McCarthy v. Wheeler , 152 N.H. 643 ( 2005 )

Dalianis, J.

The defendant, Robert E. Wheeler, appeals an order of the Family Division at Plymouth (Carbon, J.) denying his motion to dismiss the domestic violence petition filed by the plaintiff, Wendy L. McCarthy. We reverse.

The plaintiff and the defendant have a son together, but were never married. The plaintiff has custody of their son, who was ten years old when the following events took place.

On August 12, 2004, the defendant threatened the plaintiff over the phone. On August 13, 2004, the plaintiff filed a domestic violence petition and was granted a temporary restraining order by the Family Division at Lebanon; the case was then transferred to the Family Division at Plymouth. A hearing on the restraining order was scheduled for August 26, 2004, but had to be rescheduled because the presiding judge recused himself due to a conflict of interest; the hearing was eventually scheduled for October 12,2004.

On August 30, 2004, the court received the defendant’s request for a hearing. The motion was captioned “MOTION FOR IMMEDIATE HEARING.” It included a request for “an immediate hearing on the Lebanon District Court’s unjustified and overbroad ex parte temporary orders.” In the prayer for relief, the defendant asked the court to “[schedule a hearing on the petition as soon as possible.”

A hearing on the merits of the domestic violence petition was held on October 12, 2004. At that hearing, the defendant moved to dismiss the petition on the ground that the trial court failed to hold “a hearing on the temporary abuse orders within the time mandated by RSA 173-B:4.” The defendant also argued that RSA 173-B:3, VII, which requires the court to hold a hearing on the domestic violence petition within thirty days of its filing, had similarly been violated.

The trial court denied the defendant’s motion to dismiss, stating:

The first hearing where issues of visitation and property could be addressed occurred on September 16, 2004. While this did exceed the thirty day timeframe for conducting a final hearing, the Court finds the delay of three days for the reasons set forth above was not unreasonable. Further, a full merits hearing was scheduled for October 12, 2004, the delay being necessitated by the [defendant’s] request for a lengthier hearing.

In summary, the Court finds the [defendant’s] liberty and property interests were protected. The court finds that a final hearing was originally set within two weeks time and but for a conflict with the assigned judge, the hearing could have been conducted on that day____The final hearing was continued on one occasion, without objection by the [defendant], in order that [plaintiff’s] counsel be available.”

RSA 173-B:4,1 (2002) states in relevant part:

If non-telephonic temporary orders are made ex parte, the party against whom such relief is issued may file a written request with the clerk of the court and request a hearing on such orders. Such hearing shall be held no less than 3 business days and no more than 5 business days after the request is received by the clerk.

Thus, the hearing on the temporary restraining order should have been held within five business days of August 30,2004. RSA 173-B:3, VII (2002) states: “The court shall hold a hearing within 30 days of the filing of a petition under this section or within 10 days of service of process upon the defendant, whichever occurs later.” Therefore, the hearing on the domestic violence petition should have been held within thirty days of August 13,2004. Though she concedes that both statutes were violated, the plaintiff urges us to uphold the trial court’s order, arguing that dismissal is not the correct remedy.

The use of the word “shall” is generally regarded as a command; although not controlling, it is significant as indicating the intent that the statute is mandatory. This is especially so where the purpose of the statute is to protect private rights. In re Russell C., 120 N.H. 260, 264 (1980).

The plaintiff concedes that the use of the word “shall” indicates a legislative mandate. She contests, however, that dismissal is a proper remedy for the violations of the legislative mandates in this case. Where the legislature has not provided how its mandate is to be enforced, we must determine the appropriate mode of enforcement. Appeal of Martino, 138 N.H. 612, 615 (1994). Our inquiry focuses upon two factors: consideration of the statutory goals and consideration of whether the party seeking relief has shown prejudice as a result of the statutory violation. Id.

Where the legislature, out of liberty interest concerns, has mandated time limits for holding hearings, we have held that personal jurisdiction over a defendant is lost, absent waiver, if the case is not heard within the statutory period. Id.

