The Family Court af the Strte of Belxtoare Davipw. jot 400 Cover Sraeer COMMISSIONER Dover, DELAWARE 19901 February 20, 2015 Carolyn M. MeNeice, Esq. Parkowski, Guerke & Swayze, PA 16 South Front St. Georgetown, DE 19947 James E, Liguori, Esq. Liguori & Morris 46 The Green Dover DE 19901 Russell Hardin, Jr. Esq. Rusty Hardin & Associates, LLP 5 Houston Center 1401 McKinney St. Suite 2250 Houston, TX 77010 Re: Patricia P. Driscoll v. Kurt Busch File No. CK14-02747, Petition No. 14-30621 Counsel, Enclosed herewith, please find the Supplemental Disposition setting forth the findings and conclusions that form the basis for the Court’s decision to enter the PFA Order in the above referenced matter. The Court is aware of the filing by Respondent of a Motion to Reopen the Court's Order for the purpose of presenting further testimony. The Court has also considered Respondent's request to delay publication of this Supplemental Disposition pending the outcome of their Motion to Reopen. The Court has decided to publish the opinion as scheduled, as review of the Court's reasoning may be of assistance to the parties in defining their positions regarding the pending Motion to Reopen. a C (Sincerely: ~( 7 7s \\ : _Commissioner Dayld W.Fones DWJ/klb \ EnclosureForm 327 vw 9793) The Family Court of the State of Delaware 1m and For Kent County SUPPLEMENTAL CIVIL DISPOSITION - COMMISSIONER Pane Respondent | PATRICIA DRISCOLL kkuRT BUSCH | 899 COLLEGE AVENUE lS LUGNUT LANE IELLICOTT CITY, MD 21043 OORESVILLE, NC 28117 ei *AROLYN MCNEICE, ESQ. JAMES LIGUORI, ESQ/RUSTY Care 12411977 8/4/1978 Before DAVID W. JONES, Commissioner of the Family Court of the State of Delaware: On November 5, 2014, Petitioner Patricia P. Driscoll filed a Petition for an Order of Protection from Abuse against Respondent Kurt T, Busch pursuant to 10 Del. C. Sec. 1042. The Court held hearings upon the Petition on December 16 and 17, 2014, and January 12 and 13, 2015. Petitioner was represented by Carolyn McNeice, Esquire. Ir., Esquire, a member of the Texas bar, admitted pro hac vice, and James E. Liguori, Esquire. At the parties’ request, they were permitted to file written closing arguments. On February 3, 2015, February 4, 2015, and February 5, 2015, the parties filed their written summations with the Court. The Court has reviewed the trial transcript, the exhibits admitted at trial and the written submissions of the parties and has issued a Protection From Abuse Order pursuant to the Petition based upon the finding that on September 26, 2014, Respondent committed an act of domestic violence against Petitioner within the meaning of 10 Del. C. Sec 1041 (1) and (2). This Supplemental Disposition sets forth the findings and conclusions Respondent was represented by Russell Har that form the basis of the Court's decision to issue a Protective Order. APPLICABLE LAW 10 Del. C. Sec, 1044(b) provides that if the Court finds by a preponderance of the violence has occurred, the Court shall enter an Order granting any appropriate relief, including, but not limited to, restraining the respondent from committing further acts of domestic violence, restraining the respondent from contacting or attempting to contact the petitioner, ordering respondent to participate in treatment ot counseling and/or any other reasonable relief necessary or appropriate to prevent or reduce the likelihood of domestic violence. 10 Del, C. Sec. 1044, 1045 (a) (1),2),(10). Domestic violence is defined by 10 Del. C. See. 1041(2) to mean "abuse" perpetrated by 1 member against another member of certain protected classes, including persons involved in a current or former substantive dating relationship. The parties stipulated at trial that Petitioner and Respondent were involved in a current or former evidence that the alleged domes substantive dating relationship. Fienogy CK14-02747 CHINO) 14-30621 PETITION FOR AN PROTECTION FROM Date of Hearne [2212015Abuse is rather broadly defined by the PFA statute to include, in pertinent part: " Intentionally or recklessly causing or attempting to cause physical injury to another person", " Intentionally or recklessly placing or attempting to place another person in reasonable apprehension of physical injury", " Engaging in a course of alarming ot distressing conduct in a manner which is likely to cause fear or emotional distress or provoke a violent or disorderly response", and" Any other conduct which a reasonable person under the circumstances would find threatening or harmful." 10 Del. C. Sec. 1041 (1) a b, d, h. Although physical injury is not defined in the PFA statute, it is defined elsewhere in the Delaware Code to mean impairment of physical condition or substantial pain. 11 Del. C. Sec. 222 (23). Abuse is established by a preponderance of the evidence when the evidence establishes that the abuse is more likely than not to hhave occurred. In other words, if the Court finds that the probability that the Respondent committed an act of abuse on the occasion alleged in the Petition exceeds fifty percent, the Court is required by statute to enter an Order restraining Respondent from committing acts of domestic violence against the Petitioner and granting such other relief as the Court finds necessary or appropriate to prevent or reduce the likelihood of future domestic violence. 10 Del. C. See. 1044(b), 1041(4). CONCLUSION ‘The Court is satisfied that the evidence presented at trial established that it is more likely than not that on September 26, 2014, Respondent committed an act of abuse against Petitioner by manually strangling Petitioner with his left hand on her throat, while placing his right hand against her chin and face, causing her head to forcefully sitike the interior wall of Respondent's motor home, thereby recklessly causing physical injury to Petitioner and recklessly placing Petitioner in reasonable apprehension of physical injury, The Court further finds that Respondent's actions on that occasion constituted conduct that a reasonable person would find threatening or harmful. ‘THE PARTIES Petitioner is the President of The Armed Forces Foundation, a non-profit foundation that helps military members who suffer from physical wounds and post traumatic stress disorder by providing financial assistance, counseling and other services to those military members and their families. The Armed Forces Foundation also hosts various events for wounded service members and their families, including "Troops to the Track", a program in which the foundation brings service members and their families to NASCAR races, where they can meet the drivers and participate in various activities. Petitioner is also the CEO of Frontline Defense Systems, a company that provides sensors for use by the US Department of Defense and The US Department of Homeland Sceurity to detect human activity in areas such as the United States border with Mexico. Respondent is a professional race car driver who has competed professionally for fifteen years. Respondent presently competes primarily on the NASCAR stock car racing circuit, having won the NASCAR championship in 2004. The parties have been together in a committed relationship for approximately four years. Throughout their relationship, Petitioner has assisted Respondent with rehabilitating and maintaining his public image and his relationships with his various racing teams. Respondent has assisted The Armed Forces Foundation by serving as a spokesperson for the foundation. 2Over the course of the parties’ relationship Respondent also developed a strong, loving, involved relationship with Petitioner's young son, Houston THE ALLEGATIONS The Petition for Order of Protection from Abuse alleges that on Friday, September 26, 2014, in Respondent's motor home at Dover Intemational Speedway, Respondent committed acts of abuse against Petitioner by verbally abusing her and smashing her head three times against the wall of his motor home, causing her severe pain, difficulty breathing and bruising on her neck. Respondent denies the allegations contained in the Petition, asserting that he committed no acts of domestic violence against Petitioner on that occasion and that the allegations of abuse were fabricated by Petitioner in an effort to extort money from him and to ruin his public image and damage or destroy his racing career, Petitioner and Respondent have thus presented opposing and irreconcilable versions of the events alleged to have occurred in Respondent's motor home at Dover International Speedway on September 26, 2014. To enhance the Court's understanding of those events and in support of their respective positions, the parties also presented testimony by the parties and other witnesses regarding the nature and history of the relationship between the parties, events and interactions between the parties and with others in the days and weeks before and after September 26th, and information to assist the Court in evaluating the credibility of the witnesses and their testimony. The parties also presented documentary evidence in the form of photographs of Petitioner's injuries, photographs and diagrams of the layout of the motor home, text communications between the parties in the days and weeks before and after September 26th, text and email communications between the parties and others and written communications between the parties’ previous attomeys regarding the prospect of privately resolving the ssues surrounding their separation, including the issues presented by the September 26th incident. PETITIONER'S VERSION OF THE ALLEGED INCIDENT Petitioner testified that on the evening of September 26th, she was concerned for Respondent's welfare based upon reports she had received from others at the track that Respondent appeared pale and upset. The parties had broken up the previous week after Respondent became frustrated and upset due to a poor race result in New Hampshire, cursed out his entire race team, ripped the rearview mirror from the windshield of their rental car, breaking the windshield and accidentally hitting Petitioner's leg with the mirror, then called off the parties’ planned anniversary trip through New England and told Petitioner that their relationship was over. Petitioner testified that Respondent drove Petitioner to Logan Airport near Boston, where they argued, Respondent pulled Petitioner's seat belt around her neck, then let it go and exited the car, whereupon Petitioner drove off, leaving Respondent at the airport without his luggage. Petitioner testified that such arguments and breakups had occurred before near the end of previous racing seasons when Respondent became frustrated by his racing results, that they had always reconciled after Respondent had time to calm down, and that she still loved him and expected their relationship to continue, Petitioner said that she had been informed on September 26th that Respondent had "melted down" afer a poor qualifying session in Dover, cursing at his crew chief and screaming at his team manager. Petitioner testified that her concerns were heightened by an exchange of text messages on the 3evening of the 26th, (Petitioner's Exhibit 1), wherein Petitioner texted Respondent that she hoped that he was ok, to which Respondent replied that he was " lying on the floor crying" after watching "Seven years in Tibet" and that he didn't know which way was up. Petitioner replied that she loved Respondent, to which Respondent replied "I know, but I don't know if I do. I don't love anything right now." Petitioner replied "I'm hurting for you and I am always here for you. The