S.C. v. G.C. ( 2022 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
7th Circuit Court-Dover Family Division
No. 2021-0194
S.C.
v.
G.C.
Argued: February 10, 2022
Opinion Issued: May 11, 2022
Wiberg Law Office, PLLC, of Portsmouth (Sven D. Wiberg on the brief and
orally), for the plaintiff.
Hanlon & Zubkus, of Rochester (Mark D. Hanlon on the brief and orally),
for the defendant.
BASSETT, J. The plaintiff, S.C., appeals an order of the Circuit Court
(Foley, R., approved by Gardner, J.) denying her request for a domestic violence
protective order against the defendant, G.C. See RSA 173-B:5 (Supp. 2021).
The trial court concluded that the plaintiff did not meet her burden of proving a
credible present threat to her safety based upon her admitted presence in the
defendant’s home during the timeframe of the alleged abuse. See RSA 173-B:5,
I; see also RSA 173-B:1, I (Supp. 2021). On appeal, the plaintiff argues that
the court erred as a matter of law when it relied on her in-person contact with
the defendant as the sole basis for its decision. She also contends that the
court erred when it made certain evidentiary, trial management, and other
rulings that deprived her of a fair hearing and violated her due process rights.
We agree that it was legal error for the court to rely solely on the plaintiff’s
contact with the defendant in denying her petition, and we therefore vacate and
remand.
The following facts are undisputed unless otherwise noted. The parties
are former spouses who have one minor child. In late June 2019, when the
parties were married and residing together, an altercation occurred. The
defendant was charged with several domestic-violence-related crimes arising
from that incident. In September 2019, he pleaded guilty to one domestic-
violence-related criminal threatening charge and admitted to the conduct
underlying one charge of domestic violence simple assault in order to enter a
diversion program on that charge.
On May 8, 2020, the parties were living together and another altercation
occurred. The parties would later recount different versions of the altercation,
each accusing the other of instigating the conflict. In early July 2020, the
plaintiff informed the defendant that she wanted a divorce, and, on July 10,
she filed a domestic violence petition against him. At some point between July
and December, the plaintiff moved out of the home and filed a divorce petition.
There is no evidence in the record that, as of early December, a final
hearing on the July 10 petition had been scheduled. On December 8, using
the docket number for the July 10 petition, the plaintiff filed a motion for ex
parte emergency relief, which requested, among other things, that the
defendant be prohibited from having contact with her and the parties’ child.
The court denied the motion and set the matter for a hearing.
On December 18, following a hearing on the plaintiff’s request for ex
parte relief, the court entered a consolidated order in both the divorce and
domestic violence dockets regarding custody and visitation of the parties’ child.
The order provided that the parties have joint decision-making responsibility
and joint physical custody of the child and that the plaintiff pay child support
to the defendant. The court also entered a civil restraining order, enjoining the
defendant from having any contact or communication with the plaintiff “with
the exception of polite electronic communication, which is child focused.” See
RSA 461-A:10, I (2018) (authorizing entry of restraining orders after the filing of
a petition regarding parental rights and responsibilities). The court did not,
however, schedule a final hearing on the July 10 petition. See RSA 173-B:3,
VII (2014) (“The court shall hold a hearing within 30 days of the filing of a
petition under this section . . . .”). Following the December 18, 2020 civil
restraining order, the parties had contact by phone, text, and in person over
the next several months, including in-person contact over the Christmas
holiday — some of which was not child-related.
2
On February 25, 2021, the plaintiff filed the domestic violence petition
that is the subject of this appeal. In the petition, the plaintiff recounted the
events that occurred in June 2019 and May 2020. She alleged that,
notwithstanding the defendant’s domestic-violence-related conviction, the
plaintiff’s July 10, 2020 domestic violence petition, and the December 18, 2020
civil restraining order that remained in effect, the defendant continued to
“abuse, manipulate and threaten” her. That same day, the trial court
scheduled a hearing on the February 25 petition.
On March 15 and April 6, 2021, the court conducted an evidentiary
hearing at which both parties testified and offered exhibits. The court heard
evidence regarding the defendant’s 2019 domestic-violence-related conviction,
the May 8, 2020 incident, and testimony from both parties regarding the extent
of their in-person contact and communication since the December 18, 2020
civil restraining order. The defendant testified that the plaintiff spent time at
his house with him and the parties’ child on multiple occasions in late 2020
and early 2021, including Thanksgiving day, a three-night visit over the
Christmas holiday, and multiple occasions in January and February. The
plaintiff testified that she was at the defendant’s home for part of the day on
Thanksgiving and Christmas, but denied staying overnight. She explained that
she visited the defendant’s home over the holidays so that she could spend
time with her child, and that she was present in the home on other occasions
when the defendant was not there in order to pick up or drop off the child.
