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Appeals court reviews restraining order where judge probed victim’s failure to report prior abuse
Summary
An appellate panel heard whether a trial judge abused discretion in granting a restraining order in a domestic‑abuse proceeding and whether the judge improperly relied on the victim’s failure to report or seek prior protection orders.
An appellate panel considered arguments in an appeal challenging the trial court’s issuance of a restraining order after a two‑party hearing, focusing on whether the evidence supported a finding of imminent danger and whether the trial judge’s questions about the alleged victim’s failure to report prior incidents were an improper basis for credibility determinations.
Why it matters: The case raises how trial judges may weigh delayed reporting or a victim’s failure to seek prior relief under the controlling statute (including the statutory prohibition against using a victim’s failure to report as the sole basis for denying relief). The panel’s treatment could affect how lower courts evaluate credibility and the role of prior reporting in domestic‑abuse hearings.
Daniel Clardy, appellate counsel for the appellant, argued that the trial record lacked sufficient evidence that the appellant posed an immediate physical danger, citing prior authority the court had applied where testimony of hitting plus a red mark was found insufficient without corroboration. Clardy emphasized the absence of documentary proof (photographs, hospital records) for alleged scars and pointed to a line of cases he said require more than a bare assertion of assault to meet the statute’s threshold. He urged reversal where the trial judge relied on credibility findings that, he said, were improperly grounded in the victim’s failure to report prior incidents or seek prior restraining orders.
Clardy urged the panel that the judge’s questioning repeatedly returned to whether the alleged victim had called police or previously sought restraint: “the only four questions the judge asked were focused on the failure to report prior abuse,” he told the court, arguing those questions appear to have driven the credibility assessment and that such reliance undermines the statutory public‑policy protection against penalizing victims for delayed reporting.
Responding, counsel for A.S. (Tracy Green) and the panel’s questioning acknowledged that trial judges routinely assess credibility and may consider delay in reporting as relevant to motive and context. Green and others argued the court’s factual record included testimony that the alleged assaults occurred, at least one incident resulting in an ER visit, and that the district court had an opportunity to hear competing versions and make credibility calls. The respondent’s counsel maintained that credibility determinationsreceive deference on appeal absent a clear abuse of discretion.
The panel asked whether the judge was permitted to consider failure to report as part of a broader credibility evaluation but noted the statute’s language that such failure “shall not be the sole basis” for denying relief. Appellate counsel asserted that several of the judge’s follow‑up questions, and the emphasis on prior nonreporting, warranted reversal or at least remand for clarification of the findings.
No decision was announced from the bench. The argument concluded with the panel hearing additional briefing and the case moving to the next calendar item.