world feels like it's coming down around you You will get through this." to which Respondent replied “It's down on top of me. T shouldn't have replied.” Petitioner stated that she was really worried about Respondent because his responses were unlike him and he sounded “broken.” She testified that after consulting with trusted members of Respondent's team, she decided to drive to Dover ‘with her son to comfort Respondent because she and those she consulted believed that Respondent needed the love and comfort of his family. Petitioner testified that she and Houston arrived at Respondent's motor home at approximately 10pm and that when they entered it was dark and Respondent yelled from the bedroom "who the fuck is in here?" When Petitioner replied that it was she and Houston, Respondent asked "why the fuck are you here?" Petitioner indicated that she replied "we're here because we love you. Are you ok?" Petitioner testified that Houston hugged Respondent then at Petitioner's request went to the front of the motor home to watch television. Petitioner testified that after Houston left the bedroom, Respondent called her a psycho and again asked why she was there, to which she replied that she was worried about him. Petitioner observed that Respondent looked very pale and crazy and not like himself, She said that he began to rant in whispered tones about his race team, Petitioner said that she tried to assure Respondent that things would work out with his team, but Respondent continued to vent regarding being in trouble for yelling at his crew chief and other issues. Petitioner asked Respondent if he was trying to get fired. According to Petitioner, Respondent said he wanted to quit everything and that if he had a gun at that moment, he would shoot himself. Petitioner said that she was afraid for him because he seemed out of his mind. She indicated that he was suspicious regarding why she had texted him about hoping he was ok precisely when he was erying on the floor and accused her of having spies everywhere and cameras in the motor home. He was angry with her for leaving him at Logan Airport. She testified that he said that he did not want her there and that she should leave. She reported that he told her that he was done with everything and that he was done with her. Apparently unaware that Respondent's emotional distress upon watching "Seven Years in Tibet" that evening was the result of his observation of parallels between the movie and the prospect of Respondent losing his relationship with Houston due to the parties’ breakup, Petitioner decided to “call his bluff” regarding his desire to end their relationship by insisting that if it was over, they explain the end of the relationship to Houston. According to Petitioner, when she insisted that they tell Houston then and there in response to Respondent's refusal to tell Houston until the end of the racing season, Respondent "snapped." She testified that he jumped up from the bed, grabbed her throat with his left hand, placed his right hand on her face with his thumb near her chin and his fingers near her left ear, then strangled her while he smashed her head into the bedroom wall of the motor home three times. Petitioner testified that she couldn't breathe and that it felt like Respondent was crushing her throat. She said that she was afraid because he had "just snapped” and had a crazy look on his face. She shoved his hands off of her face and throat, called him a piece of shit and a coward, then fled the motor home with Houston.Petitioner testified that when she left Respondent's motor home on September 26", she was scared, in shock and confused regarding why Respondent would do to her the things that he had just done. She indicated that she was crying too hard to drive home and needed to talk to someone about what had happened, so she put Houston in her car and drove to the motor home of Nick Terry, a minister with Motor Racing Outreach who had previously counseled the parties, and his wife Amy, located fifty yards away. She stated that the Terrys invited her and Houston in, listened as she described what Respondent had done to her, tried to calm her down and gave her a bag of frozen vegetables because the back of her head and neck were hurting and some ibuprofen because her head was pounding and her throat hurt. Petitioner testified that she still felt like she couldn’t breathe, as if Respondent’s hand was still around her neck and her throat felt crushed. She said that the Terrys had asked whether she wanted to call the police, but she told them that she couldn’t for fear that it would impact her litigation over custody of Houston. She testified that she asked them if there were any marks on her neck and that they told her that her neck was red. She stated that after spending about an hour at the Terrys’ motor home, she decided to drive home. She testified that on the drive home, she attempted unsuccessfully to call her custody attorney, called her unofficially adoptive brother and mother and asked that the mother fly up from Florida to stay with her, and sought guidance from Richard Andrew Sniffen, who had previously provided religious counseling to the parties and had been counseling Petitioner since their September 21% breakup. As she got closer to home, Petitioner called her neighbor, Waleska Rodriguez and asked her to mect Petitioner at Petitioner's house. When Petitioner arrived home at approximately 1:30 am, she put Houston to ‘bed, observed her injuries in a mirror, took photographs of her injuries on her I phone as a reminder of what Respondent had done to her, obtained an ice pack and more ibuprofen for her injuries, then invited Mrs. Rodriguez in and told her what Respondent had done. Petitioner stated that when she awakened on September 27", much of the redness on the front of her neck was gone, but small, painful red spots remained and the bruises were darker and more pronounced. She said that her head and neck still hurt, and her throat still felt crushed. She stated that she didn’t seek medical treatment for her injuries for fear that the doctors would be required to report the incident to the police. She said that she remained fearful of Respondent because he had just snapped and she did not know what he was capable of. She testified that because of her fear of Respondent, before Mrs, Rodriguez left her home earlier that morning, they changed the alarm codes to her house and that when Mrs. Rodriguez. and her husband returned later in the day, they changed the key codes to the door locks, activated the security cameras around and throughout the house and set up a TV in her bedroom so that she could monitor the camera feeds. She advised her staff that she would be unable to attend her scheduled Troops to the Track and VA appearances in Dover that weekend. Petitioner testified that her throat continued to hurt and felt crushed for days, that the bruises got worse, then yellowed and faded away by the end of the following week and the tiny red spots on her neck and the bump on the back of her head disappeared over time as well, Petitioner testified, however, that the emotional eflects of the September 26" incident have not faded, that she remains fearful of personal contact with Respondent and for that reason has been unable to attend ‘Troops to the Track and other events at the NASCAR races that are important (o the work of The Armed Forces Foundation. 5RESPONDENT'S VERSION OF THE ALLEGED INCIDENT Respondent testified that he and Petitioner shared a loving, equal relationship. His testimony clearly reflected that he also had a loving, bonded and involved relationship with Petitioner’s son Houston, Indeed, Respondent testified that he felt that his relationship with Houston was stronger than his relationship with Petitioner. He stated that although Petitioner was involved with his racing career on a loving, caring level, assisting with daily activities, traveling to races, communicating with team members and coordinating PR events, as time passed she asserted increasing levels of control over his schedule. Although he testified that Petitioner arranged only approximately 10% of his 200 annual interviews, Respondent stated that he ultimately became resentful of the extent to which events, trips and media appearances scheduled for him by petitioner kept him away from his race team, in his view to the detriment of his racing, and began to question their relationship. Respondent testified that his desire to end his relationship with Petitioner crystallized in his mind following a poor performance in a race in New Hampshire on September 21, 2014. He concluded that he had not achieved the results that he had wanted for the season and attributed much of his lack of success to his absence from the team due to events scheduled by Petitioner, so he determined that he needed 1o end their relationship. Ironically, they had planned fan anniversary trip through New England for the days between the New Hampshire and Dover races, culminating in interviews with The Weather Channel in New York on September 25", which had been arranged for Respondent by Petitioner. Respondent testified that afier the New Hampshire race he had an argument with his crew chief, then shortly after he entered the rental car that he had secured for the trip, he vented his frustration with his poor racing result by ripping the rear view mirror from the windshield, causing the windshield to crack. He testified that he was not aware that he ner with the mirror, and said that if he did, it was unintentional. He decided to abort their planned trip and instead divert to Logan Airport, near Boston. He testified that on the way to the airport, he told Petitioner that she had led him down a path that didn’t allow him to focus on the racecar, and that their relationship was through. He stated that Petitioner responded that it was just a bad race, that it would blow over, that he would be fine, and that they would “get ‘em next year.” He stated that he told her that he was tired of not having his focus on the race team and that he had to leave her if he was going to fix what needed fixing with the team. He testified that afier he tumed off the freeway towards the airport, Petitioner said “I can’t believe you're going to the airport. | can’t believe it, You don’t need to do this.” Respondent Stated that things got heated as they approached the airport, but denied pulling Petitioner’s seatbelt around her neck. Ile stated that he just stopped the car at a fork in the road, popped the trunk release and got out to get his luggage, when Petitioner got into the driver's seat and drove off, leaving him without his bags. He then texted her that he knew that she would pull a stunt, called her a cunt and texted “bye forever.” Respondent testified that the next time he heard from Petitioner was at 7:31pm on September 26th, (Petitioner's Exhibit 1), when Petitioner texted "I hope you're ok". Respondent replied "I'm crying laying on the floor. I just finished watching "Seven years in Tibet" I don't know which way is up. But for some reason you confuse me more, and your timing is impeccable." Respondent explained at trial that he was crying after watching the film because of parallels in his mind between the plot of the movie, 6in which a man left his wife and young child to seek adventure, only to return years later when the child was an adult, and the prospect of losing his relationship with young Houston due to his ending his relationship with Petitioner for the purpose of pursuing racing glory. Respondent