Lisa-Marie Seger v. Karla Nason , 138 A.3d 1221 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 72
Docket: Pen-15-243
Submitted
On Briefs: April 21, 2016
Decided: May 17, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
LISA-MARIE SEGER
v.
KARLA NASON
GORMAN, J.
[¶1] Karla Nason appeals from an amended protection from abuse order
entered in the District Court (Bangor, Lucy, J.) on a complaint filed by Lisa-Marie
Seger. Nason argues that the court erred by (1) admitting, as excited utterances,
hearsay testimony offered by Seger; (2) finding that Seger’s child was entitled to a
protection from abuse order against Nason’s child; and (3) finding that Nason’s
child presents a credible threat to the physical safety of Seger’s child. Because we
conclude that the court’s “credible threat” finding was in error, we remand the case
to the trial court with the directive that it issue a second amended protection order
that does not include that finding.
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I. BACKGROUND
[¶2] On April 9, 2015, Seger, on behalf of her child, filed a complaint for
protection from abuse in the District Court (Bangor) against a neighbor, Nason, on
behalf of Nason’s child. In her complaint, Seger stated that she did not know if
Nason’s child had access to a firearm, but that the child had never used a firearm in
an intimidating, threatening or abusive way. She did not request that the child’s
access to firearms or weapons be limited in any way. The court (Campbell, J.)
entered a temporary protection from abuse order that did not prohibit the child
from possessing firearms or other dangerous weapons.
[¶3] Nason and her child were served with the temporary order, and
appeared, with counsel, at the final hearing. During that hearing, Seger was the
only witness. She testified that she was not present when the events giving rise to
the complaint occurred. Over Nason’s hearsay objection, the court (Lucy, J.)
permitted Seger to recount those events as described to her by her children,
determining that the children’s statements constituted excited utterances pursuant
to M.R. Evid. 803(2).
[¶4] At the conclusion of the hearing, the court announced its findings
concerning Nason’s child’s acts. Those announced findings—which did not
include a finding that the child presents a credible threat to Seger’s child—are all
supported by competent evidence in the record. See Walton v. Ireland,
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2014 ME 130, ¶ 22, 104 A.3d 883. The court entered a protection order and, in
response to Nason’s motion for reconsideration, stated that it was “also” finding
that the child presents a credible threat to the safety of Seger’s child. The court’s
amended final protection order included this finding, but it did not prohibit the
child from possessing a firearm or other dangerous weapon. Nason appealed from
the amended final order.
II. DISCUSSION
[¶5] After careful review of the record, we conclude that Nason’s arguments
regarding the court’s evidentiary rulings and the sufficiency of the evidence
supporting the protection order are not persuasive. See 19-A M.R.S. §§ 4005(1),
4006(1), 4007(1) (2015); Walton, 2014 ME 130, ¶ 12, 104 A.3d 883; Smith v.
Hawthorne, 2002 ME 149, ¶¶ 15-16, 804 A.2d 1133.
[¶6] Thus, we do not disturb the court’s determination that Seger was
entitled to a protection order, and we write only to address Nason’s argument that
the evidence is insufficient to support the finding that her child poses a
firearm-related “credible threat” to the safety of Seger’s child. This argument
requires that we review the factual finding for clear error, Walton, 2014 ME 130,
¶ 22, 104 A.3d 883, and also requires an interpretation of 19-A M.R.S. § 4007(1),
which we undertake de novo, L’Heureux v. Michaud, 2007 ME 149, ¶ 5,
938 A.2d 801.
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[¶7] Section 4007(1) grants a court the authority to enter a protection order
based on the grounds specified in 19-A M.R.S. § 4005(1). The statute also
provides: “The court may enter a finding that the defendant represents a credible
threat to the physical safety of the plaintiff or a minor child residing in the
plaintiff’s household.” 19-A M.R.S. § 4007(1). In Michaud, we held that a
credible threat finding cannot by itself give rise to the entry of a protection from
abuse order because the statutory credible threat provision “does not change the
preexisting and still-explicit requirement that a finding of abuse is necessary to the
issuance of a contested protective order.”1 2007 ME 149, ¶ 10, 938 A.2d 801.
[¶8] Reviewing the legislative history of section 4007, we concluded that
the credible threat language was included as part of a legislative amendment
“intended to bring Maine into compliance with federal firearms provisions.”
Id. ¶¶ 9-10. “[T]he credible threat language,” we held, “is to be used in protection
from abuse orders for the purpose of supporting a firearms prohibition provision in
an order based on [the grounds otherwise specified in the protection from abuse
statute].” Id. ¶ 10; see also 18 U.S.C.S. § 922(g)(8) (LEXIS through Pub. L.
No. 114-46) (criminalizing firearm possession by persons subject to certain
protection from abuse orders).
1
The protection from abuse statute has been amended several times since we decided L’Heureux v.
Michaud, 2007 ME 149, 938 A.2d 801, but the credible threat provision has not changed.
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[¶9] We now hold expressly that, even where sufficient evidence supports
entry of a protection order, the credible threat finding is to be reserved for those
instances in which the court finds that a specific risk related to firearms exists, and
the court intends to order that the defendant not possess a firearm or other
dangerous weapon. Here, there was no evidence to suggest that a prohibition on
the use of firearms was warranted. In fact, the court did not prohibit the possession
of firearms in its amended order. Under these circumstances, the court’s finding of
a credible threat was in error. We therefore remand the case for entry of a second
amended order that does not include the credible threat finding.
The entry is:
Remanded with instructions that the court issue a
second amended order that does not include the
credible threat finding.
On the briefs:
Eugene M. Sullivan Jr., Esq., Law Office of Joseph M.
Baldacci, Bangor, for appellant Karla Nason
Lisa-Marie Seger did not file a brief
Bangor District Court docket number PA-2015-188
FOR CLERK REFERENCE ONLY