Embree v Balfanz
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Embree v Balfanz (2002-099); 174 Vt. 560; 817 A.2d 6
[Filed 24-Oct-2002]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2002-099
SEPTEMBER TERM, 2002
Daniel J. Embree } APPEALED FROM:
}
}
v. } Windsor Family Court
}
}
James Balfanz } DOCKET NO. 295-11-01 Wrfa
Trial Judge: Paul F. Hudson
In the above-entitled cause, the Clerk will enter:
Appellant James Balfanz, defendant in the case below, appeals from a
Windsor Family Court order granting appellee Daniel J. Embree's request for
relief from abuse. Balfanz argues on appeal that he and Embree are neither
"family members" nor "household members" within the ambit of 15 V.S.A. §§
1101-1160, and that Embree is therefore precluded from obtaining such
relief. We agree, and reverse the order.
In 1987, Embree married Heidi (Wilcox) Embree. Approximately one year
later, Balfanz married Heidi's sister, Shelly (Wilcox) Balfanz. At the
time that this case was brought, Embree and his wife were involved in a
contentious divorce, and two related incidents led to this litigation. The
family court found each incident to constitute "abuse" of Embree by
Balfanz. Neither finding of abuse is challenged on appeal by Balfanz.
The first incident occurred near Embree's Vermont residence, on
November 6, 2001. In a first vehicle, Embree's wife, assisted by Balfanz's
wife and daughter, had just finished moving her belongings out of the
house. Balfanz was in a second vehicle, and was waiting for the first
vehicle, in a church parking lot at the bottom of the hill toward the main
road. At that time, Embree, in a third vehicle, proceeded up the hill
toward his residence. Viewing Embree's car with concern, Balfanz followed
his vehicle. The family court found that Balfanz's "reckless operation" of
his vehicle, in following Embree more closely than was reasonable or
prudent, constituted "abuse."
A second incident occurred five days later, on November 11, 2001.
Balfanz and Embree were both at a cottage in Tupper Lake, New York. As
Embree left the cottage, Balfanz placed a rolled rug at the base of the
door to prevent cold air from entering. Embree opened the door to come
back in, and struck Balfanz with the door. An altercation commenced,
whereby Balfanz punched Embree in the face, causing a cut and bleeding to
Embree's lips.
On November 26, 2001, Embree filed for a temporary relief from abuse
order against Balfanz, stating that the relationship between Balfanz and
Embree was that of a "brother in law." That same day, the court granted
Embree's request, and issued an ex parte temporary order, effective until
the hearing date on December 7, 2001. Balfanz filed a motion to dismiss
the temporary order, claiming that the parties were not "family or
household members" as requisite for the issuance of such order. The court
held a hearing on Balfanz's motion, and by written opinion dated December
18, 2001, the court denied Balfanz's motion. Although the court found that
the parties were not "family members" within the meaning of the statute, it
found that the parties were "household members." Upon also finding
sufficient facts to constitute "abuse," the court continued the temporary
order. In response to Balfanz's motion to reconsider or to hold a hearing
on the merits, the court held a hearing on January 29, 2002, and concluded
at that time that the parties were both "family members" and "household
members." Again finding that Embree had established abuse, the court
issued a permanent order, to expire January 29, 2003.
According to Vermont's Abuse Prevention Statute, "[a]ny family or
household member may seek relief from abuse by another family or household
member on behalf of him or herself or his or her children by filing a
complaint under this chapter." 15 V.S.A. § 1103(a). As such, a court must
make two distinct findings. First, the plaintiff and defendant must be
"family or household members." Second, "abuse" between the parties must
have occurred.
Here, Balfanz attacks the court's findings regarding the first of
these elements, asserting that Embree and Balfanz are neither "family
members" nor "household members." As the findings in this case rest upon
conclusions of law, our review of these conclusions is nondeferential and
plenary. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 438-39, 736 A.2d 780, 783 (1999). However, where the lower court has correctly applied the
law, we will affirm those conclusions which are reasonably supported by the
findings. See Schnabel v. Nordic Toyota, Inc., 168 Vt. 354, 357, 721 A.2d 114, 118 (1998).
I.
