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2007-120, NICOLA SOUTH v. KERRY MCCABE
that there was insufficient evidence to support the trial court’s finding that she requested by the petitioner. This appeal followed; the respondent now argues a public restroom. After a hearing, the trial court issued protective orders as a beach in York, Maine, tampering with her car, and by having “berated” her in
South, initially asserted that the respondent had stalked her by following her to
stalking order,
We need not recite the facts of this case in detail. The petitioner, Nicola
further proceedings consistent with this opinion. District Court (DeVries, J.). We vacate the trial court’s order and remand for
see RSA 633:3-a (2007), entered against her by the Rochester
BRODERICK, C.J.
The respondent, Kerry McCabe, appeals a final
the respondent. Orr & Reno, P.A., of Concord (Robert S. Carey on the brief and orally), for
and orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Burns Legal Services, of Portsmouth (Christopher R. Burns on the brief
Opinion Issued: March 12, 2008 Argued: January 17, 2008
KERRY MCCABE
v.
NICOLA SOUTH
editorial errors in order that corrections may be made before the opinion goes No. 2007-120 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rochester District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
page is: http://www.courts.state.nh.us/supreme. 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 remand.
2 introduced to support them. We therefore vacate the final stalking order and
respondent that could support a finding that she engaged in a course of
a continuity of purpose.”
nature of the trial court’s findings, and whether sufficient evidence was in fact Both this court and the respondent are thus left to speculate as to the precise either the facts or the reasoning upon which the trial court based its decision. above, the petition filed in this case referenced three specific acts of the we shall address this issue now, since it will likely arise on remand. As noted not contained in the . . . [stalking] petition.” In the interest of judicial economy court could not, as a matter of law, base its [stalking] finding upon allegations In the Matter of Aldrich & Gauthier, 156 N.H. 33 ( 2007), asserts “that the trial We note that the respondent, citing another recent decision of this court, two or more specific acts over a period of time, however short, which evidence[ ] a, the trial court must make findings on the record that a defendant engaged in Kiesman, 156 N.H. at ___, 937 A.2d at 919. stalking order in response to a civil petition filed pursuant to RSA 633:3-a, III-
stalking order, which was issued on a standardized form, gives no indication of The trial court failed to make such findings in this case. The final
omitted); Kiesman, 156 N.H. at ___, 937 A. 2d at 919 (same). which evidence[ ] a continuity of purpose.” RSA 633:3-a, II(a). Fisher, 155 N.H. at 193 (quotation and emphasis is further defined as “2 or more acts over a period of time, however short, both cases, the person must have been engaged in a “course of conduct,” which individual in fear for . . . her personal safety . . . .” RSA 633:3-a, I(a)-(b). In B:1, :5 (2002), to impose similar requirement). Specifically, “when issuing a (2001) (interpreting domestic violence protective order statutes, see RSA 173- 155 N.H. 188, 193 (2007); see also Fillmore v. Fillmore, 147 N.H. 283, 285 the course of conduct warranting a final stalking order. Fisher v. Minichiello, list of prohibited conduct,” to require trial courts to make specific findings as to We have interpreted RSA 633:3-a, II(a), since it “contains an enumerated
targeted at a specific individual, which the actor knows will place that ( 2) where a person “[p]urposely or knowingly engages in a course of conduct . . . her personal safety . . . and the person is actually placed in such fear”; and targeted at a specific person which would cause a reasonable person to fear for a person “[p]urposely, knowingly, or recklessly engages in a course of conduct categories of conduct, two of which appear potentially relevant here: (1) where RSA 633:3-a, I, defines the act of stalking to include three distinct
stalking order. make any specific factual findings in support of its imposition of a final ___, 9 37 A. 2d 917, 918-19 (2007), we find that the trial court erred by failing to because, in light of our recent decision in Kiesman v. Middleton, 156 N.H. ___, stalked the petitioner. We do not reach the merits of this argument, however, 3
DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.
other unnoticed allegations at the hearing on the petition. Our holding in Vacated and remanded.
stalked. conduct which may have supported a finding that the petitioner had been consideration of far-ranging testimony on various examples of the respondent’s alleged against the defendant,” RSA 17 3-B:3, I (emphasis added), to permit statement does not, however, provide sufficient notice of the actual “facts “ongoing pattern of . . . behavior” on the part of the respondent. This general that in her petition, South asserted that her specific allegations were part of an allegations should not have been admitted in the first place. We acknowledge Aldrich & Gauthier dictates that the evidence pertaining to unnoticed
allegations specifically recited in the stalking petition, despite its admission of Thus, on remand, the trial court should limit its findings to the factual
set forth in RSA [chapter] 17 3-B.” methods of notice [in civil stalking proceedings] . . . shall be the same as those unnoticed charges at a hearing on a domestic violence petition. stalking petitions.”). RSA 633:3-a, III-a states that “the procedures and . . . the applicability of our interpretation of RSA chapter 173-B to orders on civil also Fisher, 155 N.H. at 193 (“RSA 633:3-a, III-a arguably mandates the applicable to civil stalking proceedings by operation of RSA 633:3-a, III-a. See We agree with the respondent that the holding of Aldrich & Gauthier is
the hearing on the petition. contours of the hearing contest.” Id. proceeding be supplied with the factual allegations against him in advance of N.H. at 35. In sum, the allegations in a domestic violence petition “set[ ] the should not admit evidence on unnoticed charges,” Aldrich & Gauthier, 156 it deems relevant and material in such hearings, see RSA 173-B:3, VIII, “it Gauthier, 156 N.H. at 35. While the court retains discretion to admit evidence numerous other bad acts as “background” information. Aldrich & 173-B:3, I. These provisions limit the trial court’s power to admit evidence of prior to the hearing to respond to the supplemental or amended petition.” RSA supplemented or amended “only if the defendant is provided an opportunity given to the defendant . . . .” Furthermore, a domestic violence petition may be I, states plainly: “Notice of . . . the facts alleged against the defendant shall be
Aldrich & Gauthier, 156 N.H. at 34. RSA 173-B:3,
17 3-B:3 (Supp. 2007) require that a respondent in a civil domestic violence In Aldrich & Gauthier, we held that the notice provisions within RSA
trial court also admitted – over the respondent’s objections – evidence of conduct tantamount to stalking. However, at the hearing on the petition, the