Carome v. Carome

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-FM-0854
ASLI CAROME, APPELLANT,
v.
PATRICK J. CAROME, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CPO-4759-17)
(Hon. Maribeth Raffinan, Trial Judge)
(Argued November 17, 2020 Decided October 28, 2021)
Ayesha N. Khan for appellant.
Patrick J. Carome, pro se.
John A. Bourgeois and Steven M. Klepper were on the brief for Network for
Victim Recovery of DC et al., amici curiae in support of appellant.
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and MCLEESE,
Associate Judges.
Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.
Dissenting opinion by Associate Judge GLICKMAN at page 19.
2
BLACKBURNE-RIGSBY, Chief Judge: For a second time, Asli Carome appeals
the denial of her petition for a civil protection order (CPO) against her then-husband
Patrick Carome. Ms. Carome claimed that on October 10, 2017, Mr. Carome
assaulted her and destroyed her personal property, thereby committing criminal
offenses against her that justified the issuance of a CPO under the Intrafamily
Offenses Act (“the Act”). D.C. Code §§ 16-1001-1006 (2012 Repl., previously
amended in 2013). After the trial court declined to issue a CPO, Ms. Carome
appealed to this court, Carome v. Carome, No. 18-FM-368, Mem. Op. & J. (D.C.
Apr. 4, 2019) (hereinafter Carome I), which then remanded the case back to the trial
court. Specifically, this court “authorized [the trial court] to conduct further
proceedings to determine whether there ha[d] been any new developments since the
last hearing that would [have] affect[ed] Ms. Carome’s petition.” The trial court
then declined to take additional evidence and again denied Ms. Carome’s request for
a CPO. Ms. Carome filed a timely appeal. Prior to oral arguments in the instant
case, this court decided Ramirez v. Salvattera, which clarified the “good cause”
standard used when considering the extension of a CPO. 232 A.3d 169 (D.C. 2020).
Although the facts in Ramirez differ significantly in some respects, we believe that
Ramirez requires evidence of prior relevant acts to be considered by the trial court
in making the threshold determination of whether there is good cause to believe that
an intrafamily offense occurred. We hold that Ramirez applies in instances of initial
3
CPO issuances, and we therefore remand this case to the trial court for further
proceedings consistent with the principles outlined in Ramirez and explained below.
I. Factual & Procedural Background
Ms. Carome’s petition for a CPO followed an incident that occurred at the
Caromes’ residence on the morning of October 10, 2017. According to
Ms. Carome’s testimony, on that morning she entered Mr. Carome’s bathroom to
obtain his explanation for where he had been the previous evening. He refused to
answer and ordered her to get out. Ms. Carome claimed that as she turned to leave,
she accidentally knocked one of her husband’s toiletry items off a countertop. She
testified that Mr. Carome then pushed her in the back as she exited his bathroom.
He allegedly followed her into her bathroom and pushed her a second time, causing
her to hit her head against the wall. Next, Mr. Carome threw her toiletries and other
items off her bathroom counter to the floor, causing her porcelain toothbrush holder
to shatter on impact.
Mr. Carome testified to a different version of events. After Ms. Carome
entered his bathroom, he testified, she intentionally swept an entire tray of his
toiletries to the floor. To corroborate this claim, Mr. Carome introduced in evidence
4
photographs taken by the police that morning showing his toiletries and toiletry tray
strewn on his bathroom floor. In retaliation, he immediately walked into his wife’s
bathroom ahead of her and swept her toiletry items off her sink, shattering her
toothbrush holder. Mr. Carome denied pushing or otherwise assaulting Ms. Carome
at any time; rather, he testified, she pushed him while they were in her bathroom,
causing him to injure his back against the windowsill. Ms. Carome denied pushing
Mr. Carome in her bathroom.
Ms. Carome called the police and reported what happened to the two officers
who responded. Mr. Carome denied pushing Ms. Carome and showed the officers
the toiletries she allegedly knocked on his bathroom floor and the injury she
allegedly caused to his back. The police took Mr. Carome to the hospital for
assessment and treatment of the injury. The police placed both Ms. Carome and Mr.
Carome under arrest, although neither of them was charged. Two days later, on
October 12, 2017, Ms. Carome filed a petition for a CPO against Mr. Carome and
obtained a temporary protective order (TPO).
At the hearing on her CPO petition, Ms. Carome described three prior
incidents in which her husband allegedly destroyed her property or assaulted her.
