Submitted On Briefs: May 25, 2017
J. Harris, Esq., Paine, Lynch & Harris, P.A., Bangor, for
appellant Russell Chretien.
Chretien did not file a brief.
SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and
Majority: GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
REPORTER OF DECISIONS
Russell Chretien appeals from a now-expired order for
protection from abuse entered in the District Court (Newport,
Budd, J.) on a complaint filed by Susan Chretien.
Russell contends that the court erred by issuing the
protective order after explicitly finding that he had not
abused Susan but that he posed a "credible threat"
to her. We conclude, first, that this appeal
remains justiciable even though the protective order has
expired; and, second, that because the court explicitly did
not find that Russell had abused Susan, the court erred by
issuing the order.
Susan Chretien filed a petition for a protection from abuse
order against her husband, Russell Chretien, in August 2016.
The court [Budd, J.) held a hearing on the complaint
on September 1, 2016. During the hearing, Susan testified
about two incidents of Russell's angry behavior in the
At the conclusion of the hearing, the court orally found that
both of the alleged incidents had occurred. The court also
stated, "I'm [going to] find that the defendant
presents a credible threat. I'm not [going to] find
that the plaintiff was, in fact, abused by the
defendant." (Emphasis added.)
Based on its finding of a credible threat, the court issued a
protective order that was to be effective for six months,
expiring on March 1, 2017. See 19-A M.R.S. §
4007(2) (2016) (authorizing the court to issue an order for
"a fixed period not to exceed 2 years"). The order
enjoined Russell from threatening or assaulting Susan, but
the order did not prohibit Russell from possessing a firearm
because the court determined that such a prohibition was not
warranted. Russell timely appealed from the order.
19-A M.R.S. § 4010(1) (2016); M.R. App. P. 2(b)(3).
Because the protective order expired of its own terms during
the pendency of this appeal, we first consider whether
Russell's challenge to the issuance of that order is
We "will decline to hear a case that has lost [its]
controversial vitality and is moot because a decision by this
court would not provide an appellant any real or effective
relief." Sparks v. Sparks, 2013 ME 41, ¶
9, 65 A.3d 1223 (quotation marks omitted). Even if a case has
become moot, we may nonetheless address the issues presented
on appeal if "sufficient collateral consequences will
result from the determination of the questions presented so
as to justify relief." Mainers for Fair Bear Hunting
v. Dep't of Inland Fisheries & Wildlife, 2016 ME
57, ¶ 7, 136 A.3d 714 (quotation marks omitted). We also
will consider issues that are "capable of
repetition" if they would "escape appellate
review" because they are temporally fleeting. Ewing
v. Me. Dist. Ct, 2009 ME 16, ¶ 11 n.4, 964 A.2d
Twenty years ago, we declined to reach the merits of an
appeal from an expired protective order where the
defendant-appellant "implie[d]" that the case
remained justiciable because "the finding of abuse could
have collateral consequences in later litigation."
Sordyl v. Sordyl, 1997 ME 87, ¶ 6, 692 A.2d
Since we issued our opinion in Sordyl, a growing
number of jurisdictions have observed that protective orders
predictably generate collateral consequences affecting a
party against whom the order was issued and, therefore, a
presumption against mootness should apply to appeals from
orders that have expired. See, e.g., Cardoso v.
Soldo, 277 P.3d 811, 815 (Ariz.Ct.App. 2012); Putman
v. Kennedy, 900 A.2d 1256, 1258-59 (Conn. 2006);
Hamilton v. Lethem, 193 P.3d 839, 849 (Haw. 2008);
Roark v. Roark, 551 N.E.2d 865, 868 (Ind.Ct.App.
1990); Piper v. Layman, 726 A.2d 887, 891 (Md. Ct.
Spec. App. 1999); E.C.O. v. Compton, 984 N.E.2d 787,
791 n.12 (Mass. 2013) (citing Wooldridge v. Hickey,
700 N.E.2d 296, 298 (Mass. CtApp. 1998)); Smith v.
Smith, 549 S.E.2d 912, 914 ( N.C. Ct. App. 2001);
Hudson v. Hudson, 328 S.W.3d 863, 865-66 (Tenn.
The ongoing effects of a protective order-even one that has
expired-can arise in various contexts, including family law
proceedings, see 19-A M.R.S. § 1653(1)(B),
(3)(L) (2016); see also Guardianship of Jewel
M., 2010 ME 80, ¶¶ 24, 36, 2 A.3d 301;
Pechovnik v. Pechovnik, 765 N.W.2d 94, 97-98 (Minn.
Ct.App. 2009); Cardoso, 277 P.3d at 815
(Ariz.Ct.App. 2012), and employment, housing, and educational
opportunities, see, e.g., Hamilton, 193 P.3d at 849
(Haw. 2008), Piper, 726 A.2d at 891; Jessica Miles,
We Are Never Ever Getting Back Together: Domestic Violence
Victims, Defendants, and Due Process, 35 Cardozo L. Rev. 141,
Were the expiration of a protective order sufficient to bar
its appellate consideration, a person against whom an order
was erroneously issued would be deprived of an opportunity to
gain relief from the very real consequences of that order.
Therefore, we now conclude that an appellate challenge to the
issuance of a protective order remains justiciable after the
order has expired, and we overrule Sordyl to the
extent it states otherwise. See 1997 ME 87, ¶
6, 692 A.2d 1386.
Reaching the merits, we now consider Russell's assertion
that the issuance of a protective order against him was
erroneous because the court explicitly stated that it was not
finding that Russell had abused Susan. We "review de
novo a challenge to the court's interpretation of the
protection from abuse statute." Sparks, 2013 ME
41, ¶ 14, 65 A.3d 1223 (quotation marks omitted).
When a complaint for a protective order is contested,
"[t]he court, after a hearing and upon finding that
the defendant has committed the alleged abuse ... may
grant a protective order." 19-A M.R.S. § 4007(1) (2016)
(emphasis added). Here, after the parties had presented their
evidence during the contested hearing, the court explicitly
stated that it did not find that Russell had abused
Susan. Rather, the court found that he posed a credible
threat to her safety and issued the protective order on that
In making a finding of a credible threat, the court drew on
the part of section 4007(1) that states, "The court may
enter a finding that the defendant represents a credible
threat to the physical safety of the plaintiff" We have
held, however, that a protective order cannot be
supported by a court's finding that the defendant poses
only a "credible threat" to the plaintiffs safety.
L'Heureux v. Michaud,2007 ME 149, ¶ 11,
938 A.2d 801; see also Seger v. Nason,2016 ME 72,
¶¶ 8-9, 138 A.3d 1221. Rather, "section 4007
mandates that an order for protection from abuse may be
issued only with a hearing and find ...