2007-808, RITA MACPHERSON v. JAY S. WEINER

The defendant, Jay S. Weiner, appeals an order of the

Massachusetts, by brief, for the defendant. Troy Watts, of North Woodstock, and Neil F. Faigel, of Andover,

to press. Errors may be reported by E-mail at the following address: Rita MacPherson, by brief, pro se.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-808 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hampton District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 633:3-a, III-c.

of “good cause.” We, therefore, begin our analysis with a discussion of RSA

each renewal thereof and shall grant such relief as

request for an extension is insufficient as a matter of law to meet the standard

phrase “good cause,” and therefore violates the defendant’s due process rights.

of the court. The court shall review the order, and

2006, and argues that violation of a protective order fifteen months prior to a that it is undisputed that he has complied with the protective order since June cause” standard in RSA p. 2 633:3-a, III-c. Specifically, the defendant points out

and (4) whether RSA 633:3-a, III-c is void for vagueness as it relates to the

upon the request of the plaintiff and at the discretion thereafter each extension may be for up to 5 years, one year after the expiration of the first order and showing good cause, with notice to the defendant, for order of the court upon a motion by the plaintiff, [p]laintiff’s request or her fear of defendant.” intertwined with questions of statutory interpretation regarding the “good of time not to exceed one year, but may be extended by

claim he has not contacted plaintiff in over a year is not a reason to deny Any order under this section shall be for a fixed period

RSA 633:3-a, III-c provides:

district court unsustainably exercised its discretion in granting the extension; for extension is sufficient to satisfy the “good cause” standard; (3) whether the whether an incident that occurred fifteen months prior to the plaintiff’s request

The defendant’s arguments as to sufficiency of the evidence are previously on June 5, 2006 violate a previous order then in effect, [d]efendant’s

submitted sufficient evidence of “good cause” to support the extension; (2) On appeal, the defendant raises four issues: (1) whether the plaintiff

defendant requested a hearing. the plaintiff requested, and the trial court granted, a five-year extension. The plaintiff is entitled to have the order extended is that the defendant did a five-year extension, stating: “An important factor in the Court finding The trial court issued a written order, granting the plaintiff’s request for

defendant had violated the prior orders. plaintiff informed the trial court that she requested an extension because the dispute, that he had complied with the protective order since June 2006. The At the hearing, the defendant represented, and the plaintiff did not

defendant violated the protective order during that year. On August 28, 2007, the district court extended the order for one year. There is no evidence that the petitions). In

that define “good cause” within RSA 6 p. 3 33:3-a, III-c. Furthermore, unlike in

cause.” RSA 6 p. 3 33:3-a, III-c. RSA 633:3-a does not define “good cause.” (transfer to another department of corrections where good cause shown); petition remedy); RSA ch. 173-B (2002 & Supp. 2007) (domestic violence (abatement of interest on taxes where good cause shown); RSA 30-B:21 (2000)

chapter 17 p. 3 3-B, and argues that we should apply the principles articulated in

court should consider these factors, we disagree that they are the only factors 147 N.H. 28 p. 3 3, 286 (2001)). Although we agree with the defendant that the trial time’ nor ‘non-specific.’” Tosta, 156 N.H. at 767 (quoting Fillmore v. Fillmore, misconduct prompting a domestic violence petition be neither ‘too distant in Thereafter “each extension may be for up to 5 years” upon a showing of “good Tosta, we reiterated that “we have required that the threshold

RSA 6 p. 3 33:3-a, III-a (remedy for stalking petitions look to domestic violence commissioner shall set a time and place for a hearing.”); RSA 29:12, I (2000) Tosta v. Bullis, 156 N.H. 763 (2008), in construing the term “good cause.” See

The defendant points to RSA 6 p. 3 33:3-a, III-a, which references RSA

legitimate need to take judicial action”). It is, however, a common legal term. (“Termination of a franchise must be supported by good cause.”). to quit); 7-Eleven, Inc. v. Dar, 757 N.E.2d 515, 522 (Ill. App. Ct. 2001) App. 200 p. 3 3) (to receive unemployment compensation one must show good cause Curras v. Unemployment Appeals Com’n, 841 So. 2d 673, 674 (Fla. Dist. Ct.

permits the court to extend a final protective order initially for one year.

