2008-526, LYNETTE WALKER v. CLIFFORD WALKER

weekends. For several months prior to the domestic violence petition, the two children resided in Nashua. The defendant visited his wife and children on defendant lived and worked in Thetford, Vermont, while the plaintiff and

married and have three minor children. At all times relevant to this appeal, the

Court (

The record supports the following. The plaintiff and defendant are

violence protective order. See RSA 173-B:5 (Supp. 2008). We affirm. Moore, J.) granting the plaintiff, Lynette Walker, a final domestic HICKS, J. The defendant, Clifford Walker, appeals an order of the Trial

the defendant. Small & Lyons, of Nashua (Daniel R. Krislov on the brief and orally), for

orally), for the plaintiff. Kalled Law Offices, PLLC, of Ossipee (John P. Kalled on the brief and to press. Errors may be reported by E-mail at the following address:

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

No. 2008-526 editorial errors in order that corrections may be made before the opinion goes Nashua District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 temporary protective order. p. 2 plaintiff takes ‘at whatever cost’ . . . to mean to kill her[.]” It then granted a in the space for additional facts: “He has threatened to kill her in the past and

the plaintiff’s permission, added the following sentence to the plaintiff’s petition

card and check book from her purse.

life on other recent occasions. During or just after the hearing, the court, with the most recent conversation and that the defendant specifically threatened her much. She elaborated that the allegations in her petition were only those from

her, the plaintiff interpreted his behavior as a threat to her life. after she declined. Although he did not strike or specifically threaten to strike times.” Finally, she alleged that the defendant removed her credit cards, debit 2 knives” and that he “carries [the] unregistered .45 pistol in [their] vehicle at all take away [their] children,” that he possessed a “.45 pistol[ and] numerous

safety and that she intended the allegation within her petition to convey as plaintiff, the defendant and his mother.

Leary Moore

move to . . . Vermont with the children.” She testified that he became upset

numerous occasions that if [she left] him he would do whatever he had to do to

threat. She explained that she understood his threat as one to her life and 2008, at which it received evidence and heard sworn testimony from the The District Court (, J.) conducted a plenary hearing on June 4,

going to leave and . . . take the children, [and] . . . wanted [her] to immediately information, the defendant did not “trust [her], . . . was afraid that [she] was two had another “discussion.” The plaintiff testified that, upon finding this in his way.” She alleged that the defendant “ha[d] threatened [her] on to her that “he is coming to take [the children] at whatever cost and not to get because, upon finding the information in her pocketbook, the defendant stated day. The court questioned the plaintiff about her understanding of the alleged The Nashua District Court (, J.) held an ex parte hearing the same

open pocketbook as he walked by, causing it to fall and spill its contents. The

temporary protective order. She alleged that she was in immediate danger On the following Tuesday, May 27, 2008, the plaintiff petitioned for a

“down several things” and placed them in her pocketbook. conversations, the plaintiff researched “the laws . . . concerning custody,” wrote

purse without permission, while the defendant claims that he “hooked” the plaintiff’s pocketbook. The plaintiff maintains that the defendant searched her plaintiff’s family camp, the defendant came across the written materials in the During the 2008 Memorial Day weekend, while the family was at the

the defendant and seek custody of the children. After one of these had a series of “conversations” regarding whether the plaintiff intended to leave mean the defendant represents a credible threat to the safety of the plaintiff.” p. 3 preponderance of the evidence. RSA 173-B:5, I. “A finding of abuse shall plaintiff’s safety,” RSA 173-B:1, I. The plaintiff must show abuse by a

relief.’”

631:4,” RSA 173-B:1, I(b), when such act “constitutes a credible threat to the

domestic violence to immediate and effective police protection and judicial

abuse. RSA 173-B:1, I (2002), including “[c]riminal threatening as defined in RSA the commission or attempted commission of one or more [enumerated acts,]” . . . alleging abuse by the defendant.” RSA 173-B:3, I (2002). “‘Abuse’ means

Id. carry out his threats of physical harm.” safety of the family unit for all family . . . members by entitling victims of because “the Plaintiff reasonably believes that the Defendant has the ability to holding the firearm. knife from his collection, and that he has issued at least one threat to her while acquired a .45 pistol in April 2008, that he carries the pistol and often one

and (3) there was insufficient evidence in the record to support a finding of corroborated parts of his testimony. “Any person may seek relief pursuant to RSA 173-B:5 by filing a petition

Laws 1979, 377:1, II). In the Matter of Morrill and Morrill, 147 N.H. 116, 117 (2001) (quoting

“The purpose of [RSA chapter 173-B] is ‘to preserve and protect the threatening, and found that a credible threat to the plaintiff’s safety existed

that he is going to do [her] physical harm.” She testified that the defendant

denying his motion to reconsider was an unsustainable exercise of discretion; authority by adding the explanatory text to the domestic violence petition; (2) cards, debit card and checkbook with her permission. The defendant’s mother motion. On appeal, the defendant argues that: (1) the trial court exceeded its The defendant moved for reconsideration. The trial court denied this

