mode and order of interrogating witnesses and presenting evidence” to make the 

“presentation orderly and effective,” to “avoid needless consumption of time,” and to “protect 

witnesses from harassment or undue embarrassment.” Although this rule encompasses the 

authority “to set reasonable limits on the consumption of time in examining witnesses,” any “limits 

must be reasonable and sufficiently flexible to ensure that important evidence is not excluded due 

to artificial time constraints.” Varnum v. Varnum, 155 Vt. 376, 390, 586 A.2d 1107, 1115 (1990). 

The nature of RFA hearings unquestionably warrants caution to ensure that witnesses are not 

harassed; in some cases, questions might need to be posed through the trial judge. But the 

wholesale prohibition of cross-examination raises concerns regarding the fairness of a proceeding

because courts must “provide each side a meaningful opportunity to challenge the other’s 

evidence.” Frizado v. Frizado, 651 N.E.2d 1206, 1211 n.5 (Mass. 1995), abrogated on other 

grounds by Zullo v. Goguen, 672 N.E.2d 502 (Mass. 1996) (stating that defendants in civil cases 

have general right to cross-examine witnesses against them, although in abuse-prevention 

proceedings such right may be curtained for good cause shown). We need not consider this claim 

of error here, however, given our resolution of the appeal on defendant’s first claim of error. 
4

A.2d 1135. Our review of legal conclusions is “nondeferential and plenary.” Fox v Fox, 2014 VT 

100, ¶ 9, 197 Vt. 466, 106 A.3d 919.

¶ 7. We first consider whether the evidence was sufficient to support the family 

division’s determination that defendant’s conduct placed plaintiff in fear of imminent serious 

physical harm. “In a relief-from-abuse hearing, the plaintiff has the burden of proving abuse by a 

preponderance of the evidence.” Coates v. Coates, 171 Vt. 519, 520, 769 A.2d 1, 2-3 (2000) 

(mem.). In relevant part, abuse is statutorily defined as placing a family or household member “in 

fear of imminent serious physical harm.” 15 V.S.A. § 1101(1)(B). Here, plaintiff testified that 

defendant had a history of restraining her and that she was fearful he would continue to restrain 

her. Noting that defendant had turned off the security cameras, plaintiff explained that she would 

not know if he was in the house, which made her very concerned for her safety. 

¶ 8. The Washington County family division acknowledged that defendant had not 

caused plaintiff physical harm or attempted to stalk her but concluded that he had placed her in 

fear of imminent serious physical harm by showing up uninvited at her residence mere hours after 

plaintiff’s request to extend the prior RFA order had been denied. The court’s conclusion that 

defendant had placed plaintiff in fear of imminent serious physical harm was based in part on 

defendant’s representation that he would go to plaintiff’s residence only at a mutually agreeable 

time.5 In support of its conclusion, the court noted that defendant had restrained plaintiff on 

occasions in the past, that he had not lived at the residence for over six months, and that, upon 

entering the residence on this occasion, he turned off the surveillance cameras. 

¶ 9. Defendant argues that his mere presence on the property he jointly owned with 

plaintiff cannot be the basis of a final RFA order, given that no court order prevented him from 

5

 At the December 18, 2018 hearing in which the Orange County family division declined 

to extend the earlier RFA order, defendant responded in the affirmative when asked by his counsel 

whether, if there was no order in place, he would retrieve his property at a time mutually agreeable 

to plaintiff and him. 
5

being on the property. This argument begs the question of whether he placed plaintiff in fear of 

imminent serious harm. On this point, defendant asserts that plaintiff failed to demonstrate that 

any fear she had of imminent serious physical harm was objectively reasonable under the 

circumstances. See Coates, 171 Vt. at 521, 769 A.2d at 3 (concluding that trial court could not 

find that defendant had placed plaintiff in fear of imminent physical harm when plaintiff never 

testified that defendant had done so and court’s findings failed to “address the relationship, if any, 

between the parties’ past history and plaintiff’s subjective belief that she fears defendant”).

¶ 10. We agree that, as a matter of law, the record does not support a conclusion that 

plaintiff had an objectively reasonable fear of imminent serious physical harm. Apart from 

plaintiff’s testimony that defendant’s conduct in entering her residence placed her in fear, the 

Washington County family division relied upon the parties’ past history and the fact that defendant

entered the residence and turned off the outside security cameras without plaintiff’s consent despite 

agreeing earlier the same day that he would retrieve his personal belongings from plaintiff’s 

residence only at a time agreed upon by the parties. With respect to defendant’s history of 

restraining plaintiff, the family division relied upon plaintiff’s testimony from the previous RFA 

proceeding that defendant had restrained her on occasion by bearhugging her, which defendant 

claimed he did to prevent her from doing something dangerous.

