Burwell v. Burwell

FERREN, Associate Judge,

concurring in part and dissenting in part:

I join Parts I. and II. of the court’s opinion. As to Part III., I cannot agree with my colleagues’ decision not to address Mrs. Bur-well’s request for a permanent stay-away order. The majority defers resolution of this issue in the first instance to the trial court, rather than dealing now with the threshold argument raised by Mr. Burwell: that the trial court would have had no authority to grant such an order.1 I disagree with this procedure. The question whether a trial court has the power to issue a permanent stay-away order presents a pure question of law—fully briefed and argued before this court—which requires no exercise of discretion or factfinding by the trial court to enable its resolution. See Davis v. United States, 564 A.2d 31, 35 (D.C.1989) (en banc) (“[Wjhere the matter under review requires invocation or declaration of a fact free general principle of law, the court will designate the issue as a question of law, and review the matter ‘de novo.’ ”). If the court lacked jurisdiction to enter such an injunction, as Mr. Burwell maintains, we could affirm the trial court’s sub silenüo denial of Mrs. Burwell’s request without a remand. See Sheetz v. District of Columbia, 629 A.2d 515, 519 n. 5 (D.C.1993) (recognizing that this court can affirm judgment of trial court on grounds different from those relied upon by trial court). I therefore believe that consideration of Mr. Burwell’s challenge to the trial court’s general authority to issue a permanent no-contact order is a prerequisite to determining whether this case requires a remand for the trial court to address Mrs. Burwell’s request.

*227A trial court in the family division is authorized by statute to issue, in appropriate circumstances, a CM Protection Order (CPO) providing for the relief requested by Mrs. Burwell. See D.C.Code §§ 16-1001 to -1006. A CPO may be effective for up to one year, and may be extended upon motion for good cause shown. See D.C.Code § 16-1005(d). The statute, however, does not authorize the permanent injunctive relief that Mrs. Bur-well contends is necessary to protect her from her husband. Mr. Burwell argues that the court therefore, could not have granted a permanent injunction as part of the divorce decree.

I agree with Mrs. Burwell that a trial court, in a proper case, would have the authority under its general equitable powers to issue such a permanent stay away order. I would therefore remand the ease to allow the trial court to consider whether, on the facts of this case, such relief is appropriate.

The Alaska Supreme Court reached the same result in Siggelkow v. State, 731 P.2d 57 (Alaska 1987), noting that while its parallel statutes governing CPOs “do not themselves authorize the court to issue a [permanent] no-contact order, neither do they ... limit the inherent equitable powers of the court.” Id. at 61; cf. Dickson v. Dickson, 12 Wash.App. 183, 529 P.2d 476, 477-81 (1974) (affirming, as modified, post-divorce injunction including no-contact provision, as within divorce court’s equitable power to protect involved minor children); cf. also Galella v. Onassis, 487 F.2d 986, 998-99 (2d Cir.1973) (affirming, as modified, permanent injunction prohibiting photographer with history of harrassing President Kennedy’s children and their mother from engaging in any conduct that would reasonably be seen as frightening by mother and her children).

Court decisions in this jurisdiction have not yet addressed whether permanent stay away orders may be issued under the court’s general equitable power, either in general or in divorce proceedings in particular. Mr. Burwell argues that we should follow the decisions of Maryland courts, which, he contends, have held that a divorce court’s authority to grant injunctive relief is limited to that expressly provided by statute. See, e.g., Magness v. Magness, 79 MdApp. 668, 558 A.2d 807, 809-11 (1989); Kapneck v. Kapneck, 31 Md.App. 410, 356 A.2d 572, 577 (1976).

Mr. Burwell’s reliance on the Maryland cases is misplaced. Kapneck noted that, under the then-prevailing statutory scheme, “[i]n divorce proceedings the court sits, not in the exercise of its ordinary equity jurisdiction, but as a divorce court and is governed by the rules of principles established in the ecclesiastical courts in England so far as they are consistent with the provisions of the Maryland Code.” 356 A.2d at 576-77 (internal quotation marks omitted). Because ecclesiastical courts had no authority to issue injunctions, the Kapneck court held that the trial court, as an equity court hearing a divorce case, lacked the power to issue a no-contact order. See id. at 577-78. This jurisdictional defect was quickly cured by the Maryland legislature, which amended the law the following year to provide: “A court of equity sitting in an action for divorce, alimony, or annulment has all the powers of a court of equity, and may issue an injunction to protect any party to the action from physical harm or harassment.” Md.Code Ann., Cts. & Jud. Proc. § 3-603(b) (1980) (current version at Md.Code Ann., Fam. Law § 1-203(a) (1991 Repl.)).