After the first day of the hearing, the plaintiff filed a motion to
consolidate the July 10, 2020 and February 25, 2021 petitions together with a
motion to amend both petitions to add allegations contained in an attached
affidavit. On April 6, the second day of the hearing, the court orally denied
both motions because the parties were already “halfway through the hearing.”
On April 7, the trial court denied the plaintiff’s request for a domestic
violence protective order. The narrative portion of the court’s order states in its
entirety:
Plaintiff failed to establish a credible fear to her safety, based upon
her acknowledged presence in Defendant’s home in the midst of
her allegations, on numerous occasions.
The plaintiff filed a motion to reconsider, which the court granted in part: It
reconsidered its denial of the plaintiff’s motion to amend, permitted her to
amend the July 10, 2020 petition, and ordered that a final hearing be
scheduled on that petition. The court otherwise denied the motion. This
appeal followed. As of February 10, 2022, the date of oral argument in this
court, a final hearing on the amended July 10, 2020 petition had not been held
and was not then scheduled.
3
On appeal, the plaintiff raises a sufficiency of the evidence challenge to
the trial court’s determination that she failed to establish a credible present
threat to her safety as required by RSA 173-B:5, I.1 She argues that the court
erred as a matter of law when it reached that conclusion based solely on her
presence in the defendant’s home during the time period when she alleges that
she was being abused by the defendant. The defendant counters that there
was sufficient evidence in the record to support the trial court’s decision and
contends that, in light of the fact that the plaintiff “frequently and voluntarily
went to [the defendant’s] house alone,” her behavior “was not that of a person
who was fearful.” We agree with the plaintiff.
In an appeal from an order on a domestic violence petition, the trial
court’s “findings of facts shall be final,” and we undertake de novo review of
“questions of law.” RSA 173-B:3, VI (2014). We review sufficiency of the
evidence claims as a matter of law, upholding the findings and rulings of the
trial court unless they are lacking in evidentiary support or tainted by error of
law. Achille v. Achille, 167 N.H. 706, 715 (2015); see RSA 173-B:3, VI.2 When
preforming this review, we accord considerable weight to the trial court’s
judgments on the credibility of witnesses and the weight to be given testimony.
Achille, 167 N.H. at 715-16. We view the evidence in the light most favorable
to the prevailing party — here, the defendant. See id.
To obtain relief under RSA chapter 173-B, a plaintiff must show “abuse”
by a preponderance of the evidence. Id. at 716; RSA 173-B:5, I. “Abuse” has
two elements: (1) commission or attempted commission of one or more of the
enumerated criminal acts by a family or household member or a current or
former sexual or intimate partner; and (2) a finding that such misconduct
“constitute[s] a credible present threat to the [plaintiff’s] safety.” RSA 173-B:1,
I; see Achille, 167 N.H. at 716. The statute further provides that the court may
consider evidence of the enumerated criminal acts “regardless of their
proximity in time to the filing of the petition, which, in combination with recent
1 The defendant argues that the plaintiff waived this argument because her brief does not
comply with Supreme Court Rule 7(6)(B). That rule is inapposite; it sets forth the requirements
for notices of appeal in non-mandatory appeals. See Sup. Ct. R. 7(6)(B). Nevertheless, we have
reviewed the plaintiff’s summary of her sufficiency claim contained in her notice of appeal and
conclude that it provides sufficient notice of the basis for her challenge to the sufficiency of the
evidence.
2 By its plain language, RSA 173-B:3, VI provides for limited review, including a highly deferential
standard of review as to factual findings, on appeal. See Magee v. Cooper, 174 N.H. ___, ___ (Dec.
3, 2021) (slip op. at 2-3) (discussing similar standard of review language in RSA 540-A:4, V
(2021)). Because the parties have not argued that there are substantive differences between the
standard of review set forth in RSA 173-B:3, VI and Achille, nor requested that we overrule Achille
or the cases on which it relies, we will apply the standard of review that we applied in Achille. See
Magee, 174 N.H. at ___ (slip op. at 3).
