Alfredo Salvattera v. Isela Ramirez

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-FM-1006

ALFREDO SALVATTERA, APPELLANT,

V.

ISELA RAMIREZ, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CPO-1015-14)

(Hon. Fern Flanagan Saddler, Trial Judge)

(Argued February 26, 2015 Decided March 26, 2015)

Stefanie Schneider, Public Defender Service, with whom James Klein and

Samia Fam, Public Defender Service, were on the brief, for appellant.

Luke A. Meisner, with whom Gregory B. Craig, Stephen J. Harburg,

Donald P. Salzman, Daniele M. Schiffman, and Rachel L. Jacobs were on the brief,

for appellee.

Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior

Judge.

FISHER, Associate Judge: Alfredo Salvattera appeals from the issuance of a

civil protection order (“CPO”) that directed him to vacate his apartment. He

principally contends that the court lacked the statutory authority to issue such an

2

order under the Intrafamily Offenses Act, D.C. Code §§ 16-1001 to -1059 (2012

Repl.). We affirm the trial court‟s decision.

I. Background

After an evidentiary hearing, Judge Saddler found the following relevant

facts. 1 Appellee Isela Ramirez lived on the third floor of a small apartment

building in Northwest Washington with her father and her two children. Appellant

lived in an apartment on the first floor. The two knew each other because

appellant acted as a building manager.

Appellee‟s father sometimes had trouble paying rent, and on October 26,

2013, appellant sent Ms. Ramirez a text message stating that he wanted to discuss

the rent with her father. Two days later, at around 10:00 p.m., she went to

appellant‟s apartment to talk to him about the text message. During the course of

their hour-long conversation, appellant gave her three glasses of sangria. Five

1

When addressing appellant‟s motion for a stay pending appeal, this court

thoroughly discussed the facts and the issue of statutory interpretation that is

central to this case. Salvattera v. Ramirez, 105 A.3d 1003 (D.C. 2014). We write

more briefly here, inviting the reader who seeks more detail to consult the majority

and dissenting opinions issued by the motions panel.

3

minutes after drinking part of the third glass, which tasted bitter, she developed a

strong stomachache, vomited blood, and passed out.

Ms. Ramirez awoke the next morning in appellant‟s bed, naked from the

waist down. Appellant was standing beside the bed, holding her clothing. When

appellee asked him what happened, he said they both got naked and “what had to

happen, happened.” He also said that he never did anything to her.

Ms. Ramirez fled the apartment. Later that day, she went to a hospital where

she was examined by a nurse and interviewed by the police. The examination

found no forensic evidence of sexual assault.

After that night, appellee experienced panic and anxiety attacks whenever

she saw appellant. Nonetheless, she continued to live in the building because her

father was there and could not be left alone. In January, her father moved out;

appellee and her two children later moved to a shelter because she did not feel safe

living so close to appellant.

On March 28, 2014, appellee filed a petition for a CPO pursuant to

D.C. Code § 16-1005 (c), alleging that appellant had sexually assaulted her. The

4

petition requested, among other things, that the court order appellant to vacate his

apartment. On August 26, 2014, after nine days of hearings, the trial court granted

the petition, ordering appellant not to assault, threaten, harass, or stalk appellee; to

stay at least 100 feet away from her; not to contact her; and to vacate his apartment

by September 12, 2014.

On September 3, 2014, appellant filed a motion pursuant to D.C. Super. Ct.

Civ. R. 59 (e) asking the trial court to remove the requirement that he vacate his

apartment. That motion was denied. Appellant then timely appealed the CPO. He

also filed a motion for a stay, which this court granted on December 15, 2014. See

Salvattera v. Ramirez, 105 A.3d 1003, 1009 (D.C. 2014).

II. Analysis

A. Authority to Issue the Vacate Order

Appellant contends that the trial court had no authority to order him to

vacate his apartment. Judge Saddler specifically addressed that issue when

denying his Rule 59 (e) motion, first noting that the Intrafamily Offenses Act

explicitly authorized the stay-away provision of the protection order. See D.C.

5

Code § 16-1005 (c)(2) (2012 Repl.). She then recognized that it would be difficult

to enforce the stay-away order because there was only one staircase in the

apartment building, and appellee had to come within a few feet of appellant‟s

apartment when going to and from her apartment.