On one night in 2013, Mr. Carome entered her home office, while she was nearby,
5
and threw her binders, papers, and other personal items over the balcony onto the
front lawn. Ms. Carome testified that her books and papers were torn after being
thrown on the front lawn, and her son, who observed the incident, also testified that
her personal papers, books, and other items were damaged by the fall.
In November 2016, Ms. Carome testified, her husband destroyed her bonsai
plants by putting them down the kitchen garbage disposal while she was upstairs
(“the bonsai incident”). And the following month, when she was standing in the
hallway and blocking his path, Mr. Carome put his two hands on her shoulders to
push her to the side in order to “clear[] the way . . . for him to continue walking down
the hallway.”
Mr. Carome denied the latter “pushing” incident but admitted that he threw a
single item of his wife’s property, either a paperweight or a book, off the balcony on
one occasion and destroyed her bonsai plants on another. He acknowledged that this
“was a way of expressing real anger and frustration at [Ms. Carome].”
After hearing all the testimony and reviewing all the exhibits, the trial court
orally denied Ms. Carome’s petition for a CPO. Noting that her accounts of the
October 10, 2017, incident were inconsistent as they related to “when she was
6
pushed, the number of times she was pushed and the sequence of events that took
place,” the judge found her testimony about an assault and the destruction of her
property to be “unreliable and untrustworthy as to what happened and how things
happened that early morning.” Moreover, the judge found Ms. Carome’s
explanations for her different stories to be unpersuasive. Stating that there was
“nothing to corroborate Ms. Carome’s testimony” regarding the alleged offenses on
October 10, the judge concluded that Ms. Carome “has not shown that there is good
cause to believe . . . an intrafamily offense was committed” and denied her request
for a CPO.
After a timely appeal, this court issued Carome I, which vacated the trial
court’s decision and remanded for further proceedings. We found that the trial court
erred when it failed to address Ms. Carome’s claim of destruction of property, given
that Mr. Carome admitted to breaking Ms. Carome’s porcelain toothbrush holder.
We also found that the trial court failed to consider whether a CPO was appropriate
based on the destruction of property claim. We therefore “vacate[d] the decision
denying Ms. Carome relief and remand[ed] for the trial court to make additional
findings of fact and conclusions of law regarding the alleged malicious destruction
of property offense and prior similar conduct by Mr. Carome.” Carome I, at 7. In
doing so, we “authorized [the trial court] to conduct further proceedings to determine
7
whether there ha[d] been any new developments since the last hearing that would
affect Ms. Carome’s petition.” Id.The trial court held a status hearing in this matter on August 8, 2019, to hear
arguments from the parties regarding whether there was any need for further
evidentiary proceedings. At the status hearing, Ms. Carome’s counsel pointed to
Mr. Carome’s pattern of prior behavior, specifically mentioning the bonsai incident
and the incident in which Mr. Carome threw Ms. Carome’s belongings off a balcony.
Ms. Carome’s counsel also asked the court to take additional evidence because that
same “pattern of conduct” had continued after October 10, 2017. But when he tried
to describe the various post-October 10 incidents, the court instructed counsel only
to list the “categories of events” “without necessarily giving me all the specifics.”
On August 19, 2019, the trial court issued a written order declining to take
additional evidence and again denying Ms. Carome’s request for a CPO. The court
credited Mr. Carome’s testimony that he did not push Ms. Carome on October 10,
2017, and that he had never pushed Ms. Carome in the past, including in December
2016. The trial court acknowledged that malicious destruction of property may form
the basis for a CPO, but held that Ms. Carome had not demonstrated that Mr. Carome
committed that crime on October 10, 2017, because she had not shown that Mr.
8
Carome acted without mitigation, that is, without “adequate provocation” of the kind
that “would cause an ordinary, reasonable person to lose his or her self-control.”
(citing 1 Criminal Jury Instructions for DC Instruction 5.400 (2020)).
On appeal, Ms. Carome notes that the trial court’s one-sentence treatment of
the December 2016 incident was presented without any rationale and implicitly
discounted the testimony of Ms. Carome’s son, who allegedly witnessed the event.
As such, Ms. Carome argues that the trial court erred by failing to “consider all
relevant factors and not rely on any improper factors.” J.O. v. O.E., 100 A.3d 478,
481 (D.C. 2014).
