2009-681, In the Matter of Robin Sawyer and Patrick Sawyer

Richard N. Foley

thrown to the floor[.] [H]e also threatened to drown [ ] me in the

Portsmouth Family Division (DeVries No. 2009-681 HICKS, J. The defendant, Patrick Sawyer, appeals an order of the

I was punched in my stomach and leg. Then I was choked and

the court to issue orders as noted below[,]” the plaintiff alleged: from abuse on the following facts that occurred on the following dates, and ask immediate danger of abuse by the defendant. I base my request for protection In response to the pre-printed statement on the petition form that “I am in 25, 2009, the plaintiff filed a domestic violence petition against the defendant. Portsmouth Family Division The relevant facts follow. The parties were married in 2007. On June

Law Office of John A.M. Hinsman III

Robin Sawyer. See RSA 173-B:5 (Supp. 2009). We affirm. (Cross, M.), granting a final domestic violence protective order to the plaintiff,

the brief), for the defendant.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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 At the ensuing hearing on the domestic violence petition, see

forward as scheduled. of concern sufficient for the Court to require that the hearing go conclusions about the accuracy of the representation, it is a cause

The court issued an ex (Emphasis omitted.) The plaintiff did not specify the dates of the alleged abuse. as “suicidal and homicidal.” Although the Court makes no her in the face, and punched her in the leg. stated that in May 2009, the defendant punched her in the stomach, punched was diagnosed as Suicidal [and] Homicidal.” to the ground, and then chased her upstairs and punched her. She further go for help. He had a stay in Elliot hospital in Manchester[.] He that on June 16, 2009, the defendant grabbed her by her throat and threw her The plaintiff testified, without objection, to the alleged abuse. She said

Defendant violated the Temporary Order and has been diagnosed Motion denied in light of the Plaintiff’s representation that the

medical attention as he has clinical depression. But he refuses to why can’t I look like I did when I was thirty. My husband needs my life. As for verbal abuse[,] it is normally you are homely ugly thrown me to the floor. On three occasions[,] he has threatened 2

motion, stating: plaintiff objected. On July 14, 2009, the trial court denied the defendant’s July 16 hearing and consolidate it with his petition for legal separation. The On July 6, 2009, the defendant filed a motion seeking to continue the hearing. Without explicitly ruling on this argument, the court continued with the On many occasions my husband has hit me[,] choked me and 286 (2001). Therefore, he contended, the final hearing should not “go forward.” Tosta v. Bullis, 156 N.H. 763, 767 (2008); Fillmore v. Fillmore, 147 N.H. 283, it did not plead with sufficient specificity when the alleged abuse occurred. See that the plaintiff’s petition was “legally insufficient as a matter of law” because allegations” in the plaintiff’s objection. The defendant’s attorney then argued The trial court denied his request, noting its concern “about the new his attorney. His attorney requested reconsideration of the motion to continue. B:3, VII (Supp. 2009), the defendant did not appear, but he was represented by

and scheduled a final hearing for July 16, 2009. me until I have passed out. . . . parte domestic violence temporary order of protection

bath tub. He has punched close fisted me in the face and choked credible threat to her safety. p. 3 the acts enumerated in RSA 173-B:1, I, and that this conduct constituted a allege sufficient facts to support a finding that the defendant committed one of Thus, to survive the defendant’s motion to dismiss, the plaintiff needed to credible threat to the plaintiff’s safety.” RSA 173-B:1, I (2002) (amended 2010). “by a family or household member . . . where such conduct constitutes a 3 certain enumerated acts, such as assault, criminal threatening or harassment, RSA chapter 173-B, means “the commission or attempted commission” of hearing is held. RSA 173-B:4, I (2002). “Abuse,” as that term is defined in immediate and present danger of abuse,” to protect a plaintiff until a final this petition, a trial court may enter a temporary order, “[u]pon a showing of an plaintiff or defendant resides, alleging abuse by the defendant.” Based upon pursuant to RSA 173-B:5 by filing a petition, in the county or district where the Pursuant to RSA 173-B:3, I (2002), “[a]ny person may seek relief

to immediate and effective police protection and judicial relief.” Walker v. the family unit for all family members by entitling victims of domestic violence violence. The purpose of this chapter “is to preserve and protect the safety of RSA chapter 173-B governs the protection of persons from domestic

favorable to” her. Tosta Walker alleged by the plaintiff and construe all reasonable inferences in the light most, 158 N.H. 602, 605 (2009) (quotation and ellipsis omitted). claim upon which relief may be granted, we assume the truth of the facts motion to dismiss. In considering “a motion to dismiss for failure to state a dismiss the plaintiff’s petition; thus, we will consider his motion as we would a With respect to the defendant’s first argument, he, in essence, moved to