The stay-away provision would therefore be frustrated unless appellant

vacated his apartment, and Judge Saddler concluded that ordering him to do so was

a valid exercise of authority under the catch-all provision of the statute, D.C. Code

§ 16-1005 (c)(11). That provision provides, without elaboration, that a court may

“[d]irect[] the respondent to perform or refrain from other actions as may be

appropriate to the effective resolution of the matter . . . .” D.C. Code § 16-1005

(c)(11) (2012 Repl.).

We have long recognized that the Intrafamily Offenses Act “is a remedial

statute and as such should be liberally construed for the benefit of the class it is

intended to protect.” Maldonado v. Maldonado, 631 A.2d 40, 42 (D.C. 1993).

Because a protection order “was designed to protect victims of family abuse from

acts and threats of violence,” the act “gives the court „a wider range of

dispositional powers than criminal courts in order to effect rehabilitation rather

than retribution.‟” Cruz-Foster v. Foster, 597 A.2d 927, 929 (D.C. 1991) (quoting

6

United States v. Harrison, 149 U.S. App. D.C. 123, 124, 461 F.2d 1209, 1210

(1972)).

The catch-all and stay-away provisions of the current statute are nearly

identical to their counterparts in the original act passed in 1970. Compare District

of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-

358, § 131 (a), 84 Stat. 473, 547 (1970), with D.C. Code § 16-1005 (c)(2), (11)

(2012 Repl.). At that time, the statute did not explicitly mention ordering a

respondent to vacate a dwelling. In 1980, however, Judge Schwelb, then a judge

of the Superior Court, opined that “[a]n order excluding [a] husband from the

[marital] home would be well within the Court‟s discretion” under the stay-away

provision. LaPrade v. LaPrade, 108 Daily Wash. L. Rptr. 1773, 1779 (Super. Ct.

D.C. 1980) (citing former D.C. Code § 16-1005 (c)(3) (1973)). He also noted that

two other judges who handled the same case had come to the same conclusion. Id.

Thus, at least some trial judges interpreted the original statute broadly enough to

include the authority to issue orders to vacate.

Notwithstanding the LaPrade decision, many critics asserted that the courts

were interpreting their statutory power so narrowly that they were not issuing

effective protection orders. D.C. Council, Report on Bill 4-195 at 10 (May 12,

7

1982). In response to that concern, the Council of the District of Columbia, in

1982, added six provisions to the portion of the act describing remedial measures.

Id. at 6-7. One of those provisions was D.C. Code § 16-1005 (c)(4), which

provides that a CPO may “[d]irect[] the respondent to refrain from entering, or to

vacate, the dwelling unit of the petitioner” if the petitioner has one of four

enumerated property interests in the unit. D.C. Code § 16-1005 (c)(4) (2012

Repl.).

The committee report on the 1982 bill acknowledged repeated criticism “that

the current interpretation of D.C. Code, sec. 16-1005 by the local courts has been

extremely narrow . . . .” Id. at 10. It explained that the six remedial provisions

added to the statute were “designed to meet the stated need in the public record for

the court to be guided more specifically as to what remedies can be afforded to the

public,” id., implying that those remedies were already authorized by the original

statute. On the other hand, the report said that § 16-1005 (c)(4) was one of “six

new statutory remedies” being “created for issuance as the court deems just and

appropriate,” id., implying that they were new remedies.

As a result, the legislative history of the 1982 amendments sends mixed

signals about their purpose and effect. But nothing in the legislative history or the

8

amending language clearly states that the newly added subsection (c)(4) is the only

source of the court‟s authority to order a CPO respondent to vacate his residence.

This court has previously and consistently recognized that “the plain intent of the

legislature [in amending the Intrafamily Offenses Act] was an expansive reading of

the Act, which we think must be accorded to the catchall provision as well.”

Powell v. Powell, 547 A.2d 973, 974 (D.C. 1988). Moreover, the committee report

described the catch-all provision as “a very broad one,” and the provision itself

remained unchanged. Report on Bill 4-195 at 10 n.*.