The trial court made no mention of the earlier incidents of property
destruction, including the November 2016 bonsai incident that Mr. Carome admitted
to and that had taken place just one month before the December 2016 incident that
the trial court addressed, or the 2013 incident in which, as Mr. Carome conceded, he
threw at least one of Ms. Carome’s personal items off a balcony. The trial court also
concluded that there was no reason to take additional evidence regarding events that
took place after October 10, 2017, because any new developments between the
Caromes would not impact the court’s determination that Mr. Carome did not
9
commit any of the criminal offenses alleged in Ms. Carome’s petition. This appeal
followed.
II.
On appeal, Ms. Carome argues that the trial court erred by failing to consider
all events that predated and postdated October 10, 2017. Specifically, Ms. Carome
puts forth the arguments that (1) these incidents can help contextualize the October
10 event as part of a pattern of abuse; and (2) that these incidents should be
considered on their own as qualifying intrafamily offenses sufficient to grant a CPO.
The Act, D.C. Code §§ 16-1001-06, was passed by Congress in 1970 in order
to create a civil mechanism for addressing violence within families — an
“imaginative and progressive” system that was designed to promote “prevention and
treatment” over punishment. United States v. Harrison, 461 F.2d 1209, 1210-11 &
n.2 (D.C. Cir. 1972) (citations omitted). In giving the courts of the District of
Columbia “a wider range of dispositional powers than criminal courts,” including
the power to issue CPOs that enjoin future actions and provide for counseling and
mental health treatment, id., the Act was designed both to “protect victims of family
abuse from acts and threats of violence,” Cruz-Foster v. Foster, 597 A.2d 927, 929
10
(D.C. 1991), and to “effect rehabilitation rather than retribution” or “punish[ment]”
of civil offenders. Harrison, 461 F.2d at 1210-11. As such, we have held that the
Act should be liberally construed in furtherance of its remedial purposes. Id. at 1210;
Cruz-Foster, 597 A.2d at 929.
The Act seeks to prevent and remediate particular criminal offenses:
intrafamily, interpersonal, and intimate partner violence, as well as stalking, sexual
assault, and sexual abuse. D.C. Code §§ 16-1001(6)-(9), (12), -1005(c). To this end,
it provides that a trial court “may issue” a CPO that is effective for “up to one year,”
if it “finds that there is good cause to believe the respondent has committed or
threatened to commit a criminal offense against the petitioner . . .” id. § 16-1005(c),
(d). The CPO may include a range of remedial provisions, including protective and
rehabilitative measures, both mandatory and prohibitory, applicable to the petitioner
and the respondent, as appropriate. § 16-1005(c)(1)-(12). Consistent with the
standards generally applicable to civil cases, a finding of good cause to issue a CPO
must be supported by a preponderance of the evidence, and it is the petitioner’s
burden to put forth this evidence. See J.O., 100 A.3d at 481; Cruz-Foster, 597 A.2d
at 930-31. The issuance of a CPO is within the broad discretion of the trial court,
and this court will reverse the trial court’s decision only where the trial court has
abused its discretion. Maldonado v. Maldonado, 631 A.2d 40, 42 (D.C. 1993); see
11
Robinson v. Robinson, 886 A.2d 78, 86 (D.C. 2005); Cruz-Foster, 597 A.2d at
931-32. A trial court abuses its discretion when it rests its conclusions on incorrect
legal standards. In re J.D.C., 594 A.2d 70, 75 (D.C. 1991).
In July 2020, after the parties in this case filed their briefs, we issued an
opinion in Ramirez v. Salvaterra, 232 A.3d 169 (D.C. 2020), which clarified and
elaborated upon the legal standard, as articulated in our precedent, for finding “good
cause” with respect to extending a CPO. Id. at 179. There, an alleged victim of
sexual abuse sought a third extension of a CPO against the alleged perpetrator, who
had lived in the same apartment building. Id. at 174. Although the trial court granted
the first two extensions, it concluded there was no good cause to extend the CPO for
a third year, instead extending it for only three months to give the victim time to
make any necessary arrangements. 1 Id. at 173.
1
The court found that there was no cognizable danger of a recurrent violation
because the parties had no history of violence or harassment before the initial
incident that occurred four and half years prior. Id. at 178. Furthermore, the court
found that “no incidents occurred” while the parties were living in the same building,
Mr. Salvattera had not targeted or harassed Ms. Ramirez in any way since the first
extension, and [Mr. Salvattera] had not contacted Ms. Ramirez since. Id. Although
the trial judge credited Ms. Ramirez’s testimony that she was “terrified” of Mr.