relief, we will uphold the denial of a motion to dismiss. See I id. plaintiff are reasonably susceptible of a construction that would permit legal law.” Id. (quotation and brackets omitted). Where the facts alleged by the in a threshold inquiry that tests the facts in the petition against the applicable

and consolidate. process rights; and (3) the trial court erred by denying his motion to continue and failure to dismiss the petition prior to the final hearing violated his due the allegations; (2) the trial court’s issuance of the temporary protective order protective order and to hold a final hearing due to the absence of any dates in the petition were legally insufficient to support the issuance of the temporary appeal followed. On appeal, the defendant argues that: (1) the allegations in 173-B:5. The defendant’s motion for reconsideration was denied, and this On July 22, 2009, the trial court issued a final protective order. See RSA p. 4 In Tosta

Fillmore dismiss. sufficient allegations of fact to support a denial of the defendant’s motion to similar to Tosta in that the petition presented to the trial court contained had recently followed her while armed. See id. at 764, 767. This case is plaintiff alleged that the defendant had not only hit her “nine months ago,” but posed a credible and continuing threat to the plaintiff’s safety. Id. at 767. The were deficient, finding that they supported the conclusion that the defendant N.H. at 768. Indeed, we rejected the defendant’s argument that the pleadings protective order,” not that the pleadings themselves were deficient. Tosta, 156 support a finding that the defendant “was engaged in ‘abuse’ warranting a

, we held that there was insufficient evidence at the hearing to

justifying the issuance of a temporary protective order. defendant.” was, as she alleged, “in immediate danger of abuse by the defendant,” types of abuse and alleged that she was in “immediate danger of abuse by the allegations are also sufficient to allow a reasonable inference that the plaintiff counseling.” Id. at 284-85. In contrast here, the plaintiff described specific reasonably infer that the plaintiff was at risk of further abuse. These to contact her at reasonable times to discuss child visitation and marriage attention . . . [b]ut he refuses to go for help.” These statements permit one to of violence, and he had hit her “many years ago”; she asked that he “be allowed “[o]n three occasions” he had threatened her life and that he “needs medical her petition, she stated the defendant was in Canada, he did not have a history defendant had hit and choked her “[o]n many occasions.” She also alleged that present danger of abuse.” Fillmore, 147 N.H. at 285 (quotation omitted). In immediate danger of abuse by the defendant[,]” the plaintiff alleged that the did not allege sufficient facts for a finding that she was in “immediate and response to the pre-printed statement on the petition form providing “I am in trial court erred in issuing a temporary protective order because the petitioner that the defendant’s conduct posed a credible threat to the plaintiff’s safety. In and Tosta are readily distinguishable. In Fillmore, we held the We find the petition susceptible of a reading supporting the conclusion

the issuance of a temporary protective order. See RSA 173-B:4, I. determine whether the plaintiff was in immediate and present danger justifying distant in time. The defendant asserts that this requirement is necessary to threshold misconduct prompting the domestic violence petition was not too require the plaintiff to plead facts from which it could be found that the absence of any dates of the allegations.” He contends that Tosta and Fillmore that the petition “was legally insufficient as a matter of law for its complete enumerated in RSA 173-B:1, I; namely, assault. Nevertheless, he maintains The defendant does not dispute that the petition alleges one of the acts sufficient specificity to ensure that the defendant can prepare for trial. See p. 5 the State Constitution requires an indictment to describe the offense with cases to criminal cases in which we have articulated that Part I, Article 15 of Id to the United States Constitution. The defendant compares RSA chapter 173-B accomplished or other facts that are not essential to the elements of the crime.” Article 15 of the New Hampshire Constitution and the Fourteenth Amendment specific charges,” but it “need not specify the means by which the crime was specific dates of alleged abuse violated his due process rights under Part I, the elements of the offense and enough facts to notify the defendant of the order and the trial court’s failure to dismiss the petition because it lacked In criminal actions, we require that a complaint or indictment “contain The defendant next argues that the issuance of the temporary protective

be given to the defendant”). the pendency of the action and of the facts alleged against the defendant shall in the domestic violence context. See RSA 173-B:3, I (requiring that “[n]otice of date of crimes was not an element). No more is required of a pro se petitioner occurred over forty-four month period and did not give exact dates, because defendant’s motion to dismiss. denial of bill of particulars where indictment alleged sexual assault had defendant. Accordingly, we hold that the trial court did not err in denying the that the plaintiff was in “immediate and present danger” of abuse by the.; see State v. Dixon, 144 N.H. 273, 275-76 (1999) (upholding trial court’s withstand a motion to dismiss because they allowed a reasonable inference Here, we conclude that the plaintiff’s allegations were legally sufficient to

time-based defense. absence of any dates in the plaintiff’s petition prevented him from presenting a State v. Ericson, 159 N.H. 379, 384 (2009). The defendant contends that the

