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Sordyl v. Sordyl
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Decision:  1997 ME 87
Docket:  HAN-96-439
Submitted on briefs January 16, 1997
Decided April 29, 1997




	[¶1]  Defendant, Eugene Sordyl, appeals from the judgment entered in
the Superior Court (Hancock County, Mead, J.) affirming the protection
from abuse order entered against him in the District Court (Bar Harbor,
Staples, J.) pursuant to 19 M.R.S.A. § 766 (1981 & Supp. 1996).  Defendant
seeks to challenge an evidentiary ruling made by the District Court in
finding "abuse" within the meaning of 19 M.R.S.A. § 762(1)(B) (1981 &
Supp. 1996).{1}  Because the protection order expired by its own terms more
than one year ago, we conclude that the appeal should have been dismissed
as moot.
	[2]  On May, 18, 1995, plaintiff, Bethine Ann Crookedacre, filed a
complaint for protection from abuse (PFA) against her husband, the
defendant. The complaint was precipitated by events occurring at the
couple's Northeast Harbor residence on the evening of May 17.  At the PFA
hearing, testimony regarding the history of the parties' marriage was
admitted over objection.{2}  The court concluded that plaintiff was entitled to
a protection from abuse order and issued an order that expired on
December 29, 1995.  
	[3]  Defendant appealed to the Superior Court, contending that the
events in question did not qualify as "abuse" as defined by the governing
statute and that the court erred in considering the history of the marriage. 
By the time the appeal was heard, the PFA order had expired and plaintiff
moved to dismiss the appeal as moot.  The Superior Court denied the
motion and affirmed the judgment.  Defendant now appeals. 
	[4]  We review only those cases that present a justiciable controversy. 
Campaign for Transp. v. Maine Turnpike Auth., 658 A.2d 213, 215 (Me.
1995).  If issues become moot, an appeal is nonjusticiable.  Id.  "The test for
mootness is whether 'sufficient practical effects [flow] from the resolution of
[the] litigation to justify the application of limited judicial resources.'"  Id.
(quoting State v. Gleason, 404 A.2d 573, 578 (Me. 1979)).  "If the issues
presented have lost their controversial vitality 'by virtue of legally valid and
recognizable supervening circumstances,' we will decline to address them." 
Id. (quoting Good Will Home Ass'n v. Erwin, 285 A.2d 374, 379 (Me. 1971). 
"A dispute loses its controversial vitality when a decision by this court would
not provide an appellant any real or effective relief."  Int'l Paper v. United
Paperworks Int'l, 551 A.2d 1356, 1360-1361 (Me. 1988). 
	[5]  Given that the PFA order at issue here expired over a year ago, no
"real or effective relief" would be afforded defendant by a decision in his
favor at this time.  There are occasions, however, when we will entertain an
appeal even though the appeal is technically moot.  The exceptions to the
mootness doctrine apply when "(1) sufficient collateral consequences will
flow from a determination of the questions presented, (2) the question,
although moot in the immediate context, is of great public interest and
should be addressed for future guidance of the bar and public, or (3) the
issue may be repeatedly presented to the trial court, yet escape review at
the appellate level because of its fleeting or determinate nature."  Campaign
for Transp., 658 A.2d at 215 (quoting Gleason, 404 A.2d at 578).  The
Superior Court denied plaintiff's motion to dismiss the appeal on the basis of
the first and third of these exceptions.
	[6]  Before we will entertain a moot appeal pursuant to the collateral
consequences doctrine, the appellant must demonstrate that a decision on
the merits of the appeal will have "more than 'conjectural and insubstantial
consequences'" in the future.  Nat'l Coun. on Comp. Ins. v. Super. of Ins., 538
A.2d 759, 763-764 (Me. 1988) (quoting State v. Bennett, 289 A.2d 28, 32
(Me. 1972)).{3} Defendant implies in his brief that the finding of abuse could
have collateral consequences in later litigation.  He does not, however, 
demonstrate what those consequences might be, nor does he document the
existence of any pending litigation that might be impacted by the finding. 
Thus, defendant has failed to demonstrate that the collateral consequences
of the ruling are substantial enough to justify our consideration of a question
with no continuing controversial vitality.  Bennett, 289 A.2d at 32.
	[7]  We also reject the court's conclusion that application of the
mootness doctrine in this case would create a class of cases insulated from
appellate scrutiny.  Moot issues that "may be repeatedly presented to the
Superior Court, yet escape further review by this Court because of their
fleeting or determinate nature" may fall within a narrow exception to the
mootness doctrine.  Lynch v. Town of Kittery, 473 A.2d 1277, 1279 (Me.
1984); Nat'l Coun. on Comp. Ins., 538 A.2d at 764.  In order to qualify, the
activity generating the issue, by its very nature, must be so short in duration
that the issue will never be fully litigated prior to the cessation or expiration
of the action.  Nat'l Coun. on Comp. Ins., 538 A.2d at 764 (citing Conyers v.
Reagan, 765 F.2d 1124, 1128 (D.C.Cir. 1985)).  In addition, there must be a
"reasonable expectation" or "demonstrated probability" that the same
controversy will recur involving the same complaining party.   Taxpayers for
the Animas-La Plata Referendum v. Animas-La Plata Water Conservancy
District, 739 F.2d 1472, 1479 (10th Cir. 1984), cited with approval in Nat'l
Coun. on Comp. Ins., 538 A.2d at 764.  "The mere theoretical possibility of
repetition is not enough."  Nat'l Coun. on Comp. Ins., 538 A.2d at 764.  The
present appeal does not fall within the exception because "[o]nly speculation
in the extreme would suggest that the same concatenation of circumstances
from which this litigation arose will repeat itself."  Id.  
	The entry is:
Judgment vacated.  Remanded to the
Superior Court for the entry of an order
dismissing the appeal as moot.

Attorney for plaintiff: Martha J. Harris, Esq. Paine, Lynch & Harris, P.A. P O Box 1451 Bangor, ME 04402-1451 Attorney for defendant: William N. Ferm, Esq. Ferm, Collier & Larson P O Box 804 Ellsworth, ME 04605
FOOTNOTES******************************** {1} The relevant portion of the statute provides: "Abuse" means the occurrence of the following acts between family or household members or by a family or household member upon a minor child of a family or household member: .... B. Attempting to place or placing another in fear of bodily injury through any course of conduct including, but not limited to, threatening, harassing or tormenting behavior.... 19 M.R.S.A. § 762(1)(B) (Supp. 1996). {2} Plaintiff initially testified to events occurring from 1960-1980, but the court requested that she testify only to incidents within a "reasonable time prior to the current situation." Defendant argued that testimony regarding the history of the marriage was irrelevant to the issue before the court, i.e., the events of May 17. The court considered plaintiff's testimony for a limited purpose -- "to better understand what actually occurred on May 17th." {3} With regard to criminal judgments, legal presumptions may aid the appellant in meeting this burden. See Sibron v. New York, 392 U.S. 40, 52-55 (1968) (presuming that collateral consequences result from convictions of crime).