explained that he thought that the timing of Petitioner's text regarding whether he was ok was suspect in that he always had the sense that Petitioner ‘was tracking things because she always seemed to know the situation. When Petitioner responded "I love you", Respondent replied "I know, but T don't know if I do. 1 don't love anything right now.” Respondent explained at trial that he was attempting by his response to tell Petitioner that he no longer loved her, not that he didn’t love himself. When Petitioner responded I'm hurting for you and I am always here for you. The ‘world feels like it's coming down around you. You will get through this... Respondent replied "It’s down on top of me, I shouldn't have replied.” Despite the tenor of his replies to Petitioner's texts, Respondent insisted at trial that he was not depressed or despondent at the time, He testified that after his text exchange with Petitioner, he picked himself up off the floor and went to bed around 9pm. Respondent testified that later that night he was awakened by the sound of the motor home door opening and sat up startled in bed and shouted "who the fuck is there?", then heard Petitioner reply sternly, "I's me." Respondent stated that he tumed the bedroom light on to see Petitioner storming abruptly and aggressively into the bedroom, holding Houston's hand. He indicated that he asked her what she was doing there, to which she replied that she was checking on him, to which he replied that she didn't need to be there, He stated that Petitioner then demanded (with Houston by her side)that iff they were through, he needed to tell Houston that the relationship was over and that he needed to man up and not be a coward. Respondent said that he told Petitioner that was an adult situation, not one for Houston, that he would talk to Houston in the off season, and that she should leave. He testified that she demanded that he tell the child that he would no longer be in his life. Respondent stated that he then got up out of bed, took Houston to the front of the motor home to watch TV, then returned to the bedroom, closed the door, sat on the bed and told Petitioner that the relationship was through and that he needed to focus on his racing. He testified that she said that there had to be another reason why he was ending the relationship and asked if there was another woman. He indicated that he replied that there was no other woman, that he didn't need her in his life and that he wanted to end the relationship. He stated that Petitioner again demanded that he tell Houston that the relationship was over, telling him that he was breaking her heart and Houston's heart, to which he replied that he would tell Houston in the off season. According to Respondent, Petitioner then opened the bedroom door, went to the front of the motor home, brought Houston back into the bedroom and again demanded that he tell Houston that the relationship was over. Respondent testified that he again got up, took Houston back to the front of the motor home, returned to the bedroom, stood naked in front of Petitioner, looked her in her eyes, gently cupped her checks with his hands and told her she had to leave, then got back into bed. He stated that she yelled out "this is far from over", then called him a fucking pussy and a coward and stormed out of the bedroom, grabbed Houston and left. Although Respondent admitted to having a temper that would be considered short by most people and that his temper has at times gotten him in trouble and made him his ‘own worst enemy, he denied grabbing Petitioner by her throat and face, slamming her head against the wall of his motor home or in any way assaulting Petitioner or engagingin any acts of physical aggression towards her on September 26th. Respondent claimed that he would never physically attack Petitioner because he believes her to be a trained assassin based upon things that he claimed that he has seen and things that he claimed that she had said to him throughout their relationship, and for that reason fears that he would likely "have his ass handed to" him if he tried to physically harm her. Respondent contends that the allegations contained in the PFA Petition and Petitioner's, testimony are fabrications by Petitioner intended to either extort money from him or to exact revenge against him for breaking up with her by ruining his image and his racing career. CREDIBILITY Because the parties have presented the court with conflicting and irreconcilable versions of the events of September 26, 2014, the Court must consider which version of the events is more credible in determining whether abuse has been proven by the preponderance of the evidence. Despite concems regarding Petitioner's credibility raised by Respondent, the Court finds Petitioner's version of the events of September 26, 2014, to be the more eredible based upon her demeanor when required to recall and describe the alleged acts of abuse, the absence of motive to falsify when she initially disclosed the alleged abuse moments after the events in a manner consistent with her trial testimony, the fact that her testimony regarding those events is corroborated by documentary evidence, including photographs of her injuries and text communications between the parties both before and after the incident and between herself and others after the incident, the fact that her testimony regarding those events is corroborated in important respects by the credible testimony of other witnesses and based upon the Court's finding that her version of the events is believable given the totality of the other evidence admitted at trial. The Court finds Respondent's version of the events of September 26, 2014, to be less credible than Petitioner's version based upon the manner in which he initially testified regarding those events, his obvious interest in preserving his racing career, which could be endangered by a finding that he committed an act of domestic violence, the fact that his testimony conflicts with the documentary evidence that corroborates Petitioner's version of the events, including photographs of Petitioner's injuries and text communications between ‘the parties before and after the incident, the fact that his testimony is inconsistent with the credible testimony of other witnesses, and based upon the Court's finding that Respondent's version of the events is implausible, does not make sense and is unlikely to be true given the totality of the other evidence admitted at trial OPINION TESTIMONY In an effort to discredit Petitioner and to support their contention that the allegations of abuse and her trial testimony are unworthy of belief, Respondent presented the opinion testimony of Charis Burrett, Respondent's Business partner, and Kristy Cloutier, Respondent's long time administrative assistant. Charis Burrett testified that she has known Petitioner since 2008 and Respondent for approximately four years. She testified that she formerly had a business relationship with the Armed Forces Foundation and that she and her husband are presently partners with Respondent in a business that manufactures and sells clothing displaying Respondent's image. She testified that based 8upon her knowledge of Petitioner's reputation for truthfulness or untruthfulness, Petitioner's testimony under oath should not be believed. Likewise, Kristy Cloutier, who testified that she has been Respondent's administrative assistant since 2003, and has known Petitioner for the four years that the parties were together, testified that, in her opinion, Petitioner should not be believed. The Court finds the testimony of Mrs. Burrett and Ms. Cloutier regarding their opinions of Petitioner's credibility to have been so dramatically tarnished by their obvious bias and personal financial interest in Respondent's public image and racing career, which, according to Respondent and his counsel, could be irreparably damaged if he were to be determined to have committed an act of domestic violence, that their opinion testimony is unworthy of consideration by the Court in determining Petitioner's credibilit IMPEACHMENT BY EXTRINSIC EVIDENCE- TRAINED ASSASSIN ‘TESTIMONY Respondent also attempted to impeach Petitioner's credibility at trial by presenting the testimony of Ms. Burrett, Michael Domcheff, who is employed by Respondent as his motor coach driver, and Respondent that Petitioner had represented to them that she vwas a mercenary, a covert operative and/or a trained assassin, Respondent's summation appears to reflect that Respondent has, appropriately, abandoned this argument, as DRE 608(b) precludes impeachment by extrinsic evidence of specific instances of conduct and as Respondent has not in any event established any such representations to be untrue, since the only evidence admitted at trial regarding whether Petitioner is in fact a trained assassin is the uncontroverted testimony of Respondent regarding the things that he claims to have seen and heard during the parties’ relationship that have caused him to bbe convinced that Petitioner is a trained assassin. DEMEANOR AND MANNER OF TESTIFYING Although Petitioner often appeared combative upon cross examination, attempting to respond to the points she perceived counsel was attempting to make rather than the questions asked, the Court finds that such behavior is not uncommon when witnesses perceive themselves and their integrity to be under attack, and therefore does not reflect negatively upon the Court’s assessment of her credibility. More significant for the Coun's determination of Petitioner's credibility was her demeanor when asked to describe the alleged September 26th assault. Each time that Petitioner was required to recall the alleged incident in court, whether on direct or cross examination, she became visibly upset. Her throat muscles appeared to contract, as if she were re- experiencing the alleged strangulation. She trembled, cried and sobbed to such an extent that her responses occasionally became difficult to understand. The Court perceived this emotion to be genuine and consistent with the kind of response expected of domestic violence victims required to recollect and describe in detail the acts of abuse committed against them and for that reason, finds Petitioner's testimony regarding the alleged assault to be credible. Although Respondent was less combative than Petitioner during his testimony, when he ‘was first called to testify on December 17th, he appeared to have memorized his version of the events and seemed unwilling or unable to answer questions that required him to discuss the events out of the sequence in which he had memorized them, instead giving 9narrative answers that brought counsel “up to speed” with the sequential order of his story. While memorization and/or rehearsal of testimony are not, in and of themselves, proof of fabrication, the manner of Respondent's initial testimony calls the credibility of his testimony into question, as the truth should be accessible to an honest witness in any sequence requested by counsel. Respondent's counsel seemed to have astutely recognized the credibility issue presented by Respondent's manner of testifying, as he objected to his own client being permitted to testify in the narrative. Significantly, after the objection of his counsel and instruction by the Court, Respondent resumed testifying in the same manner, it appearing to the Court to be the only way he could recall his version of the events. PETITIONER'S MOTIVE TO FABRICATE Respondent asserts in summation that Petitioner fabricated