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10/17/91 ANA CRUZ-FOSTER v. MICHAEL FOSTER

October 17, 1991

ANA CRUZ-FOSTER, APPELLANT
v.
MICHAEL FOSTER, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Margaret A. Haywood, Trial Judge

Schwelb and Farrell, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb

Ana Virginia Cruz *fn1 appeals from a decision of the trial court declining to extend a civil protection order (CPO) against her ex-husband, Michael Foster. The original CPO was issued on August 22, 1987, pursuant to the lntrafamily Offenses Act, D.C. Code § 16-1001 et seq. (1989). We vacate the decision below and remand for further proceedings.

It appears from Ms. Cruz' pleadings and affidavits at prior stages of the case that, beginning shortly after the parties' marriage in 1987, Foster threatened and abused Ms. Cruz, and sometimes her mother, with some severity and frequency. On July 29, 1987, Foster allegedly tied Ms. Cruz' hands, threatened to kill her and her mother, and refused to allow her to leave home. Ms. Cruz managed to call the police, who investigated her allegations and removed Foster from the premises. Ms. Cruz applied for a CPO and, on August 12, 1987, after having first temporarily restrained Foster ex parte, the court issued a final CPO in which he was ordered not to molest, assault, threaten or abuse Ms. Cruz and to stay away from her.

The record shows, however, that Foster continued to assault and abuse Ms. Cruz after the initial order was issued. In August 1988, Foster was found guilty of criminal contempt of court for violations of the CPO. He was sentenced to imprisonment for a total of ten months. The Judge also modified the CPO and extended it, as modified, for another year. In August 1989, the order was extended once more for still another year.

Foster was released from prison in December 1989. Ms. Cruz claimed that shortly after Foster's release, she saw him outside the hotel where she worked. She fled in fear. When she returned to work later, she came in a taxi, so that she could avoid contact with Foster. During January 1990, according to one of Ms. Cruz' co-workers, Foster also telephoned their place of work, identified himself as "Tony," and left a message for Ms. Cruz to the effect that "Michael is in town, and he's very angry, and she should be careful." The co-worker testified that, despite the caller's use of an assumed name, she recognized his voice as that of Michael . The co-worker added that in January 1990, Foster called again and asked if Ms. Cruz was working that night; the co-worker said she was not.

Ms. Cruz perceived these events as threatening, and moved for an extension of the CPO. At an evidentiary hearing on August 19, 1990, Ms. Cruz and the co-worker testified as described above. Foster, however, denied the allegations. He claimed that he had had no contact with Ms. Cruz since the 1988 contempt hearing, and that he had made no attempt to telephone her since then. Counsel for Foster also pointed out that his client had been indicted for allegedly assaulting Ms. Cruz with intent to kill her while armed (in connection with the incident which had led to his contempt adjudication), and that he had been ordered to stay away from her as a condition of release in that case. *fn2

After hearing the evidence, the Judge ruled in pertinent part that

the burden rests on the petitioner to convince the court over and above the [respondent's] testimony, and the court doesn't find that the testimony carries that weight. The testimony is in equal prominence as far as the court's crediting the witness is concerned, and that being the case, she has not borne the burden, and the request for extension of the civil protection order is denied.

This appeal followed.

II

The Intrafamily Offenses Act, under which this proceeding was instituted, was designed to protect victims of family abuse from acts and threats of violence. It provides for the civil treatment of intra-family offenses, and thus gives the court "'a wider range of Dispositional powers than criminal courts in order to effect rehabilitation rather than retribution.'" United States v. Harrison, 149 U.S. App. D.C. 123, 124, 461 F.2d 1209, 1210 (1972) (quoting Orman Ketchani, The Juvenile Court for 1975, 40 SOC. SERV. REV. 283, 288 (1966)). "The paramount consideration concerning this legislation is that it is remedial," and the Act must be liberally construed in furtherance of its remedial purpose. Id. at 124-25, 461 F.2d at 1210-11 (citation and internal quotation marks omitted). Indeed, in 1982, the Council of the District of Columbia broadened the remedies available under the Act and criticized the prior judicial interpretation of the legislation as having been too narrow, so that "truly effective remedies not ordered in some cases." D.C. COUNCIL, COMMITTEE ON THE JUDICIARY, REPORT ON BILL 4-195, at 10 (May 12, 1982) (quoted in Powell v. Powell, 547 A.2d 973, 974 (D.C. 1988)).

The Act does not authorize the issuance of permanent injunctions. Section 16-1005 (d) provides, however, that

protection order issued pursuant to this section shall be effective for such period up to one year as the Family Division may specify, but the Family Division may, upon motion of any party to the original proceeding, ...


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