Andrew Mayer v. Veronica Boord ( 2014 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2014-122
DECEMBER TERM, 2014
Andrew T. Mayer } APPEALED FROM:
}
} Superior Court, Addison Unit,
v. } Civil Division
}
}
Veronica E. Boord } DOCKET NO. 37-10-13 Ansa
Trial Judges: Linda Levitt &
Robert A. Mello
In the above-entitled cause, the Clerk will enter:
Defendant appeals a civil stalking order. We affirm.
Plaintiff requested a protection order under the civil stalking statute against defendant.
Plaintiff alleged that defendant had repeatedly called him and left voice mail messages, as many
as sixty-three in one day. Plaintiff also alleged that defendant sent him numerous faxes, emails
and letters. He stated that the content was disturbing and he felt threatened. The complaint and
hearing notice were served on defendant. Defendant, who lives out of state, did not appear at the
final hearing. The court granted the order in November 2013, finding that defendant stalked
plaintiff by engaging in threatening behavior. Defendant was not successfully served with the
final order until February 2014. That same month, defendant filed a motion to vacate the order.
The court held a hearing on the matter. Defendant appeared by telephone at the hearing and
requested that the order be vacated, alleging that plaintiff had a different name from that in the
complaint, was a vulnerable adult, and was being abused by women hiding in his home. The
court denied the motion to vacate. Defendant subsequently moved for reconsideration, asking
that plaintiff be required to produce his driver’s license as identification. The court denied the
motion, and defendant appealed.
A person may request an order against stalking by submitting a complaint and supporting
affidavit. 12 V.S.A. § 5133(a); V.R.C.P. 80.10(b). An order may be granted only after notice to
defendant and a hearing, and the plaintiff has the burden of proving by preponderance of the
evidence that the defendant stalked the plaintiff. 12 V.S.A. § 5133(b).
Defendant first argues that it was error to grant the order in this case because plaintiff did
not produce sufficient evidence to demonstrate stalking. Under the statute, stalking occurs when
a person engages “in a course of conduct which consists of . . . threatening behavior directed at a
specific person . . . , and [the conduct] (A) serves no legitimate purpose; and (B) would cause a
reasonable person to fear for his or her safety or would cause a reasonable person substantial
emotional distress.” Id. § 5131. Defendant has not ordered a transcript of the merits hearing that
preceded issuance of the final stalking order. Without a transcript, this Court must assume that
the court’s findings are supported by sufficient evidence. V.R.A.P. 10(b)(1) (“By failing to order
a transcript, the appellant waives the right to raise any issue for which a transcript is necessary
for informed appellate review.”).
In any event, because defendant’s appeal is from denial of a motion to vacate the order
and not a direct appeal from the protection order itself, it is more akin to a motion for relief from
judgment under Rule of Civil Procedure 60(b). 12 V.S.A. § 5136(a) (stating that rules of civil
procedure apply to court proceedings under civil stalking statute); accord V.R.C.P. 80.10(a); see
Donley v. Donley, 165 Vt. 619, 619-20 (1996) (mem.) (explaining that where defendant seeks to
set aside final abuse order, he must satisfy Rule 60(b)). The trial court has discretion in deciding
whether to grant relief under Rule 60(b), and this Court will affirm unless that discretion was
withheld or abused. Richwagen v. Richwagen, 153 Vt. 1, 3-4 (1989).
Defendant asserts the protection order should be vacated because plaintiff did not
produce a driver’s license identification and did not swear to filings, essentially that the order
was based on fraud or misrepresentation. See V.R.C.P. 60(b)(3) (setting forth that party may
move for relief from judgment based on fraud or misrepresentation). Defendant has not shown
that the court abused its discretion in denying her motion to vacate on this basis. As to the need
for identification, plaintiff’s presence at the hearing and testimony under oath was sufficient to
establish his identity. Plaintiff was under no obligation to produce photographic identification.
Because defendant has not ordered a transcript of the merits hearing, there is no record of the
testimony given by plaintiff and this Court must assume that plaintiff was properly sworn in at
that hearing. See V.R.A.P. 10(b)(1). Further, defendant has failed to show that the pleadings
were improper. Plaintiff’s request for a protection order was accompanied by an affidavit as
required by the statute, 12 V.S.A. § 5133(a), and the affidavit is properly signed by both plaintiff
and a notary. The court did not abuse its discretion in denying defendant’s motion to vacate the
protection order.
Affirmed.
BY THE COURT:
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
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