¶ 11. At that June 2018 hearing, however, the Orange County family division explicitly 

concluded that none of defendant’s conduct—including the bearhugs—had placed plaintiff in fear 

of imminent serious physical harm; rather, the court based its temporary RFA order on defendant’s 

having stalked plaintiff.6 Later, at the December 2018 hearing, the court denied plaintiff’s motion 

6

 In the dissent’s view, we are inaccurately suggesting that “the Orange County court had 

rejected defendant’s restraint of plaintiff as a basis for the RFA order.” Post, ¶ 20. We suggest no 

such thing. Our point is that the Orange County family division explicitly found that the past 

bearhug incidents would not place “someone in fear of imminent serious physical harm” and that 

there were not “any kinds of threats of imminent serious physical harm.” As noted above, the 

Orange County family division did find abuse by stalking, finding that the bearhug incidents—
6

to extend the RFA order, finding that the parties’ dispute at that point was largely a conflict about 

personal property. The court found that the parties had tried to avoid each other and credited 

defendant’s testimony that he never told plaintiff he would come back to her residence any time 

he wanted to retrieve his belongings.

¶ 12. Notably, the undisputed evidence in this case was that defendant went to plaintiff’s 

residence at a time when he knew she would be at work and not at the house, specifically so that 

he could avoid her. Earlier that day, defendant emailed plaintiff to try and find a time when he 

could pick up the rest of his belongings, which he been attempting to do for the previous six 

months. Plaintiff responded that she could not contact him until an internal police investigation 

was completed, with no indication of when that would occur. A couple hours before entering 

plaintiff’s residence, defendant sent the last email in that chain, saying that if her investigation was 

anything like his, it would take a while to complete.

¶ 13. Although defendant’s decision to enter plaintiff’s residence without her consent 

may have shown “bad judgment,” as the court indicated, the undisputed evidence7demonstrates

that defendant was seeking to avoid rather than confront plaintiff. Regarding the security cameras, 

the undisputed evidence was that defendant disabled security cameras that monitored only the 

exterior of the house. Given that defendant had never physically harmed plaintiff, that there had 

not been any incident of alleged physical restraint in almost a year, and that defendant entered 

plaintiff’s residence when he knew she was not there so as to avoid her, there was insufficient 

evidence in the record, as a matter of law, to support a conclusion that defendant’s conduct in 

combined with the degree of oversight and demanded accountability that defendant displayed 

toward plaintiff—amounted to surveilling or monitoring that “would cause a reasonable person to 

fear for her safety.”

 

7

 The dissent states that we are crediting defendant’s testimony about what happened by 

describing defendant’s efforts to retrieve his belongings from plaintiff’s residence at a time he 

knew she would not be home. These are undisputed, not modifying, facts.
7

entering her residence to retrieve his personal belongings placed plaintiff, from an objectively

reasonable standpoint, in fear of imminent serious physical harm.

¶ 14. Because the record does not support the court’s conclusion that defendant abused 

plaintiff, we need not consider defendant’s arguments that the court failed to make findings on the 

danger of future abuse and that it deprived him of a fair opportunity to make his case at the RFA 

hearing.

The family division’s January 2, 2019 final relief-from-abuse order is vacated. 

FOR THE COURT:

Associate Justice (Ret.), Specially Assigned

¶ 15. REIBER, C.J., dissenting. I would affirm because the record does support the 

trial court’s conclusion that plaintiff had an objectively reasonable fear of imminent serious 

physical harm, and the trial court did not abuse its discretion in granting the relief-from-abuse

(RFA) order. I respectfully dissent. 

¶ 16. We review a trial court’s decision to grant an RFA order for abuse of discretion, 

“upholding its findings if supported by the evidence and its conclusions if supported by the 

findings.” Raynes v. Rogers, 2008 VT 52, ¶ 9, 183 Vt. 513, 955 A.2d 1135. I emphasize this

deferential standard. “In matters of personal relations, such as abuse prevention, the family court 

is in a unique position to assess the credibility of witnesses and weigh the strength of evidence at 

hearing.” Id. “[T]he dynamics of domestic abuse ought to make us particularly cautious in 

substituting our judgment—on the basis of a cold record—for that of the judge who heard the 

testimony.” Coates v. Coates, 171 Vt. 519, 522, 769 A.2d 1, 5 (Amestoy, C.J., dissenting). 

Moreover, in assessing whether the evidence sufficiently supports the findings, we must view the 
8

evidence in the light most favorable to the prevailing party, excluding the effects of modifying 

evidence. Cabot v. Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997).8 

¶ 17. The record here supports the court’s exercise of discretion. Promptly upon the 

expiration of the six-month RFA order, defendant entered plaintiff’s home without her consent 

and turned off the security cameras. This was done immediately following the defendant’s 

representation to the Orange County family division that he no longer lived at plaintiff’s residence, 

he was willing to retrieve the remainder of his belongings from the property at a mutually agreeable 

time, and he had no access to the security cameras and no interest in gaining access. 