Salvattera, she stated that “this does not provide evidence that [Mr. Salvattera] has
committed or is likely to commit additional abuse against her; it only indicates that
[Ms. Ramirez] continues to be affected by past abuse.” Id.
12In Ramirez, we held that an extension of a CPO for “good cause” means good
cause to believe that there is a cognizable danger of a recurrent violation. Id. at 183.
We then instructed the trial court to take into account the entire mosaic of evidence
related to the case, which we reiterated encompasses the full history of the parties’
relationship and interactions, both before and after the original CPO was issued. Id.
at 185. From the Act and case law we distilled the following principles pertaining
to the “good cause” standard:
In other words, the court should examine evidence of what
occurred before the original CPO was issued, the nature of
the criminal offense that served as the basis for the CPO,
and what has occurred since the original CPO was issued
and any subsequent extensions were granted, as the case
may be.
…
In sum, in considering a motion to extend a CPO, if the
trial court determines, based on the entire mosaic and
consistent with considerations discussed above, that the
petitioner has demonstrated by a preponderance of the
evidence that there is a cognizable danger that, in the
absence of an extension of the CPO, the respondent will
commit or threaten to commit a criminal offense against
the petitioner in the coming year, good cause exists and it
“may” extend the CPO. D.C. Code § 16-1005(d). If the
trial court does not so determine, good cause does not exist
and it may not extend the CPO.
13
Id. at 184, 187. 2
Here, we are confronted with the granting of a CPO in the first instance. We
must therefore determine if Ramirez’s requirement — that mosaic evidence be
considered in the threshold determination of whether there is a cognizable danger of
a recurrent criminal offense — applies to consideration of an initial petition for a
CPO. “We have held that the same procedural features apply to extensions of CPOs
that apply to the initial issuance of CPOs,” id. at 180, and that courts “may not read
into the Act limitations or restrictions which it does not contain.” Richardson v.
Easterling, 878 A.2d 1212, 1217 (D.C. 2005); see Pepper v. United States, 562 U.S.
476, 490-91 (2011) (declining to read federal statute to insert temporal limitations
on evidence that is relevant to trial court’s decision on remand following vacatur).
Consistent with the Act’s broad remedial purposes, when a trial court revisits
a CPO petition on remand based on an error in the original ruling, the trial court’s
renewed inquiry is not limited to whether its initial decision was correct based on
the original record. Rather, as we have stated in a variety of procedural
2
On April 27, 2021, The District of Columbia passed the Intrafamily Offenses
and Anti-Stalking Orders Amendment Act of 2020, D.C. Act 23-275, 68 D.C. Reg.
1086 (Apr. 27, 2021), which amends certain provisions contained in the Act. For
the purposes of this opinion, we refer to the Act and its provisions as they were at
the time of the trial court’s ruling. In addition, the parties have not requested we
apply the amended provisions to this appeal.
14
circumstances, the trial court may supplement the original record by considering
evidence of any relevant developments that occurred in the time between the trial
court’s initial ruling on the CPO petition and this court’s remand decision. See J.O.,
100 A.3d at 483 (authorizing trial court on remand to “reopen the hearing to take
additional evidence” on petition for CPO); Richardson, 878 A.2d at 1218 n.9(reinstating dismissed CPO petition and instructing trial court to consider whether
changed circumstances “affect the appropriate disposition of the case on remand”);
Robinson v. Robinson, 886 A.2d at 87 (ordering remand following denial of petition
to amend CPO so that the trial court could “re-evaluate the situation of the parties,
considering the entire mosaic of facts before it (including any developments since
the entry of the last order)”); cf. Cruz-Foster, 597 A.2d at 932 (“Since any CPO
which may be entered will look to the future, the judge is of course authorized to
conduct further proceedings to determine whether there have been any developments
since she last heard the case which would affect [petitioner’s] right to relief.”). Thus,
even where a court considers an initial petition for a CPO, the probative nature of
mosaic evidence is well established.
