M.B. v. R.B. ( 2023 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2023-0164, M.B. v. R.B., the court on
September 1, 2023, issued the following order:
The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, R.B., appeals the order of the Circuit Court
(Chabot, J.), following a hearing, granting a domestic violence final order of
protection to the plaintiff, M.B. See RSA 173-B:5 (2022). He argues that the
trial court erred by finding that: (1) he committed acts of “abuse” by damaging
the marital home and leaving a newspaper in a conspicuous location for the
plaintiff to find upon entry; and (2) his conduct constituted a present credible
threat to the plaintiff’s safety. He also argues that the court erred in ordering
him to pay $545.96 in compensation to the plaintiff. We affirm.
To be granted a domestic violence final order of protection, the plaintiff
must establish, by a preponderance of evidence, that the defendant engaged in
“abuse.” RSA 173-B:5, I. “Abuse” means the commission or attempted
commission of one or more enumerated crimes by a family or household
member or a current or former sexual or intimate partner when such conduct
“constitute[s] a credible present threat” to the plaintiff’s safety. RSA 173-B:1, I
(2022); see S.C. v. G.C., 175 N.H. 158, 163 (2022). The enumerated crimes
that may constitute abuse include “[d]estruction of property as defined in RSA
634:1 and RSA 632:2.” See RSA 173-B:1, I(e).
The trial court’s “findings of facts shall be final, but questions of law may
be transferred from the circuit court to the supreme court.” RSA 173-B:3, VI
(2022). We review sufficiency of the evidence claims as a matter of law,
upholding the trial court’s findings and rulings unless they lack evidentiary
support or are tainted by legal error. S.C., 175 N.H. at 162. We defer to the
trial court’s judgments as to the credibility of the witnesses and the weight of
their testimony. Id. at 162-63. We view the evidence in the light most
favorable to the prevailing party, here, the plaintiff. Id. at 163.
We first address the defendant’s argument that the evidence was
insufficient to prove that he committed an act of “abuse” by damaging the
marital home, which the trial court awarded to the plaintiff in its final divorce
decree. He argues that any damage that he caused while in possession of the
home was de minimis, and that RSA 173-B:1, I(e) requires more than
de minimis damage to support a finding of “abuse.”
The trial court found that “[t]he photographs submitted as Plaintiff’s
Exhibit 1,” photocopies of which were provided to us on appeal, “speak volumes
to the gross disarray and neglect, including accumulated trash, left by
Defendant, largely hidden behind the closed closet doors and cabinet doors
depicted in his hurried ‘sweeping’ video of each room where he claimed to leave
the home in a habitable condition.” The court inferred “that Defendant’s gross
neglect of the overall condition of the marital home and surrounding yard,
deck, and fence, coupled with minimal maintenance and general housekeeping
– during a time which he exclusively had possession of the former marital
home – constitutes ‘damage’ to the value of the property.” The court found the
cost to clean up the damage to be $3,500 and the cost to service the boiler to
be $545.96. Even assuming, without deciding, that RSA 173-B:1, I(e) requires
more than de minimis damage, and that the defendant preserved this issue for
review, we construe the court’s order to find that the defendant’s neglect
caused more than de minimis damage. See In the Matter of Salesky & Salesky,
157 N.H. 698, 702 (2008) (interpretation of trial court order presents a
question of law for this court). The record supports the court’s findings. S.C.,
175 N.H. at 162.
The defendant argues that the trial court must make a specific finding of
criminal conduct, see Fillmore v. Fillmore, 147 N.H. 283, 285 (2001), and that
the court’s “amorphous finding” of “gross neglect” does not satisfy this
standard. “A person is guilty of criminal mischief who, having no right to do so
nor any reasonable basis for belief of having such a right purposely or
recklessly damages the property of another.” RSA 634:2, I (Supp. 2022). The
trial court found that the defendant committed criminal mischief by damaging
the marital home, which was awarded to the plaintiff in the final decree. We
conclude that the court’s findings are sufficient to support its order. See
Fillmore, 147 N.H. at 285.
The defendant argues that he should have been given four more weeks to
clean the property, remove any trash, and repair any damage before the
plaintiff took possession on January 2, 2023. He asserts that the temporary
orders awarding him possession of the home remained in effect until January
30, 2023, when this court issued its mandate in his appeal of the final divorce
decree. The plaintiff counters that the divorce decree went to final judgment on
October 31, 2022. We agree with the plaintiff.
The trial court’s August 22, 2022, order denying the defendant’s motion
to reconsider the divorce decree concluded the proceeding. See Sup. Ct. R. 3
(defining “decision on the merits). Judgment became final on October 31,
2022, when a notice of appeal was not filed within 30 days of the clerk’s
September 28, 2022 notice of decision. See Sup. Ct. R. 7(1)(A); Fam Div. R.