the allegations of abuse against Respondent, motivated by the desire to extort money from him and/or to ruin his racing career as revenge for breaking up with her. The only direct evidence presented by Respondent at trial to support these allegations regarding Petitioner's motive to fabricate was the January 13, 2015, testimony of Richard Andrew Sniffen. Both Petitioner and Mr. Sniffen testified that he served as somewhat of a spiritual advisor to the parties and that Petitioner frequently contacted him during the period between the September 21st New Hampshire incident and his departure for vacation in the first week of October, then again from his return from vacation in mid October until the beginning of November. Indeed, Both Petitioner and Mr. Sniffen testified that Petitioner contacted him by telephone from her car on September 26th, shortly after she left Nick and Amy Terry's motor home, to report to him what had occurred and to seek his advice and comfort, Unfortunately, Mr. Sniffen's recollection of the details of his conversations with Petitioner prior to his October vacation, including their conversation of September 26th, was so poor as to be of little value. So poor, in fact, that he had to resort to testifying regarding his recollection of the general themes of Petitioner's conversations with him. Indeed, his recollection for detail was so poor that the Court was forced to admonish counsel to take extraordinary care to avoid leading the witness. Mr. Sniffen himself acknowledged that there were holes in his memory. In reality, the fabric of his memory regarding the details of his pre-vacation conversations with Petitioner was ‘much more hole than cloth. Inexplicably, the fabric of Mr. Sniffen’s recollection of certain of the alleged details of his post vacation conversations with Petitioner appeared much more tightly woven, as if the holes in his memory had been miraculously mended during his vacation, Mr. Sniffen testified on January 13, 2015, that following his return from vacation in the middle of October, Petitioner's motivation seemed to have evolved from seeking help for Respondent and reconciliation in a healthy relationship, to resignation that the relationship was over and eventually, revenge. He testified that sometime close to when she filed her PFA Petition, Petitioner told him that she had sactificed her non-profit and her business to focus her efforts solely on Respondent's career, tuning his career and image around and that he was not just going to walk away from her. He testified that she said that she would destroy Respondent's career and that she would destroy Respondent and that on more than one occasion she said that she would take Respondent down. He testified that she stated that if Respondent thought that he could buy her off with a $90,000 car, he had another think coming. During her cross examination by Respondent's counsel on December 16, 2014, Petitioner denied having made those statements to Mr.Sniffen, Respondent now argues that Petitioner's 10denial that she made those statements constituted Perjury. Interestingly, Petitioner not only denied making those statements to Mr. Sniffen in her December 16th testimony, but a few days later, on December 20th, attempted to confront Mr. Sniffen in a text message regarding the implications of what she had been asked: “T want you to know that Kurt's attorneys have made it sound like you are coming to testify for him. Tm not sure what you'd say because I've only told you what happened that night. I called you after he assaulted me because I trusted you and believed in our friendship. They claim all kinds of awful things that I've never said to you including " Tm going to take him down." I only ever wanted Kurt to get help for his alcoholism and depression. I thought that you were in that battle with me to help. T hope that what they are saying isn't true because I know I have never told you anything like that. I also want you to know that Kurt has my ex-husband testifying for him. They are both now ‘working together to take my son from me.” (Respondent's Exhibit 20). Significantly, Mr. Sniffen failed to respond to Petitioner's text messages asserting that she had not said to him the very things that he later testified that she had said, and inquiring whether it was true that he had told Respondent's lawyers that she had said them, Based upon what the Court can only characterize as the suspicious resuscitation of Mr. Sniffen's memory of the details of his post vacation conversations with Petitioner almost exclusively regarding the disputed statements, Petitioner's denial of those statements not only in her trial testimony, but also in private text communications with Mr. Sniffen, and Mr. Sniffen’s telling omission to respond to, or address in any manner Petitioner's denial in her text message that she had ever made such statements to him, the Court finds Petitioner's testimony that she did not make the disputed statements to Mr. Sniffen to be more credible than his testimony that she did. Respondent asserts, however, that Mr. Sniffen has no possible motive to falsify testimony in Respondent's le it is true that Mr. Sniffen has in the past served as a spiritual advisor to joner and Respondent and has performed work for The Armed Forces Foundation, his last text message to Petitioner on December 22, 2014, clearly implied that, in Petitioner's words, Mr. Sniffen had chosen to side with Respondent, Mr. Sniffen admitted at trial receiving a donation of an unstated amount of money from Respondent sometime in the last half of 2014. The testimony of Respondent's assistant, Kristie Cloutier established that Respondent ears millions of dollars per year from his racing career. While no evidence was admitted to support a finding by the Court of the existence of a quid pro quo, it is not difficult to imagine that Mr. Sniffen's choice of side and his testimony might be influenced by his desire to curry favor with a wealthy donor capable of supporting him and his ministry by future donations. DRE 610 precludes the Court from finding the credibility of Mr. Sniffen’s testimony to be in any way enhanced by his status as a minister, or his assertions that his decisions and testimony have been guided by his religious beliefs or communications with the almighty. Because the Court finds Petitioner's testimony that she did not make the disputed statements to Mr. Sniffen to be more oredible than his testimony that she did, the Court finds that Petitioner's testimony in that regard was in fact truthful, and that she did not tell Mr. Sniffen that she would destroy Respondent or his career, that she would take him down, that he wasn't just going to walk away from her after the sacrifices she made for his career, or that if Respondent thought that he could buy her off with a $90,000 car, he had another think coming. Because these alleged statements formed the factual basis for Mr. Sniffen's testimony that Petitioner was at or around the time of the ulfiling of her petition, motivated by revenge against Respondent for leaving her, the Court must disregard that testimony. Even if the Court were to accept Mr. Sniffen's testimony that at and around the time of the filing of her PFA Petition, Petitioner was motivated at least in part by revenge and the desire to destroy or damage Respondent's career, that finding would not support Respondent's contention that Petitioner fabricated the allegations that Respondent abused her on September 26, 2014. For motivation to be probative regarding a claim of fabrication, the alleged motive must have been in existence at the time of the alleged fabrication. Petitioner first reported the allegations that ultimately formed the basis of her PFA Petition to Nick and Amy Terry, Mr. Sniffen, Waleska Rodriguez, het adoptive "mother" and "brother" and Respondent’s coach driver Michael Domcheff, in the hours immediately following the September 26th incident. According to Mr. Sniffen's testimony, at and around the time when Petitioner first disclosed the allegations of abuse and for days thereafter, her motivation was to get Respondent the help that she believed he needed and to reconcile their relationship, not to extort money from Respondent or to destroy him or his career. This aspect of Mr. Sniffen's testimony is confirmed by Respondent's Exhibit 3, Petitioner's September 27th response to an e mail from Respondent's associate Jonathan Helfiman, which reads, "This is really cool. 1 really love Kurt and hope he is ok. So does Houston. I just keep praying he gets out of this funk." The testimony of Michael Domcheff further confirms that, at and around the time of her initial disclosures of the allegations, Petitioner was motivated by concern for Respondent, not desire to extort or ruin him. Mr. Domeheff testified that in the two weeks immediately following the September 26th incident, Petitioner called him at least five times to express concern for Respondent and to ask how he was. The Court finds that it would make no sense to conclude that, at a time when she was by all accounts motivated by concern for Respondent's welfare and by the prospect of eventual reconciliation with Respondent, Petitioner would fabricate and disclose to others allegations that once spread could destroy his career. Of course, Petitioner's motivation to reconcile is not itself evidence that abuse did not occur. Intimate partners who experience domestic violence often do reconcile. Indeed, many victims of domesti violence choose to stay with their abusers despite ongoing abuse for a variety of reasons. Respondent asserts in the alternative that Petitioner's October 13,2014, text message to Respondent admonishing Respondent for "lawyering up", (Respondent's Exhibit 2), and her attomey Mark Dycio's October 22, 2014, letter to Respondent's then counsel, (Respondent's Exhibit 6),constitute evidence that Petitioner fabricated the allegations of abuse in an effort to extort money from Respondent. The Court disagrees, Neither Mr. Dycio's October 22, 2014, letter, nor any other correspondence between the parties or their counsel admitted into evidence contain any reference to Petitioner making a demand for a financial settlement from Respondent in exchange for not reporting the September 26th incident. In his October 22nd letter, Mr. Dycio simply outlined the issues that needed to be resolved from Petitioner's perspective, including, the division of their property, settlement of financial obligations and “resolution of personal issues that are clearly best kept in confidence between the parties” and advised that if those matters weren't resolved to Petitioner's satisfaction, she would take legal action. jgnificantly, Mr. Dycio explained in his letter that Respondent had contacted him to discuss the issues between the parties and that he requested to do so even after being 12advised that Petitioner had retained Mr. Dycio. Petitioner's October 13th text message to Respondent clearly demonstrates that her frustration with Respondent "lawyering, up" was due to the fact that her motivation for retaining Mr. Dycio at that time was not to extort money from Respondent, but rather to have Mr. Dycio help them “talk through what happened” in order that the parties could "mend fences" and "set the clock back” for each other, consistent with her trial testimony that she wanted Respondent to get help for the issues that had resulted in him abusing her on September 26th and resolve their issues amicably. Although Respondent's then attorney expressed Respondent's willingness to