We conclude that the Council intended § 16-1005 (c)(4) to focus on the

frequently occurring circumstances where the petitioner and respondent were

living together. In this paradigmatic situation, the court often would have to decide

whether the petitioner or the respondent should be required to leave the common

dwelling. By regulating this situation so closely, however, the Council did not

intend subsection (c)(4) to become the exclusive source of the court‟s authority to

order a respondent to vacate a dwelling. Instead, situations that § 1005 (c)(4) did

not specifically address—namely those where an order to vacate might be

appropriate but the petitioner and respondent did not live together—remained

within the purview of the stay-away and catch-all provisions of the statute.

9

The statute is no longer confined to intrafamily violence, but currently

permits “any person who alleges . . . that he or she is the victim of interpersonal,

intimate partner, or intrafamily violence, stalking, sexual assault, or sexual abuse”

to request a protection order. D.C. Code § 16-1001 (12) (2012 Repl.). It thus

reaches persons like Ms. Ramirez who have never lived with their assailant.

Emphasizing that the Council has not expanded § 16-1005 (c)(4) when enlarging

the class of petitioners covered by the statute, appellant argues that the remedy of

ordering the respondent to vacate his residence is simply not available in these

circumstances.

It certainly is true that an order to vacate will most often be necessary when

the petitioner and the respondent have been living together. However, when

broadening the reach of the Intrafamily Offenses Act, the Council gave no

indication that it intended to withhold any appropriate remedy from new classes of

petitioners. Instead, it clearly intended that those changes would make the

protections of the act available to more people. See, e.g., D.C. Council, Report on

Bill 17-55 at 2 (Nov. 25, 2008) (amendment was designed to give petitioners relief

even if they were not in an intrafamily relationship with the respondent).

10

Our task surely would be simpler if the legislature had specifically addressed

situations like the one presented in this case. But it is understandable that the

Council did not do so. It probably would have been futile to try to address in detail

every situation that might come before the court, and the Council prudently left the

catch-all provision intact to cover circumstances outside the normal pattern. Such

provisions cover matters not specifically addressed by the legislature, see Republic

of Iraq v. Beaty, 556 U.S. 848, 860 (2009), and “act as a safety net, offering

appropriate equitable relief caused by violations that [the statute] does not

elsewhere adequately remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512 (1996).

In Robinson v. Robinson, 886 A.2d 78 (D.C. 2005), this court recognized the

broad authority conferred by the statute. In that case, the petitioner and respondent

were a married couple who owned two neighboring houses. 886 A.2d at 79. The

trial court ordered the husband to stay away from the home the two shared, but

refused to order him to stay away from the neighboring house. Id. at 83-84. This

court concluded that requiring the husband “to vacate the marital home, but

allowing him to live right next door, seems inadequate to accomplish the broad

remedial purpose of the Intrafamily Offenses Act, that is, to protect victims of . . .

abuse from both acts and threats of violence.” Id. at 86.

11

Remanding the case so the trial court could re-evaluate the situation, we

recognized that the statute “clearly envisions allowing safety concerns to trump

property rights.” Id. at 86-87. We did not definitively interpret the statute, but we

clearly implied that the statute was broad enough to allow a trial court to order a

respondent to leave a dwelling that he did not share with the petitioner. Robinson

may not control our decision, but it helpfully informs it.

Given the history and broad remedial purpose of the Intrafamily Offenses

Act, we hold that D.C. Code § 16-1005 (c)(11) authorizes a trial court to order a

respondent to vacate his or her dwelling if that is necessary to effectuate a stay-

away order. While we again emphasize that “ordering a person to vacate his or her

home or denying the use of owned property is a serious step, not to be lightly

undertaken,” Robinson, 886 A.2d at 86, it can be a necessary measure to ensure the

effectiveness of a stay-away order issued under § 16-1005 (c)(2).

B. Remaining Issues

A court may issue a CPO “if it is shown by a preponderance of the evidence

that „there is good cause to believe the respondent has committed or threatened to

commit a criminal offense against the petitioner.‟” J.O. v. O.E., 100 A.3d 478, 481

12

(D.C. 2014) (quoting D.C. Code § 16-1005 (c) (2012 Repl.)). The trial court found

good cause to believe appellant had committed misdemeanor sexual abuse, which

required a showing that appellant engaged in a sexual act or sexual contact with

appellee, and knew or should have known he did so without appellee‟s permission.