The family court determined that Embree and Balfanz fell within the
ambit of "family members" as the phrase is commonly understood and as was
intended by the Legislature. We disagree. Balfanz and Embree are not
"family members" under Vermont's Abuse Prevention Statute. Notably, the
term "family" is not itself defined by the statute. See 15 V.S.A. § 1101.
Where the Legislature has not defined a statutory term, we must be guided
by the plain and commonly accepted meaning of the phrase, see Donley v.
Donley, 165 Vt. 619, 620, 686 A.2d 943, 945 (1996) (mem.), and, where
pertinent, legislative history as to the purpose the statute is intended to
accomplish. Perry v. Med. Practice Bd.,169 Vt. 399, 406, 737 A.2d 900, 905
(1999).
"Family" is defined as "a group consisting of parents and their
children" or "a group of persons connected by blood, by affinity, or by
law." Black's Law Dictionary 620 (7th ed. 1999). We have previously
observed - in concluding that a sister could seek relief from abuse by her
brother - that a brother-sister relationship fell within the scope of the
term "family member." See Donley,
165 Vt. at 620, 686 A.2d at 945. Balfanz and Embree, however, are not
related as parents and children nor by blood or affinity. (FN1) As such,
it cannot be said that they are members of the same family within the
commonly accepted meaning of the term.
Our interpretation of "family member" is further informed by the
statute's legislative history. Perry,169 Vt. at 406, 737 A.2d at 905.
Although the Legislature's most recent amendment to the statute
specifically identifies "reciprocal beneficiary" as within the meaning of
"family," 15 V.S.A. § 1101(6), the Legislature has repeatedly refused to
define "family member" as broadly as the court did below. As originally
enacted in 1980, the Legislature defined "family or household members" as
simply "spouses or former spouses." 1979, No. 153 (Adj. Sess.), § 1. The
Legislature affirmatively rejected a proposal to extend protection to
"other persons related by consanguinity or affinity." House Jour. 196
(Feb. 8, 1980, Adj. Sess.). In 1982, the Legislature amended the statute
to further include "persons sixty years of age or older living in the same
household and related by blood or marriage." 1981, No. 218 (Adj. Sess.), §
1. Here, although covering situations of elder abuse, the Legislature
rejected proposed language which would extend this protection to those
similarly situated under sixty years of age. Sen. Jour. 381 (Apr. 7, 1982,
Adj. Sess.). In 1992, the Legislature excluded "family" from the
definition, retaining only "household member." 1991, No. 135 (Adj. Sess.),
§ 14. Additionally, the Legislature rejected a proposal to include in the
definition "persons related by blood, adoption or marriage now or in the
past." Sen. Jour. 388 (Mar. 31, 1992, Adj. Sess.). In 1998, the House
specifically rejected language that would include "[p]ersons who are
related or formerly related by marriage." House Jour. 1624 (Apr. 16, 1998,
Adj. Sess.). This history also demonstrates that the family court's
application of the term "family members" to the facts of this case was
error.
II.
We further determine that the family court erroneously concluded that
Balfanz and Embree are "household members" within the meaning of 15 V.S.A.
§ 1101(2). "'Household members' means persons who, for any period of time,
are living or have lived together, are sharing or have shared occupancy of
a dwelling . . . ." 15 V.S.A. § 1101(2). The family court's recitation of
the evidence of Embree's and Balfanz's sharing of the same household
concluded only that "[t]he defendant testifies to spending one night under
the same roof with the plaintiff, and the plaintiff testifies to as many as
11 nights under the same roof." "A recitation of evidence in findings is
not a finding of the facts contained in the testimony related and it cannot
be so construed." Krupp v. Krupp, 126 Vt. 511, 514, 236 A.2d 653, 655
(1967). Even assuming that we treat this statement as a "finding" that the
parties spent eleven nights in the same household during a thirteen year
acquaintance, we agree with the family court's self-characterization of the
finding as "weak." It is
much too slender a reed to support the application of the Family Abuse Act
to the parties in this case, and the family court's attempt to do so was
error.
Reversed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. The term "affinity" refers to "[t]he relation that one spouse has to
the blood relatives of the other spouse." Black's Law Dictionary 59 (7th
ed. 1999). Thus, "[a] husband is related by affinity to his wife's
brother, but not to the wife of his wife's brother." 2 C. Torcia,
Wharton's Criminal Law § 242, at 573 (15th ed. 1994) (footnote omitted).
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