amicably and confidentially resolve through counsel the issues between the parties in an October 23, 2014, reply to Mr. Dycio, (Respondent's Exhibit 16), no evidence of any further negotiation or any demand for financial compensation was admitted into evidence by either party. In fact, the next and last correspondence between the parties’ attomeys that was admitted at trial was Mr. Dycio's October 29th reply, (Respondent's Exhibit 17), to Respondent's counsel's October 23rd letter, advising that he would no longer be involved because the civil matters between the parties would be addressed by the North Carolina Courts and "the matter of the assault" would be addressed by the Delaware Court. Of course, the very efforts to negotiate the private, confidential resolution of the issues between the parties that Respondent incorrectly asserts constitute evidence of extortion, constitute compelling evidence that Petitioner was not at the time motivated by the desire to ruin Respondent's public image or destroy his career. While there were no communications between the parties from September 26th until October Sth according 10 their testimony, Petitioner's text communications with Respondent on October Sth and October 13th, including the October 13th message referenced previously herein, clearly further demonstrate that she was not motivated by intention to extort Respondent or to extract revenge against him during the weeks immediately after her initial disclosures of abuse. On October Sth, Petitioner replied to Respondent, " I want nothing but the best for you. I've told no one in the media. I don't know what you're talking about. My heart aches." On October 13th, Petitioner texted Respondent, " Kurt...awyering up is going in the opposite direction of where I had hoped we would be at this point... lam sorry you have chosen this path... your attorney has no interest in helping us mend fences and set the clock back.... we need to do that for each other." She further texted Respondent on that same occasion, "I've sat on my fucking hands waiting on you.", “this is the path you have chosen, not me. I never wanted any of this and told you as much. I never wanted what happened. You at any point could have come to me, called me, anything." Later in the same text exchange, Petitioner told Respondent, "I never wanted you to hurt. I've always loved you too much for that." Based upon the totality of the evidence presented at trial, the Court cannot find that Respondent has established that Petitioner had a motive to fabricate the allegations of abuse that form the basis of her Petition and her trial testimony at or around the time ‘when those disclosures were first made. INTEREST IN THE OUTCOME OF THE PROCEEDING/ RESPONDENT'S MOTIVE TO FABRICATE ‘Throughout the course of the proceedings in this matter, Respondent has asserted through his counsel that the allegations of domestic violence against Respondent have the potential to ruin his public image and irreparably damage or destroy his racing a3career. The corollary to this assertion is, of course, that because Respondent has so much to lose if found to have committed an act of domestic violence, he has a powerful incentive to do whatever it takes to avoid a finding of abuse, including provide false testimony. Respondent's assistant, Kristie Cloutier testified at trial that Respondent cars millions of dollars per year from his racing career. Charis Burrett testified that Respondent also has a partnership with her and her husband manufacturing and selling clothing displaying Respondent's image. In their 2014 NASCAR Driver Profile of Respondent, Athlon Sports referred to his employment with his current race team as Respondent's "one last chance at a title-contending ride.” (Petitioner's Exhibit 9) Respondent testified that in the weeks immediately following the September 26th incident, rumors began circulating among the NASCAR community at the tracks that Respondent had assaulted Petitioner in his motor home in Dover. Respondent testified that his team was aware of the rumors and were pressuring him to handle the situation. Respondent's first contact with Petitioner after the incident was an October Sth text message Wherein he sarcastically chastised Petitioner for taking screenshots of her phone and sharing their personal problems with his current team, insinuating that it reminded him of when she “helped” get him fired from his last team. In the same transmission, Respondent sarcastically chastised Petitioner for “telling the media as well.” (Petitioner's Exhibit 10). Respondent's concern for the impact of these rumors of a domestic violence incident upon his career caused him to contact Petitioner again on October 19th and 20th, when he told her, "... You have undermined me so heavily in the past few weeks, my job is in jeopardy. I just saw management talking with a tier 3 driver. Ok. You have done your job as a cancer and it has to stop.” later in the same exchange, Respondent texted Petitioner, "I know you haven't been at the track, but you have intertwined yourself with people via screen shots, email, text, phone calls, social media, etc., and too many people have knowledge about what propaganda you and only you could be spreading.” (Respondent's Exhibit 2). These communications by Respondent demonstrate that he was keenly aware of what is now at stake in this matter and Was intent upon avoiding any adverse impact of even rumors of his having committed an act of domestic violence upon career. CORROBORATION / CONFLICT The most troubling issue regarding Petitioner's credibility raised by Respondent involves the allegation that Petitioner testified falsely that Nick Terry told her in a telephone conversation that Respondent's counsel had offered him financial assistance in an effort to secure his testimony, which she characterized as an attempt to bribe Mr. Terry. Petitioner was combative at times during her testimony upon cross examination by counsel for Respondent. On one of these occasions, in response to a question regarding why she did not want Respondent or his counsel around the staff from the Armed Forces Foundation, Petitioner accused Respondent's counsel of threatening and attempting to bribe witnesses, including Mr. Terry, and indicated that Mr. Terry had told her that representatives from the offices of Respondent's attorneys had offered him financial assistance to induce him to testify. Mr. Terry testified at trial that Respondent's attorneys had not offered him financial assistance and that, although he did have a telephone conversation with Petitioner in which he discussed Respondent's efforts to secure his testimony, he did not tell Petitioner that Respondent's counsel had offered him financial assistance. The Court finds Mr. Terry's testimony regarding his conversation with Petitioner about Respondent's counsel's efforts to secure his aatestimony to be credible and for that reason resolves this conflict in testimony in his favor. The Court finds that counsel for Respondent did not threaten or attempt to bribe Mr. Terry, of offer financial assistance to him in an effort to secure his testimony. The Court will disregard Petitioner's false testimony regarding her conversation with Mr Terry, Although finding that a witness, and especially a complaining witness, has given false testimony is always of concern to the court, the Court does not find that in this case Petitioner's false testimony, which the Court was obliged to disregard in any event as it was not related to any material issue for decision by the Court, rises to the level where the balance of her testimony cannot be trusted and must be stricken, as the Court finds that the balance of her trial testimony is sufficiently corroborated by other credible evidence. Respondent also alleges that Petitioner intentionally lied regarding whether Nick and Amy Terry told her that her neck was red as she sat with them in their motor home immediately after the September 26th incident. Petitioner testified that when she retuned home on September 26th, she looked in the bathroom mirror because the Tertys had told her that her neck was red. In his testimony, Nick Terry testified that Petitioner had told him and his wife that Respondent had grabbed her by her neck and pushed her against a wall in his motor home, that the back of her head, her neck and her throat hurt and asked them whether there were any marks, scratches or redness on her neck. Mr. Terry testified that he did not observe any marks or redness and that his wife told Petitioner that she saw none. The Court cannot find that Respondent has established that this conflict in testimony constituted perjury or an intentional falsehood by Petitioner. Petitioner's testimony was neither offered nor accepted for the truth of the matter asserted, so there was nothing to be gained by lying. Additionally, both Petitioner and Mr. Terry testified that Petitioner was upset and crying during her time with the Terrys. Indeed, Petitioner testified that she went to the Terry's motor home because she was so upset and crying so hard that she was in no emotional state to drive home. The Court finds that the conflict in the testimony was more likely the result of misunderstanding or misremembering by Petitioner due to her emotional state than intentional falsehood, Because the Court finds that the testimony of Mr. Terry is more likely to be true, the Court finds that Mr. Terry saw no marks on Petitioner's neck when she asked him and his wife to examine her neck in his motor home immediately after the September 26th incident and that neither of the Terrys told Petitioner that her neck was red. However, the fact that Mr, Terry saw no marks on Petitioner's neck in the ‘moments after the alleged incident does not constitute evidence that strangulation did not occur and therefore does not diminish the credibility of the allegations of abuse made by Petitioner. [t is not uncommon in cases of non lethal manual strangulation for extemal evidence of injuries to not appear for several hours after the strangulation incident. indeed, it is not unusual for manval strangulation victims who initially appear uninjured to die after internal injuries to the structures of the throat worsen over time. The real matter of significance for evaluation of Petitioner's credibility is not whether the Terrys saw marks on Petitioner's neck when she asked them to look, but rather the fact that Petitioner asked them to look. If Petitioner's allegations that Respondent strangled her were untrue, if Respondent merely cupped her cheeks and asked her to leave, why would Petitioner have asked the Terrys to examine her neck for evidence of injury? The Court finds that the obvious answer to this question serves to reinforce rather than diminish the credibility of Petitioner and the allegations of abuse. 