2007-405, CINTIA TOSTA v. RUSSELL BULLIS, JR.

The defendant, Russell Bullis, Jr., appeals an order of

brief), for the defendant. Minutelli Law Office, P.L.L.C., of Portsmouth (Steven J. Minutelli on the

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

editorial errors in order that corrections may be made before the opinion goes No. 2007-405 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Portsmouth Family Division 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 p. 2 22 as childrens, especially my first son.

he’s being violence before and I want to get – be safe me and my really scared what he thinking, why he wants to do it. So I know going to leave to the house you know. It was so surprise and I inside the house. He’s got all the stuff without talk to me[,] he was

The plaintiff did not, however, provide evidence that the defendant had in

between the assault and her decision to seek a protective order as follows: not to know how she could be safe without a restraining order. argument on June 18, p. 2 2006. The plaintiff explained the nine-month gap The plaintiff repeatedly expressed a general fear of the defendant, and claimed says he has a big long knife in his car. around my and my sister’s house this morning in Haverhill. He Family Court and I am afraid he will hit me again. He was driving

allege that his conduct presented a “credible threat” to the plaintiff’s safety.

daughter. day before and he don’t do anything. I was at work and he just go I came this court this week because he left out of the house the

heard testimony from both parties about the assault that occurred during their hearing on the domestic violence petition, see RSA 173-B:3 ( p. 2 2002), the court See RSA 173-B:1, I (2002). The trial court denied his motion. At the ensuing pictures. This in Mass[achusetts]. Divorce filed in Ports[mouth]

The defendant filed a motion to dismiss the petition, arguing it failed to

or entering her residence, and awarding her temporary custody of the parties’ home. The defendant did not inform the plaintiff of his decision to leave. The plaintiff sought court orders restraining her husband from contacting her which prompted him to gather his belongings and move out of the parties’

[The defendant] [h]it me before 6-18-06 and police took report with

requesting protection from abuse, claiming: On March p. 2 29, 2007, the plaintiff filed a domestic violence petition

defendant claimed that the plaintiff repeatedly struck him during this dispute, next day, the parties had a second heated argument on the same subject. The potential post-divorce custody arrangements for their young daughter. The tension between the parties again escalated during an argument about further instances of physical violence – until March p. 2 2007. On March 26, Family Division. Nevertheless, they continued to live together – without any The parties subsequently began divorce proceedings in the Portsmouth

defendant in either Massachusetts or New Hampshire. p. 3 3

entering a final protective order. We address each issue in turn.

reasonable inferences in the light most favorable to the plaintiff.” assume the truth of the facts alleged by the plaintiff and construe all

his alleged conduct constituted a credible threat to the plaintiff’s safety and 577, 580 (2007). Where the facts alleged by a plaintiff are reasonably applicable law.” In the Matter of Larue & Bedard, 156 N.H. ___, ___, 9 p. 3 34 A.2d engage in a threshold inquiry that tests the facts in [the] petition against the Cas. Ins. Co. v. Town of Rollinsford, 155 N.H. 669, 670 (2007). “We then

dismiss for failure to state a claim upon which relief may be granted, we With respect to the defendant’s first argument, “[i]n reviewing a motion to

petition] was filed. the court engaged in an unsustainable exercise of discretion by concluding that [and] Ms. Tosta’s sister’s home on the day the [domestic violence her petition was insufficient to support entry of a final protective order; and ( p. 3 3) relief under RSA chapter 173-B; (2) the evidence presented at the hearing on dismissing his wife’s domestic violence petition for failing to state a basis for On appeal, the defendant argues that: (1) the trial court erred by not

months, among other things. plaintiff, to not enter her residence and to attend personal counseling for six The trial court ordered the defendant to remain at least 100 feet away from the

violent with her.” testified that “[the defendant is] good for the baby. I never saw he’s being of mind. In addition, he was seen driving around both Ms. Tosta’s plaintiff expressed a willingness to allow the defendant to see their baby, and the home without notice to Ms. Tosta – she was fearful of his state significantly escalated over the past several weeks – Mr. Bullis left plaintiff] on 6/18/06. Tension between the parties has [T]he [defendant] committed . . . abuse when he punched [the

the master made the following narrative findings: check-box indicating her conclusion that the defendant had committed assault, In an addendum to the final protective order, in addition to marking a

to pick up the parties’ daughter from a third-party babysitter. Moreover, the house during the week of March 29 was his own testimony that he went there the only evidence relating to the defendant having been at the plaintiff’s sister’s There was no mention at the hearing of the defendant possessing a knife, and June 2006. See RSA 17 p. 3 3-B:1, I(a)-(g) (listing acts which qualify as abuse). any way engaged – or even threatened to engage – in abusive behavior after p. 4 4

survived the threshold inquiry presented by a motion to dismiss. abuse. Therefore, the trial court did not err when it found that the petition