4
conduct, reflects an ongoing pattern of behavior which reasonably causes or
has caused the [plaintiff] to fear for his or her safety or well-being.” RSA 173-
B:1, I.3
As to the first element of “abuse,” it is undisputed that, in September
2019, the defendant pleaded guilty to one of the criminal acts that may support
a finding of abuse: criminal threatening arising out of the incident in June of
2019. See RSA 173-B:1, I(b); see also RSA 173-B:5, III (“[T]he court shall not
deny the plaintiff protective orders based solely on a lapse of time between an
act of domestic violence and the filing of a petition, provided that the
underlying act presents a credible threat to the plaintiff’s current safety.”).
However, the trial court’s order addressed only the second element of “abuse”
— whether the defendant’s misconduct constituted a credible present threat to
the plaintiff’s safety. It concluded that the plaintiff had failed to establish that
element because she admitted she had been at the defendant’s home on
multiple occasions during the relevant time. The trial court’s reliance on the
plaintiff’s repeated presence in the defendant’s home as the sole basis for its
decision regarding the “credible present threat” element was legal error.
This is not the first time that we have recognized the reality that it is not
uncommon for survivors of domestic violence to have continuing contact with
their abusers, despite the fact that the abusive individual continues to pose a
credible present threat to the survivor’s safety. In Achille v. Achille, 167 N.H.
706 (2015), we upheld the trial court’s issuance of a domestic violence
protective order and rejected the defendant’s argument that, because the
plaintiff had in-person contact with the defendant in the days following the
assault underlying the domestic violence petition, there was insufficient
evidence of “abuse.” Achille, 167 N.H. at 715-17. Similarly, in Walker v.
Walker, 158 N.H. 602 (2009), we upheld the trial court’s finding of abuse,
notwithstanding the fact that the parties continued to stay together on
weekends following the defendant’s threats to the plaintiff’s life. Walker, 158
N.H. at 603-04, 607-09.
The legislature, too, appreciated this dynamic when it crafted RSA
chapter 173-B. It provided that a victim’s continuing contact or reconciliation
with an abuser does not vitiate a protective order or preclude a finding of a
credible present threat to safety. RSA 173-B:5, VIII(c) makes clear that, if a
3 We note that RSA 173-B:1, I, was amended in 2010. Laws 2010, 289:1 (amending RSA 173-B:1,
I, effective January 1, 2011). Neither party to this appeal has argued that the 2010 amendment
resulted in a change to the statute that is relevant to the issues on appeal. Nor do we think the
amendment bears upon our holding in this case: that it is error, as a matter of law, for a trial
court to rely solely on continued contact between a plaintiff and the alleged abuser as the basis for
finding no credible present threat to the plaintiff’s safety. As a result, we have no reason here to
interpret the amended statutory language or to address the effect of the 2010 amendment on the
viability or precedential value of our pre-amendment case law.
5
domestic violence protective order prohibits a defendant from contacting the
plaintiff, that no-contact order remains intact “even if [the defendant is] invited
by the plaintiff” to have contact. Further, RSA 173-B:5, III provides that
“[r]econciliation after a previous order, prior to filing the current action, shall
not be grounds for denying or terminating a new or existing protective order.”
RSA 173-B:5, III; see also RSA 173-B:5, VIII(a) (providing that a protective
order shall not be revoked due to “[t]emporary reconciliations”).
We and the legislature are not alone in recognizing that the fact that a
survivor returns to an abuser does not, on its own, demonstrate that she or he
is no longer in danger. Other courts and commentators have acknowledged the
often counterintuitive complexities of domestic violence relationships, including
the tendency of victims to stay with or return to their abusers. See, e.g., Com.
v. Gordon, 29 N.E.3d 856, 867-68 n.13 (Mass. App. Ct. 2015) (observing that
victims typically “leave and then return to the batterer many times before
finally ending the relationship” (quotation omitted)); Emily C. Jeske, Punishing
Victims for Being Victims: Aiding and Abetting Violations of Protective Orders,
7 Wake Forest J.L. & Pol’y 275, 292 (2017) (noting the “complexity of [domestic
violence] relationships” and observing that “[i]gnoring the legitimate reasons
why a victim may voluntarily contact her abuser exacerbates the
misunderstandings of abusive relationships”). Indeed, there are a multitude of
reasons why a victim may return to, or continue contact with, an abusive
person, including continued involvement with that person due to shared
custody of their child. See, e.g., Commonwealth v. Wilson, 227 A.3d 928, 940
(Pa. Super. Ct. 2020) (“It is not uncommon for victims of intimate partner
violence to remain with or return to their abusers for a myriad of complicated
reasons, such as . . . fear of escalating violence or losing their children . . . .”);
Battered Women and Child Custody Decisionmaking, 106 Harv. L. Rev. 1597,
1611 (1993) (observing that joint custody makes it difficult for the survivor to
avoid the abuser and “enables the batterer to continue [the] abuse”).