1.31(A). The defendant did not file his notice of appeal until November 8, 2022.
On December 8, 2022, we dismissed the defendant’s appeal as untimely, and
on January 30, 2023, we denied the defendant’s motion for reconsideration
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and issued our mandate. Accordingly, the temporary orders ended on October
31, 2022, when final judgment entered. See Fam. Div. R. 1.31(A).
Even if the temporary orders remained in effect on January 2, 2023, the
defendant had no right to damage property in which the plaintiff had an
interest. See RSA 637:2, IV (2016) (defining “property of another”). Moreover,
the defendant has failed to demonstrate that he requested more time to repair
the damage. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (to
satisfy preservation requirement, appellant must show that he raised his issue
in the trial court). The trial court found that the defendant “flatly denied”
damaging the property, suggesting that the condition in which he left the home
was “normal wear and tear.”
We next address the defendant’s argument that even if his conduct was
sufficient for a finding of “abuse,” it did not constitute a present credible threat
to the plaintiff’s safety. In ruling on a domestic violence petition, “[t]he court
may consider evidence of such acts, regardless of their proximity in time to the
filing of the petition, which, in combination with recent conduct, reflects an
ongoing pattern of behavior which reasonably causes or has caused the
petitioner to fear for his or her safety or well-being.” RSA 173-B:1, I.
In June 2019, the trial court issued a domestic violence order against the
defendant for the protection of the plaintiff, finding that the defendant
“[p]ushed the plaintiff; stepped on her hand; held the door to
bathroom/laundry room, where she was located, shut so that she could not
leave; took the plaintiff’s keys and broke her cell phone.” At that time, the
court found that the defendant’s conduct constituted a credible threat to the
plaintiff’s safety because, “he was in a rage, yelling at the [p]laintiff, preventing
her from leaving the situation and physically assaulting her,” and because his
behavior had been “escalating.”
In June 2020, the trial court, following a hearing, found “good cause” to
extend the 2019 protective order for an additional twelve months. In January
2022, the superior court found the defendant guilty of criminal mischief,
finding that his conduct demonstrated “hallmarks of domestic abuse.” In June
2022, the trial court granted the plaintiff’s petition for a fault-based divorce,
based upon the defendant’s extreme cruelty and treatment “seriously to injure
health or endanger reason.” RSA 458:7, III, V (Supp. 2022).
At the hearing in this case, when the plaintiff was asked why she felt that
a protective order is necessary, she testified: “I was hopeful that over time,
I would see him in a better place and I would feel less afraid of him and it’s
obviously been the opposite. I feel more afraid of him.” The plaintiff testified:
“I think he’s very angry with me. I think he would hurt me physically. I think
he would hurt me in any way he possibl[y] could.” When asked how she felt
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when she saw the damage to the marital home, the plaintiff testified that, “[i]t
felt very personal, like he had done that in a very vengeful way.”
The trial court found that the defendant’s conduct constituted a present
credible threat to the plaintiff’s safety because “it reflects Defendant’s
continued and dedicated [retaliatory] measures he has taken against Plaintiff
for ending their marriage in a protracted[,] high-conflict divorce, resulting in
ongoing tension and potential future unpredictable [and] volatile conduct by
Defendant if/when faced with unfavorable decisions, court orders[,] and the
like.” We conclude that the evidence is sufficient to show that the defendant’s
conduct constitutes a present credible threat to the plaintiff’s safety. See S.C.,
175 N.H. at 162.
Finally, the defendant argues that the trial court erred in ordering him to
compensate the plaintiff in the amount of $545.96 for boiler service. Upon a
finding of abuse, the trial court may order the defendant to pay the plaintiff
monetary compensation for losses suffered as a direct result of the abuse. RSA
173-B:5, I(b)(9) (2022). The court found that the defendant’s “gross neglect of
daily homeowner maintenance,” resulted in losses to the plaintiff, including
$545.96 for the “cost of customary furnace service maintenance/repair
neglected by Defendant.” The court’s order on reconsideration referenced the
plumber’s $545.96 invoice, which states that the boiler had not been serviced
in three years and was “dirty.” The court found that the need for the service
was a direct result of the defendant’s neglect, resulting in damage, which was
part of its abuse finding. We conclude that the evidence supports the court’s
order. See S.C., 175 N.H. at 162.
Having concluded that the evidence is sufficient to show that the
defendant’s damage to the marital home constitutes a present credible threat
to the plaintiff’s safety, we need not address his argument that he did not
commit an act of “abuse” by leaving in the kitchen a newspaper that contained
an article about this court’s decision in his favor in the parties’ divorce case.
See Antosz v. Allain, 163 N.H. 298, 302 (2012) (declining to address appellants’
other arguments where holding on one issue is dispositive).
Affirmed.
MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Timothy A. Gudas,
Clerk
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