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Childs v. Ballou

Supreme Court of Maine

September 13, 2016

GINA M. CHILDS
v.
ROBERT A. BALLOU JR.

          On Briefs: May 26, 2016

          Christopher C. Taintor, Esq., Norman, Hanson & Detroy, LLC, Portland for appellant Robert A. Ballou Jr.

          Gina M. Childs did not file a brief

          Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          SAUFLEY, C.J.

         [¶1] Robert A. Ballou Jr. appeals from a judgment of the District Court (South Paris, Carlson, J.) granting to Gina M. Childs a two-year extension of an existing order of protection from abuse. See 19-A M.R.S. § 4007(2] (2015]. Although Ballou raises multiple issues, we discern no error and write only to address his argument that the court-ordered restrictions on his communications with Childs violate his First Amendment rights. We affirm the judgment.

         I. BACKGROUND

         [¶2] Childs and Ballou were married in 2007, their son was born in 2008, and Childs filed for divorce in 2010. Childs sought a protection from abuse order against Ballou in 2010 while the divorce was pending, and a protection order was entered upon the parties' agreement without a finding of abuse. That order expired in 2012 after the divorce judgment had been entered.

         [¶3] On August 20, 2013, Childs filed a new complaint for protection from abuse. The court entered an order, again by agreement of the parties and without a finding of abuse. The 2013 order prohibited contact except by email and only regarding their then five-year-old son, and allowed for emergency contact only through an identified third party. The order was set to expire on August 24, 2015.

         [¶4] On August 11, 2015, Childs moved to extend the duration of the 2013 protection from abuse order. The court held a contested evidentiary hearing and granted the extension. The court entered an order prohibiting Ballou from "having any contact, direct or indirect, " with Childs and ordered that rights of contact with respect to the child would be arranged and facilitated through a third party. Ballou moved for findings of fact and conclusions of law, see M.R. Civ. P. 52(a]; and for the court to reconsider, alter, or amend the judgment, see M.R. Civ. P. 59(e]. In a written judgment, the court denied Ballou's post-judgment motions except to the extent that it made additional factual findings.[1]

         [¶5] The following facts found by the court are based on competent evidence in the record. See Smith v. Hawthorne, 2002 ME 149, ¶ 15, 804 A.2d 1133. By 2013, Ballou was going to Childs's home almost every day, even at times when she had asked him not to do so. In July 2014, Childs reported to law enforcement email messages from Ballou that she thought violated the existing protection order. In some of those messages and in others that he sent in 2013, Ballou discussed matters that did not relate to the child, [2]including statements accusing Childs of seeing another man, mentioning his previous request for "break-up sex, " and asking Childs to relax the protection from abuse order. Ballou also began repeatedly requesting that law enforcement officers conduct "well-being checks" regarding the child at Childs's home. In September 2014, Ballou was informed by the Sheriffs Office that it would no longer conduct such checks because Ballou was "looking for Law Enforcement to violate his protection order by reporting back on his child, ex-wife's home and her actions."

         [¶6] The court ultimately determined that the extension of the 2013 protection order was necessary because Childs's reasons for seeking an order in 2010 and 2013 still existed and caused her fear. This finding was supported by evidence that, before the 2013 order was in place, Ballou would send Childs hundreds of text messages within a single day and that he had recently again been sending excessively long, combative, and frequent email messages that were not exclusively about the child. The court found Ballou- who at trial dismissed Childs's safety concerns, claiming that she was "preoccupied [with] how the public perceives her"-not to be credible in his testimony or demeanor. The court further found that Ballou's repeated requests for well-being checks on the child amounted to stalking.

         [¶7] Ballou timely appealed. See 14 M.R.S. § 1901 [2015]; 19-A M.R.S. §104 [2015]; M.R.App. P. 2.

         II. DISCUSSION

         [¶8] Ballou argues that the extension of the protection from abuse order violates his First Amendment rights by prohibiting communications that are not threatening and are "at worst upsetting." He further argues that he is being penalized for exercising the right to ...


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