In the District of Columbia, by contrast, the Family Division of the Superior Court has had all of the traditional powers of an equity court since its creation by the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473 (codified as amended at D.C.Code §§ 11-101 to -2504 (1995 Repl.)). See Poe v. Noble, 525 A.2d 190, 195 (D.C.1987) (citing cases for proposition that each division of Superior Court shares the same “general jurisdictional grant” of power, including “general equity powers”). The Maryland cases, with their reliance on the limited authority of divorce courts in Maryland, therefore have no application to our courts. This court has long recognized that “[a]lthough [the] Superior Court is separated into a number of divisions, these functional divisions do no delimit their power as tribunals of the Superior Court with general jurisdiction to *228adjudicate civil claims and disputes.” Andrade v. Jackson, 401 A.2d 990, 992-93 (D.C.1979) (noting that “each division possesses the undivided authority of the [Superior] Court”). The equitable powers of a court in the Family Division of the Superior Court are therefore coextensive with those of a general tribunal sitting in equity.

While the statutory provision defining the exclusive jurisdiction of the Family Division does not mention permanent injunctive relief to protect individuals from harassment and physical harm, see D.C.Code § 11-1101, this omission—as elaborated below—does not preclude a court hearing a divorce case in the Family Division from issuing such an injunction in an appropriate case. This court has previously held that “[w]here the claim is related to a subject matter within the responsibility of the division, ... that division may rely upon its general equity powers to adjudicate the claim and to award relief.” Poe, 525 A.2d at 195 (holding that in “absence of a contrary governing statute or rule, the judge sitting in the Probate Division could entertain a motion for an apportionment of administration expenses and make an award of attorney’s fees” and that a separate civil action was not required). Nothing in our law, therefore, prevents a divorce court from exercising its equitable authority to issue an injunction related to the subject matter and parties of the divorce proceedings where the circumstances warrant it. See 24 Am.Jur.2d Divorce § 326 (1983) (noting that in divorce ease “courts may grant a permanent, as well as a temporary, injunction against” harassment but that “trial court exceeds its jurisdiction” by entering a permanent anti-harassment injunction unless there is “evidence demonstrating any equitable basis for such a permanent injunction independent of the [fact of the] marriage relationship of the parties”).

I see no reason, moreover, to conclude that the legislature intended to limit the court’s equitable power when it provided for issuance of CPOs. Cf. Zapata v. Zapata, 499 A.2d 905, 906-09 (D.C.1985) (affirming contempt conviction for violating order prohibiting husband from “interfering in any way, directly or indirectly, with the quiet enjoyment” of property distributed to wife in divorce decree, where husband did not challenge authority of court to enter injunction). Indeed, our cases repeatedly note 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); accord Cruz-Foster v. Foster, 597 A.2d 927, 931 (D.C.1991). I am unwilling, therefore, to conclude that the legislature intended the statute governing CPOs to limit the court’s inherent equitable authority to issue injunctions, at least in the absence of any statutory language or legislative history manifesting such an intention. Cf. Cote v. Cote, 89 Md.App. 729, 599 A.2d 869, 870-73 (1992) (affirming anti-harassment injunction issued by divorce court under its equitable powers, and not under civil protection order statute).

Because the trial court failed to address Mrs. Burwell’s request, I am unable to determine whether this case would be an appropriate one for issuance of a permanent no-contact order. I cannot tell whether the trial court credited Mrs. Burwell’s testimony that she feared Mr. Burwell and that he had threatened her in his letters because of her actions that led to revocation of his medical parole. The trial court should consider these allegations in the context of Mr. Burwell’s history of extreme violence and in light of general principles governing injunctive relief. See Cruz-Foster, 597 A.2d at 930-32 (remanding denial of renewal of CPO where court failed to consider past events).

In sum, I disagree with this court’s failure to consider the question whether the trial court has the authority to grant the permanent stay-away order Mrs. Burwell requests. I would hold that the court indeed has such authority and thus would remand for the trial court to consider only the limited question whether to exercise that authority in the present case. In all other respects, I join the decision of the court.

. My colleagues support their disposition of the case by observing that the nature of relief requested by Mrs. Burwell remains unclear. I do not believe the record supports this contention. Mrs. Burwell’s opening and closing arguments made clear that she was requesting permanent injunctive relief to protect her from her husband. On appeal, moreover, Mr. Burwell does not argue that the parties or the court failed to understand that she was proceeding under the court’s general equity powers, and not the statute governing civil protection orders. To the contrary, Mr. Burwell explicitly acknowledges that Mrs. Burwell requested permanent injunctive relief; he argues that the appeal can be denied in light of the unavailability of such non-statutoiy relief.