Considering Ramirez in this context, reading the Act in a way that would allow
trial courts to ignore probative evidence regarding an alleged offense would be
counter to the goals of the Act. As we recognized in Carome I, there is support for
15
the proposition that “where an act of destruction of property potentially serves as a
precursor to, threat or instigator of, or substitution for violence, or otherwise
comprises part of a violent or intimidating pattern of domination and control, the
issuance of a CPO would properly serve the [Act’s] broad goals.” Carome I, at 6
(quoting Small v. Cannady, No. 2013 CPO 2174, 2014 D.C. Super. LEXIS 4, at *15
(D.C. Super. Ct. Mar. 26, 2014)). Where a respondent admits to destroying the
petitioner’s property, but raises sufficient evidence of mitigating circumstances, a
trial court defies the Act’s text and purpose if it imposes artificial temporal
restrictions on evidence that may rebut that defense, such as evidence indicating that
the singular act was a part of an abusive pattern of intimidation or control. 3 Simply
put, the Act’s purpose is to provide protection if protection is needed. It would not
make sense for the trial court to base its decision on a portion of the record from
some earlier point instead of on all current and available information that may bear
on the decision to grant a CPO while the trial court is making that determination on
remand.
3
See Deborah Epstein & Lisa A. Goodman, Discounting Women: Doubting
Domestic Violence Survivors’ Credibility and Dismissing their Experiences, 167 U.
PENN. L. REV. 399, 417–18 (2019) (“Psychologists explain that in many abusive
relationships victims are subjected to their partners’ coercive control through a wide
variety of psychological tactics, including, for example, “fear and intimidation[,] . . .
emotional abuse, destruction of property . . .”).
16
Accordingly, the trial court must consider the entire mosaic of evidence when
determining the threshold question of whether the petitioner has proven the
allegation that the respondent committed or threatened to commit an intrafamily
offense. This means that the court should consider probative evidence of events
predating the events that precipitated a CPO petition, and, when possible, the events
of the intervening months or years that may shed new light on the issue of
provocation. This scope best fulfills the “imaginative and progressive” purposes of
the Act. Ramirez, 232 A.3d at 179.
III.
Having clarified the applicability of mosaic evidence to the initial issuance of
a CPO, we now vacate and remand so that the trial court may reconsider
Ms. Carome’s petition in light of this judgment and in light of the mosaic evidence
proffered. In its most recent order, the trial court found that Ms. Carome had not
demonstrated that Mr. Carome acted without provocation. See Brown, 584 A.2d at
533-34 (“[P]rovocation is a proper defense to the charge of malicious destruction of
property.”). The trial court, on remand in Carome I, declined to hear any new
evidence that may have been probative of the malicious destruction of property and
provocation issues.
17
We do not second guess the credibility findings that led the trial court to its
conclusion. Karim v. Gunn, 999 A.2d 888, 890 (D.C. 2010). However, as far as we
can tell, the court relied solely on such findings. 4 As discussed above, the court
should consider the entire mosaic of the evidence when determining the threshold
question of whether an intrafamily offense has occurred. Here, that includes any
probative evidence of prior events that could help prove the lack of provocation.
Brown v. United States, 584 A.2d 537, 539-43 (D.C. 1990). Evidence of similar acts
without such provocation may sufficiently rebut such a claim that the respondent
truly “act[ed] on impulse” or that the petitioner actually caused respondent to act.
See id., 584 A.2d at 542 n.17 (“What is sufficient provocation . . . must vary with
the myriad shifting circumstances of men’s temper and quarrels. It is . . . therefore
to be considered in view of all circumstances.”); cf. Harrison v. United States, 30
A.3d 169, 176-77 (D.C. 2011) (“Evidence of prior bad acts may be admissible,
though, if offered for a “substantial, legitimate purpose,” including “to establish that
the defendant had a motive to commit the charged offense.”). Here, relevant acts
4
The trial court did not mention the prior incidents, and as we have held, a
trial court abuses its discretion when it neglects to address “relevant factors” and
provide “substantial reasoning.” Carome I, at 4 (citing Cruz-Foster, 597 A.2d at
930, and J.O., 100 A.3d at 481).
18
may include, but are not limited to, the bonsai incident and the balcony-throwing
incident. 5
For the foregoing reasons, we vacate the trial court’s decision denying Ms.
