Melissa L. Scheffler v. Raymond G. Harrington

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2020 VT 93No. 2020-102
Melissa L. Scheffler Supreme Court
On Appeal from
v. Superior Court, Bennington Unit,
Family Division
Raymond G. Harrington September Term, 2020
David A. Howard, J.
Melissa L. Scheffler, Pro Se, Bennington, Plaintiff-Appellee.
David G. Reid of David G. Reid, Attorney at Law, PLLC, Brattleboro, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. CARROLL, J. Defendant appeals the issuance of a relief-from-abuse order
requiring him to have no contact with and stay a hundred feet away from plaintiff (his sister), her
residence, and their mother’s home. The trial court issued the order because it concluded that
defendant stalked plaintiff, within the meaning of 12 V.S.A. § 5131, by driving by her home on
multiple occasions and honking his horn, which the court found constituted surveillance. On
appeal, defendant argues that his actions do not amount to surveillance because surveillance
requires “an intent to engage in a close watch or observation.” We agree, and reverse because,
based on the trial court’s findings, there is no evidence defendant was closely watching or
observing plaintiff.
¶ 2. The court’s findings of fact indicate the following. Plaintiff and defendant are
siblings. Due to childhood allegations of “possible abuse,” they did not have contact for
approximately twenty years. The parties, however, had “indirect contact” through their mother.
Around 2017 or 2018, their mother developed serious medical issues. She arranged a “truce”
where plaintiff and defendant agreed to keep their dispute “to the lowest key possible” so they
could cooperate for the mother’s health and benefit. For a period of time, plaintiff and defendant
communicated, “sometimes about pretty minor matters; sometimes, a little bit more involved.”
¶ 3. A day or two before the parties’ mother died, she executed a deed to plaintiff that
effectively removed the mother’s house from her estate. As one of the ten people named in his
mother’s will, defendant was upset about the house being removed because this would reduce the
amount he would inherit. Defendant sent plaintiff an email expressing his anger and concern about
the deed. In the email, defendant told plaintiff that he hired an attorney to fight the deed in probate
court and warned plaintiff that if she did not want the “estate eaten up,” she should come clean
because her “sneaky little ways of everything will be brought to the witness stand.” Defendant
filed an action in the probate court, which is still pending, challenging the deed. Plaintiff opposes
the probate action, arguing that nothing improper occurred. This ended the “truce” between
plaintiff and defendant.
¶ 4. During the late summer and fall of 2019, defendant, by his own admission, drove
by plaintiff’s house and honked, in short beeps, to show his annoyance at plaintiff’s actions. This
occurred more than ten times. On some of the occasions, defendant would drive by more than
once a day and honk several times or for longer “than a short beep.” During this time period,
plaintiff noticed that on several occasions defendant’s vehicle was behind her as she was driving
in town.
¶ 5. On January 9, 2020, plaintiff filed a request for relief from abuse from a family
member under 15 V.S.A. § 1103. The trial court issued a temporary relief-from-abuse order, which
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was extended until the relief-from-abuse hearing on February 13. At the end of the hearing, the
court made findings of fact and concluded that defendant abused plaintiff within the meaning of
15 V.S.A. § 1101(1)(D). Under that subsection, abuse is defined to include “stalking” under 12
V.S.A. § 5131(6). Under § 5131(6), stalking is defined as purposefully engaging “in a course of
conduct directed at a specific person that the person engaging in the conduct knows or should
know would cause a reasonable person to: (A) fear for his or her safety or the safety of a family
member; or (B) suffer substantial emotional distress.” A course of conduct is, in turn, defined “as
two or more acts over a period of time, however short, in which a person follows, monitors,
surveils, threatens, or makes threats about another person.” 12 V.S.A. § 5131(1)(A).
¶ 6. The trial court concluded that defendant had engaged in a course of conduct because
on more than ten occasions, he surveilled plaintiff by driving by her home and purposefully
honking his horn.1 The trial court explained that surveillance does not necessarily require “some
sort of secret surveillance”—such as “standing in place with cameras, telescopes, or just sort of
watching a location”—but “can be something in which a person makes clear, to the other person,
that I’ve just been by your place . . . and possibly seen you.” Based on this interpretation, the trial
court concluded that defendant surveilled plaintiff because he “was making it clear that he was
going by, that he was sort of checking that she would know that he had just been there and had
come by.” The court accordingly issued a sixty-day relief-from-abuse order requiring defendant
to not contact plaintiff and to stay a hundred feet away from plaintiff, her residence, and their
mother’s home.