15‘The Court also finds Petitioner's testimony that Respondent assaulted her on September 26th to be credible by virtue of the fact that her testimony is corroborated by documentary evidence, including photographs of her injuries and text message communications between the parties before and after the alleged incident. Upon her arrival at her home at 1:30 am on the morning of September 27th, Petitioner took photographs of the injuries that she had sustained to her neck as the result of the alleged assault (Petitioner's Exhibits 3,4,5,6). Those photographs depict injuries consistent with manual strangulation in the manner described by Petitioner in her testimony, including a fingertip bruise just beneath her right ear under her jaw line, a thumbprint bruise on the left side of her neck, just beneath the jaw line, and diffuse redness and small red spots consistent with petechial hemorrhage on her throat from pressure applied to the skin. Petitioner's testimony regarding the physical symptoms of her injuries after the alleged assault - difficulty breathing, stinging of the petechiae, her throat hurting and feeling like it had been crushed for days- is also consistent with injuries that commonly occur in victims of manual strangulation assaults. Finally, the descriptions by Petitioner and her neighbor Waleska Rodriguez in their trial testimony regarding changes in the appearance of Petitioner's external injuries over time is consistent with the Court's understanding and confirms the credibility of her allegations that Respondent strangled her on September 26th, 2014. ‘The parties’ text message exchanges from before and after the September 26th incident corroborate the credibility of Petitioner's testimony regarding why she and Houston drove to Respondent's motor home on September 26, 2014, as well as her testimony that Respondent assaulted her on that occasion, In text messages from 7:31pm on September 26, 2014, (Petitioner's Exhibit 1), less than two and one half hours before Petitioner arrived at Respondent's motor home, Petitioner texted Respondent that she hoped that he was ok, to which Respondent replied that he was laying on the floor crying after watching a movie and didn't know which way was up, then indicated that he know if he loved anything and that he felt like the world was down on top of him. During this exchange, Petitioner's statements were that she loved Respondent, that she was hurting for him and she would always be there for him. The Court finds that these messages establish that Petitioner came to Respondent's motor home with her son on September 26th, 2014, because she was concemed for Respondent's welfare, not because she was angry over their breakup and intending to confront Respondent, as Respondent indicated in his swom testimony. This finding is corroborated by the testimony of Respondent's coach driver, Michael Domcheff, to whom Petitioner sent a sereen shot of the text exchange. Mr. Domcheff testified that after reading the text exchange, he shared Petitioner's concern for Respondent's welfare and that they agreed that Petitioner and Houston should come to Dover because Respondent needed the love and support of his family. The Court's finding that Petitioner came to Respondent's motor home on September 26th out of love and concern for Respondent, not to angrily confront him about their breakup, is further corroborated by the testimony of Kristy Cloutier and Richard Andrew Sniffen, both of whom testified that Petitioner told them that she stil loved Respondent and wanted reconciliation, and Petitioner's September 23rd text exchanges with Respondent's mother, (Respondent's Exhibit 1), wherein Petitioner tells Respondent's mother that she is "worried sick” about Respondent, The parties' text messages from the period after the alleged September 26th assault are replete with references by the parties to an event that occurred between them that was 16clearly upsetting to Petitioner and which Respondent clearly did not want disclosed to his team, the media or the public and for which he believed he needed an attorney. On October Sth, Respondent texted Petitioner sarcastically chastising her for taking sereenshots of her phone and sharing the parties' personal problems with his team. He also sarcastically thanked her for "telling the media as well.", to which Petitioner replied that she wanted nothing but the best for Respondent, that she had "told no one in the media.", and that her heart ached. Petitioner repeatedly asserted that she had not spoken to the media before stating “I've told no one. I've been crying at home.", followed by " I haven't done anything wrong. I've told no one.” (Petitioner's Exhibit 10), On October 13th, Petitioner texted Respondent "Kurtlawyering up is going in the opposite direction of where I had hoped we would be at this point....l am sorry that you have chosen this path... Your attorney has no interest in helping us mend fences and set the clock back ...we need to do that for each other" " I thought when you agreed to mark helping us that we could talk through what happened.” Later in that same exchange, petitioner texted: "... You don't treat people that you love the way you did in NH and definitely not like in Dover when we just came because we love and care about you. Then after that shit you threaten my custody?" (Respondent's Exhibit 2). On ‘October 19th, Respondent texted Petitioner accusing her of undermining him so hea that his job was in jeopardy, telling her that she had done her job as a cancer and had to stop. He accused her of intertwining herself with people via screen shots, email, text, phone calls, social media, etc., and stated that "too many people have knowledge of propaganda that only you could be spreading."(Respondent's Exhibit 2). The Court finds it highly unlikely that the event that is the subject of these text exchanges was the parties' breakup, Respondent lying on the floor of his motor home crying after watching a movie, or Respondent gently cupping Petitioner's cheeks and telling her that she needed to leave. Indeed, the Court finds instruction regarding the subject of these exchanges between the parties in the contemporaneous correspondence between theit counsel. In his October 22nd reply to Respondent's attorney,(Respondent's Exhibit 6), Petitioner's Attomey, Mark Dycio references "personal issues that are clearly best kept in confidence between the parties, if al all possible", as among the issues surrounding the parties separation that needed to be resolved. In his October 29th reply to Respondent's Virginia counsel, ( Respondent's exhibit 17), Mr. Dycio reveals the "personal issues best kept in confidence" referenced in his earlier letter to be "the matter of the assault", which he represents will be "addressed by the Delaware Court.” Based upon the foregoing, the Court finds that the text exchanges between the parties after the September 26th incident and the contemporaneous communications between their counsel refer to the alleged assault as something that happened and further corroborate Petitioner's testimony that Respondent in fact, assaulted her in his motor home in Dover ‘on that date. Respondent admitted at trial that he has a temper that would be described as short by most. He deseribed his temper problem as an intemal fire to perform at top levels. He stated that when he fails to achieve those results, he vents his frustration in ways that bother other people. He indicated that when frustrated, he would mutter to himself or curse, He acknowledged having ripped the rearview mirror from the windshield of the parties’ rental car, breaking the windshield, while venting his frustration after his poor showing in the New Hampshire race. He denied, however, that he would ever physically take his frustration out on other people. In support of his contention that he did not and would not assault Petitioner, Respondent presented opinion testimony from his uassistant, Kristy Cloutier. Ms. Cloutier testified that the allegations of abuse should not be believed because acts of physical aggression towards others are, in her opinion, consistent with Respondent's character. She testified that although Respondent has a short temper and acts out of frustration and anger before he thinks, she does not believe that he would physically abuse another person. She admitted that when frustrated by his racing performance, Respondent will verbally abuse others, break things and throw things and act like he is going to snap. She further acknowledged that Respondent has been repeatedly disciplined on more occasions than she could count by NASCAR for incidents wherein he acted out violently upon losing his temper, but stated that she wasn't aware of any of those incidents involving physical aggression towards others. When confronted with an incident wherein Respondent had been physically aggressive towards her at a baseball game, Ms. Cloutier attempted to excuse Respondent's conduct, by asserting that he was drunk. The Court finds Ms. Cloutier’s testimony that during acts of uncontrolled rage, Respondent would act violently towards objects and verbally abuse people, but would not in that same uncontrolled state physically abuse another person, to be implausable and contrary to other credible evidence admitted at trial Petitioner testified that Respondent is notorious for his temper. In their 2014 NASCAR Driver profile, Athlon sports described Respondent as "incredibly volatile” and observed that he had a tendency to "lose it" on the race radio with his crew chief, often compounding problems. Respondent's coach driver Michael Domcheff testified that when Respondent is not successful in races, he vents his frustration through anger Domcheff testified that in the year that he has been employed by Respondent, he has noticed new holes and dents in the interior walls of the motor home, which Petitioner advised him were the result of Respondent throwing things, and that he has had to replace an i pad for the motor home because according to Petitioner, Respondent broke it out of frustration. Petitioner's neighbor, Waleska Rodriguez, testified that when Respondent has a bad race, he " becomes another person.” Petitioner testified that Respondent was fired by a previous race team afier being serially disciplined by NASCAR for altercations with other drivers both on and off the track, fighting, driving his car through an opponent's pit box, almost hitting the opponent's crew members, and threatening journalists with physical violence. Petitioner also testified that Respondent committed a previous act of physical violence against her in 2012, which she never reported to authoritics, but about which she confided in a few close friends. Ms. Rodriguez confirmed that Petitioner had told her in 2012 about an incident wherein she alleged that Respondent grabbed her and tried to restrain her. Given the implausibility of Ms. Cloutier's character testimony and her obvious bias due to her emotional and financial ties to Respondent , the Court accords no weight to that testimony in determining the credibility of Respondent's assertion that he would not assault Petitioner or the believability of the allegations of abuse against Respondent. Respondent contends that his assertion that he would not have assaulted Petitioner because he believed her to be a trained assassin is supported by the testimony of Charis Burrett and Michael Domeheff, who testified that Petitioner told them that she was an assassin, by the "Pocket Commando" video trailer, ( Respondent's Exhibit 4), and by the outline of the proposed screenplay entitled "ENIGMA" and the attached e mail to Petitioner from Ric Waugh. (Respondent's Exhibit 19). Of course, both Ms. Burrett and Mr. Domcheff indicated that they did not believe that Petitioner was a trained assassin. However, it is apparent from Mr. Waugh’s ¢ mail and the questions contained in the parentheticals in the "ENIGMA" outline that the screenwriters and producers believed 18that Petitioner was some sort of covert operative. The Court finds, however, that even if fone accepts Respondent's rather dubious assertions that "Pocket Commando” depicted Petitioner as an actual commando and that "ENIGMA" was based upon Petitioner's recitation of her alleged exploits, an