L.A. v. Z.A. ( 2024 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2023-0513, L.A. v. Z.A., the court on February
13, 2024, 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, Z.A., appeals the order of the Circuit Court
(Tessier, J.), following a hearing, granting a domestic violence final order of
protection to the plaintiff, L.A. See RSA 173-B:5 (2022). He argues that the
trial court erred by: (1) finding the evidence sufficient to support the order;
(2) violating his constitutional due process rights; (3) relying upon hearsay
evidence; and (4) failing to make sufficient factual findings. We affirm.
We first address the defendant’s argument that the evidence was
insufficient to support the court’s order. 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
stalking as defined in RSA 633:3-a (Supp. 2023). See RSA 173-B:1, I(d).
“Stalking” includes “[p]urposely, knowingly, or recklessly engag[ing] in a
course of conduct targeted at a specific person which would cause a reasonable
person to fear for his or her personal safety . . . and the person is actually
placed in such fear.” RSA 633:3-a, I(a). A course of conduct “means 2 or more
acts over a period of time, however short, which evidences a continuity of
purpose,” and includes, but is not limited to, “[f]ollowing, approaching, or
confronting that person,” “[a]ppearing in close proximity to, or entering the
person’s . . . place of employment . . . or other place where the person can be
found,” and “[p]lacing an object on the person’s property.” RSA 633:3-a,
II(a)(2), (3) & (5).
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 view the
evidence in the light most favorable to the prevailing party, here, the plaintiff.
Id. at 163.
The trial court found that the defendant engaged in stalking by placing a
tracker in the plaintiff’s vehicle and trespassing at her place of employment.
The court found that the defendant told the plaintiff that “he would have a
hard time not killing [the] new guy in her life,” and that he would “do anything
to get her fired.” The court found that the defendant was a credible present
threat to the plaintiff’s safety because he “communicates to [p]laintiff that he
knows her whereabouts,” that he previously threatened the plaintiff, and that
the plaintiff is in fear.
At the start of the hearing, the plaintiff affirmed that the allegations in
the affidavit supporting her petition were true and accurate. The defendant
has not provided a copy of the affidavit. Accordingly, we must assume that it
supports the trial court’s decision. See Bean v. Red Oak Prop. Mgmt., 151 N.H.
248, 250 (2004). The plaintiff testified that, two years earlier, “when [she] left
[the defendant] the first time,” she “did find a tracking device.” She testified
that, after the parties’ more recent separation, the defendant “was going to the
neighbors to get video surveillance of the house to . . . see who was coming in
and out.” She testified that the defendant would “call and text [her] nonstop.”
She testified that “one time he came to visit for a weekend,” when she was
staying in another state, and that he later told her “that he actually stayed for
two weeks to watch [her] to make sure [she] wasn’t doing anything.” The
plaintiff testified that the defendant “said that he knows all my neighbors and
he knows . . . who’s coming and going from my apartment as well.” The
plaintiff’s employer testified that the defendant came to the business several
times, and that he “started making a commotion.” The employer testified that
he heard the defendant say that “he would do everything and anything he
could in order to get her fired.”
The plaintiff testified that she “feel[s] like . . . he’s watching my every
move,” and that “it’s really hard to live like somebody is always watching you,
always tracking your every move.” She testified that she is “always really
scared,” and that she “just [doesn’t] know . . . where it will end,” or “what it
could escalate to.” The employer testified that he has observed that when the
defendant contacts the plaintiff, she becomes “discombobulated,” “nervous,”
and “scared.”
The defendant argues that the trial erred by crediting the testimony of
the plaintiff and her witness, and by not crediting his testimony, relating to the
disputed issues at the hearing. He asserts, among other things, that he
inadvertently left the tracking device in a child’s car seat. He argues that the
plaintiff’s testimony that he threatened her lacks corroborative evidence and
should be given little weight. He asserts that his actions can best be explained
by his concern for the welfare of the parties’ children. Conflicts in testimony,
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questions about the credibility of witnesses, and the weight assigned to
testimony are matters for the trial court to resolve. In the Matter of Kurowski
& Kurowski, 161 N.H. 578, 585 (2011). We will affirm the trial court’s findings
if a reasonable person could have made such findings based upon the evidence
presented. Cook v. Sullivan, 149 N.H. 774, 780 (2003). We conclude that a
reasonable person could have made the findings the trial court did based upon
the evidence presented. See id.The defendant next argues that the trial court erred by violating his
constitutional due process rights. Specifically, he asserts that he was denied
the right to a full and fair hearing, the opportunity to cross-examine witnesses,
his request for a new hearing, and access to security camera footage. It is a
long-standing rule that parties may not have judicial review of matters that
were not properly raised in the trial court. Thompson v. D’Errico, 163 N.H. 20,
22 (2011); see also In the Matter of Birmingham & Birmingham, 154 N.H. 51,
56 (2006) (self-represented litigants are bound by the same procedural rules
that govern parties represented by counsel). The general rule in this
jurisdiction is that a contemporaneous and specific objection is required to
preserve an issue for appellate review. State v. Gordon, 161 N.H. 410, 417
(2011). The defendant has failed to show that he properly raised these issues
in the trial court by contemporaneous and specific objection or otherwise. See
Bean, 151 N.H. at 250.
On the contrary, when the trial court gave the defendant the opportunity
to cross-examine the plaintiff, he declined. In his motion for reconsideration,
the defendant requested access to the plaintiff’s workplace security camera
footage “to validate [his] version of events and refute any false accusations.”
However, the court advised the defendant at the final hearing that it could only
consider evidence presented at the hearing. The court was not required to
re-open the record and accept additional evidence on reconsideration. See
Smith v. Shepard, 144 N.H. 262, 265 (1999). Even if his motion for
reconsideration could be construed as a properly filed request for a new
hearing, we conclude that the defendant has failed to demonstrate grounds for
a new hearing. See RSA 526:1 (2021) (“A new trial may be granted in any case
when through accident, mistake or misfortune justice has not been done and a
further hearing would be equitable.”).
The defendant next argues that the trial court erred by admitting
hearsay, contrary to the New Hampshire Rules of Evidence. The rules of
evidence are relaxed in proceedings under RSA chapter 173-B. Hemenway v.
Hemenway, 159 N.H. 608, 685 (2010). In such proceedings, the court is not
bound by the technical rules of evidence and may admit evidence which it
considers relevant and material. RSA 173-B:3, VIII (2022). Although the
defendant characterized part of the testimony of the plaintiff’s employer as
hearsay, he did not object to its admission during the hearing. See State v.
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Gordon, 161 N.H. at 417. We conclude that the defendant has failed to show
error.
Finally, the defendant argues that the trial court failed to provide a
“detailed and reasoned explanation” for its order. We conclude that the trial
court’s findings, which are detailed above, are sufficient to support its order.
Any remaining arguments in the defendant’s brief are insufficiently
developed. See State v. Blackmer, 149 N.H. 47, 49 (2003).
Affirmed.
MacDonald, C.J., and Bassett, Hantz Marconi, Donovan, and Countway,
JJ., concurred.
Timothy A. Gudas,
Clerk
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