¶ 7. Defendant filed a motion to reconsider arguing that surveillance requires “a specific
intent” to watch or keep track of another person, and there was no evidence that defendant ever
traveled specifically to plaintiff’s home to conduct surveillance or monitor her. The trial court
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The court ruled that defendant’s actions did not constitute threatening, following, or
monitoring.
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denied the motion. It explained that defendant testified that “he honked the horn on occasions to
let plaintiff know he was passing by her house.” Although the court acknowledged that defendant
“may have been traveling that route for legitimate purposes,” it concluded that the honking of his
horn “was a separate intentional act directed at her and, in the court’s opinion, was a form of
surveillance considering the antagonistic relationship existing between them.” Defendant
appealed.
¶ 8. On appeal, defendant argues that his actions do not amount to surveillance because
the plain meaning of surveillance requires “an intent to engage in a close watch or observation.”
Plaintiff did not file a brief or participate in this appeal. Because “the family court is in a unique
position to assess the credibility of witnesses and weigh the strength of evidence at hearing,” we
“review the family court’s decision to grant or deny a protective order only for an abuse of
discretion, upholding its findings if supported by the evidence and its conclusions if supported by
the findings.” Raynes v. Rogers, 2008 VT 52, ¶ 9, 183 Vt. 513, 955 A.2d 1135. However,
“[i]ssues of statutory interpretation are subject to de novo review.” Wright v. Bradley, 2006 VT
100, ¶ 6, 180 Vt. 383, 910 A.2d 893.
¶ 9. The only question presented in this appeal is a legal one: whether defendant
surveilled plaintiff, within the meaning of 12 V.S.A. § 5131(1)(A), by driving by plaintiff’s home
and honking his horn?2 “In construing a statute, our goal is to implement the intent of the
Legislature.” Wright, 2006 VT 100, ¶ 7. “In accomplishing this, our first step is to examine the
statute’s language because we presume that the Legislature intended the plain, ordinary meaning
2
The trial court’s relief-from-abuse order was only effective until April 13, 2020. This,
however, does not moot the appeal because of the collateral consequences associated with relief-
from-abuse orders. See Hinkson v. Stevens, 2020 VT 69, ¶¶ 21, ___Vt. ___, ___ A.3d ___
(“[W]hen a defendant appeals a stalking order while still subject to the stalking order, the
expiration of the stalking order will not automatically render the case moot.”); see also id. ¶ 19
(recognizing that “relief-from-abuse orders can result in collateral consequences of a lasting
nature” (quotation omitted)).
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of the statutory language.” Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d
1215. “When legislative intent is clear from the statutory language, we accept the plain meaning
[and] our inquiry is at its end . . . .” T.C. v. L.D., 2020 VT 19, ¶ 4, __ Vt. __, 229 A.3d 77.
¶ 10. Surveil—which is the verb form of the noun surveillance—has a clear, plain
meaning sufficient to resolve this case. Black’s Law Dictionary defines surveillance as “[c]lose
observation or listening of a person or place in the hope of gathering evidence.” Surveillance,
Black’s Law Dictionary (11th ed. 2019). Similarly, Merriam-Webster defines surveillance as
“close watch kept over someone or something (as by a detective).” Surveillance, Merriam-
Webster Online Dictionary, https://www.merriam-webster.com/dictionary/surveillance
[https://perma.cc/MR92-8NLG]. Cambridge Dictionary’s definition of surveillance is also very
similar: “the act of watching a person or place.” Surveillance, Cambridge Dictionary,
https://dictionary.cambridge.org/dictionary/english/surveillance?q=surveillance.
[https://perma.cc/KK5E-SUWS]. The plain meaning of surveillance requires, at a minimum, the
intent to closely watch or carefully observe a person or place.
¶ 11. Based on this plain meaning, defendant did not surveil plaintiff. None of the trial
court’s findings indicate that defendant intended to, or in fact did, closely watch or carefully
observe plaintiff when he drove by her home and honked his horn. The trial court found that
defendant did not intentionally drive past plaintiff’s home and did not necessarily know whether
plaintiff was home when he drove by and honked. From these findings, there is no evidence that
defendant was closely watching or carefully observing plaintiff.
¶ 12. In concluding that defendant surveilled plaintiff, the trial court focused on the idea
that by honking in front of plaintiff’s home, defendant was sending a message to plaintiff that he
had “been there and had come by.” The plain meaning of surveillance, however, requires close
watching or careful observation, not the sending of a message. Based on the trial court’s findings,
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there is no evidence that defendant was closely watching or observing plaintiff when he drove by
her home and honked his horn.3
Reversed.
FOR THE COURT:
Associate Justice
3
No party has argued, and we therefore do not consider, whether defendant’s actions could
amount to a course of conduct sufficient to constitute stalking on any other basis.
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