obvious question arises that the Court finds could not have eseaped someone of Respondent's intellect: Why would a covert assassin run around telling casual acquaintances about her deadly secret avocation and allow herself to be depicted as a covert assassin in movies and reality television programs? The Court finds that the testimony of Mrs. Burrett and Mr. Domeheff, the "Pocket Commando" reality television trailer and the screenplay outline for the proposed film "ENIGMA" are inconsistent with, rather than supportive of, Respondent's assertion that he reasonably believed Petitioner to be a trained assassin and for that reason would not have assaulted her. Even if the Court were to find that on September 26, 2014, Respondent believed Petitioner to be a trained assassin, the court could not accept Respondent's assertion that he would not have assaulted Petitioner in the manner alleged. Acceptance of that assertion would require the Court to assume, contrary to logic and the Court's experience, that acts of domestic violence are the product of a rational, deliberative thought process, rather than impulsive, uncontrolled response to anger and frustration. Such an assumption would be particularly inapt in this case, where Respondent has a history of impulsive, uncontrolled and violent behavior in response to stress, anger and frustration. The assertion that Respondent would be chastened from assaulting Petitioner for fear of the possibility of physical injury is further discredited, in the Court's view, by the fact that Respondent makes his living risking his life on an almost daily basis by aggressively driving a race car at speeds often approaching 200 miles per hour in close contact with others driving in the same manner, at the same speed. CONSISTENCY Evaluating the credibility of a witness's testimony based upon whether their description of an event is consistent with their prior statements regarding the event is difficult where, as in this case, the evidence of the prior statements comes from the testimony of other witnesses, as the validity of the evaluation is necessarily dependent upon the other witnesses’ ability to accurately recall and relate the prior statements. The evaluation is, further complicated where, as in this case, the ability of the witness whose credibility is being evaluated to accurately describe the event is impacted by the fact that they were in emotional distress regarding the incident at the time of their prior statements. Immediately after the September 26th incident, Petitioner fled to the motor home of Nick Terry, who characterized her as crying and upset during her 30 to 45 minute stay. Mr. Terry said that Petitioner told him that she had been texting with Respondent and became concemed for Respondent because of his replies, so she drove with Houston from her home to Respondent's motor home. He said that she told him that after she arrived, she and Respondent got into an argument, then Respondent grabbed her by her neck and pushed her back up against a wall. Mr. Terry testified that Petitioner told him that her throat, her neck and the back of her head hurt, and asked him and his wite if there were any marks on her neck. He stated that they gave her some ibuprofen for her pain and a bag of frozen vegetables to put on the back of her head and neck. Within minutes after leaving the Terry's motor home, Petitioner called Richard Andrew Sniffen, Mr. Sniffen said that Petitioner was still crying when she called him. 19Unfortunately, he was unable to recall many of the important details of his hour long phone conversation with Petitioner. He stated that she told him that she had been texting Respondent and that she became concemed because he said some troubling things. Mr. Sniffen said that he recalled Petitioner saying something about Respondent being rolled up on the floor crying, but could not remember the details. He said that Petitioner told him that after she arrived at Respondent's motor home, they had an argument and that Respondent pushed her and she hit her head. Mr. Sniffen admitted that he did not recall the details of what Petitioner had told him regarding the assault, such as where on her body Respondent had pushed her. The Court finds that Mr. Sniffen's recollection of the details of Petitioner's September 26th description of the alleged assault was so poor that his testimony regarding Petitioner's prior statements is of no use in evaluating her credibility. Upon her return to her home, Petitioner met with her neighbor, Waleska Rodriguez. Mrs. Rodriguez testified that Petitioner was Still crying and in shock. She said that Petitioner told her that Respondent had grabbed her by her neck and that her head, neck and throat hurt. She testified that Petitioner took some pills for her throat and put an ice bag on her head and neck. Mrs. Rodriguez testified that the next day Petitioner's neck was still red and that she seemed devastated, sad and upset. The value of Mrs. Rodriguez's testimony regarding Petitioner's prior statements for evaluating Petitioner's credibility is limited by the fact that despite her assurances to the Court that she did not need an interpreter, she had some difficulty understanding spoken English and somewhat greater difficulty actually speaking in English. At about 10 am on September 27th, Petitioner called Michael Domcheff, who on the 26th had shared her concen regarding Respondent's text messages and concurred with her decision to drive to Dover to comfort Respondent. Mr. Domeheff testified that Petitioner was upset and crying when she called and told him something very bad had happened after she arrived at the motor home on the 26th. He said that she told him that Respondent was in bed and she was standing at the foot of the bed, and that they were talking, when Respondent jumped up, grabbed her by her neck, and smashed her head into the wall three times. Mr. Domcheff testified that he believed Petitioner because of her demeanor while describing the alleged assault. Given Mr. Sniffen's inability to recall the details of Petitioner's prior description to him of the alleged assault, Mrs. Rodriguez's difficulty articulating in English Petitioner's description of the assault to her, and Petitioner's emotional upset at the time of her prior statements, The Court cannot find that Petitioner's prior descriptions of the assault vary sufficiently from each other or her trial testimony for her prior statements or her testimony to be considered inconsistent or less than credible, PLAUSABILITY Jin the final analysis, the Court must determine which of the opposing and inconsistent versions of the events of September 26, 2014, presented by the parties is more believable given the totality of the evidence presented at trial. ‘The Court finds that Petitioner's version of the events is the more believable. PETITIONER'S VERSION ‘The evidence clearly established that Respondent has a problem with acts impulsively and violently when he is racing badly and is under stress. Respondent had been racing badly during the weeks immediately preceding September 26th, He was 20so distraught over his poor result in New Hampshire and for the season in general, that he cursed out his team mates, damaged a rental car in an act of uncontrolled venting of frustration, and decided to then and there end his four year relationship with Petitioner. Respondent was clearly frustrated and in emotional distress on the night of September 26th. He had qualified badly in Dover. Despite having been warned after New Hampshire about verbally abusing his team mates, he “melted down" again after qualifying. He remained frustrated with the performance of his team and stressed due to the end of his relationship with Petitioner. After watching "Seven Years in Tibet", he was emotionally distraught over the prospect of losing his relationship with Houston due to his breakup with Petitioner. Once Petitioner arrived, he vented his frustrations about his situation with his team and his relationship with her and told her that their relationship was over. Not knowing that Respondent's emotional distress after watching the movie was due to the prospect of losing his relationship with Houston, Petitioner decided to “call his bluff" regarding the breakup by insisting that they tell Houston that it was over and that Respondent would no longer be a part of his life, thereby pressuring Respondent to accelerate into reality the prospect of losing his relationship with Houston, which only hours earlier had him distraught to the point of tears. Petitioner thus became the source of Respondent's heightened distress, and he reacted impulsively and violently, grabbing her by her throat and face and shoving her against the bedroom wall of the motor home. Petitioner left Respondent's motor home in shock, confusion and distress regarding why Respondent would assault her. She couldn't go to the police or seek treatment for her injuries, for fear that disclosure of the assault would damage her custody case. She needed to talk to someone, so she fled to the motor home of Nick Terry, who had counseled her before about Respondent. After she left the Terry's motor home, she sought advice and comfort from her spiritual counselor, Richard Andrew Sniffen, her adoptive “family”, her neighbor, Waleska Rodriguez and Michael Domeheff. She changed the alarm codes and the locks on her home and set up security ‘cameras everywhere because she was aftaid of physical contact with Respondent, as he had just "snapped", and she did not know what he was capable of. Because of her fear, she also stayed away from the NASCAR races, sacrificing attendance at events for veterans that were important to her foundation and to her personally. She sought the assistance of Mr. Sniffen and Mark Dycio to try to persuade Respondent to get help and possibly mend their relationship, but Respondent "lawyered up." She knew that he wasn't going to get help and that he wasn't going to change, so she reported the assault to the police and filed for an Order of Protection. The Court finds this version of the events to be believable in view of the totality of the credible evidence in the case. RESPONDENT'S VERSION For the Court to accept Respondent's version of the events of September 26th, the Court would have to accept, despite evidence to the contrary: that Petitioner was angry over their breakup after the New Hampshire race, and decided to drive to Dover twelve hours earlier than she previously intended, for the purpose of coercing Respondent to get back together by demanding in front of Houston, that Respondent tell Houston that the parties' relationship was over; That when Respondent repeatedly refused to tell the child until after the racing season, (which one would expect to be seen as a sign that the relationship might not be over), and gently looked her in the eyes, cupped her cheeks and told her that she should leave, she angrily stormed out, telling him it was far from over; That in the minutes it took to get in her car and drive 50 yards to the Terry's aumotor home, she decided to extort money from Respondent or get revenge against him for breaking up with her by concocting a story that Respondent had strangled her; That before she got to the Terry's motor home, and in the presence of her nine year old son, she strangled herself to the point of injury, (otherwise, why would she have asked the ‘Temrys if they saw any marks on her neck?); That she convineingly faked being upset and crying for 45 minutes at the Terry's motor home, followed by hours on the