¶ 18. Most critically, this was done within the context of a history of abuse—a history 

that the majority downplays. The Orange County family division held in June 2018 that defendant 

had abused plaintiff by stalking her. Specifically, the court found that defendant had physically 

restrained plaintiff without her consent and had refused to assure plaintiff that he would not restrain 

her in the future. The court said these instances of physical restraint were “part of the backdrop” 

of the parties’ situation. The court also found that defendant tracked plaintiff’s movements with 

the property’s security cameras and “interrogate[d] and question[ed]” her about her activities. The 

court concluded that “those things together . . . the court finds would put the plaintiff in—a 

reasonable person should know that it would cause a reasonable person to fear for her safety.” The 

court held that defendant’s conduct satisfied the statutory definition for stalking and provided the 

basis for an RFA order. See 15 V.S.A. § 1101(1)(D) (providing “[s]talking” as one of several 

definitions of abuse under RFA statute); 12 V.S.A. § 5131(6) (defining stalking as “to engage 

8

 The majority suggests that defendant engaged in an ill-conceived but otherwise relatively 

benign effort to retrieve his belongings from the home he previously shared with plaintiff, taking 

pains to avoid doing so at a time when she would be present. See ante, ¶¶ 12-13. In describing 

the facts this way, the majority essentially credits defendant’s testimony about what happened—

relying on modifying evidence and implicitly finding defendant credible. The inference the 

majority draws from defendant’s testimony—that defendant did not pose an immediate threat—is 

neither a fact nor undisputed. It is a conclusion that the trial court rejected and the record does not 

compel. 
9

purposefully in a course of conduct directed at a specific person that the person engaging in the 

conduct knows or should know would cause a reasonable person to . . . fear for his or her safety”). 

¶ 19. In sum, the record shows a history of intimidating and controlling behavior by 

defendant, and that history, including the physical restraints and misuse of the security cameras, 

provided the basis of an RFA order against defendant. The order was not extended following 

defendant’s representation that he no longer lived at the residence, he would work with plaintiff to 

retrieve his belongings, he had no access to the security cameras, and he did not seek access to the 

cameras. On the very day that defendant made these representations, he entered defendant’s home 

without her consent and immediately turned off the security cameras that had been central to the 

prior RFA order. All of these facts taken together provide a basis for the Washington County 

family division to conclude that plaintiff had an objectively reasonable fear of imminent serious 

physical harm. See 15 V.S.A. § 1101(1)(B) (defining abuse as “[p]lacing another in fear of 

imminent serious physical harm”); see also Raynes, 2008 VT 52, ¶ 8 (explaining abuse-prevention 

statute “addresses the pattern of controlling behavior that distinguishes intimate abuse from other 

forms of violence by providing a unique legal remedy, injunctive in nature, aimed at ending the 

cycle of domestic violence before it escalates”). 

¶ 20. The majority reasons that the Washington County court’s conclusion was in error 

because the Orange County court had rejected defendant’s restraint of plaintiff as a basis for the 

RFA order. See ante, ¶ 11. More accurately, the Orange County court rejected defendant’s 

restraint of plaintiff as a basis for finding that his conduct met two of the statutory definitions for 

abuse. The Orange County court said that defendant’s conduct, including the restraints, did not 

cause or attempt to cause her physical harm, and he did not threaten her with imminent serious 

physical harm. See 15 V.S.A. §§ 1101(1)(A) (defining abuse as “[a]ttempting to cause or causing 

physical harm”); id. § 1101(1)(B) (defining abuse as “[p]lacing another in fear of imminent serious 

physical harm”). But then the Orange County court held that defendant’s conduct—including the 
10

physical restraints—did meet the basis for finding defendant stalked defendant, which is a third 

definition for abuse pursuant to the statute. Id. § 1101(1)(D) (defining “abuse” as “[s]talking”);

12 V.S.A. § 5131(6)(A) (defining “[s]talk”). It was entirely proper for the Washington County 

court to rely on the history of abuse between the parties, including the physical restraints, in 

holding that defendant’s subsequent conduct constituted abuse. 

¶ 21. Additionally, the majority notes that nearly a year had passed since any alleged 

incidents of physical restraint. Ante, ¶ 13. Defendant last physically restrained plaintiff in March 

2018. Defendant was deployed out-of-state shortly afterward. He returned to Vermont in June 

2018, and he was placed under court order that same month. That defendant did not physically 

restrain plaintiff during those nine months does not undercut the trial court’s decision. If anything, 

it supports it. As soon as the external constraints on defendant’s actions were lifted, he intruded 

into plaintiff’s home and interfered with the security cameras—suggesting that only the order was 

restraining defendant from abusive behavior. The timing shows the reasonableness of plaintiff’s 

fear, not the unreasonableness.

¶ 22. I respectfully dissent. I am authorized to state that Justice Robinson joins this 

dissent. 

FOR THE COURT:

Chief Justice