Taking into account our case law, the language of RSA 173-B:5, and the
overall statutory scheme, we hold that, standing alone, a plaintiff’s in-person
contact with the defendant during the timeframe of the alleged abuse is an
insufficient basis for the court to conclude that the plaintiff has not carried the
burden of proving a credible present threat to the plaintiff’s safety. Any other
outcome would, in effect, punish victims for being victims — for remaining in
the cycle of abuse and maintaining contact with an alleged abuser in order to
minimize the risk of violence against the victim or a child of the relationship.
Because the sole basis for the trial court’s decision to deny the plaintiff relief
was her presence at the defendant’s home during the same time period as some
of the alleged abusive acts, we conclude that the court committed legal error.
See Achille, 167 N.H. at 715-16.
The defendant counters that the trial court’s conclusion was not
premised entirely on the plaintiff’s presence in the defendant’s home and is
6
supported by other substantial evidence in the record. We disagree. The court
stated a single basis for its decision, which we have deemed erroneous.
Although we ordinarily “assume that the trial court made subsidiary findings
necessary to support its general ruling,” In the Matter of Aube & Aube, 158
N.H. 459, 466 (2009) (quotation omitted), we cannot make such an assumption
in cases when the record includes erroneous factual findings or errors of law
that “render [the court’s order] improper,” Davis v. American Plastics., 108 N.H.
454, 455 (1968); see also In re C.C., 174 N.H. ___, ___ (decided Jan. 25, 2022)
(slip op. at 4) (vacating trial court’s ruling that evidence was insufficient to
prove child was neglected where the trial court misconstrued the statutory
definition of neglect). Because the only articulated basis for the court’s
decision was erroneous, we cannot conclude that this error did not taint the
trial court’s reasoning or that the court would have reached the same
conclusion absent this error. See Stowell v. Andrews, 171 N.H. 289, 304
(2018) (vacating trial court’s ruling “[b]ecause we [could not] determine whether
the trial court would have reached the same decision” absent its error).
Finally, as of the date of oral argument, no final hearing on the amended
July 10, 2020 petition had occurred, or was then scheduled. Although there is
some evidence in the record that the parties initially agreed to postpone the
hearing due to criminal charges filed against the plaintiff, those charges have
long since been dropped, and there is no other evidence in the record that
explains the ongoing delay. Given that we are vacating the trial court’s ruling
and remanding this case for further proceedings, the defendant will have time
to respond to the amended July 10, 2020 petition and the February 25, 2021
petition before rehearing, and, therefore, there is no reason not to consolidate
the matters. See RSA 173-B:3, I (2014) (providing that a plaintiff may amend
or supplement a petition if the defendant is provided an opportunity to respond
prior to the hearing).
We instruct the trial court to consolidate the amended July 10, 2020
petition with the February 25, 2021 petition and to promptly hold a final
hearing resolving both matters. See RSA 173-B:3, VII(a). We stress that the
statutory requirement that the court hold a hearing within thirty days of the
filing of the petition, which is set forth in RSA 173-B:3, VII, is for the benefit of
both parties. See Achille, 167 N.H. at 715 (rejecting the defendant’s argument
that the thirty-day time period in RSA 173-B:3, VII protected his interests
alone). The thirty-day time period is necessary both to protect the due process
rights of the defendant, McCarthy v. Wheeler, 152 N.H. 643, 646 (2005), and to
advance the important purpose of the statutory scheme — “to preserve and
protect the safety of the family unit for all family or household members by
entitling victims of domestic violence to immediate and effective police
protection and judicial relief,” In the Matter of Morrill and Morrill, 147 N.H.
116, 117 (2001) (quotation omitted; emphasis added).
7
In sum, we conclude that the court erred, as a matter of law, when it
based its finding of no credible present threat to the plaintiff’s safety solely on
the plaintiff’s in-person contact with the defendant during the alleged abuse.
Given that our resolution of this issue is dispositive, we need not address the
plaintiff’s due process argument. See Antosz v. Allain, 163 N.H. 298, 302
(2012) (declining to address party’s other argument where holding on one issue
was dispositive).
Vacated and remanded.
MACDONALD, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.
8