RSA 173-B:5, I. It first ruled that the defendant committed criminal After the plenary hearing, the court granted a final protective order. See how it’s phrased . . ., [that] if [she] should leave him and take [their] children, understanding of the latter threat is that “he’s saying the same thing no matter “to kill [her]” or to “do whatever [he has] to do to get [his] children back.” Her “within the means of the law.” He testified that he took the plaintiff’s credit statements meant that he would do anything to get custody of the children The defendant denied threatening the plaintiff. He testified that his

“been in reference to [their] children.” The substance of the threats was either The plaintiff testified that most of the defendant’s recent threats have action in violation of due process and separation of powers. We disagree.

p. 4 appropriate[,] . . . a specific finding . . . will facilitate our review”).

the petition. The only question before us, therefore, is whether “[t]he plaintiff

impartiality by “act[ing] as the attorney for the Plaintiff” and prosecuting the through her testimony at the

calculate the guidelines award before determining that an adjustment would be

facilitating meaningful judicial review of its disposition, see fit to include.

plenary hearing, he received notice of the explanatory sentence inserted into

The defendant further argues that the trial court compromised its explanatory text on the petition, the plaintiff effected the clarifying amendment

child support award that, although no statute expressly requires trial court “to Gordon and Gordon, 147 N.H. 693, 700 (2002) (recognizing for purposes of

120 N.H. 849, 850 (1980) (“As long as a judge maintains his impartiality, he of narrowing the issues to only those that are contested, cf. In re Ronnie Prime, petition.” RSA 173-B:3, I. The defendant acknowledges that, prior to the final, power to document and record the clarification of an allegation in the interest an opportunity prior to the hearing to respond to the supplemental or amended ex parte hearing. It is well within the court’s permitted to supplement or amend the petition only if the defendant is provided cost.” Although the court acted as scrivener by physically writing the own allegation that the defendant threatened to take the children “at whatever is primarily because the explanatory sentence merely clarified the plaintiff’s We hold that the plaintiff, and not the court, amended the petition. This

meaning is not subject to modification. We will neither consider used. When the language of a statute is clear on its face, its possible, we ascribe the plain and ordinary meanings to the words

The relevant text of RSA 173-B:3, I, provides that “[t]he plaintiff shall be

In the Matter of Aldrich & Gauthier, 156 N.H. 33, 34 (2007) (citations omitted).

whole. We first examine the language of the statute, and, where legislature as expressed in the words of the statute considered as a review de novo. We are the final arbiter of the intent of the The interpretation of a statute is a question of law, which we

requires us to construe RSA 173-B:3, I. to insert the explanatory sentence into the petition. The defendant’s argument The defendant first argues that the trial court lacked statutory authority

p. 5 the plaintiff “lied about a material fact,” casting doubt upon all of her reconsideration before the trial court, arguing that it conclusively proves that as [her] debit card.” Upon reviewing the note, the defendant moved for

unreasonable to the prejudice of his case.”

that the plaintiff would “send[] the checks from the che[cking] account as well court “should be required to vacate the order and dismiss the petition.” determine” the plaintiff’s credibility. In the alternative, he argues that the trial 5

defendant must demonstrate that the court’s ruling was clearly untenable or

plaintiff’s well-being. edge has been removed in the copying process. However, it appears to state The copy of the note provided to the court is difficult to read because the right of its decision, the court should be required to rehear the matter in order to note to the defendant, by way of her father, addressing various arrangements.

701, 705 (2005). “To show that the trial court’s decision is not sustainable, the absent an unsustainable exercise of discretion.” State v. Barkus, 152 N.H. “We will uphold a trial court’s decision on a motion for reconsideration

warranted had “at whatever cost” not been perceived as a threat to the “[a]t the very least, when confronted with such evidence so close to the delivery hearing, once the final protective order was in place, the plaintiff transmitted a reconsideration was an unsustainable exercise of discretion. He argues that On appeal, the defendant contends that denying his motion for

the testimony since it is he . . . who must determine whether . . . the statutory sought to clarify an ambiguous allegation. “It is the judge’s duty to understand danger of abuse,” RSA 173-B:4, I (2002). In the course of its inquiry, the court

motions and requests for rulings”). Indeed, temporary relief may not have been

account).” She testified to the same at the final hearing. The day after the final [her] purse and took [her] credit cards, debit[] card, [and] check book (joint The plaintiff alleged in her petition that the defendant “went through

only “[u]pon a showing of an immediate and present danger of abuse”).

because it “must understand the testimony . . . to be able properly to pass on Hause, 82 N.H. 133, 138 (1925) (stating that court may ask witness questions

duty to determine and document whether the statutory standard was met. did it undertake any prosecutorial function. The court simply discharged its court neither advocated for the plaintiff nor provided her with legal advice. Nor any party. See N.H. CONST. pt. II, art. 79. Consistent with this mandate, the The State Constitution plainly forbids judges from acting as counsel to not challenge the sufficiency of evidence that he criminally threatened the

p. 6 threat to the plaintiff’s safety,” RSA 173-B:1, I. Because the defendant does 173-B:1, I(b); and (2) a finding that such misconduct “constitutes a credible criminal acts, including “[c]riminal threatening as defined in RSA 631:4,” RSA

