K.A. v. D.A. ( 2023 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2022-0284, K.A. v. D.A., the court on July 14,
2023, issued the following order:
The defendant’s motion to consider late authorities is granted. 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, D.A., appeals an order of the Circuit Court (Rauseo, J.), issued
following a hearing, granting requests by the plaintiff, K.A., to extend a domestic
violence final order of protection. See RSA 173-B:5, VI (2022). On appeal, the
defendant advances numerous arguments. We affirm.
“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.’” S.C. v. G.C., 175 N.H. 158, 162 (2022) (quoting RSA 173-B:3,
VI). “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.” Id. “When performing this review, we accord
considerable weight to the trial court’s judgments on the credibility of witnesses
and the weight to be given testimony.” Id. at 162-63. We view the evidence in
the light most favorable to the prevailing party — here, the plaintiff. See id. at
163.
RSA chapter 173-B provides that, upon a showing of “good cause,” a
protective order may be extended for one year after the expiration of the first
order, and thereafter for up to five years, at the request of the plaintiff and the
discretion of the court. RSA 173-B:5, VI. To determine whether “good cause”
exists, the trial court must “assess whether the current conditions are such that
there is still a concern for the safety and well-being of the plaintiff.” MacPherson
v. Weiner, 158 N.H. 6, 10 (2008) (defining “good cause” in the context of stalking
order extension). In its assessment, the trial court must review the
circumstances giving rise to the original protective order and any violation of the
order. See id. “The trial court should also take into account any present and
reasonable fear by the plaintiff.” Id. “Where the trial court determines that the
circumstances are such that, without a protective order, the plaintiff’s safety and
well-being would be in jeopardy, ‘good cause’ warrants an extension.” Id.We briefly summarize the procedural history of this case. The initial
domestic violence final order of protection was issued by the Trial Court (Derby,
J.) in December 2019. We upheld that order on appeal in June 2020. In
December 2020, the Trial Court (Curran, J.) granted the plaintiff’s ex parte
request for an initial extension of the protective order, which, following a hearing,
was reaffirmed by the Trial Court (DalPra, M., approved by Leonard and Chabot,
JJ.) in March 2021. See RSA 173-B:5, VI (providing that the trial court has
discretion to extend a protective order for good cause shown, and that the
defendant shall have a right to a hearing on the extension within 30 days of its
issuance). The defendant appealed from the orders granting the extension, and,
on appeal, we agreed with the defendant that the marital master, who presided
over the hearing, was disqualified. Accordingly, we vacated the orders
recommended by the marital master, and remanded for a new hearing before a
different judicial officer of the circuit court. We expressed no opinion as to the
merits of the underlying motion to extend the protective order, but, in light of the
unique circumstances of the case, we left the protective order in place pending
the outcome of the new hearing.
On remand, the plaintiff sought an additional five-year extension. See id.(providing that the trial court may extend the original protective order for one
year after the expiration of the original protective order, and upon the expiration
of any extension, for up to five years). The Trial Court (Rauseo, J.) held a hearing
on both the first request to extend the protective order and the plaintiff’s second
extension request, and granted an extension of one additional year in an 11-page
narrative order. The trial court observed that, under the unique circumstances
of the case, the hearing was effectively the hearing on the first extension request,
and that, in any event, fairness required that the court limit the duration of any
extension to one year. The court denied the defendant’s motion for
reconsideration in a 6-page narrative order. This appeal followed.
We first note that several of the defendant’s arguments are not properly
before us in this appeal from the one-year extension of the protective order. The
defendant’s first five appellate arguments all seek to collaterally attack the initial
domestic violence protective order issued by the Trial Court (Derby, J.) in
December 2019, or our order upholding it. The December 2019 order is final.
See Gray v. Kelly, 161 N.H. 160, 164-65 (2010) (explaining doctrines of res
judicata and collateral estoppel); Taylor v. Nutting, 133 N.H. 451, 454-57 (1990)
(explaining doctrine of law of the case). Similarly, our order, upholding the initial
protective order, is also final. See Sup. Ct. R. 24; Carleton, LLC v. Balagur, 162
N.H. 501, 505-06 (2011) (explaining that this court’s decisions become final once
mandate issues).