Carome relief and remand for the trial court to make additional findings of fact and
conclusions of law, in accordance with Ramirez and with this opinion, regarding the
entire mosaic of evidence pertaining to the alleged malicious destruction of property
offense. 6
5
We respectfully disagree with the dissent with respect to both the bonsai and
balcony-throwing incident. These past incidents are relevant in assessing the entire
mosaic related to the malicious destruction of property allegation, because “an act
of destruction of property potentially serves as a precursor to, threat or instigator of,
or substitution for violence, or otherwise comprises part of a violent or intimidating
pattern of domination and control.” Small v. Cannady, No. 2013 CPO 2174, et al.,
2014 D.C. Super. LEXIS 4, at *15 (D.C. Super. Ct. Mar. 26, 2014) (cited by Carome
I, at 6). In Carome I, we determined that these two incidents had “scant bearing” on
whether Mr. Carome committed an intrafamily offense on October 10,
2017. However, the trial judge had not yet considered if these past acts were
probative in assessing the alleged destruction of property as a basis for issuing a
CPO. Our decision in Carome I left open “for the trial court to make additional
findings of fact and conclusions of law regarding the alleged malicious destruction
of property offense and prior similar conduct by Mr. Carome.” Carome I, at 7
(emphasis added).
6
Ms. Carome alleges that Judge Raffinan’s relationship with Mr. Carome’s
counsel raised a potential appearance of bias and argues that, on remand, the case
should be reassigned to a new judge. In support of her argument, Ms. Carome
provides evidence of independent research not in the factual record on appeal.
Accordingly, we decline to offer any decision regarding reassignment on remand,
but we leave the issue open to be raised on remand.
19
So ordered.
GLICKMAN, Associate Judge, dissenting: I regret I am unable to join the
majority opinion, for I agree with much of it. I wholeheartedly agree, for example,
that the Intrafamily Offenses Act should be construed liberally to effectuate its
remedial purposes; that a trial court should consider the “entire mosaic” of the
parties’ relationship in deciding whether there is good cause to grant or extend a civil
protection order; and that criminal destruction of property to perpetuate an abusive
relationship is an offense that can justify the issuance of a CPO. For two reasons,
however, I am compelled to dissent.
First, I fear that, in discussing Ramirez v. Salvattera, 1 the majority conveys an
erroneous view of the current state of the law. The majority states that Ramirez
“clarified” the “legal standard” with its holding that a court cannot find “good cause”
1
232 A.3d 169 (D.C. 2020), superseded by statute, the Intrafamily Offenses
and Anti-Stalking Orders Amendment Act of 2020 (hereafter, the “Amendment
Act”), D.C. Act 23-275, 68 D.C. Reg. 1086 (Apr. 27, 2021).
20
to extend a CPO unless it finds “good cause to believe that there is a cognizable
danger of a recurrent violation,” i.e., the threat of another criminal offense against
the petitioner. Ante at 11–12 (citing Ramirez, 232 A.3d at 183). The majority
opinion implies this is still the law.
What the opinion fails to mention is that the Amendment Act overturned
Ramirez’s holding by adding subsection (d-1) to D.C. Code § 16-1005 (2021
Supp.). 2 That subsection explicitly provides that “[o]ther compelling circumstances
2
In its entirety, new subsection (d-1) reads as follows:
(1) A judicial officer may, upon motion of any party to the
original proceeding, extend, modify, or vacate an order for good
cause shown.
(2) Except as provided in paragraph (3) of this subsection, a
finding that an order has been violated is not necessary for a
finding of good cause to modify or extend an order.
(3) For each request for an extension, the judicial officer may
extend an order for the period of time the judicial officer deems
appropriate, but before granting any single extension longer
than 2 years, the judicial officer shall find:
(A) That the respondent has violated the civil
protection order;
(B) That prior to obtaining the order being
extended, the petitioner had previously obtained a
civil protection order or foreign protection order as
that term is defined in subchapter IV of this chapter
against the same respondent; or
21
related to the petitioner’s safety or welfare” also may constitute “good cause” to
extend a CPO. 3 The subsection further specifies that “a finding that an order has
been violated is not necessary for a finding of good cause to modify or extend an
order.” 4 These provisions effect a significant broadening of the narrow definition
of “good cause” adopted by Ramirez. There is no requirement in the amended
statute that a petitioner show a danger of a recurrent criminal violation to obtain an
extension of a CPO. The absence of such a requirement is telling, since the Council
was well aware of Ramirez’s holding when it amended the statute and consciously
chose not to incorporate it. 5
(C) Other compelling circumstances related to the
petitioner’s safety or welfare.
