Robert L. Benjamin v. Vatche Manoukian & a. ( 2018 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2017-0529, Robert L. Benjamin v. Vatche
Manoukian & a., the court on June 20, 2018, issued the
following order:
Having considered the brief and reply brief, the memorandum of law, and
the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.
Defendant Linda Haytayan appeals orders of the Superior Court
(Ignatius, J.) denying the defendants’ motions to review a periodic payment
order, and finding them in contempt with respect to their obligations to satisfy
the order.1 We construe her brief to argue that the trial court erred by: (1)
reviewing trial court orders in other cases involving the defendants, allegedly in
violation of Sup. Ct. R. 38, Canon 2.9(C), and not recusing itself and granting
them a new hearing on that basis; (2) finding that there had been no change in
circumstances warranting a modification to the periodic payment order, and
not relying upon the defendants’ claims and evidence to the contrary; (3)
finding that the defendants are not credible, basing its credibility determination
in part upon representations and claims they had made in prior proceedings in
this case, and allegedly favoring counsel for the plaintiff; (4) finding the
defendants in contempt, requiring that they make certain lump sum payments
to purge themselves of the contempt, stating that it would order them
incarcerated if they failed to make those payments, and requiring that they
continue to make their periodic payments; (5) denying the defendants’ second
motion to review the periodic payment order, which they filed ten days after the
trial court had denied their first motion, on grounds that they had not
established good cause or alleged that a change of circumstances had occurred
since the hearing on the prior motion, and relying upon Super. Ct. R. 51(j) for
the principle that it would not consider the serial motion absent good cause;
and (6) granting a request to seal a medical record submitted by defendant
Manoukian, but allowing counsel for the plaintiff to view the record. With
respect to the last issue, we conclude that Haytayan lacks standing to raise it.
At the outset, we note that, to the extent Haytayan challenges the trial
court’s reliance upon orders in other cases on the basis that such reliance
1 Defendant Vatche Manoukian also appealed the trial court’s orders. Subsequent to the
appeal, however, he filed a bankruptcy petition with a United States Bankruptcy Court and,
thus, the appeal was stayed as to him. See 11 U.S.C. § 362(a)(1) (2012). Accordingly, this
order pertains only to defendant Haytayan.
constituted improper factual investigation for purposes of Canon 2.9(C), the
record reveals that the defendants first raised the propriety of considering
those orders in a motion for recusal that they filed more than two months after
they filed the present appeal. The trial court denied the motion on mootness
grounds because the trial judge who had issued the orders in this appeal was
no longer assigned to that superior court location and, thus, would no longer
be presiding over this case. At no point did Haytayan move to stay the present
appeal so that the trial court could consider the post-appeal recusal motion.
Nor did she appeal the trial court’s order denying the recusal motion on
mootness grounds and move to consolidate that appeal with the present
appeal. Under these circumstances, we conclude that Haytayan failed to
preserve any argument that the trial court erred by considering the orders in
the other cases, and by not disqualifying itself on that basis. See Fox v. Town
of Greenland, 151 N.H. 600, 604 (2004) (stating that disqualification issues
must be raised at earliest possible time); see also N.H. Dep’t of Corrections v.
Butland, 147 N.H. 676, 679 (2002) (holding that appellant failed to preserve
issue that she could not have been expected to raise until the trial court issued
its order because she failed to raise it in a timely motion for reconsideration);
cf. Rautenberg v. Munnis, 107 N.H. 446, 447 (1966) (noting that, once an
appeal is taken, the trial court generally lacks jurisdiction over the subject
matter of the decision from which the appeal was taken).
Even if Haytayan had timely raised her arguments concerning the trial
court’s consideration of orders issued in other cases, we would conclude that
the arguments, under the circumstances of this case, lack merit. The trial
court may generally take judicial notice of judicial decisions issued in other
matters. See N.H. R. Ev. 201(b)(1); see also Getty Petroleum Marketing v.
Capital Terminal Co., 391 F.3d 312, 324 (1st Cir. 2004). Here, the record
reflects that the parties submitted pleadings and evidence regarding one of the
two cases cited by the trial court, and with respect to the other case, although
the court cited it in a footnote addressing whether Manoukian had been
involved with a particular foreclosure purchase of property he had once owned
— a point that was discussed at the hearing — the court ultimately concluded
that it lacked sufficient evidence to make such a finding. To the extent
Haytayan argues that the trial court was generally biased against her and in
favor of the plaintiff, we have reviewed the record in this case, and we cannot
conclude either that a reasonable person would have questioned Judge
Ignatius’s impartiality, or that any factors that would have per se disqualified
Judge Ignatius were present. See State v. Bader, 148 N.H. 265, 268-71 (2002).
With respect to the remaining issues, we note that it was within the
discretion of the trial court to accept or reject, in whole or in part, the evidence
presented, to evaluate the credibility of the parties, and to determine the weight
of the evidence presented. Cook v. Sullivan, 149 N.H. 774, 780 (2003). Indeed,
the trial court was not required to accept even uncontested evidence. In the
Matter of Geraghty & Geraghty, 169 N.H. 404, 416 (2016). As the appealing
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party, Haytayan 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
well-reasoned orders, Haytayan’s challenges to them, the relevant law, and the
record submitted on appeal, we conclude that Haytayan has not demonstrated
reversible error. See id.Affirmed.
Lynn, C.J., and Hicks, Hantz Marconi, and Donovan, JJ., concurred.
Eileen Fox,
Clerk
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