(Quotation omitted.)

elements: (1) commission or attempted commission of one or more of several

is too distant in time . . . [to constitute] an ongoing, credible threat.” 6 assuming “that the [defendant] threatened to kill [the plaintiff] . . . [,] the threat before she filed the petition. Thus, the defendant contends that, even

evidential support or tainted by error of law.”

cessation of abuse.” RSA 173-B:5, I. “Abuse” is defined as having two evidence, the court shall grant such relief as is necessary to bring about a

testimony agreeing that things between herself and the defendant were “okay”

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

“Upon a showing of abuse of the plaintiff by a preponderance of the

view the evidence in the light most favorable to the [plaintiff].” Id. generally “defer to the trial court’s credibility judgments.” witnesses and the weight to be given testimony.” Comer, 156 N.H. at 246. “We hearing note was somehow inconsistent with the plaintiff’s testimony, we considerable weight to the trial court’s judgments on the credibility of weekends during the alleged threats to her life. He also points to the plaintiff’s Evans trial court’s rulings because the plaintiff and defendant lived together on, 147 N.H. 441, 442 (2002) (quotation and brackets omitted). “We accord In the Matter of Alexander and

“We review sufficiency of the evidence claims as a matter of law and testified: “ court’s ruling denying the motion for reconsideration. essential to a finding of abuse.” Accordingly, we find no error in the trial

the post-hearing note was sent to the defendant. Even assuming that the post- The defendant argues that there is insufficient evidence to support the

post-hearing note was indeed inconsistent with the plaintiff’s testimony. She

“accusation [regarding the debit card and checkbook] was admittedly not 156 N.H. 241, 247 (2007). Regardless, the defendant concedes that the

of her debit card and checkbook ended after the petition was filed and before (Emphasis added.) The two statements would be consistent if the deprivation cards, our debit card, the checkbook to our joint checking account . . . .”

At that time, he had also removed from my pocketbook my credit

The defendant has failed to carry his burden. First, it is unclear that the

an objective basis sufficient to sustain the discretionary judgment made.” Id. 296 (2001) (quotation omitted). Our inquiry is “whether the record establishes p. 7 7

further believe that I had intended to leave, and at that time, I felt weekend, when her husband had returned to Vermont. any immediate danger. I had not done anything to make him campground in the area. At that time, I did not feel like I was in

proceed. through the weekend, get away from the situation, and then

firearm.

opportunity to petition the court on the Tuesday following Memorial Day decision to leave upon the recent threats. Indeed, the plaintiff seized her first somewhere between fifteen and twenty people right there, on the for a protective order,” id. at p. 7 768, is the fact that here the plaintiff based her sudden and unexplained decision to leave. . . ultimately prompted her to file Further distinguishing this case from Tosta, where “the defendant’s

the time she filed the petition. domestic violence petition and posed a credible threat to the plaintiff’s safety at that plaintiff was “at risk of further abuse”). . . . that things were under control enough that I just needed to get

weeks of her petition. The defendant issued at least one threat while holding a

harassment to support a finding that a credible threat to her safety exists.” We were at a family campground where there w[ere] probably

preceding her petition, she elaborated: Although the plaintiff agreed that things were “okay” during the weekend

established that the defendant’s misconduct prompted the filing of the recently followed her while armed with a knife” permitted reasonable inference

Cf. id. at p. 7 767 (allegations that defendant hit plaintiff in past and “had

case recently threatened the plaintiff’s life multiple times, all within several together without physical violence. Conversely, the defendant in the instant nine months passed between the two events, during which the parties lived safety based upon past physical violence and more recent non-violent misconduct and the filing of a domestic violence petition was attenuated where addition, “a plaintiff . . . [must] show more than a generalized fear for personal We previously concluded in eleven years prior to the petition were insufficient to show current abuse). In Tosta that the link between the criminal

a finding of abuse under RSA chapter 1 p. 7 73-B.

The evidence, when viewed in the light most favorable to the plaintiff,

Tosta v. Bullis, 156 N.H. p. 7 763, 768 (2008).

283, 286 (2001) (holding two incidents of physical abuse occurring eight and

Incidents which are “too distant in time and non-specific” cannot support

plaintiff’s safety,” RSA 1 p. 7 73-B:1, I. plaintiff, our inquiry is whether the threats “constitute[] a credible threat to the p. 8 8

violence petition and constituted a credible threat at the time of the petition.

BRODERICK C.J., and DALIANIS and DUGGAN, JJ., concurred.

reasonably conclude that the criminal threatening prompted the domestic Accordingly, there was sufficient evidence for the trial court to