D.C. Code § 16-1005.
3
Id. § 16-1005(d-1)(3)(C). Cf. Ramirez, 232 A.3 at 197 (Glickman, J.,
dissenting) (arguing that “once a petitioner has satisfied the standard for the issuance
of a CPO, she does not need to show a danger that the respondent will commit
another crime against her to be entitled to an extension of the CPO based on a
showing that its remedial measures are still warranted to protect her from other
harms attributable to the respondent and to ensure her wellbeing”).
4
D.C. Code § 16-1005(d-1)(2).
5
See Council of the District of Columbia, Committee on the Judiciary &
Public Safety, Report on Bill 23-0181, the “Intrafamily Offenses and Anti-Stalking
Orders Amendment Act of 2020” at 7 (quoting Ramirez’s “good cause” standard in
its background summary of what was then the “current” law that the new Act would
amend).
22
The majority opinion also states that a trial court is empowered to issue a CPO
that is effective for “up to one year,” quoting former D.C. Code §16-1005(d). Ante
at 10. That too has been changed. As amended, subsection (d) now states, “A civil
protection order issued pursuant to this section shall remain in effect for an initial
period not to exceed 2 years”; and new subsection (d-1)(3) provides that extensions
may even be “longer than 2 years.”
My second reason for not joining the majority opinion is that I am not
persuaded the trial judge abused her discretion or otherwise erred in the proceedings
on remand. When this case was first before this court in 2019, we found no error in
the judge’s rejection of Ms. Carome’s allegation that Mr. Carome assaulted her on
October 10, 2017. We remanded only for the judge to consider further whether Ms.
Carome should be granted a CPO based on Mr. Carome’s destruction of her
porcelain toothbrush holder on that date. We explained that “the judge’s findings
fail to discuss this admitted conduct or explain why it did not establish the
commission of an intrafamily offense [i.e., malicious destruction of property] and
(considered in conjunction with the ‘entire mosaic,’ including any past destructive
acts by Mr. Carome) justify issuance of a CPO.” 6
6
Carome v. Carome, No. 18-FM-368 (Apr. 4, 2019) at 6 (hereinafter, Carome
I).
23
The majority opinion now faults the trial judge for not explicitly considering
Mr. Carome’s two “past destructive acts” in reaching her threshold determination on
remand that his destruction of his wife’s toothbrush holder on October 17, 2017, did
not amount to malicious destruction of her property. As the majority concedes, the
judge soundly based that determination on her assessment of Ms. Carome’s lack of
credibility, an assessment we cannot “second guess.” 7 Ante at 17. The evidence
before the judge unquestionably supported her finding that Ms. Carome provoked
her husband and that he responded proportionately, hence not maliciously. In
Carome I, this court perceived that Mr. Carome’s destructive acts one to four years
earlier had “scant bearing” on whether he committed an intrafamily offense on
October 10, 2017; and we held that the trial judge did not abuse her discretion by
not discussing those past acts in determining the answer to that threshold question.
We explained:
We are not persuaded by Ms. Carome’s argument that the
judge’s credibility determination was flawed by her failure
to discuss Mr. Carome’s history of abusive behavior prior
to the October 10 incident. While the trial judge should
consider the “entire mosaic” of the parties’ relationship in
determining the ultimate question of whether a petitioner
7
See, e.g., Karim v. Gunn, 999 A.2d 888, 890 (D.C. 2010) (“[W]e are in no
position to second-guess the judge’s . . . credibility findings.”); Walker v. United
States, 167 A.3d 1191, 1210 (D.C. 2017) (“As a rule, a trial judge’s witness
credibility determinations are virtually unreviewable, and we will not redetermine
the credibility of witnesses where the trial court had the opportunity to observe their
demeanor and form a conclusion.” (cleaned up)).
24
has shown good cause for the issuance of a CPO by a
preponderance of the evidence, that does not necessarily
mean the history is probative of the threshold question —
whether the petitioner has proven her allegation that the
respondent committed or threatened to commit an
intrafamily offense against her. Mr. Carome’s actions on
a few occasions one to four years earlier have scant
bearing on what he did on October 10, 2017. We are
satisfied that the judge did not abuse her discretion in not
explicitly discussing the prior history of the parties in
determining whether an intrafamily offense occurred on
October 10. 8
This is the law of the case. I do not think the trial judge can be faulted for adhering
to it on remand. 9 Nor do I find it plausible that further consideration of Mr.