(quotation omitted)). might have said, or add language that the legislature did not see fit to include.” Nassar, 156 N.H. 769, 778 (2008) (“We will not consider what the legislature requirement into the relevant statutory scheme. See In the Matter of Nassar & at 605 (quotation omitted; emphasis added). We decline to read such a immediate and effective police protection and judicial relief.” Walker, 158 N.H. with the intent of RSA chapter 173-B, which is to entitle such victims “to he or she allegedly suffered abuse. Indeed, such a requirement would conflict seeking a temporary protective order to set forth the specific dates upon which domestic violence petition not be too distant in time, neither obliges a plaintiff While Tosta and Fillmore mandate that the misconduct prompting a it.” In the Matter of Conner & Conner p. 6 “The trial court has broad discretion in managing the proceedings before

shown that the denial of his motion to continue and consolidate prejudiced his [additional] allegations in her Objection” at the hearing. The defendant has not so. Regardless, the defendant concedes that the plaintiff “did not testify to the additional allegations contained in the plaintiff’s objection and he failed to do the opportunity to appear at the hearing to consult with counsel about the enable the defendant to prepare for the hearing. Further, the defendant had discussed above, the allegations in the petition are sufficiently specific to Here, the defendant has failed to carry his burden. First, as we 6

plaintiff’s objection to his motion. not have the ability to consult with his counsel regarding the allegations in the maintains that he was prejudiced by his absence at the hearing because he did to his defense, specifically, the dates of the alleged abuse. He further prejudice of his case.” State v. Larose prejudiced him by denying him the opportunity to obtain information necessary, 157 N.H. 28, 39 (2008). the defendant demonstrates that the decision was clearly unreasonable to the to continue and consolidate. He argues that the denial of his motion standard.” Id The defendant contends that the trial court erred by denying his motion. “We will disturb decisions about . . . motions to continue only if trial court’s rulings in this area under an unsustainable exercise of discretion

Even assuming, arguendo presented had he known the alleged dates prior to the hearing. indicate that he in fact had a time-based defense which he would have caused him actual prejudice. The defendant did not present any evidence to no showing as to how not knowing the specific dates prior to the hearing reconsideration in which he alleged a due process violation. However, he made dates of the alleged abuse. Thereafter, the defendant filed a motion for make such a showing. At the hearing, the plaintiff testified to the specific McIntire v. Woodall, 140 N.H. 228, 230 (1995). The defendant has failed to not prevail on his due process claim absent a showing of actual prejudice. did not adequately apprise him of the alleged abuse prior to the hearing, he will

sufficiently specific to ensure that the defendant could prepare for the hearing. attention . . . [b]ut he refuses to go for help.” These allegations were “[o]n three occasions” he had threatened her life and that he “needs medical “[o]n many occasions” as well as thrown her to the floor. She also alleged that abuse by the defendant,” and that the defendant had punched and choked her Here, the petition alleged that the plaintiff was “in immediate danger of p. 7 See

faith.

appeal is deemed by the court to have been frivolous or in bad attorneys’ fees related to an appeal to a prevailing party if the matter of right, the supreme court in its sole discretion may award In the interest of justice in extraordinary cases, but not as a

order in the case. with itemization is not filed within 30 days after the date on the Costs will be deemed waived if a request for taxation of costs

Affirmed

appendix, and cost of transcript.

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

plaintiff may file a request for taxation of costs as provided in Rule 23. plaintiff’s request for attorney’s fees. As the prevailing party, however, the the actual cost of reproducing and binding the brief and any of justice do not merit an award of attorney’s fees. Accordingly, we deny the reproducing and binding the notice of appeal and any appendix, that the defendant acted frivolously or in bad faith, and, therefore, the interests allowed to the prevailing party: the entry fee, the actual cost of sufficiency of the plaintiff’s petition. We find nothing in the record to indicate with the order made in the case. The following costs shall be hearing, he renewed his request for a continuance and contested the legal costs accruing in this court, and certify the costs to the trial court part, to obtain specific dates of the alleged abuse. At the start of the final The clerk of the supreme court shall audit and allow bills of early in the proceedings. Prior to the final hearing, he moved to continue, in The defendant contested the sufficiency of the domestic violence petition .

costs for this appeal. Supreme Court Rule 23 permits: The plaintiff requests that she be awarded reasonable attorney’s fees and LaMontagne Builders v. Brooks, 154 N.H. 252, 259 (2006).

discretion. case. Accordingly, the trial court’s denial was not an unsustainable exercise of