D.C. Code § 22-3006 (2012 Repl.). “Sexual contact” is defined as “the touching

with any clothed or unclothed body part or any object, either directly or through

the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any

person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the

sexual desire of any person.” D.C. Code § 22-3001 (9) (2012 Repl.).

Contrary to appellant‟s argument, there was sufficient evidence that he

committed misdemeanor sexual abuse. During the evidentiary hearing, appellee

testified about previous occasions where appellant made remarks about wanting to

“have” her and dreaming of her in a red dress, statements which the court rightly

considered when evaluating his intent on the night appellee visited him. See

Robinson, 886 A.2d at 87 (requiring court to look at the “entire mosaic of facts”

when considering whether to issue a CPO). The court credited her testimony

regarding those incidents and the night of October 28, 2013, and found that it was

more likely than not that appellant had removed appellee‟s pants and underwear

and put her into his bed with the intent to gratify his sexual desire.

13

Appellant rightly contends that removal of a person‟s pants and underwear

does not necessarily require the touching of an area of the body listed in the statute.

However, the finder of fact is allowed to draw inferences based on circumstantial

evidence. See Williams v. United States, 756 A.2d 380, 387 (D.C. 2000) (“This

court must . . . accord equal weight to circumstantial evidence and direct

evidence.”). The trial court could reasonably infer that appellant more likely than

not touched one of the prohibited areas when removing appellee‟s clothing.

Finally, appellant contends that the trial court gave too much weight to

appellee‟s peace of mind and not enough to appellant‟s right to remain in his home.

Because the statute is specifically aimed at preventing future injury, “the trial

court, in the exercise of its discretion, should only enter a CPO against a party for

reasons consistent with the underlying purposes of the Intrafamily Offense[s] Act.”

Murphy v. Okeke, 951 A.2d 783, 786 (D.C. 2008). In keeping with the act‟s

remedial nature, a court must consider the “balance of harms” between the

petitioner and the respondent. Cruz-Foster, 597 A.2d at 930 (internal quotation

marks omitted).

14

Ordering a person to vacate his or her home is a very serious step indeed, but

“when the trial court finds that [qualifying] offenses have been committed or are

imminent, it can be a necessary measure to ensure peace and safety.” Robinson,

886 A.2d at 86. The trial court specifically found that appellee would have to pass

by appellant‟s apartment every time she used the staircase to go to or leave her

apartment, and concluded that the order to vacate was necessary to effectuate the

stay-away provision of the CPO and thus protect appellee‟s peace of mind and

safety. See Maldonado, 631 A.2d at 43 (important factor in issuing a CPO is

whether it “provides a measure of peace of mind for those for whose benefit it was

issued”). In making those findings, the court was well aware that ordering

appellant to vacate his apartment was a serious measure and that he was employed

in some capacity by the building‟s landlord. The court also considered alternative

measures suggested by appellant and rejected them.

“Discretion signifies choice,” and even though “the act of choosing will be

guided by various legal and other considerations,” “the decision-maker can rely

largely upon his [or her] own judgment in choosing among the alternatives.”

Johnson v. United States, 398 A.2d 354, 361 (D.C. 1979). Given the record at the

time the protection order was issued, the trial court did not abuse its discretion in

ordering respondent to vacate his apartment.

15

III. Conclusion

Because the protection order in this case was properly issued, we lift the stay

previously granted. The judgment of the Superior Court is hereby affirmed. We

note, however, that the date established for appellant to vacate his apartment has

long passed, and the trial court will need to set a new date in order to enforce the

order.2

2

Representations made at oral argument indicate that Ms. Ramirez has not

lived in the apartment building since the early part of 2014, and that since the CPO

was issued, landlord-tenant litigation has called into question her right to return to

her apartment. We do not take those events into account because they are not

reflected on the record before us. We note, however, that a change in the parties‟

circumstances might affect the need for a protection order or alter the balance of

harms. In such cases, the respondent may request a modification of the CPO. See

D.C. Code § 16-1005 (d) (2012 Repl.) (court “may, upon motion of any party to

the original proceeding, extend, rescind, or modify the order for good cause

shown”).