Although the defendant purports to have discovered “new evidence” of
judicial misconduct justifying reconsideration of Judge Derby’s December 2019
order, we disagree. The fact that a party discovers “new evidence” does not
authorize the party to collaterally attack, in a separate appeal, a prior judgment
that is otherwise final. Cf. Bricker v. Sceva Speare Hosp., 114 N.H. 229, 231
(1974) (observing that the trial court may grant a new trial on the ground of
newly discovered evidence when the moving party was not at fault in failing to
discover the evidence earlier; the evidence is admissible, material to the merits,
2
and not cumulative; and it is of such a character that a different result will
probably be reached at a new trial); In the Matter of Harman & McCarron, 168
N.H. 372, 375 (2015) (observing that the trial court may set aside a final
judgment upon a motion demonstrating fraud, accident, mistake, or misfortune).
Moreover, nothing alleged in the defendant’s brief — which relates to alleged or
previously addressed misconduct by other judicial officers — would cause a
reasonable person to question Judge Derby’s impartiality. See Sup. Ct. R. 38,
Canon 2.11. For the same reason, the defendant’s sixth appellate argument —
which challenges the initial ex parte extension of the protective order, granted by
Judge Curran, based on alleged or previously addressed misconduct by other
judicial officers — warrants no further discussion. See Vogel v. Vogel, 137 N.H.
321, 322 (1993).
Next, we address the defendant’s ninth appellate argument. Here, the
defendant challenges our order, issued on December 16, 2021, in which we
ruled, in his favor, that the marital master should have disqualified himself from
presiding over the hearing on the initial extension of the protective order, vacated
the orders recommended by the master, and remanded for the defendant to
receive a new hearing before a different judicial officer. Although the defendant
now contends that we lacked the statutory authority to leave the protective order
in place pending the outcome of that new hearing, any objections to our order
should have been — but were not — raised at that time through a motion for
reconsideration. See Sup. Ct. R. 22. Accordingly, our December 16, 2021 order
is final, and any challenges thereto are not properly before us in this appeal. See
Sup. Ct. R. 24; Balagur, 162 N.H. at 505-06. We note that the United States
Supreme Court denied the defendant’s petition for a writ of certiorari challenging
our December 16, 2021 order.
Next, we address the defendant’s thirteenth appellate argument. Here, and
elsewhere in his brief, the defendant asserts that the trial court violated his
constitutional right to equal protection by reaching different results in this case
than it did in other cases, generally involving different judges, parties, or facts.
We decline to adjudicate these arguments, however, because they are
inadequately developed for our review. See State v. Blackmer, 149 N.H. 47, 49
(2003) (explaining that off-hand or passing references to constitutional rights,
without developed legal argument, are insufficient to warrant judicial review).
Now we address the defendant’s remaining arguments, numbered seven,
eight, ten, eleven, and twelve. In these arguments, the defendant contends that
the Trial Court (Curran, J.) erred by issuing the initial extension of the protective
order on an ex parte basis; that the evidence before the Trial Court (Rauseo, J.)
was insufficient to support a finding of “good cause” to extend the protective
order; that the Trial Court (Rauseo, J.) erred by denying the defendant’s second
motion for a continuance, and by considering and crediting evidence of the
defendant’s violation of the protective order following an out-of-state court
hearing related to the parties’ parenting matter; that the Trial Court (Rauseo, J.)
3
erred by finding that the defendant had violated the protective order without
providing him the due process protections afforded criminal defendants; and that
the Trial Court (Rauseo, J.) erred by preventing the defendant from calling a
particular witness to testify as to the defendant’s compliance with the protective
order on a particular occasion. We disagree.
As the appealing party, the defendant has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s thorough and well-reasoned orders; the defendant’s
challenges to them, including his seventh, eighth, tenth, eleventh, and twelfth
appellate arguments; the relevant law; and the record submitted on appeal; we
conclude that the defendant has not demonstrated reversible error. See id.; Sup.
Ct. R. 25(8). To the extent that the defendant contends that Judge Rauseo was
biased, or that he otherwise should have disqualified himself, we disagree. Based
upon our review of the record, we cannot conclude that a reasonable person
would have questioned Judge Rauseo’s impartiality. See Sup. Ct. R. 38, Canon
2.11; In the Matter of Tapply & Zukatis, 162 N.H. 285, 297 (2011) (observing that
judicial rulings alone almost never constitute a valid basis for a bias or partiality
challenge).
Lastly, we note that any issues raised in the defendant’s notice of appeal
that were not briefed are waived. See In re Estate of King, 149 N.H. 226, 230
(2003).
Affirmed.
MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Timothy A. Gudas,
Clerk
4