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09/13/93 ANA MALDONADO v. JULIO MALDONADO

September 13, 1993

ANA MALDONADO, APPELLANT
v.
JULIO MALDONADO, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)

Before Rogers, Chief Judge, and Schwelb and King, Associate Judges. Opinion for the court by Associate Judge King. Concurring opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: King

KING, Associate Judge: On January 30, 1992, the trial court issued a Civil Protection Order ("CPO") at the request of appellant ("wife") against her husband, the appellee. In January 1993, the wife's motion to extend the CPO for a period of one year was denied. This appeal followed. We reverse and remand. *fn1

I.

In January 1992, the wife sought a civil protection order because of the husband's abusive behavior which included beatings with the hands, a belt, a thick cable, threats with a gun, and other physical force which on at least one occasion caused the wife to lose consciousness. The abuse culminated in a severe beating on January 13, 1992, which required hospital treatment. Thereafter, the wife and the couple's two daughters went into hiding. In order to provide protection for herself and her daughters, the wife obtained, on January 17, 1992, a Temporary Protective Order which expired after fourteen days. A hearing on her request for a CPO, which could be in effect for up to one year, was scheduled for January 30, 1992. On that date the husband consented to the issuance of a CPO to expire on January 30, 1993.

The court approved the CPO which provided that: 1) the husband shall not molest, assault or in any manner threaten or physically abuse the wife; 2) the husband shall stay away from the wife's home, person, work place, and children's school; 3) the husband shall not telephone the wife; 4) the husband shall relinquish possession and/or use of the wife's pocketbook, wallet, working permit, ID card, bank card, Social Security card, passport, and any other items of the children's personal belongings, table, four chairs and dishes; 5) the wife be awarded temporary custody of the minor children; 6) the husband shall have no rights of visitation with the children until the expiration of the order or until further order of the court; 7) the Metropolitan Police Department shall accompany the wife to 542 Irving Street, N.W., Washington, D.C., for the purpose of assisting the wife while she removed the items listed above and to prevent violence between the wife and the husband; 8) the husband shall pay child support in the amount of $523 per month--during the month of February 1992, the husband shall pay $400 toward this obligation ($200 on 2/3/92 and $200 on 2/15/92); beginning March 15, 1992, and every 15th thereafter, the husband shall pay $523 plus any arrearage owed from the month of February--and 9) the husband shall not withdraw the application for permanent residence that he had filed on behalf of the wife. *fn2

Meanwhile, in a separate criminal proceeding, the husband was indicted for armed assault with intent to kill, threats, and obstruction of Justice for conduct which arose from one of his attacks on the wife. The husband subsequently pleaded guilty in that case, and on December 30, 1992, Judge Wolf imposed an aggregate sentence of not less than two years and not more than eight years. The husband began serving that sentence immediately.

On December 21, 1992, the wife moved to extend the CPO which was scheduled to expire on January 30, 1993. The motion alleged that the husband violated the CPO on a number of occasions, including: waiting for the wife outside her place of employment and attempting to induce her to allow him to see the children; approaching the children and their babysitter outside of the school; and approaching the wife and one of the children as they were walking down the street. Prior to the hearing the husband consented to and signed an extended CPO which contains terms substantially the same as those set forth in the CPO which was scheduled to expire January 30, 1993. *fn3

The wife's request for an extension came before Judge Wolf for a hearing on January 26, 1993, with the husband, the wife, and the latter's attorney all being present. The trial Judge, noting that since the husband was serving a prison sentence he would not be able to physically assault the wife, concluded that no CPO would be necessary: "I don't think there's good cause when he's locked up." Accordingly he denied the motion to extend. We hold that the trial Judge erred in so doing.

II.

Under the Intrafamily Offenses Act, a CPO may be extended "for good cause shown." See D.C. Code § 16-1005(d) (1989). *fn4 The determination of good cause is committed to the sound discretion of the trial court which is subject to reversal only upon a showing of abuse of that discretion. See Cruz-Foster v. Foster, 597 A.2d 927, 931-32 (D.C. 1991); Johnson v. United States, 398 A.2d 354, 362 (D.C. 1979). This case presents the issue of whether the trial court abused discretion by denying an extension of a CPO solely because the respondent was serving a sentence which, unless modified, would apparently not result in release on parole until after the date the extended CPO would itself expire. *fn5 We conclude that, under the circumstances, the husband's incarceration was a factor which may and should have been considered by the trial Judge; however, that factor may not be the sole determinate as to whether the CPO should or should not be extended. See Cruz-Foster, supra, 597 A.2d at 928 (remanding to permit trial Judge to take into account the effect a stay-away order, in a criminal case involving the same two parties, could have upon the question of whether the CPO should be extended). In relying upon the husband's incarceration as the sole basis for denying the extension of the CPO, the trial Judge abused his discretion. See In re J.D.C., 594 A.2d 70, 75 (D.C. 1991) (trial court abuses its discretion when it rests its legal Conclusion on incorrect legal standards).

The Intrafamily Offenses Act is a remedial statute and as such should be liberally construed for the benefit of the class it is intended to protect. See Cruz-Foster, supra, 597 A.2d at 930; United States v. Harrison, 149 U.S. App. D.C. 123, 124, 461 F.2d 1209, 1210 (1972). Here the wife sought an extension that would have preserved the custody status of her children, required the husband to pay regular child support, and ordered the husband not to telephone the wife and not to molest, assault or in any manner threaten or physically abuse the wife or her children. The proposed extension also required the husband to stay away from the wife's home, work place, and the children's schools. Only the latter directive would be fully rendered moot by the husband's incarceration and that would be so only if the sentences imposed in the criminal case assured that the husband remained in custody around-the-clock throughout the duration of any extended CPO. We are not persuaded that such necessarily would be the case.

For a variety of reasons, we cannot conclude with certainty that the husband would remain incarcerated through January 30, 1994 -- the expiration date for the requested extended CPO. The wife proffered to the trial Judge that the husband could be eligible, if certain events were to occur, for a furlough program that could result in some form of release as soon as one year after the service of sentence began. The husband was sentenced on December 30, 1992. Thus one year later -- December 1993 -- would be one month before the expiration date of the requested extended CPO. Indeed the twelve month waiting period might expire even earlier than December 1993, since appellant was held in lieu of bond for a period of time before he was sentenced, and he is entitled to credit on his sentence for the time served before he was sentenced. See D.C. Code § 24-431(a) (1989). Whether the credit for time served before sentencing would also shorten the twelve month period before appellant might be eligible for the furlough program is unknown; however, the uncertainty on that point should have put the trial Judge on notice of the possibility that the husband might be at large sooner than anticipated.

Furthermore, as the trial Judge himself recognized, appellant could be released to a half-way house as early as January 25, 1994 -- five days before the expiration of the requested extended CPO. See supra note 4. Whether appellant would in fact be paroled when he was first eligible, and whether, if paroled, he would be placed in a half-way house at the earliest possible date, is far from certain. The possibility of this occurrence, however, cannot be ignored. Finally, appellant is incarcerated at a nearby facility and if he were to escape he would likely be able to locate the wife and their children if he wished to do so. A CPO, of course, does not guarantee protection under those circumstances; however, ...


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