Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2011-243
MARCH TERM, 2012
Stephanie Foster } APPEALED FROM:
}
} Superior Court, Orleans Unit,
v. } Family Division
}
Darren Brady } DOCKET NO. 23-2-11 Osfa
Trial Judge: Robert R. Bent
In the above-entitled cause, the Clerk will enter:
Defendant appeals pro se from the court’s entry order acknowledging that plaintiff had
withdrawn her motion to vacate a relief-from-abuse order and that the order therefore remained
in effect. To the extent that the court’s entry below can be characterized as a final appealable
order, we affirm.
In February 2011, defendant’s former girlfriend, who was apparently pregnant with
defendant’s child, filed an emergency complaint for relief from abuse. She averred that when
she arrived at her home, the front door locks were off and ten windows were smashed. She
stated that there was milk and juice all over her belongings and several items missing from her
home. There was also a powdery substance left in her refrigerator. Her neighbors had observed
defendant exiting her home. Plaintiff alleged that she was in fear for her life and that of her
unborn child, noting that she had obtained relief-from-abuse (RFA) orders in the past and that
defendant had abused her. She described this abuse in detail, including an allegation that
defendant had sexually assaulted her. The court granted plaintiff’s request for a temporary RFA
order and set the matter for a hearing. Defendant was personally served with notice of this order
and notice of the hearing date, but he failed to attend. The court issued a final RFA order in
effect until February 2012. It found that defendant had caused physical harm to plaintiff and
sexually assaulted her, and that there was a danger of further abuse. Defendant filed a notice of
appeal from this order but this Court dismissed his appeal in July 2011 due to defendant’s failure
to file his brief and printed case after this Court issued an order requiring him to do so by June
27, 2011.
During the pendency of defendant’s appeal, on June 7, 2011, plaintiff filed a motion in
the trial court to vacate the RFA order against defendant. On June 15, she filed a motion
requesting that the court keep the RFA in place. Two days later, she filed another motion
reiterating her request to withdraw her request to vacate the RFA. She stated that defendant had
forced her to file the motion to vacate and that she remained in fear for her life and the life of her
child. The matter was set for a hearing, and defendant was personally served with notice of the
hearing. Defendant was incarcerated at the time. The court denied his request for a transport
order but indicated that defendant could participate in the hearing by phone. Defendant did not
participate in the hearing, however. Following the hearing, the court issued a short entry order
that stated, “Request to vacate is withdrawn by Plaintiff. RFA remains in effect.” Defendant
appealed from this entry.
In his brief, defendant appears to focus on the initial merits hearing held in February
2011, asserting that his car broke down and he therefore could not attend the hearing. The merits
of the February 2011 decision are not properly before us on appeal. Defendant also alleges that
plaintiff has filed false complaints in the past. By failing to appear at the noticed hearing,
however, defendant waived his right to challenge plaintiff’s credibility. See Bull v. Pinkham
Eng’g Assocs., 170 Vt. 450, 459 (2000) (“Contentions not raised or fairly presented to the trial
court are not preserved for appeal.”). This Court does not assess the credibility of witnesses on
appeal. See Cabot v. Cabot, 166 Vt. 485, 497 (1997) (“As the trier of fact, it [is] the province of
the trial court to determine the credibility of the witnesses and weigh the persuasiveness of the
evidence.”).
With respect to the entry that is the subject of defendant’s appeal, the court’s entry
doesn’t reflect any substantive order of the court. The court had set plaintiff’s motion to vacate
for a hearing, and then acknowledged that because plaintiff withdrew the motion, the RFA
remained in effect. See In re S.B.L., 150 Vt. 294, 297 (1988) (appellant bears burden of
demonstrating how the trial court erred warranting reversal, and Supreme Court will not comb
the record searching for error); see also V.R.A.P. 28(a) (appellant’s brief shall explain what the
issues are, how they were preserved, and what appellant’s contentions are on appeal, with
citations to the authorities, statutes, and parts of the record relied on).
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
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