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MAINE SUPREME JUDICIAL COURT                                                               Reporter of Decisions

Decision:       2005 ME 122

Docket:         Som-05-178

Argued:        October 20, 2005

Decided:       December 13, 2005

Panel:            SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

Majority:       SAUFLEY, C.J., and CLIFFORD, DANA, LEVY, and SILVER, JJ.

Dissenting:    ALEXANDER, and CALKINS, JJ.

SUE ELLEN SHAW

v.

RICHARD PACKARD

LEVY, J.

         [¶1]  Richard Packard appeals from a judgment of the District Court (Skowhegan, MacMichael, J.) granting his ex-wife, Sue Ellen Shaw, a protection from abuse order.  Packard raises several issues on appeal, including that the court erred as a matter of law when it concluded that 19-A M.R.S.A. § 4006(1) (1998) prohibits the continuance of a final hearing beyond twenty-one days without the consent of both parties.  We agree with Packard's contention regarding section 4006(1), vacate the order, and remand the case for further hearing.

I.  BACKGROUND

         [¶2]  On February 18, 2005, at approximately 2:30 p.m., Shaw arrived at Packard's residence to pick up their son, then age sixteen.  Packard was expecting Shaw to pick up their son for a weekend visit, but she normally did so later in the afternoon.  Shaw testified that the son had called her earlier in the day and asked her to pick him up early. 

         [¶3]  Shaw arrived at Packard's home accompanied by her and Packard's adult daughter.  They waited in Shaw's car in the driveway.  Packard arrived sometime after 2:30 p.m., and the parties spoke briefly without incident.  When Packard entered the home, he found the son packing all of his things, intending to move in with his mother.  Packard and the son began to argue over his intention to move in with Shaw. 

         [¶4]  At some point, the daughter left Shaw in the car and entered the home.  Shaw testified that she could hear sounds of yelling and breaking glass from inside the house.  According to Shaw, the daughter came back out of the house and told Shaw to call the police because Packard and the son were physically fighting.  Shaw called 9‑1‑1 and reported the situation.  After waiting ten minutes, Shaw again called 9‑1‑1 and, after hearing shouting and things breaking inside the house, got out of her car and proceeded toward the house.  

         [¶5]  Packard exited the house, and found Shaw on the deck.  The parties dispute what happened next, but agree that Packard grabbed Shaw when she refused to leave, forcibly removed her from the deck, and put her in her car.  Shaw testified that Packard pushed her down the stairs, hit her on her neck and head, and pushed her into her car.  Packard disputes these claims.  The parties agree that their daughter witnessed the entire altercation. 

         [¶6]  On February 25, 2005, Shaw filed a protection from abuse complaint against Packard.[1]  The court issued a temporary protection from abuse order and scheduled a hearing for March 9, 2005, pursuant to 19-A M.R.S.A. § 4006 (1998 & Supp. 2004).  Packard retained counsel and filed a written motion on March 8, 2005, to dissolve the temporary order, or in the alternative, for a continuance of the final hearing, stating that the need for a continuance was based on the daughter's unavailability as a witness due to her hospitalization, and that she had "observed the entire incident which is the basis for Plaintiff's complaint."  On March 9, the court denied Packard's request for a continuance based on its reading of section 4006(1), which states that "[w]ithin 21 days of the filing of a complaint, a hearing must be held at which the plaintiff must prove the allegation of abuse . . . ."  After Packard made known the basis for the requested continuance, the court responded that "the statute requires a hearing within twenty-one days . . . and it uses the word