hearing has been made, and good cause has been shown therefor, the undue burden or expense.”); RSA 12-E:5, II (200 p. 3 3) (“When a petition for a protect a party or person from annoyance, embarrassment, oppression, or to include. E.g., Fed. R. Civ. P. 26(c) (“The court may, for good cause, issue an order to legislature might have said or add language that the legislature did not see fit “difficult to define in absolute terms, [but] it generally signifies a sound basis or In re Alexander Grant & Co. words used., 820 F.2d 352, 356 (11th Cir. 1987) (good cause is

Initially, we discuss the meaning of “good cause.” RSA 6 p. 3 33:3-a, III-c

sections. Appeal of N.H. Troopers Assoc., 145 N.H. 288, 290 (2000). a particular provision, not in isolation, but together with all associated

Id. We interpret a statute to lead to a reasonable result and review

legislative intent from the statute as written and will not consider what the

Fisher v. Minichiello, 155 N.H. 188, 191 (2007). We interpret

language of the statute, we ascribe the plain and ordinary meaning to the Upton v. Town of Hopkinton, 157 N.H. 115, 118 (2008). When examining the Interpretation of a statute is a question of law, which we review de novo.

(Emphasis added.)

being of the plaintiff. may be necessary to provide for the safety and wellwarrants an extension.

p. 4 order, the plaintiff’s safety and well-being would be in jeopardy, “good cause” court determines that the circumstances are such that, without a protective

into account any present and reasonable fear by the plaintiff. Where the trial

arguments. original stalking and any violation of the order. The trial court should also take the plaintiff. To do so, the trial court must review the circumstances of the conditions are such that there is still a concern for the safety and well-being of

evidential support or tainted by error of law. 4

interpretation, any acts amounting to stalking, for the previous fifteen months did not warrant an extension. We reject both

“good cause,” the trial court must therefore assess whether the current

witnesses and the weight to be given testimony.

and uphold the findings and rulings of the trial court unless they are lacking in

of how severe, would result in a protective order “not to exceed one year,” RSA

fifteen months does not bar an extension. If we adopted the defendant’s during the one-year extension; and (2) on these particular facts, his behavior matter of law, the defendant’s compliance with the order over the previous As to the defendant’s argument that there was insufficient evidence as a directly relates to the safety and well-being of the plaintiff. For a showing of

accord considerable weight to the trial court’s judgments on the credibility of

On appeal, we review sufficiency of the evidence claims as a matter of law

there was insufficient evidence because he had not violated the protective order sufficient evidence. The defendant makes two claims: (1) as a matter of law We next address whether the trial court’s finding was based upon safety and well-being of the plaintiff.” Thus, whether “good cause” exists extend the protective order on a “showing [of] good cause . . . to provide for the addressing any extension, RSA 633:3-a, III-c provides that the court may

stalking.” “the court shall grant such relief as is necessary to bring about a cessation of stalking as defined in this section may seek relief by filing a civil petition,” and

protective orders). The initial objective is to ensure the stalking ends. In

See RSA 173-B:5, I(a) (Supp. 2007) (providing procedures for

whole. RSA 633:3-a, III-a provides that “[a] person who has been the victim of We interpret “good cause” in context by considering the statute as a

misplaced. order are the reason for the extension. Thus, any analogy to Tosta is “attenuated at best.” Id. Here, the defendant’s past acts of violating the court defendant. The link between the abuse and the petition in Tosta was at 768, the plaintiff here has refrained from intentional contact with the chose to stay with the defendant following the misconduct, see Tosta, 156 N.H. Tosta, where the misconduct occurred nine months prior and the plaintiff extend the protective order.

p. 5 upon this evidence, the trial court could have reasonably found good cause to

move forward. I’m asking that I can be made to feel safe and not sorry.” Based feeling with Mr. Weiner’s previous history that without the extension I can time period in the silver car.” The plaintiff explained to the court, “I am not

or even encourages arbitrary and discriminatory enforcement.” earlier, together with the plaintiff’s reasonable fear, constituted good cause. residence multiple times in violation of the protective order only fifteen months

has discretion to extend a protective order.

favoring a statute’s constitutionality.”