Carome’s prior acts reasonably might change the judge’s determination that Ms.
Carome did not carry her burden of proving he committed an intrafamily offense
against her on October 10, 2017.
The majority opinion also faults the trial judge for declining to take evidence
on remand of acts Mr. Carome allegedly committed after October 10, 2017. The
judge did not do so because she concluded that those acts “would not impact the
8
Carome I at 5.
9
See also, e.g., Willis v. United States, 692 A.2d 1380, 1382 (D.C. 1997)
(“We reiterate the proposition that the trial court must follow the mandate that issues
from this court on remand. ‘[T]he mandate of an appeals court precludes the [trial]
court on remand from reconsidering matters which were either expressly or
implicitly disposed of upon appeal.’” (quoting United States v. Miller, 822 F.2d 828,
832 (9th Cir. 1987))).
25
Court’s determination that Mr. Carome did not commit any of the criminal offenses
alleged in [Ms. Carome’s] petition.” In Carome I, this court left it to the trial judge’s
discretion whether to “conduct further proceedings to determine whether there have
been any new developments since the last hearing that would affect Ms. Carome’s
petition.” 10 Taking that authorization seriously, the judge held a status hearing on
August 8, 2019, at which she acknowledged the need to consider the entire relevant
“mosaic” and pressed Ms. Carome’s counsel on whether there were new
developments of relevance. 11
In the colloquy that followed, Ms. Carome’s counsel expressed the view that
the evidence previously before the court had already established that Mr. Carome
committed an intrafamily offense on October 10, 2017 — what counsel called the
10
Carome I at 7.
11
“What I’m curious about,” the judge told counsel, “is what events, or
information after the trial that you are asking me to consider, but, I think,
importantly, whether I should consider anything that happened after the trial. And
so, without necessarily giving me all the specifics of what you may be asking me to
consider, . . . is if you could give me some idea of sort of categories of information,
or events that you think you would be seeking to introduce.” The judge reiterated
that “I’m going to give the parties an opportunity if . . . there should be new evidence,
and new information, and new testimony presented to hear you all on that.” “I
understand the Court of Appeals decision what they’re asking me to do,” the judge
added, “as it relates to the destruction of property count. It’s the question of whether
or not these [subsequent] incidents that are being raised by the petitioner need to be
part of the new consideration, right.”
26
“first” issue — and that the subsequent events were not relevant to that issue, but to
the “second” issue of whether there was good cause for a CPO to issue. When Ms.
Carome’s counsel then proffered subsequent misconduct by Mr. Carome, it turned
out that none of it involved destruction of property or what the majority opinion calls
“[e]vidence of similar acts without . . . provocation.” Ante at 17. Ms. Carome’s
counsel did not contend that any subsequent behavior by Mr. Carome was relevant
to whether he committed malicious destruction of property on October 10, 2017. 12
On this record, I think it was reasonable and within the trial judge’s discretion
to conclude an evidentiary hearing was unnecessary because Mr. Carome’s alleged
acts after October 10, 2017, had no bearing on whether he maliciously destroyed Ms.
Carome’s toothbrush holder on that date. In my view the alleged actions would not
have “shed [any] new light on the issue of provocation.” Ante at 16. And given this
record, I cannot agree that the trial judge “impose[d] artificial temporal restrictions
12
As subsequent misconduct by Mr. Carome, counsel proffered only the
following: (1) after the trial court initially denied Ms. Carome’s request for a CPO,
and Mr. Carome was under no obligation to stay away from her or their home, he
“began showing up at the marital residence where Ms. Carome was living,” allegedly
“invading her privacy,” until he “stopped coming to the house after the Court of
Appeals remanded the case”; (2) an “incident” in March 2018 led Ms. Carome to
file another CPO petition, which the Superior Court dismissed with prejudice — the
claim apparently being that Mr. Carome went to his home to recover his personal
property at a time when Ms. Carome was not there; and (3) in December 2018 Mr.
Carome allegedly kissed Ms. Carome’s college-age daughter against her will.
27
on evidence that [could have] rebut[ted] that defense,” ante at 15, or that the judge
“declined to hear any new evidence that may have been probative of the malicious
destruction of property and provocation issues.” Ante at 17.
For the foregoing reasons, I respectfully dissent.