Since the two statutes at issue share an identical purpose, we will address them together. The purpose of RSA chapter 173-B is “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.” Laws 1999,240:1, II. It is to be liberally construed to effect this purpose. Id. This purpose is to be balanced with the liberty interests of the accused, however, as the legislature recognized in its debates:

It was clear last year that the bill that was presented initially, didn’t properly balance the rights of all of the parties and interest, [sic]____lam pleased this year that the House took the initiative and ... passed out a bill that is more acceptable and more in-balanced [sic] with the interest of the parties.

N.H.S. JOUR. 1297 (1999) (remarks of Senator Gordon). “The committee believes that this bill presents improvements and fair treatment for all parties during times of great emotional stress.” N.H.H.R. JOUR. 648 (1999) (remarks of Representative Christie) (emphasis added).

In Russell C., we examined RSA 169-B:14, II (2002) and RSA 169-D:13, II (2002), concerning the statutory time limits for adjudicatory hearings for juveniles alleged to be either “delinquent” or “children in need of services.” Russell C., 120 N.H. at 263, 268. We held that “the time limits prescribed ... effectuate a substantive right requiring the court to forfeit jurisdiction if not complied with, unless such noncompliance is the result of a delay caused or requested by the juvenile, in which case he will be deemed to have waived the time limits.” Id. at 268. The juvenile’s liberty interest triggered the need for due process safeguards. Id.

The statutes at issue in this case are intended to protect similar rights. It hardly bears mentioning that a restraining order restrains one’s liberty. The temporary restraining order entered against the defendant restrained him from a number of legal activities, including contacting the plaintiff, possessing firearms and, most importantly, seeing their son. In order for these liberty interests to be adequately protected, a defendant must have access to a hearing.

Just as the mandatory time limits on juvenile adjudicatory hearings under RSA chapter 169-B and RSA chapter 169-D are a “legislative pronouncement of a child’s right to the expeditious resolution of his alleged delinquency or ‘need for services’ rooted in his right to due process,” Russell C., 120 N.H. at 266, so are the time limits at issue here a pronouncement of a defendant’s right to quickly challenge and resolve the restraints placed upon him by another’s allegations. The violation of these time limits is itself prejudicial to the defendant’s due process rights.

Since these hearings are designed to protect a defendant’s substantive rights, the court’s failure to hold them must result in dismissal of the domestic violence petition, unless the delay was caused or requested by the defendant. See id. There is no evidence that the defendant was responsible for the court’s delay in holding either of these hearings. To remedy the violation of RSA 173-B:4, I, the temporary orders must be dismissed. To remedy the violation of RSA 173-B :3, VII, the domestic violence petition must be dismissed. We note that nothing in RSA 173-B precludes the refiling of a domestic violence petition based upon the same or similar allegations after a petition has been dismissed for violation of RSA 173-B:4,1, or RSA 173-B:3, VII.

The plaintiff argues that the purpose of the statute would be frustrated by dismissing the petitions if a hearing is not held as required. In In re Erie C., a juvenile defendant was not afforded a hearing within the thirty days required by statute because the court was closed by a snow emergency. In re Eric C., 124 N.H. 222, 224 (1983). In that case, we reaffirmed our holding in Russell C. that the time limits were rooted in the juvenile’s right to due process. We acknowledged that enforcement of mandatory time limits could arguably defeat the goals of the statute when strictly applied; however, this result was intended by the legislature, and we did not find it absurd, unjust, or illogical. Id. at 225.

Similar reasoning prevails here. Enforcement of the mandatory time limits may have the effect of defeating the goals of the domestic violence statute when strictly applied. As noted above, the goals of protecting the victims of domestic violence must be carefully balanced against the rights of the defendant. We do not, therefore, find the resultant dismissal absurd, unjust or illogical.

The plaintiff finally argues that the defendant did not object to the fact that he did not receive the requested hearing until October 12, 2004. It is not the defendant’s responsibility to remind the court of the legislature’s mandatory instruction, however. Accordingly, we do not find this argument persuasive.

Since we reverse the trial court’s order on jurisdictional grounds, we need not address the merits of the petition.

Reversed.

Nadeau and Duggan, JJ., concurred; Broderick, C.J., with whom Galway, J., joined, dissented.