phone with Mr. Sniffen, then her adoptive family, then an hour in her home with Mrs.Rodriguez; That she stayed away from Veterans events at the NASCAR tracks that ‘were important to herself and her foundation in an effort to maintain the illusion that she was afraid of Respondent; That for reasons unknown, she abandoned her attempt at extortion in November, deciding instead to seck to destroy Respondent's image and career by reporting the false assault allegations to the police and by filing a PFA Petition, thereby subjecting herself to public embarrassment, attacks on her character, a lengthy hearing and untold attorneys fees and expenses. The Court finds this version of the events to be simply implausible. FINDING OF ABUSE, Based upon the foregoing, the Court finds by a preponderance of the evidence that, on September 26, 2014, Respondent committed an act of domestic violence against Petitioner by manually strangling her by placing his left hand on her throat, while placing his right hand on her chin and face and smashing her head into the wall of his ‘motor home, thereby recklessly placing Petitioner in reasonable fear of physical injury, within the meaning of 10 Del. C. Sec. 1041(1Jb, and thereby recklessly causing her physical injury by eausing her to suffer bruising and substantial and prolonged pain to her head, neck and throat, within the meaning of 10 Del. C. Sec. 1041(1)a, and 11 Del. C, Sec. 222(23). The Court further finds by a preponderance of the evidence that Respondent's conduct on that occasion was such that a reasonable person would have found it threatening or harmful, within the meaning of 10 Del. C. See. 1041(1)h. IS A PFA ORDER NECESSARY? ‘The PFA statute requires that, upon making a finding of abuse, the Court enter an Order providing any reasonable relief that the Court finds necessary or appropriate to prevent or reduce the likelihood of future domestic violence. 10 Del. C. Sec. 1044(b), 1045(12). Respondent asserts that the issuance of a PFA Order is not necessary in this case because Petitioner is, in their view, not in continuing fear of Respondent and because the parties reside far away from each other and Respondent has not attempted to be in Petitioner's physical presence since he strangled her on September 26th. ‘The Court finds that continuing, ongoing fear of Respondent is not required by statute for the Court to issue a PFA Order, as Respondent asserts. Nevertheless, the Court is satisfied that the evidence presented at trial established that Petitioner was, and remains fearful of personal contact with Respondent because of the September 26" domestic violence incident. Petitioner acknowledged having text message communications with Respondent between October S" and October 20", but testified that she is fearful of actual personal contact with Respondent because, afier the strangulation incident on September 26", she doesn’t know what Respondent is capable of. Petitioner's fear of personal contact with Respondent is confirmed by the fact that on September es 22Petitioner and Waleska Rodriguez and her husband changed the alarm codes and door lock codes to Petitioner's residence and set up security cameras throughout and around the house, as well as a television in Petitioner's bedroom, so that she could monitor the security feeds. The fact that Petitioner has stayed away from Armed Forces Foundation events at NASCAR venues despite the importance of those events to the foundation, further confirms her testimony that she is fearful of personal contact with Respondent as the result of the fact that he strangled her on September 26th, 2014. Although the PFA statute does require that the relief granted in a PFA order be necessary oF appropriate to prevent or reduce the likelihood of future domestie violence, the Court cannot find, as Respondent suggests, that the fact that the parties reside at great distanee from each other and that Respondent has not thus far attempted to have face to face contact with Petitioner since the strangulation incident makes PFA relief unnecessary. Such a ruling would allow abusers to perpetually maintain unfettered access to their victims by periodically laying low and avoiding contact until the conclusion of court proceedings on PFA petitions. In order (o determine what kinds of relief are necessary and appropriate to prevent or reduce the likelihood of future domestic violence, the Court must consider the nature of the relationship between the parties and the likely cause or causes of the domestic violence. The evidence regarding the nature of the relationship between Petitioner and Respondent demonstrates that theirs was not a prototypical "Power and control" battering relationship. None of the evidence admitted at trial suggested that Respondent used violence to subjugate or control Petitioner, to isolate her, or to keep her in the relationship. Indeed, the evidence indicated that, although it seemed ultimately to be a source of conflict between the parties, Petitioner controlled many aspects of their relationship. The evidence also clearly established that the domestic violence incident occurred at a time when Respondent appeared intent on ending the relationship. The ‘Court finds that the domestic violence incident of September 26, 2014. was most likely a “situational” domestic violence event, wherein the stressors of the situation overwhelmed Respondent's ability to cope and control his tendeney to act out violently in response to stress and frustration, causing him to "snap" and assault Petitioner. Although the court has found that the domestic violence incident was likely situational in nature and it presently appears that the parties' relationship is well and truly over, the Court nevertheless finds that PFA relief is necessary and appropriate to reduce the likelihood of domestic violence. No contact and stay away provisions are necessary and appropriate to reduce the likelihood of future domestic violence because even though the parties are no longer together and reside in separate states, Respondent's racing career and Petitioner's work on behalf of the Armed Forces Foundation require them both to attend the same NASCAR races and related events. The Court has held that where, as in this case, an act of serious physical abuse has occurred, otherwise apparently innocent conduct, such as staring at the victim in a public place, or chuckling and waving while walking past their vehicle can constitute acts of abuse. M.D. v. S.D., 2012 Del. Fam, Ct. LEXIS 62 ( Del. Fam. Ct. Sept. 20, 2012 ). No contact and stay away relief are necessary and appropriate to reduce the likelihood of such acts and other acts of harassment or abuse on occasions when the parties’ careers require them to be at the same event at the same time. Furthermore, Given Respondent's passion for his racing career and his intemperate and frequently violent reactions to scemingly minor 23racing setbacks, the Court finds that there exists a likelihood of future acts of domestic violence against Petitioner in the event that Respondent's racing career is damaged or destroyed as the result of his having been found to have committed an act of domestic violence in this case or any subsequent criminal prosecution. The risk of future acts of domestic violence in the event of damage to Respondent's racing eareer is increased, in the Court's view, by his contention that the allegations of abuse were fabricated by Petitioner for the purpose of destroying his career. The Court finds that no contact and stay away relief are necessary and appropriate to prevent or reduce that likelihood of future domestic violence against Petitioner. ‘The Court is occasionally required to enter PFA Orders where the domestic violence victim and perpetrator reside less than 100 yards from each other, or work in the same workplace. In those cases, the Court will often fashion exceptions to the 100 yard stay away provisions of the Order to enable Respondents to maintain their residence and employment, if that can be accomplished consistent with the Court's statutory obligation to prevent or reduce the likelihood of domestic violence. There is no magical significance to the 100 yard distance commonly imposed in the stay away provisions of PFA Orders that makes acts of domestic violence less likely from distances greater than 100 yards, but more likely from distances less than 100 yards. Indeed, reasonable exceptions to the 100 yard stay away provisions of PFA Orders to allow Respondents to maintain housing and employment may actually have the effect of reducing the likelihood of fatal domestic violence incidents that all too frequently occur when Respondents feel that they have lost everything and have nothing left to lose, In this case, the Court has attempted to fashion the stay away provision of the PEA Order so as not to require NASCAR to choose between the continuation of Respondent's racing carcer and Petitioner's important work on behalf of wounded service members, while at the same time providing Petitioner protection from future acts of harassment or domestic violence. Respondent will be permitted to be within 100 yards of Petitioner only at NASCAR races and related events where closer proximity than 100 yards is required as part of his employment, and on those occasions, he will be required (o maintain the maximum practicable distance from Petitioner and have no contact with her of any kind Although the relationship between Petitioner and Respondent appears to be over, the Court's duty in PFA cases is to enter orders that prevent or reduce the likelihood of future domestic violence against others, as well as the petitioner in the case before the Court. Because Respondent has a propensity to lose control of his behavior and act out violently in response to stressful, disappointing and/or frustrating situations involving his racing, and because those who love him are likely, as was Petitioner in this case, to be with him on those occasions, the Court finds that there is a substantial likelihood of acts of domestic violence by Respondent against future intimate partners. Because the evidence in this ease does not support a finding that Respondent is a power and control batterer, the Court will not require that he complete a batterer’s intervention program, However, the Court is convinced that reduction of the likelihood of domestic violence requires that Respondent be evaluated to determine whether he suffers from a treatable mental health condition that causes him to lose control over his behavior and act violently in response to anger and frustration, and Respondent will be required to be so 24evaluated by a licensed mental health professional and to comply with any recommendations of the evaluator for counseling or treatment EXTRATERRITORIAL APPLICATION- FULL FAITH AND CREDIT The Court’s Order is entitled to Full Faith and Credit and is enforceable in any jurisdiction in the United States, pursuant to 18 U.S.C. Sec. 2265, and is entitled to registration and enforcement in any State or Territory of the United States, pursuant to the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act. RIGHT TO APPEAL, ‘The parties are advised of their right to Appeal a Commissioner's Order to a Judge of the Family Court by filing and serving written objections to the Order within thirty (30) days of the date of this disposition. SO ORDERED. Tt, YY \, 20/15 Q Date Written Order Issued COMMISSIONER DAVID W.JON' \ CC: Petitioner, Respondent,Carolyn MeNeice, Fsq, James Liguori, Esq, Rusty Hardin, Bsq., DV Advocate, File 25