assault, as defined in RSA 631:1 (2007) through RSA 631:3 (2007). witnesses and the weight to be given testimony.” Fillmore, 1 p. 4 47 N.H. at 285. Only one of the acts enumerated in the statute is at issue in this appeal: the plaintiff, who was in the midst of divorce proceedings, was at risk of further accord considerable weight to the trial court’s judgments on the credibility of (quotation omitted); see RSA 173-B:3, VI. When performing this review, “[w]e tainted by error of law.” Fillmore v. Fillmore, 147 N.H. 283, 284 (2001) and rulings of the trial court unless they are lacking in evidential support or sufficiency of the evidence claims as a matter of law, and uphold the findings final domestic violence protective order. See RSA 173-B:5. “[W]e review evidence presented at the hearing on his wife’s petition to support entry of a decision to seek a restraining order. We next address the defendant’s argument that there was insufficient the nine-month gap between the assault at issue here and the plaintiff’s

conduct constitutes a credible threat to the plaintiff’s safety.” RSA 173-B:1, I. while armed with a knife. These statements permit one to reasonably infer that more of the following acts by a family or household member . . . where such the defendant had not only hit her in the past, but had recently followed her chapter 173-B, means “the commission or attempted commission of one or credible and continuing threat to the plaintiff’s safety. Her petition alleged that by the defendant.” RSA 173-B:3, I. “Abuse,” as that term is defined in RSA a reading supporting the conclusion that the defendant’s conduct posed a We find, however, that the allegations in the petition were susceptible of

her domestic violence petition. When making this argument, he emphasizes . . . assault represent[ed] a credible threat to Ms. Tosta” at the time she filed liberal reading of the . . . petition does not lend itself to a conclusion that the Notwithstanding this, he maintains that “even if assault occurred[,] the most understood to allege a simple assault. See RSA 631:2-a (2007). The defendant concedes that the petition at issue here may be readily

in the county or district where the plaintiff or defendant resides, alleging abuse (2002). See RSA 173-B:1, I; In the Matter of Alexander and Evans, 1 p. 4 47 N.H. 441, 442 assaulted her, and that this conduct constituted a credible threat to her safety. needed to allege sufficient facts to support a finding that the defendant had 173-B:1, I(a). Thus, to survive the defendant’s motion to dismiss, the plaintiff

“Any person may seek relief pursuant to RSA 173-B:5 by filing a petition,

denial of a motion to dismiss. See id. at ___, 93 p. 4 4 A.2d at 580. susceptible of a construction that would permit legal relief, we will uphold the also testified that it was the defendant’s sudden and unexplained decision to

p. 5 defendant, despite the commencement of divorce proceedings. The plaintiff continuously without further instances of physical violence on the part of the undisputed that during those nine months, the parties lived together between the assault and the plaintiff’s filing for a protective order. It was

master’s finding that this criminal conduct occurred, some nine months passed

attenuated at best. between the plaintiff’s request for protection and the 2006 assault was the course of their relationship. While the record certainly supports the finding of abuse, see RSA 173-B:1, I; Fillmore, 147 N.H. at 286, since the link demonstrated that she was assaulted by the defendant on one occasion during qualify as the threshold element of misconduct that is a prerequisite to a warranting a protective order under RSA chapter 173-B. The plaintiff unique facts lead us to conclude that the assault at issue in this case fails to behavior, that ultimately prompted her to file for a protective order. These leave her home, as opposed to his affirmative display of some threatening

time” nor “non-specific.” misconduct prompting a domestic violence petition be neither “too distant in safety. Given this statutory objective, we have required that the threshold

insufficient evidence to support a finding that he was engaged in “abuse” Turning to the case at hand, we agree with the defendant that there was

N.H. at 441-43. finding that a credible threat to her safety exists. Alexander and Evans, 147 past physical violence and more recent non-violent harassment to support a plaintiff to show more than a generalized fear for personal safety based upon

since “[a] finding of abuse shall mean the defendant victim has shown a need for protection from an ongoing, credible threat to her threat posed by such conduct to a plaintiff’s safety, however, must be ongoing, In short, domestic violence protective orders are to be utilized when a

misconduct which will support a finding of abuse, (quotation omitted). relief.” In the Matter of Morrill and Morrill, 147 N.H. 116, 117 (2001) domestic violence to immediate and effective police protection and judicial safety of the family unit for all family . . . members by entitling victims of the past, “[t]he purpose of [RSA chapter 173-B] is to preserve and protect the is necessary to bring about a cessation of abuse.” Id. As we have observed in Further, upon such a showing, the trial court’s task is to “grant such relief as threat to the safety of the plaintiff.” RSA 173-B:5, I (emphasis added).

need not immediately precede the filing of a domestic violence petition. The

by a preponderance of the evidence. RSA 173-B:5, I. The threshold To obtain relief under RSA chapter 173-B, a plaintiff must show “abuse” protective order here.

Accordingly, it was error for the trial court to enter a final domestic violence

the June 200 p. 6 6 assault, prompted the plaintiff to seek a restraining order. presented at the hearing on this matter is that some other forces, as opposed to her filing. The only conclusion supported by a preponderance of the evidence

any way threatened the plaintiff’s safety in the weeks or months leading up to

exercise of discretion.

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

hearing that the plaintiff was in need of protection from an ongoing, credible filed a domestic violence petition. The master received no evidence at the that the trial court’s entry of a final protective order was an unsustainable Given this conclusion, we need not address the defendant’s argument

defendant represented a credible threat to the plaintiff’s safety at the time she In addition, there was insufficient evidence to support a finding that the