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Seger v. Nason

Supreme Court of Maine

May 17, 2016

LISA-MARIE SEGER
v.
KARLA NASON

          Submitted On Briefs: April 21, 2016

         Bangor District Court docket number PA-2015-188

          Eugene M. Sullivan Jr., Esq., Law Office of Joseph M. Baldacci, Bangor, for appellant Karla Nason

          Lisa-Marie Seger did not file a brief

          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.

          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.

         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, 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.

          [¶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 ...


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