opportunity to understand what conduct it prohibits. Second, if it authorizes

support the finding that the defendant’s actions in driving by the plaintiff’s

was arrested and went to jail.” At the hearing, the plaintiff stated, “I do have “drove by [the plaintiff’s house] a dozen times.” The defendant “subsequently necessary for the safety and well-being of the plaintiff. Thus, the trial court his brief, (2006). June 2006, while the original protective order was in place, the defendant defendant does not specifically invoke a provision of the State Constitution in State v. MacElman, 154 N.H. 304, 307 vagueness bears a heavy burden of proof in view of the strong presumption Colorado, 530 U.S. 703, 732 (2000). “A party challenging a statute as void for

reasons. First, if it fails to provide people of ordinary intelligence a reasonable “A statute can be impermissibly vague for either of two independent as a close case. Nonetheless, there is sufficient evidence in the record to Federal Constitution. v. Hancock, 156 N.H. 301, 305 (2007). We therefore limit our analysis to the

and therefore fails to preserve a state constitutional claim. See State as well as the defendant’s prior acts, and determine whether an extension is

violation of the previous order. At the hearing, the trial court heard that in is impermissibly vague and violates his procedural due process rights. The Finally, we address the defendant’s argument that the term “good cause”

caution, however, that this discretion is not without limitation. We regard this

The trial court is in the best position to view the current circumstances, its decision to extend the order primarily upon the defendant’s June 5, 2006

included that restriction in the statute. only when there was a violation of the prior order, the legislature would have

As to the trial court’s specific findings in this case, the trial court based

is a factor for the trial court to consider. not. Thus, the defendant’s compliance with or violation of the protective order

interpretation is flawed. If the legislature intended to allow for an extension 633:3-a, III-c, provided the defendant did not violate the order. This apprise an individual of the standards by which the decision will be made.

p. 6 not find a statute unconstitutionally vague simply because it does not precisely

defendant to know the actions which will result in a five-year extension, we will

defendant’s concern that the statute does not provide guidelines for a order, the court could issue an extended protective order. As to the activity that constituted stalking or violated conditions of the original stalking

arguments to be both.

include an extension of the order “for up to 5 years.” RSA 633:3-a, III-c.

five years. The defendant knew or should have known that if he participated in

challenges to RSA 633:3-a, III-c are facial or as-applied, we interpret his extension of the current order.” Although he does not clarify whether his Cause” should only relate to events that took place from and after the last governmental body . . . in the exercise of its discretion.”).

the safety and well-being of the plaintiff.” RSA 633:3-a, III-c. Such relief may

cause’] renders a statutory provision vague.”

that if the court finds “good cause” for the extension, the extension may be for acts. RSA 633:3-a further provides notice to a person of ordinary intelligence 633:3-a, III-c is vague either on its face or as applied to the defendant. extension, the court will take into account the original act and any subsequent

the original precipitating event that gave rise to the initial order, or if “Good that [‘good cause and sufficient reason’] provide adequate criteria to guide a Derry Sand & Gravel, Inc., 121 N.H. at 505 (“This court has long recognized renewal thereof and shall grant such relief as may be necessary to provide for 921 (La. 2007) (citing Wray v. Folsom, 166 F. Supp. 390 (W.D. Ark. 1958)); see

Furthermore, we note that “[c]ourts have rejected arguments that [‘good

Accordingly, we reject the defendant’s arguments that “good cause” within RSA ordinary intelligence that, in addressing whether there is “good cause” for an Derry Sand & Gravel, Inc. v. Town of Londonderry, 121 N.H. 501, 505 (1981).

that it is unclear if the showing of good cause “can, or should, relate back to could be extended for an additional period of five years.” He further argues believe, nor understand, ‘Good Cause’ could exist to the extent that an order determining if “good cause” exists. “The court shall review the order, and each

Accordingly, we find that RSA 633:3-a provides notice to a person of

fifteen months, a reasonable person of ordinary intelligence would neither RSA 633:3-a, III-c sets forth what the trial court must consider in

have been no incidents between the plaintiff and the defendant for a period of result in the ultimate end to the extensions . . . .” He maintains that “there [d]efendant some articulable level of conduct which, if refrained from, would The defendant argues that “[t]he term ‘Good Cause’ should give a p. 7 7

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

decision to grant the extension. Accordingly, for the foregoing reasons, we uphold the trial court’s